Your Honour, my name is Donna Hamid. I appear on behalf of Mr Lewis Tucker who has been charged with trafficking in heroin and possession of more than two grams of heroin pursuant to sections 5 and 9, respectively, of the Drugs Misuse Act 1986 (Queensland).
I request a pre-trial ruling pursuant to s 590AA(2)(e) of the Criminal Code 1899 (Queensland) for the exclusion of evidence obtained in execution of the search warrant related to Unit B52 at the XYZ Storage Facility on 5 July 2023.
The High Court in the McKinnon case gave us the basic rule regarding admissibility which is that everything relevant is admissible unless it is excluded by another rule. I therefore submit that the evidence, although they may be relevant, are displaced by the Christie and Ireland Discretions.
THE CHRISTIE DISCRETION
S 130 of Criminal Code grants the court in a criminal proceeding the power to exclude evidence if they are satisfied that it would be unfair to the person charged to admit that evidence.
Therefore, even if the Trainspotting DVDs and its merchandise were deemed admissible evidence, the court is unlikely to admit it pursuant to the Christie discretion.
First of all, this evidence would be insubstantial as it is weak evidence of any of the facts in issue.
Furthermore, the DVD and merchandise would create a risk of the jury being prejudiced in a disproportionate magnitude to the rational value of the evidence.
Enjoying a movie does not mean that someone condones, supports, or engages in the behaviours portrayed in that movie.
However, the jury may think that this evidence is more relevant than it really is and that it signifies that the accused is more likely to have committed the alleged crime.
The court should find this evidence so deficient in probative value that it would damage the prospects of the trial being a fair one.
THE IRELAND DISCRETION
In accordance with the Ireland Discretion, the court may reject evidence in a proceeding if it was obtained illegally or by some means that the law should not allow it.
The application of this discretion is important in preventing an abuse of process in the judicial branch.
As per s 158 ss 1 of Queensland's Police Powers and Responsibilities Act 2000, the PPRA, if a police officer executes a search warrant for an occupied space, they must give the occupier a copy of the warrant and a statement summarising the person's rights and obligations under the warrant or leave a copy in a conspicuous place if the occupier is not present.
The facts shows that the police did not give Mr Tucker a copy of the warrant or the required documentation.
They also failed to leave a copy of these. S 158 ss 2 allows an officer to delay giving such notices if the officer has reasonable suspicion that the person may hinder the investigation in which case an officer must remain in the vicinity to keep the place under observation.
However, this was not the situation in this case.
Although by fleeing the scene and driving dangerously the officers may have had reasonable suspicion that Mr Tucker may hinder the investigation, they did not remain to observe the place as is required.
Evidence retrieved in the search of the property, namely, the 110 grams of heroin found in the internal wall, was therefore not obtained in accordance with the law.
In the case of Ireland, the court allowed all disputed evidence to be excluded without the need to show that the method of obtaining the evidence reduced its weight.
As was stated in Bunning's, it is society's right to insist that those who enforce the law themselves respect it.
The court in the case of the Crown and Day therefore applied this discretion in similar circumstances where property was searched without a warrant.
The court ruled that evidence obtained against the applicants in the subsequent search was excluded.
This was to protect the individual from unfair treatment which is important to public interest as to do otherwise would encourage those officers to abuse the law when it is their role to uphold it.
The conduct of the officers in not leaving a copy of the warrant and other required documents was a deliberate breach of law.
I believe that they did so due to the fact that the information on the warrant was incorrect.
Although the warrant was issued on the 3 July 2023, it referred to offences that allegedly occurred on the 4 July 2023.
The grounds on which the warrant was issued were therefore incorrect.
As the evidence is not of a perishable nature, it should not be considered.
It would have been very simple for those officers to follow s 158 of the PPRA by simply leaving the documents where Mr Tucker could clearly see it.
It was therefore not an emergency situation and the officers therefore displayed reckless disregard for the law and proper procedures.
As per s 5 of the PPRA, one of the purposes of the Act is to ensure fairness to and protect the rights of persons against whom police officers exercise powers.
The Act was meant to prevent the very conduct exercised by the officers in executing the warrant.
The evidence therefore must be excluded.
SUMMARY
In summary, your Honour, I submit that the Trainspotting DVDs and merchandise be excluded in accordance with the Christie discretion as allowing them will prejudice the jury in a disproportionate way against Mr Tucker.
I also submit that Detective Sergeant Anderson and his officers executed the search warrant in a manner inconsistent with the PPRA.
The evidence which was subsequently obtained must therefore be excluded in accordance with the Ireland discretion.
