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NQ judge rules police drugs search unlawful

A large quantity of drugs found in the possession of a North Queensland teenager has been excluded as evidence at his trial after a judge ruled the police search of the teen was unlawful.

Cairns Supreme Court Justice Jim Henry, in a decision published on Wednesday, ruled that evidence relating to 19-year-old Ryan Connor Paull’s possession of unlawful items and what he said about them to police on 2 July 2020 be excluded from evidence at this trial.

During a three-day pre-trial hearing ending on 15 October, Paull’s Legal Aid Queensland lawyers argued that the police search of their client was unlawful.

Justice Henry, in his eight-page ruling, said: “At 1.50am on 2 July 2020, (Paull) was walking in the Cairns CBD when the police detained him and required him to produce identification and then submit to being searched.

“(Paull) was found to be in possession of a pipe, a small quantity of cannabis and 26.812 grams gross (18.92 grams pure) of MDMA which he said was for personal use.

“He was charged with each of those unlawful possessions. The ensuing indictment charged him with one count of possession of MDMA with a circumstance of aggravation and one count of possession of cannabis simpliciter.

“(Paull) makes application for the exclusion from evidence at his trial of his possession of the unlawful items and what he said of them. The ground for the application is that the stopping, detaining and searching of (Paull) was unlawful and, in consequence, the fruits of the search and what (he) said of them was unlawfully obtained.”

Justice Henry noted that, in cases such as Paull’s, the trial judge must engage in a balancing process to resolve “the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”.

“The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes,” he said. “In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of ‘high public policy’ relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.”

The prosecution told the court that police simply approached Paull and engaged in a consensual citizen-to-citizen exchange, during which Paull’s behaviour then triggered a reasonable suspicion justifying his detention and search.

Justice Henry found the police had no power to stop Paull in the circumstances of this case, but added that maintaining a visible police presence was a “notoriously successful policing strategy”.

“It is important that none of what follows in these reasons should be understood as in any way indicating there is a problem with police maintaining an active presence out on the beat at all hours of the day,” Justice Henry said.

“A visible presence in the community is a notoriously successful policing strategy. It is often enough observed in studies of criminal law that the chance of being caught is a vastly more effective deterrent than the possibility of draconian punishment.

“There is, however, an obvious difference between a proactively visible police presence and an excess of police power. It is offensive to the expectations of the community generally, in what is not a dictatorship but a democracy, that they may be compelled to stop, produce identification and submit to a search by police other than in circumstances by which police are properly empowered to do so.

“Conjuring up spurious bases to interfere with the liberty of a citizen such as that they are walking fast in the CBD late at night is conduct singularly undeserving of curial approval.

“My order is, the evidence of the applicant’s possession of unlawful items and what he said of them at about 1.50 am when dealt with by the police on 2 July 2020 is excluded from evidence at his trial.”

Read the decision.

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