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R v Benko[2022] QDCPR 28

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Benko [2022] QDCPR 28

PARTIES:

The Queen

v

John Ray BENKO

(Applicant)

FILE NO/S:

BD 2045/2018

DIVISION:

PROCEEDING:

Criminal

Application under s 590AA of the Criminal Code

DELIVERED ON:

13 April 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2022

JUDGE:

Allen QC DCJ

ORDERS:

The application for the exclusion of evidence obtained by the execution of the search warrant on 20 July 2017 is granted and that evidence is excluded in any trial upon the indictment.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH WARRANTS – GENERALLY, ISSUE AND VALIDITY – where the defendant is charged with producing dangerous drugs –  where the defendant applies pursuant to s 590AA of the Criminal Code for exclusion of evidence obtained by execution of a search warrant – whether reasonable grounds for suspecting that evidence of the offence named in the warrant would be found at the nominated premises as at the date of the application for the warrant

LEGISLATION:

Criminal Code 1899 (Qld), s 590AA

Police Powers and Responsibilities Act 2000 (Qld), s 150, s 151

CASES:

Crowley v Murphy (1981) 52 FLR 12

Dobbs v Ward [2003] 1 Qd R 158

George v Rockett (1990) 170 CLR 104

R v Aloia [2022] QSCPR 1

R v Tillett; Ex parte Newton (1969) 14 FLR 101

APPEARANCES:

The defendant appeared on his own behalf

E J Coker, Office of the Director of Public Prosecutions (Qld), for the respondent

  1. [1]
    The defendant applies, pursuant to section 590AA of the Criminal Code 1899 (Qld) (Criminal Code), for a ruling that evidence obtained by way of a search of his property on 20 July 2017, being real evidence and evidence of admissions, was obtained unlawfully. 
  2. [2]
    The prosecution seeks to rely upon such evidence in proof of the count on the indictment before the Court that charges the defendant with production of the dangerous drug cannabis from 31 August 2016 to 20 July 2017.
  3. [3]
    The fundamental issue to be determined is whether, in conducting the search on 20 July 2017, the investigating police acted pursuant to the authority of a valid search warrant.  That question ultimately is to be determined by a decision as to whether or not the Justice of the Peace who issued the search warrant had reasonable grounds for suspecting the evidence mentioned in the application for the search warrant was likely to be at the place the subject of the search warrant. 
  4. [4]
    Section 150 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) relevantly provides as follows:

150 Search warrant application

(1) A police officer may apply for a warrant to enter and search a place (a search warrant)—

(a) to obtain evidence of the commission of an offence

(5) An application under this section must—

(a) be sworn and state the grounds on which the warrant is sought

  1. (7)
    The justice, magistrate or judge (the issuer) may refuse to consider the application until the police officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.
  1. [5]
    Section 151 of the PPRA relevantly provides as follows:

151 Issue of search warrant

The issuer may issue a search warrant only if satisfied

(a) there are reasonable grounds for suspecting the evidence … mentioned in section 150(1)(a) … is

(i) at the place; or

(ii)likely to be taken to the place within the next 72 hours…

  1. [6]
    The application for the search warrant was made by Plain Clothes Constable Jocelyn Storey. Plain Clothes Senior Constable Storey has sworn an affidavit.  She deposes that on 26 June 2017 she was assigned to investigate an occurrence reported to police on 25 May 2017 relating to the theft of a generator from a property at Eight Mile Plains.  She deposes that a review of that occurrence outlined a person of interest, Ross Benko, and a vehicle of interest, a gold Suzuki, Queensland registration number 647-WZG.  She conducted checks on police computer system QPRIME in relation to the nominated person of interest and ascertained his full name as Mynon Ross Benko, his date of birth, and his address at 143 Sanctuary Drive, Heathwood.  Further checks ascertained that he was the registered owner of a 2002 Suzuki Grand Vitara, Queensland registration number 647-WZG.  Further QPRIME inquiries revealed that Mynon Benko resided with his brother, the defendant, at 143 Sanctuary Drive, Heathwood. During the course of her inquiries on the QPRIME system, Constable Storey observed a Crime Stopper file submitted on 21 April 2017. 
  2. [7]
    As a result of her inquiries, on 19 July 2017 Constable Storey made an application for a search warrant before a Justice of the Peace.  The application for a search warrant, pursuant to section 150 of the PPRA, gave a description of the property at 143 Sanctuary Drive, Heathwood and named the occupier as “Mynon Ross Benko”.  Details of the suspected offences were stated as: 

Drugs Misuse Act 1986

Section 8 – Producing Dangerous Drugs 

That on the 19th day of July 2017 at Heathwood in the State of Queensland one Mynon Ross BENKO unlawfully produced a dangerous drug namely cannabis 

Criminal Code

Section 398 – Stealing

That on the 25th day of May 2017 at Eight Mile Plains in the State of Queensland, one Mynon Ross BENKO stole a 2KVA Renegade generator the property of Byron MALLEE. 

  1. [8]
    The description of things sought pursuant to the search warrant was as follows:

2KVA Renegade generator.

Combination lock bicycle chain.

Dangerous drugs namely cannabis.

Drug paraphernalia and items that relate to the equipment, and apparatus used in prodution (sic) of the dangerous drug under the Drug Misuse Act 1986. 

  1. [9]
    Under the subheading “Grounds” the application is stated as follows:

Stolen Property Offence;

  1. Between the times of 12.30 pm and 2.30 pm on the 25th day of May, 2017, at 19 Lilywood Street, Eight Mile Plains the victim left the dwelling un attended, upon return has noted that his 2KVA Renegade generator valued at $885 has been stolen.  The generator was secured by a bicycle chain to a shed located between the main dwelling.
  2. Approximately one week prior on the 15th day of May, 2017, to the generator being stolen the victim found a male on his property near the location of the generator.  The male was driving a beige in colour Suzuki Grand Vitara Queensland registration 647WZG.  The victim confronted the male, who supplied the name of Ross BENKO.  BENKO a short time after being confronted by the victim the male has decamped the location in the vehicle.
  3. I have contacted the informant and victim in this matter, Byron MALLEE on the 15th day of July, 2017, who has confirmed the occurrence details and item stolen. 
  4. I conducted checks on police computer system QPRIME.  Theses (sic) checks have shown ‘Ross BENKO’ also known by the name of Mynon Ross BENKO 14/03/1954, resides at 143 Sanctuary Drive, Heathwood.  The subject person is currently licensed and has a beige-in-colour Suzuki Grand Vitara Queensland registration 647WZG registered to his name.

Dangerous Drug Production;

  1. Queensland Police Service has received a Crime Stopper file in relation to suspicious drug activity occurring at 143 Sanctuary Drive, Heathwood.
  2. The informant stated that the two occupants of the dwelling, Mynon Ross BENKO 14/03/1954 and his brother John Ray BENKO 01/10/1952 are cultivating cannabis plants behind the shed situated at the front of the property.  The informant states that there are approximately 10 mature plants that are being cultivated in pots.  The informant further states that there is paraphernalia at different locations around the property being the shed and the residential dwelling.
  3. Reliable information from external sources indicates that the subject person is Mynon Ross BENKO 14/03/1954 who resides with his brother John Ray BENKO 01/10/1952 at 143 Sanctuary Drive, Heathwood, which is a historical family home. 
  4. The subject person is a Caucasian male, 170cm tall, proportionate build, with greying hair and brown eyes.
  5. The subject has been previously charged with drug offences, the most recent being dated in 2014 and 2013, Possess Dangerous Drugs and Produce Dangerous Drugs (34 x Cannabis plants) 2013. Produce Dangerous Drugs (43 x Cannabis plants and remnants of a Meth lab), Possess Dangerous Drug, Possessing Relevant Substance or Things, Permitting Use of Place 2014.  These charges resulted from a search warrant being executed at the address of 143 Sanctuary Drive, Heathwood.
  6. On the 16th day of July, 2017 I have conducted a drive by and sighted multiple vehicles on the property, as well as a greenhouse type structure toward the back of the shed.
  7. Checks conducted utilising the police computer based systems QPRIME and police intelligence checks that the latest known address for the nominated subject person is at the address subject to this search.  I believe the execution of a search warrant will locate evidence related to an indictable offence. 
  1. [10]
    The Justice of the Peace issued a search warrant on 19 July 2017.  It included the following:

I, a Justice, after hearing a sworn application by Plain Clothes Constable Jocelyn STOREY am satisfied there are reasonable grounds for suspecting warrant evidence or property is at the below mentioned place.

Details of place: 143 Sanctuary Drive, Heathwood

  1. [11]
    After detailing the powers that could be exercised pursuant to the warrant, it was stated:

This search warrant is issued in relation to –

an offencebrief particulars of the offence for what the warrant is issued.

Drugs Misuse Act 1986

Section 8 – Producing Dangerous Drugs.

That on the 19th day of July 2017 at Heathwood in the state of Queensland one Mynon Ross BENKO unlawfully produced a dangerous drug, namely cannabis

Criminal Code

Section 398 – Stealing

That on the 25th day of May 2017 at Eight Mile Plains in the state of Queensland one Mynon Ross BENKO stole a 2KVA Renegade generator the property of Byron MALLEE

Details of warrant evidence or property that may be seized under this search warrant:

2KVA Renegade generator.

Combination lock bicycle chain.

Dangerous drugs, namely cannabis.

Drug paraphernalia and items that relate to the equipment, an apparatus used in production of the dangerous drug under the Drug Misuse Act 1986.

  1. [12]
    The search warrant was executed by police at 143 Sanctuary Drive, Heathwood on 20 July 2017.  At the time of the search both Mynon Benko and the defendant were present.  They were informed why police were present, advised of their rights and cautioned.  When advised that the search warrant also related to drug-related activity involving cannabis, it is alleged that the defendant revealed items of property to police, including quantities of cannabis, a home-made waterpipe and cannabis seeds.  It is further alleged that he made admissions which the prosecution would rely upon in proof of the offence of producing a dangerous drug.
  2. [13]
    The question for the Court is whether the information that was placed before the Justice of the Peace in the application for a search warrant was such that the Justice of the Peace could have been satisfied that there were reasonable grounds for suspecting the evidence or property mentioned in the search warrant was at the place the subject of the search warrant.
  3. [14]
    Suspicion is not as high a requirement as belief, but the need for a reasonable suspicion introduces the need for some factual basis to reasonably ground the suspicion.[1]
  4. [15]
    The defendant has made submissions why there was no reasonable grounds for suspecting that there would be evidence of the offence of theft of the generator justifying a search warrant regarding same.  Although minds might differ as to whether or not one would form a reasonable suspicion based upon the information regarding the offence of theft placed before the Justice of the Peace, I conclude that, having regard to the information that was put before the Justice of the Peace, it was open to him or her to reach the requisite state of satisfaction of a reasonable suspicion. 
  5. [16]
    That is in no way determinative of the application made by the defendant.  The prosecution, quite reasonably, does not seek to argue that if the search warrant is valid insofar as it relates to the alleged offence of theft of the generator, that of itself determines the legality of the search which produced evidence of drug offences, including alleged admissions of the offence of production of a dangerous drug.  That concession is made in light of the fact that the defendant was confronted with a warrant which further related to the alleged offence of production of a dangerous drug and, in light of that, made the admissions and disclosures referred to earlier in these reasons.  The prosecution does not suggest that that would necessarily have occurred if the search warrant related only to the alleged theft of a generator and quite reasonably concedes that, if that had been the case, such evidence may not have been obtained pursuant to such a warrant. 
  6. [17]
    So it remains to be determined whether or not the warrant was valid insofar as it related to the alleged offence of production of a dangerous drug, that is, whether the information placed before the Justice of the Peace regarding that alleged offence was such that it was open to him or her to reach the requisite state of satisfaction of a reasonable suspicion, as required by section 151 of the PPRA. 
  7. [18]
    The prosecution accurately submits that the information placed before the Justice of the Peace was more than a bare allegation of an offence.  The information placed before the Justice of the Peace concerning Mynon Benko having previously been charged with drug offences, including production of dangerous drugs in 2013 and 2014, tended to provide some support to the information placed before the Justice of the Peace regarding the Crime Stopper report.  Some small support was also available from the observations of Constable Storey of a greenhouse-type structure on the property, although the prosecution quite sensibly does not seek to place too much reliance on that. 
  8. [19]
    The prosecution quite rightly contends that the strength of the material placed before the Justice of the Peace is the contents of the police intelligence derived from the Crime Stopper report.  Obviously, police intelligence information may found a reasonable suspicion of prescribed circumstances, but the force it will have to do so will depend upon the individual circumstances of each case.[2] It is significant that the information placed before the Justice of the Peace regarding the police intelligence by way of a Crime Stopper report did not include any information as to the date of such report. Although the contents of such report, as related in paragraph 6 of the grounds in the application, appeared to be a report of the cultivation of cannabis plants occurring at the time of the report – “The informant states that there are approximately 10 mature plants that have been cultivated in pots” – the Justice of the Peace was given no information as to the time the report was made and, thus, the time at which the information suggested that the plants were being cultivated. Furthermore, the terms of such report were in relation to “mature plants”.  That may have been a consideration which, if the Justice of the Peace had been informed the report was some three months old, may have caused consideration as to whether, given that passage of time, one might still reasonably suspect that there would be evidence of production of a dangerous drug, but the information in fact placed before the Justice of the Peace did not even permit that process of reasoning.  For all the Justice of the Peace may have known, such report may have been made some many months, if not even years, prior to the application for the search warrant. 
  9. [20]
    Section 150(1) of the PPRA confers upon a Justice of the Peace “a grave and extraordinary power which can and should be exercised only if and when the requirements for its exercise as set out in that section are clearly fulfilled.  The reason, of course, is that this statutory right to search is a derogation from common law rights which protect the subject’s home and property from intrusion by anyone.”[3]  With reference to a cognate provision, Lockhart J in Crowley v Murphy[4] stated that: 

[T]he justice must remember that he is exercising wide powers ex parte, and must take into account the rights of the citizen who is not before him in a proceeding that cuts across the ancient principle that a person’s home is inviolable.  It is a power to be exercised with great care and circumspection.  The warrant is not to be lightly granted. 

  1. [21]
    In all the circumstances, I am not satisfied that it was open to the Justice of the Peace to reach the requisite state of satisfaction of a reasonable suspicion that a search would reveal evidence of the offence of production of a dangerous drug.  The requisite reasonable suspicion not being held, the search insofar as it related to the offence of production of a dangerous drug, was unlawful.  The evidence of the finding of drugs and utensils and of the defendant’s consequential admissions was unlawfully obtained.  The prosecution does not seek to argue that, if such a finding is made, this would be an appropriate case to, nevertheless, admit the evidence on public policy grounds.  That, in all the circumstances, is a concession fairly made. 
  2. [22]
    The application by the defendant for the exclusion of evidence obtained by the execution of the search warrant on 20 July 2017 is granted and that evidence is excluded in any trial upon the indictment.

Footnotes

[1] R v Aloia [2022] QSCPR 1 at [11] per Henry J, citing George v Rockett (1990) 170 CLR 104; see also Dobbs v Ward [2003] 1 Qd R 158 at 163, [19]-[22] per Holmes J.

[2] R v Aloia [2022] QSCPR 1 at [25] per Henry J.

[3] R v Tillett; Ex parte Newton (1969) 14 FLR 101, with reference to a cognate provision.

[4] (1981) 52 FLR 123 at 144.

Close

Editorial Notes

  • Published Case Name:

    R v Benko

  • Shortened Case Name:

    R v Benko

  • MNC:

    [2022] QDCPR 28

  • Court:

    QDCPR

  • Judge(s):

    Allen QC DCJ

  • Date:

    13 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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