Duran (a pseudonym) v The King - [2023] VSCA 314

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0122

OMAR DURAN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in the place of the name of the applicant so as not to prejudice the proper administration of justice.

---

JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2023
DATE OF JUDGMENT:	12 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 314
JUDGMENT APPEALED FROM:	[2023] VCC 968 (Judge Cannon)

---

CRIMINAL LAW – Interlocutory appeal – Police search of vehicle without warrant – Drug of dependence – Cocaine – Whether search of vehicle lawful – Whether open to judge to conclude that police had reasonable grounds to suspect that drugs in vehicle – Whether judge applied wrong test – No substance in applicant’s proposed grounds of appeal – Application for leave to appeal refused.

Drugs, Poisons and Controlled Substances Act 1981, s 82; Evidence Act 2008, s 138.

---

Counsel
Applicant:		Mr T Kassimatis KC with Mr PF Bloeman
Respondent:		Ms A Moran
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

The applicant is facing trial in the County Court on a single charge of trafficking in a commercial quantity of a drug of dependence, contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Drugs Act’). The prosecution case relies entirely upon evidence obtained by police during a search of the applicant’s motor vehicle. The search was conducted without a warrant pursuant to s 82 of the Drugs Act, on the basis that a police officer had reasonable grounds for suspecting that there were drugs of dependence in the vehicle.
Before the commencement of his trial, the applicant applied to have the evidence of the search excluded pursuant to s 138 of the Evidence Act 2008 on the basis that police did not have reasonable grounds for suspecting that his vehicle contained a drug of dependence. The primary judge refused the application,[2] but certified under s 295(3)(a) of the Criminal Procedure Act 2009 that her decision concerned the admissibility of evidence, that if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
[2]DPP v [Duran] [2023] VCC 968 (‘Ruling’).
Pursuant to s 295(2) of the Criminal Procedure Act, the applicant seeks leave to appeal against the primary judge’s decision on the following proposed grounds:
1.The judge erred by misdirecting herself on the statutory threshold necessary to render lawful a search under s 82 of [the Drugs Act].
2.The judge erred by holding that the evidence obtained by police in the search of the applicant’s car was admissible, in circumstances where that holding was not adequately supported by the evidence, and not reasonably open.[3]
[3]These were the grounds as reformulated in the applicant’s summary of contentions in this Court, rather than the grounds as formulated in his application for leave to appeal, which he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Duran (a pseudonym) v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSCA 314
Decision Date: 12 December 2023

CaseChat Overview and Summary

Duran, a pseudonym for the appellant, lodged an interlocutory appeal against a decision of the Supreme Court of Victoria which denied his application to exclude evidence obtained during a police search of his vehicle. The search led to the discovery of cocaine, a drug of dependence. The court was tasked with determining the legality of the search conducted without a warrant and whether the judge correctly applied the test for determining if the police had reasonable grounds to suspect the presence of drugs in the vehicle.

The legal issues central to this case revolved around the validity of a warrantless search under the Drugs, Poisons and Controlled Substances Act 1981 and the Evidence Act 2008. Specifically, the court had to consider whether the search was lawful and if the judge correctly assessed whether the police had reasonable grounds to suspect the presence of drugs. Additionally, the court examined whether the judge applied the appropriate legal test when making these determinations.

The court concluded that there was no merit in the appellant's grounds of appeal. It held that the police had reasonable grounds to suspect the presence of drugs in the vehicle, which justified the warrantless search. The court further determined that the judge applied the correct legal test and reached the correct conclusion. As a result, the court dismissed the appeal and denied leave to appeal. The orders of the Supreme Court of Victoria were therefore upheld.

Orders