Emery v The Queen

Case [2021] SASCA 62

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

EMERY v THE QUEEN

[2021] SASCA 62

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

17 June 2021

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

Appeal against conviction.

The appellant was convicted following a trial by Judge alone of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984. The offending related to a search of the appellant’s vehicle in May 2019, during which a total of 1.95 kilograms of methylamphetamine was located.

Prior to the trial, the appellant made an application pursuant to r 49(1)(h) of the District Court Criminal Rules 2014, seeking to exclude evidence of the search and evidence of an inculpatory statement made by the appellant. The statement was made while the appellant was being searched by police at the commencement of his record of interview. Following a hearing, the Judge dismissed the application.

The appellant appeals against his conviction on two grounds. First, it was contended that the Judge erred in finding that the search of the vehicle was lawful, in circumstances where police could not have held a ‘reasonable suspicion’ pursuant to s 52(9) of the Controlled Substances Act 1984. Second, it was argued that the record of interview was obtained in circumstances where the police, as a result of pausing to complete a safety search of the appellant, failed to comply with the obligation to provide the appellant with all of his arrest rights as soon as reasonably practicable. In respect of both grounds, it was further argued that the unlawfully obtained evidence ought to be excluded in the exercise of the Judge’s discretion.

Held (by the Court), granting permission to appeal on both grounds and dismissing the appeal in respect of both grounds:

1. It was open to the Judge to conclude that the information held by the police officer on the date of the search was a sufficient basis to form the requisite suspicion required under s 52(9) of the Controlled Substances Act 1984. There was nothing unlawful about the search.

2. The delay in advising the appellant of his rights under s 79A(3) of the Summary Offences Act 1953 was minimal and the police should not be criticised for giving priority to the safety check.

3.      No error has been demonstrated in the Judge’s decision not to exclude the evidence of the search and the record of interview.

Controlled Substances Act 1984 (SA) s 32(1), s 52(9); Summary Offences Act 1953 (SA) s 79A; District Court Criminal Rules 2014 (SA) r 49(1)(h), referred to.

R v Nguyen (2013) 117 SASR 432, applied.

R v Dam and Nguyen (2015) 123 SASR 511; R v Nguyen (2015)…

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Emery v The Queen [2021] SASCA 62
Case
[2021] SASCA 62
Decision Date

CaseChat Overview and Summary

The case of *Emery v The Queen* concerned an appeal to the Court of Appeal of South Australia. The appellant, Emery, was appealing a District Court decision that admitted evidence obtained from a search of his vehicle and a subsequent record of interview. The evidence in question related to drug trafficking offences, specifically the possession of a significant quantity of methylamphetamine.

The primary legal issues before the Court of Appeal were whether the search of the appellant's vehicle was lawful under section 52 of the *Controlled Substances Act 1984* (SA), and whether the appellant's rights under section 79A(3) of the *Summary Offences Act 1953* (SA) were adequately afforded to him during the process of his arrest and interview. The court was also required to consider whether, even if the search or the interview process had some irregularity, the evidence should have been excluded in the exercise of judicial discretion due to unfairness or improper obtaining.

The Court of Appeal held that the police officer possessed sufficient information to form the requisite suspicion for the search under section 52 of the *Controlled Substances Act*, rendering the search lawful. Regarding the interview, the court found that any delay in advising the appellant of his full rights under section 79A(3) of the *Summary Offences Act* was minimal and justifiable given the priority placed on a safety check. The court concluded that no error had been demonstrated in the trial judge's decision not to exclude the evidence from the search and the record of interview, noting the strong public interest in prosecuting serious drug offending and the absence of reckless or malicious conduct by the police.

Permission to appeal was granted on both grounds, but the appeal itself was dismissed. The Court of Appeal upheld the trial judge's decision to admit the evidence.

Orders

Orders of the court

Held (by the Court), granting permission to appeal on both grounds and dismissing the appeal in respect of both grounds:

1. It was open to the Judge to conclude that the information held by the police officer on the date of the search was a sufficient basis to form the requisite suspicion required under s 52(9) of the Controlled Substances Act 1984. There was nothing unlawful about the search.

2. The delay in advising the appellant of his rights under s 79A(3) of the Summary Offences Act 1953 was minimal and the police should not be criticised for giving priority to the safety check.

3. No error has been demonstrated in the Judge’s decision not to exclude the evidence of the search and the record of interview.

Background

Background to the litigation

On 6 April 2021, the application for permission to appeal was referred to the Court of Appeal.Background Before turning to the appeal grounds, it is necessary to set out the undisputed circumstances of the search and the record of interview conducted with the appellant.The search By virtue of an ongoing police operation, the appellant was a person of interest in relation to the supply of methylamphetamine into Whyalla. On 21 May 2019, police became aware that the appellant had travelled to Adelaide from Whyalla in a blue Ford XR6, which was registered in the appellant’s name. He drove to various addresses while under police surveillance, before being stopped by a uniformed police officer, Senior Constable Schaeffer (‘SC Schaeffer’), at about 6:15pm. At the time that he was stopped, the appellant was travelling on Port Wakefield Road, Bolivar, in the direction of Whyalla. Detective Brevet Sergeant Glasson (‘DBS Glasson’) and Detective Brevet Roberts attended the carpark of the ‘On the Run’ Service Station on Port Wakefield Road, Bolivar and conducted a search of the appellant’s vehicle pursuant to s 52 of the Controlled Substances Act. Two large clear plastic bags were located, concealed in the upper lining of the boot of the vehicle. Those bags contained 14 smaller bags, each containing approximately 139 grams of methylamphetamine. In total, police located 1.946 kilograms of mixed weight material, 1.554 kilograms of which was methylamphetamine at a purity of approximately 80 per cent. Other items indicative of drug trafficking, including four mobile phones, cash in the amount of $2,150 and numerous plastic resealable bags, were located in the vehicle and at the appellant’s home address, which was later searched.Record of interview The appellant was arrested at about 6:52pm at the service station by DBS Metschke. DBS Metschke, in company with another detective, DBS Webber, commenced a record of interview with the appellant. The interview commenced with the appellant being cautioned and given some of his arrest rights, including the right to refuse to answer questions. The giving of the appellant’s rights was interrupted by a safety search of the appellant’s person. While being searched, the following exchange took place: [DBS METSCHKE]: You got nothing sharp on you?[APPELLANT]: No mate.[APPELLANT]: I don’t suppose a personal defence is going to fly on this one? [DBS METSCHKE]: What was that? [DBS METSCHKE]: I’m happy to have a chat about it after. [APPELLANT]: Yeah alright. [DBS METSCHKE]: But we’ll do your rights and that sort of thing in the car first, alright. [APPELLANT]: Okay mate yeah. I’ve got nothing on me, no seriously. Once the search was completed, the appellant was given the remainder of his arrest rights. He indicated that he wished to contact a duty solicitor and, after receiving legal advice, declined to answer questions. The interview was terminated. The Rule 49 application Prior to the trial, the appellant made an application pursuant to r 49(1)(h) of the District Court Criminal Rules 2014, seeking to exclude all evidence/items seized by police on 21 May 2019, on the ground that the search and seizure was unlawful.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

If we are wrong about that, in our view, in the absence of any reckless or malicious conduct on the part of the police officers, and in view of the minimal delay and the circumstances in which the comment was volunteered (as opposed to solicited by police), we uphold the Judge’s decision not to exclude the interview in the exercise of her discretion. This is even more so in light of the strong public interest in the prosecution of such serious offending. Conclusion For the reasons given above, we grant permission to appeal on both grounds but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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