Ghamrawi v The Queen - [2019] SASCFC 108

Supreme Court of South Australia
(Court of Criminal Appeal)
GHAMRAWI v THE QUEEN
[2019] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Auxiliary Justice David)
6 September 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Appeal against conviction.
On 17 July 2017, three police officers attended premises at Seacliff Park following a complaint of a domestic disturbance. The appellant was standing next to a taxi parked on the premises and was subsequently detained, searched and arrested by the police officers. Methylamphetamine was found in the appellant’s possession. The appellant was charged with and convicted of trafficking after a trial before a judge sitting alone. The appellant appealed against his conviction, contending that he had been subjected to an unlawful search.
The appellant submitted that he had been unlawfully detained by the police officers when one of the police vehicles was parked across the driveway preventing him from leaving. He also contended that other conduct of the police officers, including directions that the appellant exit the vehicle and provide his particulars, was also unlawful. The appellant contends that the evidence of the drugs was unlawfully obtained and should have been excluded by the Judge in the exercise of his discretion.
Held, per David AJ (Kourakis CJ and Nicholson J agreeing), dismissing the appeal:
1. In all the circumstances, including the seriousness of the offending and the short and technical nature of any illegality, the Judge was correct to exercise his discretion not to exclude the evidence.
Controlled Substances Act 1984 (SA) ss 52(6), 32(3); Summary Offences Act 1953 (SA) ss 68, 74A, referred to.
Bunning v Cross (1978) 141 CLR 54, applied.

GHAMRAWI v THE QUEEN
[2019] SASCFC 108
Court of Criminal Appeal: Kourakis CJ, Nicholson and David AJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by David AJ.
I wish to emphasise that the statutory provisions set out in the judgment of David AJ embody the Parliament’s, and therefore the community’s, resolution of the proper balance between individual liberty and privacy and the enforcement of the criminal law. Police officers should be guided by a good working knowledge of those powers and their limits. They should not act on their subjective view of what they ought to be free to do and then hope, after the event, that they have observed the limits of the law.
In this case, however, the balance of the competing considerations weighs strongly against excluding the evidence of what was discovered by this unlawful search.
NICHOLSON J: I would dismiss the appeal for the reasons given by David AJ. I agree with the…

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.

Continue reading Ghamrawi v The Queen

Details

AGLC: Ghamrawi v The Queen [2019] SASCFC 108
Case: [2019] SASCFC 108
Decision Date: 6 September 2019

CaseChat Overview and Summary

The appellant, Ghamrawi, appealed to the Supreme Court of South Australia against his conviction for a drug offence. The central issue on appeal was whether the trial judge erred in admitting evidence that the appellant contended was unlawfully obtained. The evidence in question, methylamphetamine found in plastic bags, was discovered after police responded to a domestic disturbance call and detained the appellant.

The legal issues before the Full Court concerned the admissibility of the methylamphetamine. The appellant argued that the police's actions in detaining him, searching him, and ultimately seizing the drugs were unlawful. Consequently, he contended that the trial judge should have exercised their discretion to exclude this evidence, as its admission would be unfair or improper, thereby leading to a miscarriage of justice. Without this crucial evidence, the appellant submitted, there would have been no case to answer.

The Full Court considered the events leading to the discovery of the drugs, including CCTV footage and transcripts of interactions between the appellant and police officers. The Court noted that the police initially responded to a domestic disturbance and, upon arrival, observed the appellant near a taxi. After a conversation where the appellant was evasive about his identity, police requested his identification and instructed him to remove his hands from his pockets. Subsequently, police observed cash, a knife, and then the drugs in the taxi and near the appellant. The trial judge had found that even if there was any unlawfulness in the police conduct, the proper exercise of discretion favoured the admission of the evidence. The Full Court agreed with the trial judge's assessment, concluding that the discretion was correctly exercised in favour of admitting the evidence.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant now argues that the trial Judge’s decision to allow the evidence, which was the basis of the charge, was incorrect because it was unlawfully obtained and, in the exercise of his discretion, he should have excluded it. Without such evidence there would clearly have been no case to answer.Facts presented on the voir dire Three police officers were involved in the detention and eventual arrest of the appellant. All were called on the voir dire. There could be no dispute about their actual evidence, because two CCTV discs depicting the events were tendered on the voir dire and viewed by this Court. Transcripts of the contents of those CCTV discs were also tendered. At about 10:30 pm on 17 July 2017 police were called to a house at Gardenia Street, Seacliff Park to investigate a domestic disturbance. The information they received was considered to be a “Tier 1” tasking and indicated a form of domestic violence. Two police officers, namely Constable David Jowsey and Constable Lenka Arndt, arrived at the premises in their police vehicle and observed the accused standing next to the open front door of a taxi parked in the driveway of the house. At that time they did not know any details of the disturbance or if the appellant had any role to play. Another police vehicle driven by Senior Constable Stefan Rudevics, also arrived and he parked his vehicle across the entrance to the driveway, effectively preventing the taxi from leaving. The police approached the appellant and a conversation, which was recorded on CCTV and transcribed, followed. In essence the following took place:·There was an initial short conversation between the appellant and the driver, which indicated that the taxi was ready to go.·Constable Arndt then said to the appellant “jump out of the car buddy”.·There was then a conversation as to what happened inside the house. The appellant indicated that “she’s left now”. Presumably to say that any disturbance had finished.·Constable Jowsey asked the appellant for his ID, to which he replied that it was in the car.·Constable Jowsey, after a certain evasiveness by the appellant, told him to supply his name or he would get locked up. Constable Arndt then said to the appellant “just take your hands out of your pockets”.·Eventually the appellant gave his name, address and date of birth. He also told the police that his partner and children were not inside the house.·There was then a short conversation about where his family might have gone.·Cosntable Arndt noticed a folder with a substantial amount of cash, and the appellant resisted and argued against the police taking possession of it. Eventually he relented and allowed them to.·Senior Constable Rudevics, who had departed for a short period of time, then came back and searched the appellant and found a knife. He then arrested him for carrying an offensive weapon. The appellant was then handcuffed.·The police then observed in the front passenger foot well of the taxi, a plastic tub which contained a prescription drug and a small quantity of cannabis.·While searching the appellant they found two mobile phones containing messages indicative of the selling of methylamphetamine. Further, whilst being searched they noticed at the appellant’s feet two plastic resealable sandwich bags containing what was later determined to be methylamphetamine. It was that methylamphetamine which was the subject of the charge.·The appellant dived towards the packages and tried to swallow the contents of one of them. The police tried to remove the substance from his mouth but he resisted.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For all of those reasons, in my view, the trial Judge was correct in finding that if there was any unlawfulness the proper exercise of a discretion will be in favour of inclusion.Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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