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 108Court 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…
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CaseChat Overview and Summary
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
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Evidence
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