McHugh v The Queen

[2022] SASCA 5

Supreme Court of South Australia

(Court of Appeal: Criminal)

MCHUGH v THE QUEEN

[2022] SASCA 5

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)

14 December 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES

This is an application for permission to appeal against conviction. The appellant was convicted on 16 June 2021 of one count of Trafficking in a Large Commercial Quantity of a Controlled Drug and three counts of Trafficking in a Controlled Drug. The trial judge admitted evidence obtained pursuant to a search warrant of the appellant’s home that was executed primarily on the strength of a Crime Stoppers report made approximately three months before the search.

The appellant relied on the ground that the trial judge erred in finding the search of the appellant’s home was lawful and in failing to exclude the evidence, obtained during the search, in the exercise of the public policy discretion.

Held, by the Court:

1.      Application for permission to appeal dismissed.

2.      The search of the appellant’s home was lawful.

Summary Offences Act 1953 (SA) s 67(4)(a)(iii), referred to.
Bunning v Cross (1978) 141 CLR 54, considered.

MCHUGH v THE QUEEN
[2022] SASCA 5

Court of Appeal – Criminal: Kourakis CJ, Lovell and Doyle JJA

1. KOURAKIS (ex tempore): On 31 May 2018, police officers searched the applicant’s residential premises in suburban Warradale. They there found drugs referred to by their acronyms GBL, GHB and MDMA. The applicant was charged and convicted on three counts of trafficking in those drugs. At his trial the applicant sought an order excluding the evidence of the search on the grounds that Detective Redmond, who executed the search warrant pursuant to s 67(4)(a)(iii) of the Summary Offences Act, did not have the necessary reasonable suspicion to do so.  The Judge found that Detective Redmond’s suspicion was reasonable and that in any event, he would not have excluded the evidence of the search in the exercise of his discretion.  It is against that ruling that the applicant brings this application for permission to appeal.

2. The police officers determined to search the applicant’s premises primarily on the strength of a Crime Stoppers report made some months earlier on 15 February 2018.  The Crime Stoppers report was made anonymously.  It described the applicant’s Warradale premises and him personally in some detail and with a degree of specificity.  The report went on to say that the applicant dealt in ice and liquid fantasy.  It described the applicant as a drug dealer who moved large amounts of ice and liquid fantasy.  It alleged that the applicant was part of a large syndicate and close to the cook.  Cook is slang which refers to the manufacturer of the drugs.  The report continued that the applicant kept everything inside his house.

3. On this appeal the applicant accepts that…