Police v Edwards - [2007] SASC 289

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v EDWARDS
[2007] SASC 289
Judgment of The Honourable Justice Anderson
3 August 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - QUESTIONS OF ADMISSIBILITY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - GENERALLY
Prosecution appeal against finding of no case to answer by a magistrate - this followed a ruling excluding evidence - police stopped respondent in course of investigating attempted robbery - police searched respondent and seized various items - respondent charged with possessing articles with which he intended to commit offence and carrying offensive weapon - magistrate ruled police did not have requisite reasonable suspicion to stop respondent therefore evidence inadmissible - prosecutor continued to argue case - magistrate found no case to answer - whether magistrate erred in finding evidence obtained illegally - whether magistrate erred in not exercising public policy discretion to admit evidence - whether magistrate erred in finding no case to answer.
Held: police officer did have requisite reasonable suspicion to stop respondent - magistrate erred in finding evidence obtained illegally - magistrate erred in not exercising public policy discretion - magistrate erred in finding no case to answer. Appeal allowed.
Summary Offences Act 1953 (SA) s 68; Magistrates Court Act 1991 (SA) s 42, referred to.
Holder & Ors v Lewis (2003) 231 LSJS 431; Bunning v Cross (1978) 141 CLR 54; R v Frantzis (1996) 87 A Crim R 295, applied.
R v Dorizzi & Ors (2002) 84 SASR 416, distinguished.

POLICE v EDWARDS
[2007] SASC 289
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant is appealing pursuant to s 42 of the Magistrates Court Act 1991 (SA) on the ground that the magistrate erred in law in excluding the evidence of the police officers as to the items they found following their stopping of the respondent.
The respondent had been charged with carrying items that he intended to use in committing an offence and with carrying an offensive weapon. The items were a screwdriver, torch, gloves, monocular, hacksaw handle and a knife.
After hearing submissions from both parties I called the matter back on for further submissions. This was because no submissions had been made on the issue of the appellant’s standing relating to the decision of the Court of Criminal Appeal in R v Dorizzi and Others (2002) 84 SASR 416, which in turn led to an amendment to s 42 of the Magistrates Court Act 1991 (SA).
The magistrate ruled that evidence obtained from searching the respondent was inadmissible, as it had been obtained unlawfully. The magistrate ruled that s 68 of the Summary Offences Act 1953 (SA), which gives a police officer the power to stop and search a person, had not been complied with because the police officer had not formed any reasonable suspicion.
The respondent was questioned by the police officer, Constable Ellen, in…

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 Police v Edwards

Details

AGLC: Police v Edwards [2007] SASC 289
Case: [2007] SASC 289
Decision Date: 3 August 2007

CaseChat Overview and Summary

In Police v Edwards, the court examined the legality of a police stop and search, and the subsequent admissibility of evidence obtained during that stop. The case arose when police stopped the respondent, Edwards, in the course of investigating an attempted robbery. They searched him and seized various items, leading to charges of possessing articles with which he intended to commit an offence and carrying an offensive weapon. The magistrate ruled that the police did not have the requisite reasonable suspicion to stop Edwards, and thus the evidence was inadmissible. Consequently, the magistrate found no case to answer, prompting the prosecution's appeal.

The court was required to determine whether the magistrate correctly assessed the legality of the police stop and search, the admissibility of the evidence obtained, and whether the magistrate exercised her public policy discretion appropriately. The court found that the police officer did indeed have the requisite reasonable suspicion to stop Edwards, given the description of the offender broadcast over the police radio and the respondent's proximity to the scene of the attempted robbery. The court also held that the magistrate erred in ruling the evidence inadmissible and in not exercising her public policy discretion to admit the evidence. The court concluded that the magistrate's decision to find no case to answer was incorrect.

The court allowed the appeal and ordered the matter to be remitted to the magistrate for re-hearing in accordance with the court's reasoning. The court emphasised that Constable Ellen's actions were reasonable, and any illegality was technical rather than wilful or malicious, which did not affect the cogency of the evidence. The evidence obtained was deemed important for determining the truth of the serious criminal charges against Edwards. The court's decision highlights the importance of both the reasonable suspicion standard and the public policy discretion in balancing individual rights and the need to admit relevant evidence in criminal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

After hearing evidence the magistrate made an ex tempore ruling excluding the evidence because there were insufficient grounds to form the requisite reasonable suspicion. In relation to the remaining evidence the magistrate then made a further ex tempore ruling that there was no evidence before her which established that the respondent had the specified items in his possession and therefore Her Honour found that there was no case to answer.Background On the night of 5 June 2006, police were called to a residence in Rosewater in relation to an attempted break-in. The police officer attending the residence put a call out on the police radio for assistance and for other officers to be on the lookout for the offender and also, gave a description of the offender. Constable Ellen said that the description was “either Caucasian or Aboriginal, I think it was maybe tanned skin, between 25 and 35 years, possible moustache and short shaved hair”. Constable Harris said that they were looking for a possible offender and someone who matched the description they heard over the police radio. Constable Dawson, who was in another vehicle nearby, also heard the description on the radio. He said that the description was of a male in his thirties, possibly with a moustache. Upon hearing the call on the radio, Constable Harris proceeded to the residence to offer assistance, while Constable Ellen began to search on foot for the offender in the area. During the course of this search, Constable Ellen noticed the respondent cycling towards him. The respondent did not have any lights on his bike. Constable Ellen flashed his torch at the respondent who responded by flashing a torch back at Constable Ellen. As the respondent was riding past him, Constable Ellen said, “What are you doing?” at which point the respondent stopped his bike. Constable Ellen then said, “Just come over here”. The call over the radio came at about 1.30 am. When sighted by Constable Ellen the respondent was wearing a beanie. He was carrying the torch in a sling over his shoulder. The torch was not illuminated when Constable Ellen first saw the respondent. Constable Ellen said, “I remember thinking that it vaguely matched the description that was given over the radio – that he had an unshaven look, the moustache was quite prominent … it looked like he had quite a round face and I thought he was worth talking to”. This general area was a “directed patrol tasking area” because of the number of recent break-ins in the vicinity. The point where Constable Ellen stopped the respondent was about 400 metres from the scene of the break-in. Constable Dawson said it was “a hot spot” where the patrols were directed to spend time during the night. Constables Davies, Ellen and Harris were searching the area because of the police radio communication.The hearing in the Magistrates Court At the hearing before the magistrate, Mr Slade, for the respondent, submitted that Constable Ellen had not formed the requisite reasonable suspicion required to allow him to legally stop the respondent pursuant to s 68. Mr Slade submitted that according to the examination and cross examination of Constable Ellen it was clear that Constable Ellen flashed his torch at the respondent with the intention of causing him to stop, and that it was not until after the respondent had stopped that Mr Ellen noticed that the respondent matched the description provided to him over the radio.

Evidence

Evidence Before The Court

It is my view that the magistrate erred in ruling that Constable Ellen did not have the reasonable suspicion necessary to stop the respondent. It was therefore reasonable to stop, question and search the respondent. The magistrate was wrong in rejecting the evidence as to the items found in the possession of the respondent.Whether magistrate should have exercised discretion to admit the evidence In the event that I am wrong in concluding that the magistrate erred in finding that Constable Ellen did not have a reasonable suspicion, I will now discuss whether the magistrate should have in any case exercised her discretion to admit the evidence. The appellant has submitted that the magistrate did not sufficiently turn her mind to the public policy factors relevant to the exercise of her public policy discretion. The learned magistrate does not give any basis for her refusal to exercise the discretion to allow the evidence on a public policy basis. Her reasons are limited to what she said at [9]:[9]The powers in s 68 limit the right of individuals, and it is important in my view that the section is complied with, unless some good reason exists not to. In the circumstances I rule that the evidence that follows the stopping of the defendant is excluded. In Bunning v Cross (1978) 141 CLR 54 the High Court was asked to review a decision by a magistrate to not allow evidence obtained through a breathalyser because the police had not followed the exact procedure required by the relevant legislation in relation to obtaining the reading. The High Court found by majority that the evidence was admissible. In their joint judgment, Stephen and Aikin JJ found that the magistrate had not appeared to have considered the public policy factors in relation to admitting the evidence despite it being illegally obtained. In doing so their Honours undertook a thorough evaluation of these factors and concluded that in the circumstances the magistrate should have exercised his public policy discretion to admit the evidence. Some of the factors evaluated by their Honours that are also relevant to this matter are:· the fact that there was “no suggestion that the unlawfulness was other than the result of a mistaken belief on the part of police officers”;· whether “the nature of the illegality…affect[s] the cogency of the evidence so obtained”;· “the ease with which the law might have been complied with in procuring the evidence in question”;· “the nature of the offence charged”, including not only the seriousness of the offence but also an objective analysis of the public perception of the offence and the level in which such an offence may impact on other members of the public; and· whether “there was a quite deliberate intent on the part of the legislature narrowly to restrict the police in their power”. In R v Frantzis (1996) 87 A Crim R 295 at 318-9 Lander J, with whom Cox and Nyland JJ agreed, endorsed the public policy discretion approach from Bunning v Cross. After finding that the police officers had the requisite level of suspicion to stop a vehicle under s 68, His Honour said: … even if the search of the vehicle was attended by illegality … [t]he police officers were acting reasonably and sensibly. If there was any illegality, it could only have been of a technical and not of a wilful or malicious nature. Such illegality would not have affected the cogency of the evidence obtained. Further, the evidence obtained was evidence which it was important that the fact-finder have in its inquiry into the truth of a serious criminal charge.

Decision

Reasons for decision

ANDERSON J

In the event that I am incorrect on this point, it is my view that the appellant does have standing pursuant to s 42(1a) to appeal against the magistrate’s decision to not admit the evidence.Conclusion For the reasons given it is my view that the magistrate erred in ruling that the evidence obtained from searching the respondent was inadmissible. As a result, her final judgment, which found no case to answer, was incorrect. As I have indicated, I believe that Constable Ellen had formed the requisite reasonable suspicion when he stopped the respondent. In any event the evidence should have been admitted on a public policy basis in the exercise of the broad discretion. I would therefore allow the appeal and order that the matter be remitted to the magistrate for re-hearing in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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