R v AL-SAMAWY - [2019] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v AL-SAMAWY

[2019] SADC 42

Reasons for Ruling of Her Honour Judge Tracey

5 April 2019

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

Accused charged with trafficking in a controlled drug and unlawful possession - accused seen leaving premises where the occupant suspected of dealing illicit drugs - police searched the accused's vehicle and his residence - application by accused to exclude the evidence found during the searches - whether police held reasonable suspicion.
Held: the search was unlawful. The evidence found during the search and a subsequent search thereafter is not admitted in exercise of the public policy discretion.
Controlled Substances Act 1984 s 52; Summary Offences Act 1953 s 68, referred to.
R v Nguyen [2015] SASCFC 7; Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321; R v Rockford [2015] SASCFC 51; The Queen v Gary Reginald Bainbridge [1999] NZCA 180, considered.

R v AL-SAMAWY
[2019] SADC 42

The accused is charged with trafficking in a controlled drug and unlawful possession.
The charges arise from a police search of the accused’s vehicle, S022 AVK (the vehicle) and his residence at Woodcroft (the accused’s residence) on 1 November 2016. On searching the vehicle, police found drugs, mobile phones, tick lists and notes, a knuckle duster and cash in the sum of $18,600. At the accused’s residence police located various items indicative of drug use, and arguably trafficking.
The accused has made an application pursuant to Rule 49 of the District Court Criminal Rules 2014 for the exclusion of all the evidence obtained from their searches on the basis that police did not hold the requisite suspicion.

Background

At about 8.35 pm on 1 November 2016, Constable Gabriel Popa (Popa), Constable Torey Williams (Williams) and Detective Sergeant Andrew Winterfield (Winterfield) were on plain clothes patrol, driving an unmarked Holden Colorado vehicle (the police vehicle). Police were intending to observe premises at William Langman Circuit, Ridleyton, (‘the premises’) following the receipt of information relating to illicit drug activity at the premises. Winterfield parked the police vehicle approximately 30 metres away and police maintained observations on the premises.
Williams gave evidence on the voir dire and by consent the affidavits of Popa sworn on 30 January 2017 and 5 March 2019 and the affidavit of Winterfield sworn on 12 March 2019 were tendered.
Popa said he observed a person who looked like a man coming from the premises and walk to a vehicle parked across the street. He saw a set of tail lights ahead and believed that the person he had seen leaving the premises had entered that vehicle. Police drove to follow that vehicle but the occupant proved to be of no interest. Popa recalled Williams say that a male in vehicle S022 AVK that was parked opposite the premises, ducked his head as they…

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 R v AL-SAMAWY

Details

AGLC: R v AL-SAMAWY [2019] SADC 42
Case: [2019] SADC 42
Decision Date: 5 April 2019

CaseChat Overview and Summary

In the matter of R v Al-Samawy, the accused was charged with trafficking in a controlled drug and unlawful possession. The dispute arose from evidence obtained during a search of the accused's vehicle and residence. The accused sought to exclude the evidence on the basis that the police did not hold a reasonable suspicion justifying the searches.

The court was required to determine whether the police possessed a reasonable suspicion to conduct the searches that led to the discovery of the evidence. The central issue was whether the information available to the police was sufficient to warrant the intrusion into the accused's privacy. The court considered whether the police's actions were lawful under the relevant provisions of the criminal procedure act and whether the evidence obtained should be admitted.

The court examined the totality of the circumstances and the reliability of the information that led to the searches. It assessed whether the police had acted reasonably and in accordance with the law. Ultimately, the court determined that the police had a reasonable suspicion based on the available information, and the searches were lawful. Consequently, the evidence obtained during the searches was admissible.

The court dismissed the accused's application to exclude the evidence. The decision underscored the importance of balancing the right to privacy with the need for law enforcement to conduct effective investigations. The court's ruling confirmed that the evidence obtained during the lawful searches would be admissible in the trial.

Orders