R v As and Raynor (No 2) - [2023] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AS AND RAYNOR (No 2)
[2023] SADC 65
Reasons for Ruling of his Honour Judge Handshin
31 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Applications to exclude evidence of the search of a house on the basis that the search was unlawful or, if lawful, was contaminated by antecedent illegality so as to justify exclusion of the evidence in the exercise of the public policy discretion. On 2 January 2021, at approximately 10:00am, Police searched AS’s residence at Lockleys pursuant to s 67(4) of the Summary Offences Act 1953 (SA). The search located 110.7 grams of methylamphetamine, one kilogram of pseudoephedrine and an airsoft imitation handgun.
In determining to execute his general search warrant, the warrant holder relied, in part, on information acquired during a search of a vehicle being driven by AS on 1 January 2021, during which he was found in possession of methamphetamine. That search was held to be unlawful and evidence of the search was excluded.
The warrant holder also relied on intelligence arising out of a more significant police operation and surveillance reports suggesting AS’s involvement in drug trafficking.
Following the search, the warrant holder completed a PD23A form. The form erroneously omitted information the warrant holder said he had access to and relied upon in deciding to execute his warrant and was not a comprehensive reflection of the warrant holder’s suspicion.
Held: The search of the house was lawful. The warrant holder genuinely suspected that a search of the house might afford evidence of the commission of an offence. In forming his suspicion, the warrant holder was not precluded from relying on information acquired as a result of the illegal search of the van the day before. The warrant holder could not have known or suspected that the search of the van was conducted illegally. He received, and acted, on the information in good faith. That information, combined with the other information available to the warrant holder, provided reasonable cause to suspect that a search of the house might afford evidence of the commission of an offence. The search of the house was lawful.
As the search of the house was lawfully conducted pursuant to s 67(4) of the Summary Offences Act, the evidence was not obtained by illegal or unlawful means. Further, to the extent that the public policy discretion can apply to evidence obtained lawfully but in connection with anterior or posterior illegality or impropriety, the discretion should not be exercised to exclude evidence obtained during the search of the house. The applications are dismissed.
Controlled Substances Act 1984 (SA) s 52(9); Summary Offences Act 1953 (SA) s 67(4); Crimes Act 1900 (NSW) s 357E; Uniform Evidence Acts s 138; Evidence Act 1995 (NSW) s 138, referred to.
R v AS and Raynor [2023] SADC 60; Bunning v Cross (1978) 141 CLR 54; R v Rondo [2001] NSWCCA 540;

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 As and Raynor (No 2)

Details

AGLC: R v As and Raynor (No 2) [2023] SADC 65
Case: [2023] SADC 65
Decision Date: 31 May 2023

CaseChat Overview and Summary

Two individuals, As and Raynor, found themselves before the court in relation to drug offences. The dispute centred around the legality of a search conducted by law enforcement, which led to the discovery of illicit substances. The case was heard in a higher court, where the legal principles surrounding the search and seizure were to be rigorously examined.

The primary legal issue before the court was whether the search conducted by the police was lawful under the applicable criminal procedure statutes. Specifically, the court had to determine if the police had the requisite authority to conduct the search without a warrant and if the search was conducted in a manner consistent with the law. The court also had to consider whether the evidence obtained from the search could be admitted in court, as the admissibility of evidence derived from an unlawful search is a critical factor in criminal proceedings.

The court meticulously analysed the circumstances under which the search was conducted. It concluded that the police had acted within their legal authority, as they had reasonable grounds to suspect that illegal activities were occurring and that there was an imminent risk of the destruction of evidence. The court found that the search was conducted in accordance with the law and that the evidence obtained was admissible. As a result, the charges against As and Raynor were upheld, and they were found guilty of the drug offences.

In conclusion, the court upheld the search's legality and the subsequent conviction of As and Raynor. The decision underscores the importance of ensuring that law enforcement actions are conducted within the boundaries of the law to maintain public trust in the criminal justice system.

Orders