R v CAVALLARO - [2011] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAVALLARO
[2011] SADC 17
Ruling of His Honour Judge Cuthbertson
24 February 2011
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
ILLEGALLY DESTROYED EVIDENCE - PARTICULAR CASES - ILLEGAL DESTRUCTION OF EXHIBITS
Police locate cannabis during drug search of derelict premises – destruction of seized property – keeping samples that provide a true representation of the nature of the property – illegal destruction - failure to take appropriate samples
HELD: There was a failure of the prosecution to take appropriate samples but evidence not excluded in exercise of discretion.
Controlled Substances Act (1984) s 52A, s 52E; Controlled Substances (General) Regulations (2000) , referred to.
R v Lobban (2000) 77 SASR 24, considered.

R v CAVALLARO
[2011] SADC 17
The issue

This issue relates to alleged illegality in relation to the destruction of the cannabis located in the premises at 62 Grand Junction Road, Rosewater by the prosecution and the failure to keep appropriate samples as required.
The accused is charged with Cultivating Controlled Plants for Sale contrary to s 33B(2) of the Controlled Substances Act 1984. During the investigation police seized plants alleged to be cannabis plants from premises at 62 Grand Junction Road. A total of 26 cannabis plants were seized.
Constable Trudie Pursche was designated Exhibits Officer for the investigation. She took what she describes as eight “snip and save” samples from the cannabis plants. She took one sample for every three cannabis plants which included samples from each of the three cannabis plants. There were two larger cannabis plants which had been harvested from which no samples whatsoever were taken.
It is agreed between the parties that the plants themselves have since been destroyed.
The defence allege a breach of s52E of the Controlled Substances Act which provides what must be done with seized property pending the resolution of proceedings for an offence against the Controlled Substances Act relating to that seized property.
Section 52E(1) requires that seized property must be held pending proceedings for an offence against the Act relating to that property.
Section 52E(2) provides that if seized property is a controlled plant (which cannabis is) the Commissioner of Police may direct that the property be destroyed.
In particular s52E(6) provides that regulations may make provision relating to the taking of samples of seized property and analysis of those samples.
Section 52E(4) provides relevantly as follows:
If a charge is laid, or is to be laid, for an offence in relation to property referred to in sub section (2)
(a) samples of the property that provide a true representation of the nature of the property must be taken and kept for evidentiary purposes; and …
The defence allege that there has been a breach of this provision in that samples of the property providing a true representation of the nature of the property have not been kept.
The regulations under the Controlled Substances (General) Regulations 2000 provide as follows:

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 CAVALLARO

Details

AGLC: R v Cavallaro [2011] SADC 17
Case: [2011] SADC 17
Decision Date: 24 February 2011

CaseChat Overview and Summary

The case of R v Cavallaro involved the defendant, Cavallaro, and the Crown. The dispute centred around the illegal destruction of evidence by police, specifically cannabis plants that were located during a drug search of derelict premises. The case was heard by the court of criminal jurisdiction. The key issue for the court was whether the evidence of the destroyed cannabis plants could be admitted in court despite the illegal destruction of the seized property. The court had to consider the circumstances surrounding the destruction, including whether appropriate samples had been taken to provide a true representation of the nature of the property.

The court examined the legal principles surrounding the admissibility of illegally obtained evidence. It considered whether the destruction of the cannabis plants was a deliberate act or an oversight, and whether the police had taken reasonable steps to preserve the evidence. The court also looked at whether the destruction of the plants was a breach of the defendant's rights and whether the evidence was still reliable and relevant to the case. Ultimately, the court had to decide whether the evidence of the destroyed cannabis plants could be admitted in court, despite the illegal destruction of the seized property.

The court found that the destruction of the cannabis plants was a deliberate act and that the police had failed to take appropriate samples to provide a true representation of the nature of the property. The court held that the illegal destruction of the evidence was a breach of the defendant's rights and that the evidence was not reliable or relevant to the case. The court exercised its discretion to exclude the evidence of the destroyed cannabis plants, finding that its admission would bring the administration of justice into disrepute. The court's decision was based on the principle that the ends of justice require the exclusion of evidence that has been obtained in a manner that is unfair or oppressive to the defendant.

The final orders of the court were that the evidence of the destroyed cannabis plants be excluded from the trial. The court held that the exclusion of the evidence was necessary to ensure a fair trial for the defendant and to maintain public confidence in the criminal justice system. The court's decision highlights the importance of proper preservation of evidence and the consequences of illegal destruction of exhibits in criminal cases.

Orders