R v CAVALLARO - [2011] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAVALLARO
[2011] SADC 15
Ruling of His Honour Judge Cuthbertson
24 February 2011
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
- ILLEGAL SEARCH
Police locate cannabis during drug search of derelict premises – general search warrant used to search accused's premises next door – implied licence to enter premises – no clear basis established as to when and why general search warrant activated.
HELD: Prerequisite suspicion not found to be present – search of accused's permises illegal – fruits of search excluded in exercise of discretion.
Controlled Substances Act (1984) s 33B(2), referred to.
Wheare v Police [2008] 253 LSJS 99; Plenty v Dillon (1991) 171 CLR 635, discussed.

R v CAVALLARO
[2011] SADC 15
The Charge

The accused has pleaded not guilty to a charge of Cultivating Controlled Plants for Sale, contrary to s33B(2) of the Controlled Substances Act (1984).
The Circumstances
The case for the prosecution is that on 30 September 2009 police officers conducted a raid on premises at 62 Grand Junction Road, Rosewater. The premises are a derelict corner shop and police had information that drugs were to be located inside the premises.
Police attended at approximately 8.50 am and parked in Canning Street, Rosewater around the corner from the subject premises. At the relevant location Grand Junction Road runs in an East / West direction and Canning Street runs in a North / South direction with its northern end terminating on the corner with Grand Junction Road. The premises are located on the southern side of Grand Junction Road and on the western side of Canning Street.
The officer in charge of the investigation was Detective Sergeant McCoy who was the possessor of a general search warrant. In the course of the investigation police located approximately 26 cannabis plants in the premises at 62 Grand Junction Road in the process of hydroponic cultivation.
At the rear of the premises at 62 Grand Junction Road are the premises of the accused, a house property at 43 Canning Street. The premises at Canning Street abut onto the rear of the premises at 62 Grand Junction Road.
Police noticed cameras located on the premises at 43 Canning Street, at least one and probably two of which appeared to be pointing in the direction of the rear of 62 Grand Junction Road.
Inside the premises at 62 Grand Junction Road the police had located monitoring devices including a baby monitor which I take to be the sort of device that is placed in a room to detect if a baby cries and which transmits by radio to a receiver in another room.
The prosecution case is that due to the presence of the cameras on the premises at 43 Canning Street they decided to speak to the occupant.
Initially the police case on the depositions was very clear. Detective Sergeant McCoy in his declaration said that he was…

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 15
Case: [2011] SADC 15
Decision Date: 24 February 2011

CaseChat Overview and Summary

The case of R v Cavallaro involved the accused, Cavallaro, and the prosecution. The dispute centred around the admissibility of evidence obtained during a police search of the accused's premises, which was conducted under a general search warrant. The search took place in the context of a drug investigation, where police had located cannabis during a search of a derelict property next door to the accused's premises. The court had to determine whether the search of the accused's property was lawful and, consequently, whether the evidence obtained could be admitted.

The primary legal issue before the court was whether the search of the accused's premises was conducted lawfully under the authority of the general search warrant. Specifically, the court needed to determine whether there was a sufficient basis to establish a suspicion that would justify the activation of the warrant for the accused's property. Additionally, the court had to consider whether the search fell within the scope of any implied licence to enter the premises and whether the search was otherwise lawful.

The court found that there was no clear basis established as to when and why the general search warrant was activated for the accused's premises. It was determined that the prerequisite suspicion necessary to justify the search under the warrant was not present. Consequently, the court ruled that the search of the accused's premises was illegal. Exercising its discretion, the court decided to exclude the fruits of the illegal search from being admitted as evidence in the case against the accused.

The court ordered that the evidence obtained from the illegal search of the accused's premises be excluded from the proceedings. This decision underscores the importance of ensuring that any search conducted under a warrant is supported by a sufficient basis of suspicion and adheres to the legal requirements for such searches. The exclusion of the illegally obtained evidence is a reflection of the court's commitment to upholding the integrity of the legal process and protecting the rights of individuals against unlawful police conduct.

Orders