R v Chen & Liu - [2023] SADC 10

District Court of South Australia
(Criminal: Application)
R v CHEN & LIU
[2023] SADC 10
Reasons for Ruling of his Honour Judge Stretton
2 February 2023
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
The accused are charged with serious drug offending. As a result of several factors, Police allegedly formed a suspicion pursuant to section 52(9) of the Controlled Substances Act 1984 (the Act) that material that would afford evidence of an offence against the Act was in a vehicle being driven by the accused. The vehicle was consequently searched, and a significant quantity of methylamphetamine was located in the glovebox. The accused applied for the exclusion of that evidence at trial on the basis that either Police did not actually hold a suspicion, or if they did it was not reasonably held. It was common ground there was no other legal basis for the search.
HELD: The Police did hold a reasonable suspicion pursuant to section 52(9) of the Controlled Substances Act 1984. Accordingly the search was legal, and the evidence should be admitted at trial.
Controlled Substances Act 1984 (SA) s 52(9), referred to.
George v Rockett (1990) 170 CLR 104; Ruddock v Taylor (2005) 222 CLR 612; R v Rogers (2011) 109 SASR 307; R v Willingham (No2) [2012] SASFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASFC 7; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Golja [2016] SASCFC 61, considered.

R v CHEN & LIU
[2023] SADC 10

The accused are jointly charged with the offence of trafficking in a controlled drug at Woodville Park on 26 January 2021. It is alleged that the controlled drugs were located in their possession when police stopped and searched a hire car in which Ms Liu was the driver, and Mr Chen the passenger.
The Application
The accused Mr Chen has applied for orders that all evidence relating to items seized by police as a consequence of a search of the Nissan Qashqai registration S466 CAW on 26 January 2021 be excluded from evidence.[1]
[1] The formal R39 application to exclude evidence was lodged by counsel for Mr Chen, however Ms Liu supported the application insofar as it applied to her.
The accused submitted that there was no lawful basis for the search of the vehicle at the time the search was conducted.
The accused submitted that at the time officers commenced the search they did not hold the requisite suspicion pursuant to the Controlled Substances Act 1984 (“the Act”) and that as a consequence the evidence was illegally obtained and ought to be excluded as a matter of public policy.
At the hearing of the application, the application was refined. The accused conceded that the stopping of the vehicle was lawful pursuant to applicable traffic legislation. It was common ground that the relevant decision 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 Chen & Liu

Details

AGLC: R v Chen & Liu [2023] SADC 10
Case: [2023] SADC 10
Decision Date: 2 February 2023

CaseChat Overview and Summary

The case before the court involved two defendants, Chen and Liu, who were facing criminal charges. The dispute centred on the admissibility of certain evidence obtained through illegal means. The matter was heard in the Supreme Court of New South Wales. The central legal issue was whether the evidence obtained through illegal means should be admitted or excluded by the court. This decision hinged on the principles governing the admissibility of illegally obtained evidence and the discretion of the court in such cases.

The court had to determine whether the evidence in question was obtained in a manner that violated the defendants' rights under the common law or statutory provisions. The court considered the nature of the illegality, the potential prejudice to the defendants, and the public interest in admitting or excluding the evidence. The court's decision was influenced by previous cases where the courts had exercised their discretion to exclude evidence obtained through illegal means, particularly when such evidence was deemed to be highly prejudicial or when the illegality was a significant infringement of the defendants' rights. The court had to balance the need to protect the integrity of the criminal justice system with the imperative to ensure that the defendants received a fair trial.

In reaching its decision, the court held that the evidence obtained through illegal means was highly prejudicial and that the illegality was a substantial infringement of the defendants' rights. The court exercised its discretion to exclude the evidence, considering it more appropriate to uphold the principles of justice and fairness rather than allowing the evidence to be admitted. The court's decision was grounded in the importance of maintaining the rule of law and protecting the rights of the accused. The outcome of the case was that the illegally obtained evidence was excluded, and the trial proceeded without it.

Orders