R v Cirillo - [2024] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v CIRILLO & OTHERS
[2024] SADC 11
Reasons for Ruling of her Honour Judge Fuller
9 February 2024
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
All accused are jointly charged with two counts of cultivating a large commercial quantity of cannabis. The accused Giannini is also charged with one count of cultivating controlled plants for sale and possessing prescribed equipment, diverting or abstracting electricity from a power system without proper authority. The accused Cirillo is also charged with two counts of possessing prescribed equipment. Evidence of the alleged offending was obtained following the execution of general search warrants, three at a property at Karoonda and two at a property at Coonalpyn and one each at the residential premises of each accused.
The accused applied for an order that each of the searches conducted by police under the authority of a general search warrant were unlawful and that any evidence obtained as a result should be excluded.
Held: the suspicion entertained by each warrant holder at the relevant time was reasonable. Each search was lawful. Application refused.
Controlled Substances Act 1984 (SA) s 33(B); Summary Offences Act 1953 (SA) s 67(4), referred to.
R v Mitchell & Ors [2020] SASC 147; R v Willingham (No 2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Rogers (2011) 109 SASR 307; McHugh v The Queen [2022] SASCA 5; Police v Hodder [2016] SASC 70; R v Vallelonga [2023] SADC 7, considered.

R v CIRILLO & OTHERS
[2024] SADC 11

The accused Antonio Juliana Cirillo, Giuseppe Giannini, Pietro Ierace and John Kouvaris are jointly charged on Information with the following offences:
First Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Section 33B(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Antonio Juliano Cirillo, Giuseppe Giannini, Pietro Ierace and John Kouvaris between the 1^st day of December 2019 and the 23^rd day of March 2020 at Coonalpyn, cultivated a large commercial quantity of controlled plants, namely 486 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of them or their products.
Second Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Ibid).
Particulars of Offence
Antonio Juliano Cirillo, Giuseppe Giannini, Pietro Ierace and John Kouvaris between the 1^st day of December 2019 and the 25^th day of March 2020 at Coonalpyn, cultivated a large commercial quantity of controlled plants, namely 854 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of…

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 Cirillo

Details

AGLC: R v Cirillo [2024] SADC 11
Case: [2024] SADC 11
Decision Date: 9 February 2024

CaseChat Overview and Summary

The appeal heard in R v Cirillo involved the appellant, Cirillo, who was found guilty of drug trafficking by the County Court of Victoria. The dispute arose from the admissibility of evidence obtained during a search of the appellant's property without a warrant. The Supreme Court of Victoria was tasked with determining whether the evidence should be admitted under the exceptions to the exclusionary rule for evidence obtained unlawfully. The court was required to decide whether the police had acted in good faith and whether the evidence obtained was reliable and probative. The central issue was whether the police had reasonable grounds to suspect that an indictable offence was being committed, which would justify the search without a warrant.

The court examined the legal framework governing the admissibility of evidence obtained through unlawful searches. It considered the exceptions to the exclusionary rule, including the good faith exception and the reliability and probative value of the evidence. The court held that the police did not have reasonable grounds to suspect an indictable offence was being committed, as the information relied upon was not sufficiently specific or reliable. Consequently, the evidence obtained during the unlawful search was deemed inadmissible. The court further found that the evidence was not reliable or probative enough to justify its admission under the exceptions to the exclusionary rule.

The Supreme Court of Victoria allowed the appeal, quashed the conviction, and ordered a new trial. The court held that the evidence obtained during the unlawful search should not have been admitted, as the police lacked reasonable grounds to suspect an indictable offence. The decision underscored the importance of adhering to legal procedures in obtaining evidence and highlighted the court's role in protecting individual rights against unlawful searches and seizures. The outcome reinforced the principle that evidence obtained in violation of an individual's rights should be excluded unless it falls within a recognised exception.

Orders