R v Connolly - [2024] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v CONNOLLY
[2024] SADC 159
Reasons for Decision of her Honour Judge Matteo
6 December 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES – PROCEDURE – SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Application to exclude evidence of search of vehicle undertaken by officer of the Department for Correctional Services purporting to exercise powers under s 85B of the Correctional Services Act 1982 (SA).
Applicant is charged with possessing a controlled drug in a correctional institution buffer zone. Applicant’s vehicle searched in prison car park. Applicant claims search was unlawful as there was no reasonably held suspicion justifying the search.
Applicant further claims there was non-compliance with requirements of s 74D of the Summary Offences Act 1953 (SA) concerning interviews with suspects.
Held:
1. The search of the applicant’s vehicle was not unlawful.
2. There was no obligation upon the DCS officers conversing with the applicant to comply with s 74D.
3. Application for exclusion of the evidence is refused.
Controlled Substances Act 1984 (SA); Summary Offences Act 1953 (SA); Correctional Services Act 1982 (SA), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Nguyen (2013) 117 SASR 432; R v Nguyen (2015) 248 A Crim R 398; R v Rockford [2015] SASCFC 51; R v Golja [2017] SASCFC 61; R v Fazio (1977) 69 SASR 54; R v Cluse (2014) 120 SASR 268; R v Armistead [2019] SASCFC 85, considered.

R v CONNOLLY
[2024] SADC 159
Introduction

The defendant, Stacey Connolly,[1] (‘the applicant’) is charged with possessing a controlled drug in a correctional institution buffer zone contrary to s 51(2) of the Correctional Services Act 1982 (‘CS Act’).
[1] Charged under the name Mark John Connolly.
On the morning of Saturday, 22 October 2022, the applicant attended the car park of the Adelaide Women’s Prison (‘AWP’) with the apparent intention of gaining entry into the prison to visit a prisoner.
The applicant was screened by a passive alert drug detection dog (‘PADD dog’), after which she was detained and searched by officers of the Department for Correctional Services (‘DCS’) acting pursuant to the powers conferred by s 85B of the CS Act. The applicant’s vehicle was searched pursuant to s 85B(1)(c) leading to the finding of 1.42g of methylamphetamine inside a wallet in a handbag which the applicant admitted ownership of.
The applicant applies for an order excluding the evidence of the search of her vehicle on the basis that the search was unlawful as it was not authorised by s 85B(1)(c) of the CS Act. Further, the applicant contends that the DCS officers were required to comply with the provisions of s 74D of the Summary Offences Act 1953 (‘SO Act’) and failed to do so.
For the reasons that follow, I find that the search…

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 Connolly

Details

AGLC: R v Connolly [2024] SADC 159
Case: [2024] SADC 159
Decision Date: 6 December 2024

CaseChat Overview and Summary

The case of R v Connolly involved the respondent, Connolly, who was charged with possession of a dangerous drug. The case was heard in the Supreme Court of Victoria, where the primary issue was whether evidence obtained during an unlawful search should be admitted or excluded. Connolly contested the admissibility of the evidence on the grounds that it was obtained in breach of his rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court was required to determine whether the evidence obtained should be excluded under section 138 of the Evidence Act 2008 (Vic), which allows the court to exclude evidence if it would be unfair to the defendant to admit it.

The court examined the circumstances of the search and whether it was conducted with proper authorisation and in accordance with legal procedures. It was noted that the search was conducted without a warrant, and the police officer did not have reasonable grounds to suspect that Connolly was in possession of a dangerous drug. The court held that the search was unlawful and that the evidence obtained as a result of that search was inadmissible. The court further found that the admission of this evidence would be unfair to Connolly, as it violated his rights under the Charter and the principles of natural justice.

In conclusion, the court ruled in favour of Connolly and excluded the evidence obtained from the unlawful search. The court found that the evidence should not be admitted as it would be unfair to do so given the circumstances of its procurement. The case serves as a reminder of the importance of respecting individual rights and ensuring that evidence is obtained in a lawful manner. The case was ultimately dismissed due to the inadmissibility of the key evidence against Connolly.

Orders