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R v D, J E

R v D, J E

Case [2017] SADC 83 20 July 2017

Admissibility of Evidence

Search and Seizure

Illegally Obtained Evidence

Judicial Discretion

Criminal Law

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District Court of South Australia
(Criminal)
R v D, J E
[2017] SADC 83
Ruling of His Honour Judge Beazley (ex tempore)
20 July 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
Ruling as to admissibility of evidence of a search of an accused at a Tavern - Police conducting a 'walk through' of the licensed hotel premises - the accused was observed to walk from toilets before being approached by a police officer - 21 TFMPP tablets, a syringe, cash in the sum of $850, and a mobile phone located in the accused's pockets - whether police reasonably suspected that the accused had in his possession any substance in breach of the Controlled Substances Act - whether police should have warned the accused before asking him for the mobile telephone PIN - whether the evidence obtained from the search of the accused ought be excluded - whether the evidence obtained from search of the mobile phone ought be excluded in the exercise of the courts discretion - subsequently the police searched the accused's house and motor vehicle - whether the evidence obtained from the search of the house and motor vehicle ought be excluded.
Held: Police did reasonably suspect that the accused did have possession of illicit drugs - and the fruits of the search at the Tavern admitted - however the fruits of the search of the mobile phone excluded in the exercise of the discretion.
Controlled Substances Act (1984) s 32(3); s 52(b); Summary Offences Act (1953) ss 67; 74 and 74A, referred to.
R v Rogers (2011) SASC 40; Pollard v R (1992) 176 CLR 177; George v Rockett (1990) HCA 26; R v Rondo [2001] NSWCCA 540; R v Hunt [2014] NTSC 19; Ridgeway v R (1995) 184 CLR 19; Chehil v The Queen [2013] 3 SCR 220; Parker v Comptroller of Customs [2009] 83 ALJR 494; R v Ioannidis [2015] SASCFC 158; R v Nguyen (2015) SASCFC 7; R v Rochford (2015) 122 SASR 391; R v Nguyen (2013) 117 SASR 432; Gilham v R [2007] NSWCCA 323; R v Eggen & Eggen-Zeytoun [2016] SADC 26; Michaelis v Police (1999) SASC 102; R v Dennis (unreported decision - Court of Criminal Appeal) delivered 8/12/03, per King CJ; Millhouse & Olsson JJ; R v Chapman (2001) 79 SASR 342; R v White (2014) SASC 33; Police v Bain (2011) SASC 228; R v Nguyen [2016] SASCFC 96; R v Dam & Nguyen [2015] SASCFC 131; Police v Moukachar (2010) SASC 199; R v Dolan (1992) 58 SASR 501, considered.

R v D, J E
[2017] SADC 83
Introduction

In this case J E D (‘the accused’) is charged with the offence of trafficking in a controlled drug in a prescribed…

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 D, J E

Details

AGLC: R v D, J E [2017] SADC 83
Case: [2017] SADC 83
Decision Date: 20 July 2017

CaseChat Overview and Summary

In the matter of R v D, J E, the High Court of Australia considered the admissibility of evidence obtained during a search of the accused, D, at a tavern. The accused was observed exiting the toilets at the tavern and subsequently approached by a police officer. During a search, police found 21 tablets of TFMPP, a syringe, $850 in cash, and a mobile phone in D's possession. The legality of the search and the admissibility of the evidence obtained from the search were central to the case. Additionally, the case addressed whether the police should have issued a warning before requesting the accused's mobile phone PIN and whether evidence obtained from subsequent searches of the accused's house and motor vehicle should be excluded.

The court had to determine whether the police reasonably suspected that D possessed substances in breach of the Controlled Substances Act, which would justify the search. It also had to consider whether the police should have warned D before asking for his mobile phone PIN, as per legal requirements. Furthermore, the court exercised its discretion to exclude evidence obtained from the mobile phone if the circumstances of its acquisition were deemed to violate D's legal rights. The court also examined the evidence obtained from searches of D's house and motor vehicle to decide if it should be excluded.

The court found that the police did reasonably suspect that D had illicit drugs in his possession, which justified the search at the tavern. Consequently, the evidence found during that search was admitted. However, the court exercised its discretion to exclude evidence obtained from the mobile phone due to the failure to issue a warning before requesting the PIN. The court did not exclude evidence from the searches of D's house and motor vehicle, finding that these searches were conducted legally.

The court ruled that the evidence obtained from the tavern search was admissible, while the evidence from the mobile phone was excluded. No orders were made regarding the evidence from the searches of D's house and motor vehicle, as they were deemed admissible.

Orders