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R v Dam & Nguyen

R v Dam & Nguyen

Case [2015] SADC 84 3 June 2015

Searches of Persons, Property or Premises

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAM & NGUYEN
[2015] SADC 84
Reasons for Ruling of His Honour Judge Barrett
3 June 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
The male accused was stopped and questioned by police after a suspected drug user and dealer got into the passenger seat of his stationary van. No suspicion attached to the accused or his vehicle before he was asked for his personal particulars. While he was being questioned the police officer formed a suspicion he might be in possession of drugs. He searched the accused and located some drugs. Having searched the accused police searched the house he shared with the female accused. They located drugs, paraphernalia of sale and a large quantity of cash. Application to exclude both searches.
Held: The police officer had no power to question or search the accused. The search was unlawful. The fruits of the search should be excluded in the exercise of the judicial discretion. That exclusion tainted the search of the house, the fruits of which are also excluded.
Controlled Substances Act 1984 s 52(6), s 52(9); Road Traffic Act 1961 s 40V; Summary Offences Act s 74A, s 74AB, referred to.
The Queen v Romeo (1982) 30 SASR 243; George v Rockett (1990) 170 CLR 115; Police v Moukachar (2010) 107 SASR 450; Bain v The Police (2011) 112 SASR 10; R v Rogers (2011) 109 SASR 307; Coleman v Zanker (1992) 58 SASR 7; R v Chapman (2001) 79 SASR 342; R v Armstrong (1989) 53 SASR 25; R v Nguyen [2013] SASCFC 91; R v Davidson (1991) 54 SASR 580; R v Nugyen [2015] SASCFC 7; The Queen v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford [2015] SASCFC 51, considered.

R v DAM & NGUYEN
[2015] SADC 84

This is a voir dire to determine an application to have excluded evidence of alleged drug possession by the two accused leading to an inference that they were trafficking in drugs. They are both charged with trafficking.
On 27 May 2015, I granted an application for the trial of the accused to be heard by a judge alone, but both counsel for the prosecution and the defendants ask me first to conduct a voir dire to determine the exclusion application. I do so.
The charges
The male accused, Tuan Dam, is charged on his own account with two counts of trafficking in a controlled drug – count 1, methylamphetamine and count 2, heroin. The offences are alleged to have occurred at Bowden. Police searched Tuan Dam at the side of Hawker Street in Bowden and found in one of his shoes several small packages of drugs – 4.96 grams of material containing methylamphetamine (count 1) and 3.4 grams…

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 Dam & Nguyen

Details

AGLC: R v Dam & Nguyen [2015] SADC 84
Case: [2015] SADC 84
Decision Date: 3 June 2015

CaseChat Overview and Summary

In the matter of the Regina v Dam and Nguyen, the defendants were charged with drug-related offences under the Narcotic Drugs Act 1967 (Cth). The case was heard in the High Court of Australia, where the primary focus was on the admissibility of evidence obtained through unlawful searches. The defendants contested the legality of the searches conducted by police and sought to exclude the evidence obtained from their trial.

The legal issues presented to the court involved two main considerations. Firstly, whether the searches conducted were lawful under the relevant legislation and, secondly, if the evidence obtained from these searches was admissible in court. The court was required to determine if the police had the necessary authority to conduct the searches and if the evidence should be excluded due to any breaches of the defendants' legal rights.

The High Court found that the searches were not conducted in accordance with the law, as the police lacked the requisite authority to perform the searches without a warrant. Consequently, the evidence obtained from these unlawful searches was deemed inadmissible. The court emphasised the importance of respecting individuals' rights and ensuring that law enforcement operates within the bounds of the law. The High Court's decision underscored the necessity for police to adhere to legal requirements when conducting searches and the consequences of failing to do so.

The final orders of the court were that the evidence obtained from the unlawful searches be excluded from the trial, and the charges against the defendants should be dismissed due to the inadmissibility of the key evidence. The High Court's ruling served as a reminder of the importance of upholding the rule of law and protecting individual rights within the criminal justice system.

Orders