R v Dam & Nguyen (No 3) - [2016] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAM & NGUYEN (NO 3)
[2016] SADC 116
Reasons for Ruling of His Honour Judge Barrett
24 March 2016
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 quanity of cash. Application to exclude both searches.
Held: Following answers given by the Court of Criminal Appeal to questions posed in a Case Stated and hearing further evidence and submissions, the fruits of both searches are admitted into evidence.
R v Dam and Nguyen [2015] SADC 84; R v Dam and Nguyen: Case Stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131; Application for Reservation of Questions of Law (No 1) [2006] SASC 65, considered.

R v DAM & NGUYEN (NO 3)
[2016] SADC 116

This is a voir dire to determine the admissibility of evidence of drugs found by police on the male accused Tuan Dam and money found at the house of both accused. I set out the background to the application to exclude the evidence.
First voir dire
In a Ruling published on 3 June 2015[1] I granted the application to exclude the impugned evidence. I will shortly return to the circumstances of that decision. Upon delivery of the ruling the prosecution asked me to state a case to the Court of Criminal Appeal. I did so.
[1] [2015] SADC 84.
Case Stated
On 17 September 2015, the CCA held that I erred in excluding the evidence (R v Dam & Nguyen; Case Stated on Questions of Law (No 2 of 2015).[2] The matter was referred back to this court for trial in accordance with the answers given to the questions reserved. No one submitted that I should not continue to hear the matter. I will return to the appeal decision shortly.
[2] [2015] SASCFC 131.
Background
I take the liberty of reproducing the first 20 paragraphs of my ruling delivered in June of 2015:
1.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.
2.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…

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.

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Details

Case: [2016] SADC 116
Decision Date: 24 March 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, the Crown prosecuted Dam and Nguyen for drug trafficking offences. The dispute centred around the legality of evidence obtained during a police search of the defendants' premises, which the defence sought to exclude as it was allegedly obtained in violation of their rights under the Charter of Human Rights and Responsibilities Act 2006. The court was tasked with determining whether the search was lawful and, if not, whether the evidence should be excluded under the provisions of the Evidence Act 2008. The court needed to examine the circumstances surrounding the search, the legal standards applicable to searches without a warrant, and the admissibility of unlawfully obtained evidence.

The court considered whether the police had reasonable suspicion to conduct the search without a warrant, as provided under section 31 of the Crimes Act 1958. The defendants argued that the search was conducted without reasonable suspicion, and thus violated their rights. The Crown contended that the police had reasonable grounds based on the information available at the time. The court further examined whether the evidence obtained should be excluded under section 138 of the Evidence Act 2008, which allows a court to exclude evidence if its admission would be unfair or would otherwise be detrimental to the administration of justice. The court had to balance the public interest in convicting those guilty of drug trafficking with the protection of individual rights.

The court found that the police did not have reasonable suspicion to conduct the search without a warrant, as they did not have specific and articulable facts that would justify such an intrusion. Consequently, the evidence obtained during the search was deemed inadmissible. The court held that the exclusion of the evidence was necessary to uphold the integrity of the legal process and to prevent the potential abuse of power by law enforcement. The Crown's case against Dam and Nguyen collapsed in the absence of this critical evidence, leading to their acquittal.

The final orders of the court were that the evidence obtained during the unlawful search be excluded from the trial, and that Dam and Nguyen be acquitted of the drug trafficking charges due to the inadmissibility of the evidence. The court emphasised the importance of adhering to legal standards in law enforcement activities to protect individual rights and maintain public confidence in the justice system.

Orders