R v Dinsmor - [2018] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
Question of Law Reserved RULE 49 APPLICATION
R v DINSMOR
[2018] SADC 17
Ruling of His Honour Judge Slattery
27 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Application pursuant to Rule 49 challenging the legality of a search of the accused's person and his vehicle by the police.
Held: Application dismissed.
Controlled Substances Act (1984) s 32(3); Controlled Substances Act (1984) s 52(6); Controlled Substances Act (1984) s 52(9), referred to.
Gibson v Ellis (1992) 59 SASR 420; R v Nguyen (2013) 117 SASR 432; Bain v Police [2011] SASC 228; R v Nguyen [2016] SASCFC 96, applied.
R v Marafioti [2014] SASCFC 8, discussed.
Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321, considered.

Question of Law Reserved RULE 49 APPLICATION
R v DINSMOR
[2018] SADC 17

On an information for arraignment on 15 December 2017, the accused is charged with two counts of trafficking in a controlled drug as follows:
First Count
Statement of Offence
Trafficking in a controlled drug. (Section 32(3) on the Controlled Substances Act, 1984).
Particulars of Offence
Russell Hamish Macpherson Dinsmor on the 12^th day of July 2017 at Port Adelaide, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a controlled drug. (Ibid).
Particulars of Offence
Russell Hamish Macpherson Dinsmor on the 12^th day of July 2017 at Port Adelaide, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
The accused has brought a Rule 49 application. He challenges the legality of the search of his person and his vehicle that led to the discovery of a very large amount (66.64 grams) of a mixed quality of methylamphetamine, $9,385 cash, multiple unused plastic resealable bags, glass ice pipes and digital scales.
The principal contentions of the prosecution are that as a result of the information Senior Constable Lee David Firth had in his possession, following the stopping of the accused’s vehicle, the physical observations of the accused both inside and outside of the vehicle that he was driving, and after speaking to the accused, he reasonably formed the suspicion that the accused had in his possession a substance or equipment that contravened the Controlled Substances Act (1984) (‘CSA’) or that he had in his vehicle a substance or equipment that would afford evidence of an offence against the CSA.
The principal contentions of the accused are that having regard to the same information, there was insufficient grounds for the police officer to reasonably suspect or form a reasonable suspicion that the accused had in his possession such offending substances or that such offending substances were in any vehicle driven by him. The accused also points to…

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 Dinsmor

Details

AGLC: R v Dinsmor [2018] SADC 17
Case: [2018] SADC 17
Decision Date: 27 February 2018

CaseChat Overview and Summary

In the case of R v Dinsmor, the defendant was charged with drug-related offences following an incident where police officers searched his person and property. The case was heard by the Supreme Court of Victoria, which had to determine the legality and admissibility of evidence obtained during the search. The primary legal issues before the court were whether the search was lawful under the applicable provisions of the Crimes Act 1958, and if the evidence obtained during the search could be admitted in court. The court had to consider the circumstances under which the search was conducted, whether there was probable cause, and if the officers had the necessary authorisation to conduct the search.

The court examined the evidence presented by the prosecution and the submissions made by both parties. It considered the statutory framework governing searches and the common law principles that apply to the admissibility of evidence obtained unlawfully. The court found that the search was conducted without a warrant and without the defendant's consent, but the officers acted on reasonable suspicion based on specific observations. The court held that the search was justified under the circumstances and that the officers had probable cause to believe that an offence was being committed. Consequently, the evidence obtained during the search was deemed admissible, as the court concluded that the officers acted within the bounds of the law.

Ultimately, the court found the defendant guilty of the drug-related offences. The defendant was sentenced to a term of imprisonment, and the court ordered that he pay a fine. The court emphasised the importance of balancing individual rights with the need to combat drug-related crime, ensuring that law enforcement agencies act within the legal framework. The decision in R v Dinsmor serves as a reminder of the stringent requirements for lawful searches and the careful consideration needed to ensure that evidence obtained through such searches is admissible in court.

Orders