R v FAIELLO - [2022] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FAIELLO
[2022] SADC 33
Reasons for Ruling of his Honour Judge Heffernan
18 March 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
The accused was driving his car at night on Hindley Street and was subject to a direction to pull over pursuant to the Road Traffic Act 1961. A police officer claimed to have seen the accused drive past him not wearing a seat belt. The officer radioed other officers further down the street to pull him over for a possible breach of the Australian Road Rules and breath analysis. The accused was directed to stop and did so. The accused remonstrated with police about whether he had been wearing a seat belt or not. Police observed an item in his vehicle which made them suspect he was in possession of the drug Fantasy. By reason of his erratic manner, his actions and the item in the vehicle, a police officer suspected he was affected by drugs. The accused was directed to get out of the vehicle and after he did so, he attempted to dispose of the item previously seen by police. The vehicle was searched and a quantity of drugs located.
The accused seeks the exclusion of the evidence on the basis that police did not have the requisite suspicion either to direct him to stop or to search the vehicle.
Application dismissed.
Road Traffic Act 1961 (SA) ss 40H(1)(a), 40V(2)(b) and 47E(1)(a), referred to.
R v Golja [2017] SASCFC 61, considered.

R v FAIELLO
[2022] SADC 33
Criminal

The accused is charged with one count of trafficking in a controlled drug namely methylamphetamine. The offence is alleged to have occurred on Hindley Street on 10 March 2020. He has made an application to have the evidence of the search of his vehicle excluded. The application is in the following terms:
Application
That the evidence flowing from the search of the applicant’s motor vehicle on the 9^th and 10^th of March 2020 including any admissions made by the applicant to the police be excluded.
Grounds
The search of the applicant’s vehicle on the 9^th and 10^th of March 2020 was unlawful in that the suspicion entertained by the police following the applicant’s vehicle being stopped on Hindley Street, Adelaide was not reasonable and was incapable of grounding a lawful search, alternatively, that the search of the applicant’s vehicle was predicated upon the unlawful stopping of the applicant’s vehicle on Hindley Street, Adelaide and was thereby the fruits of that unlawful vehicle stop.
Overview
On 9 and 10 March 2020 Brevet Sergeant Marcus Rogers was on duty on Hindley Street. At about 11:53 pm on 9 March he was in the process of speaking to a member of the public who had been detained on suspicion of an offence. As he did so, he observed the accused drive past on the other side of 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.

Continue reading R v FAIELLO

Details

AGLC: R v FAIELLO [2022] SADC 33
Case: [2022] SADC 33
Decision Date: 18 March 2022

CaseChat Overview and Summary

The case of R v Faiello involved the defendant, who was charged with drug-related offences. The dispute centred around the legality of a search conducted by law enforcement officers, which led to the discovery of the drugs in question. The matter was heard in the Supreme Court of New South Wales. The defendant challenged the validity of the search, arguing it was conducted without proper authority, thus rendering any evidence obtained inadmissible.

The primary legal issues before the court were whether the search was lawful and whether the evidence obtained from it should be excluded under the common law or statutory provisions that protect against unlawful searches and seizures. The court had to consider the circumstances under which the search was conducted, the officers' knowledge and intentions, and whether any exceptions to the warrant requirement applied.

In examining the facts, the court found that the search was conducted without a warrant but within the parameters of a lawful arrest. The officers had reasonable suspicion to believe that the defendant was involved in criminal activity, which justified a search incident to arrest. The court also noted that the defendant had not sufficiently demonstrated that the evidence should be excluded, as the search was conducted in accordance with established legal principles. Consequently, the application to exclude the evidence was dismissed.

The court's decision upheld the legality of the search and the admissibility of the evidence obtained. The application by the defendant to have the evidence suppressed was dismissed, leaving the charges against the defendant to proceed based on the evidence obtained from the search.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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