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R v Fischer (No 1)

R v Fischer (No 1)

Case [2012] SADC 186 6 November 2012

Arrest

Seizure and Incidental Powers

Character and Prior Convictions

Expert Evidence

Criminal Law

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District Court of South Australia
(Criminal)
R v FISCHER & ORS (No 1)
[2012] SADC 186
Reasons of His Honour Judge Slattery (ex tempore)
6 November 2012
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS
CRIMINAL LAW - EVIDENCE
Applicant is one of three co-accused charged with trafficking in a controlled drug – applicant seeks separate trials – applicant seeks to adduce evidence of discreditable conduct of a co-accused – applicant seeks have evidence of police search excluded – prosecution claims public interest immunity – applicant seeks exclusion of expert evidence.
Held: application refused. Record of interview to be amended to remove specific portions of excluded evidence.
Controlled Substances Act 1984 (SA) s32(3); Evidence Act 1929 (SA) s18, s34O, s34P, 34T (d)(e)(f); Summary Offences Act 1953 (SA) s67(4)(a), 74D; District Court Criminal Rules Rule 9, referred to.
Rogers v The Queen (2011) 109 SASR 307 ; Bannon v The Queen (1995) 185 CLR 1; R v Singh and Bachra (No. 1) [2010] SADC 129 ; Abbott v Ramm BC 9503114 ; R v Bonython (1984) 38 SASR 45; Clark v Ryan (1960) 103 CLR 486 , applied.
R v McKelliff (2004) 87 SASR 476 ; Haydon v Magistrates Court of South Australia [2001] SASC 65; R v Andrews [2010] SASCFC 5 , discussed.
McNeil v Commissioner of Taxation (2003) 202 ALR 35 ; Straker v R (1977) 15 103 ; R v Tang 161 A Crim R 377 , considered.

R v FISCHER & ORS (No 1)
[2012] SADC 186

The co-accused Shane Ronald Fischer (Fischer), Neil Hankins (Hankins) and Paula Maria Wilkey (Wilkey) were charged on information with the offence of trafficking in a controlled drug contrary to s32(3) of the Controlled Substances Act 1984. The particulars of the offence were that Fischer, Hankins and Wilkey, on 23 July 2011 at Salisbury, trafficked in methylamphetamine.
The material facts are that on or about 9:50am on Saturday 23 July 2011, police conducted a search of a property at 23 Fleet Street Salisbury SA 5108, being a rental property occupied by Hankins. Police entered a rear shed on the property and in that shed they located the accused Hankins who was then seated on a couch. The accused Wilkey and the accused Fischer were standing at a pool table which was situate within the shed. The police observed Fischer attempting to secrete a plastic tub underneath a pullover on the pool table.
The plastic tub was seized and was examined. The examination of the contents of the tub revealed that it weighed 7.53 grams and contained 3.63 grams of methylamphetamine.
Swabs of the tub revealed a combined DNA of Hankins (major contributor) and Fischer (minor contributor).
During a search of the shed, the police also identified that there was a press seal bag on the pool table which contained a lumpy crystalline powder weighing 0.16 grams which contained methylamphetamine. The police also…

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 Fischer (No 1)

Details

AGLC: R v Fischer (No 1) [2012] SADC 186
Case: [2012] SADC 186
Decision Date: 6 November 2012

CaseChat Overview and Summary

The case of R v Fischer (No 1) involved an applicant, one of three individuals charged with trafficking in a controlled drug. The applicant sought a separate trial from the co-accused, aiming to introduce evidence of the discreditable conduct of one co-accused. Additionally, the applicant requested the exclusion of evidence obtained through a police search and expert evidence presented by the prosecution. The prosecution, on the other hand, argued for the application of public interest immunity over certain evidence.

The primary legal issues the court had to address were the admissibility of evidence concerning the discreditable conduct of a co-accused, the exclusion of evidence obtained through a police search, and the relevance and admissibility of expert evidence. The court was also tasked with determining whether the application for separate trials was warranted given the unique circumstances of the case.

The court carefully considered the arguments presented, assessing the relevance and probative value of the proposed evidence against the potential for unfair prejudice. The court concluded that the evidence of the co-accused's discreditable conduct was not admissible as it would unfairly prejudice the applicant's case. Regarding the evidence obtained through the police search, the court ruled that it could be admitted, despite the applicant's objections. The expert evidence was also deemed admissible, as the court found it relevant to the case. The application for separate trials was ultimately denied as the court found no compelling reason to separate the trials under the given circumstances.

The court's final orders were to deny the application for separate trials, to exclude the evidence of the co-accused's discreditable conduct, to allow the evidence obtained through the police search, and to admit the expert evidence presented by the prosecution.

Orders