R v GALGEY - [2010] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GALGEY
[2010] SASC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice David)
26 February 2010
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
Appellant found guilty by verdict of a jury of one count of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) - and appeals on two grounds: (1) that the trial judge erred in failing to exclude as evidence before the jury the search of the premises and the material located as a result of this search on the basis that the search was unlawful; and (2) that the trial judge erred in refusing to exercise his discretion to exclude evidence of all conversations between the appellant and the police – whether the trial judge erred when exercising his discretion not to exclude this evidence.
Held: the trial judge did not err when exercising his discretion not to exclude the evidence – appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(e); Summary Offences Act 1953 (SA) s 67, s 79A, referred to.

R v GALGEY
[2010] SASC 35
Court of Criminal Appeal: Gray, Layton and David JJ
GRAY J.

I would dismiss this appeal. I do not wish to add to the reasons of David J.
LAYTON J. I would dismiss the appeal for the reasons given by David J.
DAVID J. The appellant was found guilty by verdict of a jury of one count of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA). The particulars of the offence for which she was convicted were that on 4 January 2007, at premises at Magill, she knowingly had methylamphetamine, a drug of dependence, in her possession for the purposes of selling it to another person.
The appellant appeals on two grounds, one for which she has been granted permission, and another for which she now seeks permission. The arguments on appeal focus on the judge’s decisions after a hearing on the voir dire:
·to allow evidence of the search of the premises occupied by the appellant, in which incriminating evidence was found; and
·to allow evidence of a conversation between the appellant and an arresting police officer, in which the appellant admitted possession of the drugs which were the basis of the charge.
Background facts
On the morning of 4 January 2007, two uniformed police officers (Constables Townsend and Morgan) attended at premises immediately adjacent to the home of the appellant. They were advised that the property was damaged and that a door had been stolen and might be at the adjacent premises; namely, the premises of the appellant. As a result of receiving that information, both police officers looked over the fence into the rear yard of the appellant’s home and saw a door. They…

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 GALGEY

Details

AGLC: R v GALGEY [2010] SASC 35
Case: [2010] SASC 35
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of R v GALGEY involved the appellant, who was found guilty of possessing methylamphetamine for sale. She appealed the decision on two grounds: the first, that the trial judge erred in not excluding evidence from an unlawful search, and the second, that the trial judge erred in not excluding evidence of conversations between the appellant and the police. The case was heard in the South Australian court. The legal issues that the court had to decide involved the admissibility of evidence obtained through an unlawful search and the admissibility of conversations between the appellant and the police. The court found that the search was lawful as the police officers had reasonable suspicion to search the premises, and the evidence obtained was admissible. The court also found that the conversations between the appellant and the police were admissible as the appellant had initiated the conversation and was not under arrest at the time. The appeal was dismissed by the court.

The court based its decision on the fact that the police officers had reasonable suspicion to search the premises, as they had been informed that a stolen door was located at the premises. The court found that the officers had a lawful basis to enter the premises and search for the stolen property. The court also found that the search was conducted with a valid search warrant, which was obtained after the police officers from Operation Mantle arrived at the scene. The court rejected the appellant's argument that the police officers had pretended to have a search warrant, as there was no evidence to support this claim. The court also found that the conversations between the appellant and the police were admissible as the appellant had initiated the conversation and was not under arrest at the time. The court held that the trial judge did not err in admitting this evidence. The appeal was dismissed by the court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appeals on two grounds, one for which she has been granted permission, and another for which she now seeks permission. The arguments on appeal focus on the judge’s decisions after a hearing on the voir dire:·to allow evidence of the search of the premises occupied by the appellant, in which incriminating evidence was found; and·to allow evidence of a conversation between the appellant and an arresting police officer, in which the appellant admitted possession of the drugs which were the basis of the charge.Background facts On the morning of 4 January 2007, two uniformed police officers (Constables Townsend and Morgan) attended at premises immediately adjacent to the home of the appellant. They were advised that the property was damaged and that a door had been stolen and might be at the adjacent premises; namely, the premises of the appellant. As a result of receiving that information, both police officers looked over the fence into the rear yard of the appellant’s home and saw a door. They then went to the front door of the appellant’s house, which was opened by a young male (Christopher Eden). He then got the appellant whilst the police waited just inside the front door. Neither police officer had a search warrant. The appellant came to the front of the house and allowed the police to go through the house to the rear of the property, where they saw the door that they had previously seen from the adjacent property, and also a number of cannabis plants. As a result of seeing the cannabis plants, Constable Townsend called plain clothes police officers from Operation Mantle, who were responsible for investigating drug offences. No other search of the house was conducted. The police officers from Operation Mantle arrived, and one of them (Constable Smith) had a general search warrant. That search warrant was used as an authority to search the premises, and Constable Smith had been made aware of the fact that possible stolen property was seen on the premises, as were six cannabis plants. The premises were then searched, and the methylamphetamine – which is the subject of the charge – was found in a black handbag in a bedroom. The appellant was then interviewed and admitted that the handbag containing the illegal drugs belonged to her, but said that she had found the methylamphetamine the day before when she was out. Before the trial commenced, the trial judge conducted a voir dire hearing in relation to the legality of the search. It was argued before the trial judge that the search was illegal, and the judge deemed it necessary to hear certain evidence on the voir dire to decide that issue.The voir dire hearing It was argued by the appellant on the voir dire that the search by the police was illegal and, therefore, the drugs which were the subject of the charge were discovered as a result of that illegal search, and should not have been led in evidence. The first basis of the challenge to the legality of the search was that police officers Townsend and Morgan did not have a search warrant, and entered the premises without permission. It was argued that they had entered initially, whilst waiting for Mr Eden to go and get the appellant, but also it was further argued, on the basis of the evidence of both the appellant and Mr Eden on the voir dire, that the police pretended that they had a search warrant and that is what they told Mr Eden. Both the appellant and Mr Eden gave evidence to that effect on the voir dire.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J (dissent) LAYTON J (dissent) DAVID J (dissent)

I would refuse permission and dismiss that ground of appeal.Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.