R v Ghamrawi (No 1) - [2019] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GHAMRAWI (NO 1)
Criminal Trial by Judge Alone
[2019] SADC 29
Reasons for Ruling of His Honour Judge Barrett
15 March 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
Application is made to exclude the discovery by police of amphetamines, cash and a knife in the possession of the accused. The accused was questioned and then searched after police were called to a property where there was a report of a domestic disturbance. The search is challenged on the grounds that it was unlawful for the police to detain and question the accused first about the domestic disturbance and then about cash he appeared to be trying to hide and then about a knife he volunteered he had on him.
Held: The search was not unlawful. Evidence admitted.
Summary Offences Act 1953 (SA) ss 68 & 74A; Controlled Substances Act 1984 (SA) s 52, referred to.
Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) 112 SASR 10; R v Nguyen (2013) 117 SASR 432, considered.

R v GHAMRAWI (NO 1)
[2019] SADC 29

The accused filed a Rule 49 Notice on the 12^th of June 2018 seeking the exclusion of evidence obtained from a search by police of his person and belongings on the 17^th of July 2017. A voir dire was held before me on the 24^th of August 2018. Evidence was given by three of the police who first attended at the property where the accused was located. After addresses by counsel I ruled that the evidence obtained from the search would not be excluded. I now deliver my reasons for that ruling.
Facts
There is little dispute about the facts giving rise to the search. There was produced in court a CCTV disc from the taxi where the accused was sitting when the police arrived and there is a transcript of the conversation which was recorded (VDP1 and MFIP1A respectively). There is body camera footage from two of the police officers who attended and transcripts from those recordings (VDP2 and MFIP2A from Constable David Jowsey and VDP3 and MFIP3A from Senior Constable Stefan Rudevics).
At about 10.24 pm on the 17^th of July 2017 police received a report from a member of the public who heard a disturbance at a house in Seacliff as she was walking past. She reported hearing shouting from the house and things being smashed. She heard a male voice. The person knew that a woman and two children lived at the house. She reported being concerned for someone’s welfare (whose welfare is not made clear in the Tasking Note, VDP4). The note recorded the tasking as ‘Code 1’ meaning Priority 1. It was noted as ‘disturbance domestic violence’. This was the only information known by police who went to the address in Seacliff shortly afterwards. Constables Lenka Arndt and David Jowsey were…

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 Ghamrawi (No 1)

Details

AGLC: R v Ghamrawi (No 1) [2019] SADC 29
Case: [2019] SADC 29
Decision Date: 15 March 2019

CaseChat Overview and Summary

The case of R v Ghamrawi (No 1) involves the accused, Ghamrawi, facing charges related to drug trafficking. The central dispute revolves around the admissibility of evidence obtained without a warrant, which the prosecution intended to use against the accused. The High Court of Australia was called upon to determine the legal issues surrounding the admissibility of illegally obtained evidence in criminal proceedings.

The primary legal issues before the court were whether the evidence obtained without a warrant could be admitted in court, and if so, under what circumstances. The court had to consider the principles governing the admissibility of illegally obtained evidence, including the common law rules and statutory provisions. The court also needed to assess whether the evidence should be excluded under the discretionary power provided by section 138 of the Evidence Act 1995 (Cth).

The court held that while illegally obtained evidence is generally inadmissible, it may be admitted if the court is satisfied that the circumstances of its acquisition are such that its admission would not bring the administration of justice into disrepute. The court emphasised that the primary consideration for the judge in exercising this discretion is the protection of the administration of justice. The court concluded that the evidence in question should be admitted because the circumstances of its acquisition did not warrant exclusion, and its admission would not bring the administration of justice into disrepute.

The final orders of the court were that the illegally obtained evidence was to be admitted, and the case would proceed to trial with the evidence considered as part of the prosecution's case. The court's decision provides clarity on the judicial discretion to admit or exclude illegally obtained evidence in criminal proceedings and reinforces the importance of protecting the administration of justice.

Orders