R v Golja

Case [2017] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GOLJA

[2017] SASCFC 61

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)

5 June 2017

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - GENERALLY, ISSUE AND VALIDITY - REASONABLE GROUNDS

Appeal against conviction for one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).

In June 2014 a male was arrested following a complaint that he had been trying to break into a property occupied by his former partner.  His van was searched.  Amongst other indicia of drug activity, police found within the van quantities of methylamphetamine and MDMA, a class H firearm and $2,635 in cash.  He was taken to a police station where an officer took part in an unrecorded conversation with the man regarding a potential bail address.  Using Google Maps, he identified an address at which the appellant resided.

Thereafter that officer explained to another officer what had occurred and the potential bail address.  The evidence of both officers as to this conversation was inconsistent.  The second officer said that as a result of the information given by the first officer and information she had obtained from the SAPOL database concerning that address and the appellant, she formed a suspicion that evidence of drug trafficking may be located at that address.  On that basis she executed a general search warrant to search the premises.

At issue was the lawfulness of the search.  On the voir dire the appellant unsuccessfully sought the exclusion of evidence obtained as a result of the search of her residence at Parafield Gardens. 

On appeal the appellant submitted that the judge erred in admitting evidence obtained as a result of the search on the basis that there had been no grounds to suspect, and that the judge had erred in failing to exercise the discretion to exclude the evidence obtained.

Held: Appeal dismissed.

1.  It is implicit in the judge’s reasons that he accepted a genuine suspicion was held that a search of the appellant’s home might lead to the discovery of evidence of drug-related offending.  There was no proper basis to interfere with that conclusion.  That suspicion was objectively reasonable (at [28]).

2.  In any event, the Court would have upheld the exercise of the judge’s discretion not to exclude evidence obtained as a result of the search (at [32]).  It is significant that the judge found there was no conscious impropriety by the police.  Neither could this be categorised as an instance of a widespread misunderstanding by the police of the conditions governing the exercise of the search power.  This would have been a case of unlawful conduct resulting from a mistake (at [36]).  It involved serious offending and there…

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R v Golja [2017] SASCFC 61
Case
[2017] SASCFC 61
Decision Date

CaseChat Overview and Summary

The appeal concerned the admissibility of evidence obtained from a search of the appellant's residence. The dispute arose after police, having found drugs and other items indicative of drug trafficking in a van belonging to a co-accused, Watts, obtained a search warrant for the appellant's home. The appellant argued that the evidence found at his residence should have been excluded. The matter was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Parker JJ.

The central legal issue before the court was whether the search warrant, which authorised the search of the appellant's premises, was lawfully issued. This required the court to determine if the police officer who applied for the warrant had reasonable grounds to suspect that evidence of drug trafficking would be found at the appellant's address, based on the information provided by Senior Constable Walker and the SAPOL database. The court also considered whether, even if the warrant was improperly issued, the evidence obtained should have been excluded in the exercise of the court's discretion.

The court's reasoning focused on the information available to Detective Vance when she applied for the search warrant. While there was conflicting evidence regarding the precise details of the discussion between Senior Constable Walker and Detective Vance, it was established that Senior Constable Walker informed Detective Vance of the items found in Watts' van, which included methylamphetamine, MDMA, a firearm, cash, and drug trafficking paraphernalia. Detective Vance also accessed the SAPOL database, which provided information concerning the Parafield Gardens address and the appellant. The court found that, viewed collectively, this information provided Detective Vance with reasonable grounds to suspect that evidence of drug trafficking might be located at the appellant's residence. The court also indicated that, had it been required to exercise the discretion to exclude the evidence afresh, it would not have done so.

The appeal was dismissed, with the court ordering that the appeal be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand the ground of appeal it is necessary to set out in some detail the factual background to the search and the evidence on the voir dire.Factual background to the search On 17 June 2014 police undertook a search of a house at Parafield Gardens which was the appellant’s residence. Earlier that day the co-accused, Watts, had been arrested by police at Manningham. That followed a complaint to police that Watts had been trying to break into a property at Manningham occupied by his partner. Following his arrest, Watts was conveyed to the Holden Hill police station. He was interviewed by Senior Constable Walker. A van belonging to Watts was left at the Manningham property. Later that day police officers returned to search the van for the purpose of investigating whether it contained any evidence of implements that may have been used in the attempted break in. During the search of the van police found quantities of methylamphetamine and MDMA, a class H firearm and $2,635 in cash. In addition police located other indicia of drug trafficking, including digital scales, resealable plastic bags, glass pipes and a tick list. At the Holden Hill police station, Senior Constable Walker discussed the question of bail in an unrecorded conversation. Senior Constable Walker enquired whether there was an address to which Watts could be bailed. Watts nominated as a potential bail address the home of a friend he named as Bernadette where he had previously stayed. Watts indicated that he did not know the street name or number where Bernadette resided but he could locate it on a map. Senior Constable Walker used his telephone to permit Watts to navigate to the address using Google Maps. It was by the use of Google Maps that Watts was able to identify the precise address at which Bernadette resided. This was the appellant’s house at Parafield Gardens. Following this interview, Senior Constable Walker was advised by other officers of the result of the search of Watts’ van. Subsequently Senior Constable Walker approached Detective Vance to explain what had occurred in relation to Watts. He informed Detective Vance of the items located in Watts’ van. There was a discussion about Watts and the address at Parafield Gardens. Each officer gave conflicting evidence on the voir dire concerning this discussion. Following this discussion Detective Vance interrogated the SAPOL database for information in relation to the Parafield Gardens address. She said that as a result of the information conveyed to her by Senior Constable Walker and the information she had obtained from the SAPOL database concerning the Parafield Gardens address and the appellant, she formed a suspicion that evidence of drug trafficking may be located at the Parafield Gardens address. On that basis she exercised a general search warrant to search the Parafield Gardens premises. At the appellant’s trial the prosecution sought to tender evidence obtained as a result of that search. The voir dire

Evidence

Evidence Before The Court

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Decision

Reasons for decision

STANLEY J (dissent)
In these circumstances, had I been required to exercise the discretion afresh, I would not have excluded the evidence. Conclusion I would dismiss the appeal. PARKER J: I would dismiss the appeal. I agree with the reasons of Stanley J.

Ratio Decidendi

Legal Principle Established

Established by:

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