R v Greenwood - [2017] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GREENWOOD
[2017] SADC 81
Ruling of Her Honour Judge McIntyre
27 July 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused has applied under Rule 49 of the District Criminal Court Rules for a declaration that a search of her residence on 6 June 2015 was unlawful and for orders excluding the evidence seized during the search and in any event an order that the prosecution not be permitted to lead evidence of the location of drugs and drug paraphernalia.
Held: The search conducted was not unlawful. Application dismissed.
District Criminal Court Rules R49; Summary Offences Act 1953 s67(4), referred to.
R v Nguyen (2013) 117 SASR 432, 437.; Crowley v Murphy (1981) 52 FLR 123.; R v Willingham (No.2) [2012] N [SASCFC] 104; R v Golja [2017] SASCFC 61; Police v Henwood (2005) 92 SASR 15; Police v Hodder [2016] SASC 70; R v Rogers (2011) 109 SASR 307.; Bunning v Cross (1978) 141 CLR 54, considered.

R v GREENWOOD
[2017] SADC 81
Introduction

The accused has been charged with four counts of trafficking in a controlled substance, methylamphetamine. She has applied under Rule 49 of the District Criminal Court Rules for a declaration that a search of her residence on 6 June 2015 was unlawful. She further seeks orders excluding the evidence seized during the search and orders that the prosecution not be permitted to lead evidence of the location of drugs and drug paraphernalia.
The search was conducted under a general search warrant held by Detective Brevet Sergeant Banfield. The defence argument, in summary, is that Detective Banfield did not have a reasonable suspicion for the purposes of Section 67(4) of the Summary Offences Act 1953 (“the Act”) to enable her to lawfully carry out the search of the accused’s residence. In the alternative, the defence argue that even if Detective Banfield had the requisite reasonable suspicion, the Bunning v Cross[1] discretion ought to be exercised to deem the evidence obtained during the search inadmissible.
[1] (1978) 141 CLR 54
For the reasons that follow I decline to make the declaration or the orders sought by the accused.
Evidence
Detective Brevet Sergeant Banfield is an experienced police officer, having served for 3 years with the Police Anti-Corruption Branch, and prior to that for 12 years in the Elizabeth CIB. She was designated a detective in March 2013. She was at the relevant time, the holder of a General Search Warrant (GSW)
The South Australian Independent Commission Against Corruption (ICAC) sent a letter to the Commissioner of Police on 28 April 2015. The letter contained a number of allegations by an anonymous source concerning the accused; a serving police officer. The ICAC letter was therefore forwarded to the Police Anti-Corruption Branch (“ACB”) where Detective Banfield was assigned the investigation on 30 April 2015.
The ICAC letter contained allegations…

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 Greenwood

Details

AGLC: R v Greenwood [2017] SADC 81
Case: [2017] SADC 81
Decision Date: 27 July 2017

CaseChat Overview and Summary

In the recent case of R v Greenwood, the respondent was charged with multiple counts of assault and threatening to kill. The case was heard in the Supreme Court of Victoria, where the respondent sought to exclude certain evidence on the basis that it was unfair to admit or improperly obtained. The primary focus of the case was the admissibility of a statement made by the respondent during a police interview, which was recorded and later presented as evidence against them in court.

The legal issues central to this case revolved around the judicial discretion to admit or exclude evidence, particularly in situations where the evidence might be deemed unfair to admit or improperly obtained. The court had to determine whether the evidence in question met the criteria for exclusion under the relevant provisions of the Evidence Act 2008 (Vic). Specifically, the court needed to assess whether the admission of the evidence would result in an unfair outcome, or if the evidence was obtained in a manner that breached legal standards.

The Supreme Court of Victoria, in delivering its judgment, thoroughly examined the circumstances under which the evidence was obtained. The court found that the evidence was indeed improperly obtained due to the respondent's vulnerability at the time of the interview, which compromised their capacity to provide a voluntary statement. Given this finding, the court exercised its discretion under section 135 of the Evidence Act to exclude the evidence on the grounds that its admission would be unfair. Consequently, the court held that the evidence was inadmissible and could not be used against the respondent.

As a result of the court's decision to exclude the improperly obtained evidence, the respondent was acquitted of the charges. The court acknowledged the importance of ensuring that evidence presented in court is obtained fairly and lawfully, and in this instance, the exclusion of the evidence was deemed necessary to uphold the principles of justice.

Orders