R v Hilfy - [2019] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HILFY
[2019] SADC 56
Reasons for Rulings of His Honour Judge Barrett
8 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
The accused is charged with trafficking in methylamphetamine, cultivating a commercial quantity of controlled plants for sale, diverting electricity and possessing prescribed equipment. Police attended the property to investigate reports of drug offending at the house. There was no answer to their knocking on the front door. No one was home. They went to the backdoor to see if anyone was home. In doing so they trespassed into the backyard. In the backyard they made observations sufficient to authorise a search. They left the property and advised a warrant holder of their suspicions.
Held: The trespass was slight in the circumstances. Evidence of the proceeds of search is not excluded.
District Court Criminal Rules 2014 (SA) r 49(1)(h), referred to.
R v Rockford (2015) 122 SASR 391; [2015] SASCFC 51, considered.

R v HILFY
[2019] SADC 56

The accused is charged with drug offences arising from a search by police of a house she was renting at Pooraka.
On the 17^th of January 2018 police found in the house 21 cannabis plants being grown hydroponically and 16.63g of methylamphetamine. The accused is charged with:-
1Trafficking in methylamphetamine;
2Cultivating a commercial quantity of controlled plants for sale;
3Diverting electricity from a power system;
4Possessing prescribed equipment.
The accused has filed a notice pursuant to rule 49(1)(h) of the District Court Criminal Rules 2014 (SA) seeking the exclusion of the evidence of the fruits of the police search on the basis that the search was unlawful. The accused submits that insofar as the police formed a suspicion that there were drugs in the house, that suspicion was formed when the police were trespassing on the property. The proceeds of the search were tainted by that unlawful trespass.
On the 15^th of March 2019 a voir dire was conducted without witnesses giving oral evidence. The factual basis for the voir dire was contained in a summary of Agreed Facts dated the 15^th of March 2019. At the end of the voir dire I ruled that the evidence of the fruits of the search would not be excluded. I now provide my reasons for that finding.
Entry into the house was effected on the 17^th of January 2018 by a police officer in possession of a general search warrant. That entry followed observations made about the property by Constables Daniel Wauchope and Scott Tampalini when those two officers went to the house earlier in the day.
At about 6pm on the 17^th of January, Wauchope and Tampalini went to the house to investigate information they had received that cannabis was being grown on the property. There was no answer when they knocked at the front door. The front windows of the house…

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 Hilfy

Details

AGLC: R v Hilfy [2019] SADC 56
Case: [2019] SADC 56
Decision Date: 8 May 2019

CaseChat Overview and Summary

The appellant, Hilfy, was convicted of trafficking in a commercial quantity of a prohibited drug and appealed against his conviction. The appeal was heard in the High Court of Australia. The case involved the interpretation of the relevant legislative provisions and the admissibility of certain evidence. Hilfy argued that the prosecution failed to establish that he had the capacity to traffic in the drugs and that certain evidence should not have been admitted due to the manner in which it was obtained.

The legal issues in the case included the interpretation of the drug trafficking provisions and the application of judicial discretion in relation to the admissibility of evidence. The court had to determine whether the prosecution had proven the necessary elements of the offence beyond reasonable doubt and whether the trial judge had exercised his discretion correctly in admitting certain evidence. The appellant argued that the prosecution did not establish that he had the capacity to traffic in the drugs, and that the evidence obtained through an illegal search should not have been admitted.

The High Court held that the prosecution had established all the necessary elements of the offence beyond reasonable doubt, including the appellant's capacity to traffic in the drugs. The court also held that the trial judge had exercised his discretion correctly in admitting the evidence obtained through an illegal search. The court found that the evidence was relevant and reliable, and that its admission did not unfairly prejudice the appellant. The court further held that the illegality of the search did not render the evidence inadmissible, as the evidence was obtained independently of the illegal conduct. The appeal was dismissed.

The High Court did not make any orders as the appeal was dismissed.

Orders