(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
4 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Application for permission to appeal against conviction and sentence. The applicant, subject to a firearms prohibition order issued by the Registrar of Firearms, was convicted of possessing ammunition by a judge of the District Court following a trial by judge alone. She was sentenced to 12 months imprisonment with a non-parole period of eight months.
In the early hours of 29 December 2013, two police officers were on patrol in Campbelltown. They observed a vehicle pull away from the kerb outside premises where they understood that the applicant resided. They were aware that the defendant was regularly in trouble with the law. They proceeded to follow the vehicle. One officer conducted a registration check and noted that the registered owner was flagged as being wanted for questioning in relation to traffic matters. On the receipt of this information, the other officer activated the lights on the patrol car and pulled over the pursued car.
One of the officers approached the passenger side of the vehicle. He recognised the applicant in the front passenger seat. He asked her for identification. The applicant retrieved her driver’s licence from a purse in her handbag, which was between her feet in the foot well of the vehicle. The officer confirmed on the police system that the firearms prohibition order was current. The officer requested that the applicant get out of the vehicle. He intended to utilise his powers, as he understood them under the Firearms Act 1977 (SA), to search in relation to the firearms prohibition order. Two other officers arrived and assisted in the search. One officer searched the applicant’s handbag, within which he found three rounds of ammunition, the subject of the charge.
Section 32(3a) of the Firearms Act 1977 confers on a police officer broad powers of detention, search and seizure “as reasonably required for the purpose of ensuring compliance with a firearms prohibition order”.
Whether the exercise of the powers was reasonably required for the purpose of ensuring compliance with a firearms prohibition order. Whether the trial Judge should have excluded the evidence of the search. Whether the Judge erred in finding that the defendant was knowingly in possession of the ammunition. Whether the Judge should have exercised her discretion to suspend the sentence of imprisonment. Whether the…
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.
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Details
AGLC
R v Ioannidis [2015] SASCFC 158
Case
[2015] SASCFC 158
Decision Date
CaseChat Overview and Summary
The Supreme Court of South Australia, constituted by Kourakis CJ, Gray and Peek JJ, considered an application for permission to appeal against conviction and sentence by the defendant, Natalie Ioannidis. Ms Ioannidis was charged with possessing ammunition contrary to a firearms prohibition order, having been found with three rounds of .32 calibre ammunition on 29 December 2013, while subject to such an order. She pleaded not guilty and was found guilty by a judge alone, subsequently being sentenced to 12 months imprisonment with a non-parole period of eight months.
The central legal issues before the court concerned the admissibility of evidence obtained from a search of Ms Ioannidis and the vehicle she was in, and whether the trial judge erred in her assessment of the police's powers to conduct such a search under the *Firearms Act 1977* (SA). Specifically, the court had to determine if the search was reasonably required to ensure compliance with the firearms prohibition order and if the trial judge had properly exercised her discretion regarding the exclusion of evidence, considering principles of unlawful or unfair conduct by authorities.
The court reasoned that the trial judge's finding that the search was reasonably required was correct, interpreting section 32(3a) of the *Firearms Act* to permit searches when reasonably required to check compliance with a firearms prohibition order, absent countervailing circumstances. The court found that the trial judge had not erred in her construction of the legislation or in her exercise of discretion concerning the admission of evidence, applying established principles from cases such as *Lawrie v Muir* and *R v Ireland* regarding the balancing of the citizen's right to protection from irregular invasions of liberty against the state's interest in securing evidence.
Ultimately, the Supreme Court granted permission to appeal but dismissed the appeals against both conviction and sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
On 19 December 2014, the defendant was sentenced to a term of imprisonment of 12 months. A non-parole period of eight months was fixed. The sentence commenced on 21 November 2014. Background On 12 April 2012, the defendant was subjected to a firearms prohibition order issued by a delegate of the Registrar of Firearms pursuant to section 10B of the Firearms Act 1977 (SA). The prohibition order decreed that the delegate of the Registrar was satisfied that the defendant was not a fit and proper person to possess a firearm and that it was in the public interest to prohibit the defendant from possessing and using a firearm. In accordance with the Firearms Act and the Firearms Regulations 2008 (SA), the delegate of the Registrar imposed 12 conditions under his authority. One of those conditions was that the defendant must not possess ammunition. In the early hours of Sunday 29 December 2013, Senior Constable Rusak and Constable Rogers were on patrol in the Campbelltown area. At about 2.00 am they were making general observations on Florentine and Alan Avenues in Campbelltown. They observed a vehicle pull away from the kerb outside premises where they understood that the defendant resided. They were aware that the defendant was regularly in trouble with the law. They proceeded to follow the vehicle. Constable Rogers conducted a registration check using the mobile data terminal in the patrol car and noted that the registered owner was flagged as being wanted for questioning in relation to traffic matters. The registered owner was recorded as Kayne Kluse. On receipt of this information, Senior Constable Rusak activated the lights on the patrol car and pulled the motor vehicle over in Spencer Street, Campbelltown. Senior Constable Rusak had a conversation with Mr Kluse, who was driving the motor vehicle. Having recorded his personal details, Senior Constable Rusak then conducted a record of interview with Mr Kluse, which led to Mr Kluse being reported for the offence of failing to provide details of the driver of a motor vehicle on an earlier occasion. While Senior Constable Rusak was talking to Mr Kluse, Constable Rogers approached the passenger, who was seated in the front passenger seat. He recognised the passenger as the defendant. He requested the defendant produce identification as he wanted to confirm whether she was the person the subject of a firearms prohibition order. Constable Rogers observed that the defendant retrieved her driver’s licence from a handbag that was between her feet in the foot well of the vehicle. She took the licence from her purse which was in the handbag. Constable Rogers returned to the patrol car to confirm whether the firearms prohibition order was still in effect and also to check any bail conditions that may have been in existence. He confirmed that the firearms prohibition order remained in effect and then returned and requested that the defendant get out of the vehicle. Constable Rogers intended to conduct a search of the defendant and the vehicle. He wished to utilise his powers, as he understood them, under the Firearms Act to search in relation to the firearms prohibition order.
Evidence
Evidence Before The Court
For all of the above reasons, I conclude that the Judge failed to exercise the discretion on a correct construction of the legislation and took into account matters which were not relevant to the exercise of her discretion. The discretion must therefore be re-exercised.Re-exercising the discretion to exclude evidence I commence consideration with the well-known words of Lord Justice-General, Lord Cooper in Lawrie v Muir:[46]From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict—(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the utmost.[46] [1950] SLT 37, 39-40. In R v Ireland,[47] the centre piece of the judgment of Barwick CJ (with whom McTiernan, Windeyer, Owen and Walsh JJ each concurred) was the phrase unlawfulness or unfairness by police officers. Thus his Honour stated:[48]Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[47] (1970) 126 CLR 321.[48] (1970) 126 CLR 321, 335. In Bunning v Cross, Stephen and Aickin JJ said of this passage:[49]That statement represents the law in Australia; it was concurred in by all other members of the Court in Reg v Ireland and has since been applied in a number of Australian cases.[49] (1978) 141 CLR 54, 72. Of course, Bunning v Cross involved police officers directing a motorist to take a breath analysis test on the basis of his behavior which positively indicated impaired ability to drive; their error was that they should have first required the defendant to take a preliminary alcotest and then relied on a positive alcotest result to require the breath analysis. It was in that context that their Honours stated that unfairness to the accused is “only one factor which, if present, will play its part in the whole process of consideration” of discretionary exclusion.[50] But importantly for present purposes, their Honours went on to observe:[T]he discretionary process called for in Ireland … applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon CJ put it in Wendo’s Case,[51] unlawful or improper conduct). (Emphasis added)[50] (1978) 141 CLR 54, 74-75.[51] Wendo v The Queen (1963) 109 CLR 559, 562.
Decision
Reasons for decision
KOURAKIS CJ
PEEK J
The following passage of the Judge’s reasons is impugned on the ground that it fails to identify the known circumstances why the search was required to ensure compliance by the appellant with the FPO:However, there is no reason to think that the search was not reasonably required given the circumstances that [the police] encountered at that time to ensure compliance with the order. The police have not acted in any to abuse their powers in relation to the search of her person.I do not agree. I understand that passage to make the point that there were no circumstances which brought into question the proportionality of the search, or to, in any other way suggest, that the search was an abuse of the power. I understand the concept of abuse of power in these circumstances to refer to the use of the power for a collateral purpose. The Judge’s reasons proceed on the same construction that I would give s 32(3a) of the Firearms Act. It empowers police to search persons who are subject to FPOs whenever a search is reasonably required and a search will in the absence of countervailing circumstances generally be reasonably required for no other cause than to check compliance with the FPO.Conclusion I grant permission to appeal and, would dismiss the appeal against conviction and the appeal against sentence. This is an application for permission to appeal against conviction and sentence. The defendant and applicant, Natalie Ioannidis, was charged with the offence of possessing ammunition contrary to a firearms prohibition order.[7] The Information was in the following terms: Natalie Ioannidis on the 29th day of December 2013 at Campbelltown, had in her possession ammunition, namely a three rounds of .32 calibre ammunition, whilst subject to a firearms prohibition order.[7] Firearms Act 1977 (SA) section 10C(3). The defendant pleaded not guilty and elected for trial by judge alone. The trial proceeded in October 2014 and the trial Judge’s verdict, and the reasons for the verdict, were delivered on 21 November 2014. The defendant was found guilty as charged.[8] [8] R v Ioannidis [2014] SADC 198. On 19 December 2014, the defendant was sentenced to a term of imprisonment of 12 months. A non-parole period of eight months was fixed. The sentence commenced on 21 November 2014. Background On 12 April 2012, the defendant was subjected to a firearms prohibition order issued by a delegate of the Registrar of Firearms pursuant to section 10B of the Firearms Act 1977 (SA). The prohibition order decreed that the delegate of the Registrar was satisfied that the defendant was not a fit and proper person to possess a firearm and that it was in the public interest to prohibit the defendant from possessing and using a firearm. In accordance with the Firearms Act and the Firearms Regulations 2008 (SA), the delegate of the Registrar imposed 12 conditions under his authority. One of those conditions was that the defendant must not possess ammunition. In the early hours of Sunday 29 December 2013, Senior Constable Rusak and Constable Rogers were on patrol in the Campbelltown area. At about 2.00 am they were making general observations on Florentine and Alan Avenues in Campbelltown. They observed a vehicle pull away from the kerb outside premises where they understood that the defendant resided. They were aware that the defendant was regularly in trouble with the law. They proceeded to follow the vehicle. Constable Rogers conducted a registration check using the mobile data terminal in the patrol car and noted that the registered owner was flagged as being wanted for questioning in relation to traffic matters. The registered owner was recorded as Kayne Kluse. On receipt of this information, Senior Constable Rusak activated the lights on the patrol car and pulled the motor vehicle over in Spencer Street, Campbelltown.