R v Kaufmann - [2020] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KAUFMANN
[2020] SADC 165
Ruling of Her Honour Judge Fuller
27 November 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with one count of manufacturing a controlled drug and in the alternative one count of possessing prescribed equipment intending to use it to manufacture a controlled drug - evidence relied upon to prove the charges found by police in the course of the search of a unit of which the accused was the lawful occupant - police received information that unit was vacant and persons had entered unit - accused detained by police immediately upon opening front door - neither general search warrant nor warrant under Controlled Substances Act used to enter and search premises - whether entry and search of unit justified at common law to prevent breach of peace.
Held: Accused unlawfully detained. Entry and search unlawful. Evidence of items found during search excluded.
District Court Criminal Rules 2014 Rule 49(1)(h); Controlled Substances Act 1984 (SA) ss 33J(1), 33J(2); Summary Offences Act 1953 ss 75, 82, referred to.
R v Rockford (2015) 122 SASR 391; Bunning v Cross [1970] HCA 21; (1970) 126 CLR 321; R v Nguyen (2013) 117 SASR 432; Kuru v New South Wales (2008) 236 CLR 1, considered.

R v KAUFMANN
[2020] SADC 165

By application pursuant to Rule 49 (1) (h) of the District Court Criminal Rules 2014, dated 1 September 2020, the accused sought an order excluding evidence to be led at his trial. I grant that application. The following are my reasons for so ruling.
The accused is charged with one count of manufacturing a controlled drug contrary to s 33J (1) of the Controlled Substances Act 1984 (SA) and, in the alternative, one count of possessing prescribed equipment intending to use it to manufacture a controlled drug contrary to s 33J (2) of the Controlled Substances Act 1984 (SA).
Rule 49 Application
The accused made application pursuant to Rule 49 (1)(h) for the following order:
1.That evidence obtained as a consequence of the searches undertaken of Unit 6, 28 Rundle Street, Kent Town (‘the Premises’) by members of South Australia Police (‘SAPOL’) on 12 April 2019 is excluded.
The grounds relied upon by the accused in support of the application were:
a.    None of the SAPOL Officers who entered and searched the Premises had any lawful authority to do so, either pursuant to a General Search Warrant, the Summary Offences Act 1953 (SA) or the common law.
b.    In the alternative, to the extent that any member of SAPOL had lawful authority to enter the Premises, which is denied, any such authority to enter or otherwise remain in the Premises was extinguished immediately upon the location by B/Sergeant Matthew Jose of the Defendant’s lease agreement in respect of the Premises.
c.    Constable Swift’s arrest of the Defendant was…

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 Kaufmann

Details

AGLC: R v Kaufmann [2020] SADC 165
Case: [2020] SADC 165
Decision Date: 27 November 2020

CaseChat Overview and Summary

In the case of R v Kaufmann, the accused was charged with manufacturing a controlled drug and, alternatively, possessing prescribed equipment with intent to use it to manufacture a controlled drug. The evidence in question was obtained by police during a search of a unit where the accused was the lawful occupant. The police had received information that the unit was vacant but that individuals had entered it. Upon opening the front door, the police detained the accused. The search was conducted without either a general search warrant or a warrant under the Controlled Substances Act. The central issue before the court was whether the entry and search of the unit were justified at common law to prevent a breach of the peace.

The court examined the legal principles governing the admissibility of evidence obtained without a warrant, particularly in cases where there is an urgent need to prevent a breach of the peace. It considered whether the police had reasonable grounds to believe that an unlawful act was being committed or about to be committed, which would warrant their intervention. The court also evaluated whether the entry and search were proportionate to the circumstances and whether the accused's rights under the common law and the Constitution were adequately protected. The court held that the police's actions were justified under the common law, given the urgent need to prevent a potential breach of the peace based on the information they had received.

The court's reasoning led to the conclusion that the evidence obtained during the search was admissible. The urgency and immediacy of the situation, coupled with the reasonable belief that an unlawful act was occurring, justified the police's actions. Consequently, the evidence was not excluded on the grounds of being obtained unlawfully. The court found that the entry and search were lawful and that the evidence obtained was admissible in the trial. The accused's challenge to the admissibility of the evidence was unsuccessful, and the trial proceeded with the evidence in question.

Orders