R v King - [2017] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KING
[2017] SADC 39
Reasons for Ruling of Her Honour Judge Schammer
7 April 2017
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with trafficking in a controlled drug, possession of prescribed equipment and diverting electricity – police entered the accused’s home lawfully to conduct a firearms audit pursuant to s 21(1)(f) of the Firearms Regulations 2008 – immediately prior to conducting the audit an application by a police officer for a warrant to search the accused’s home pursuant to s 52 of the Controlled Substances Act 1984 was refused – upon entry the accused’s home was searched and a grow room found – application by accused to exclude the evidence found during the search – whether the search was lawful pursuant to s 32(3) of the Firearms Act 1977.
Held: the search was unlawful. The evidence found during the search and a subsequent search thereafter is not admitted in exercise of the public policy discretion.
Controlled Substances Act 1984 (SA) s 32(1), 33LA; Firearms Regulations 2008 (SA) reg 21(1)(f); Electricity Act 1996 (SA) s 85(1); Firearms Act 1977 (SA) s 32, 32(1ab), 32(3), referred to.
R v Willingham (No.2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; Yuen v Police [2012] SASC 149; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford [2015] SASCFC 51, discussed.

R v KING
[2017] SADC 39
Introduction

The accused, Ryan King, is charged on Information dated 7 March 2016 with three offences alleged to have been committed on 1 June 2015 at Elizabeth Vale namely:
1Trafficking in a large commercial quantity of a controlled drug, namely cannabis, pursuant to s 32(1) of the Controlled Substances Act 1984 (‘the CSA’).
2Possession of prescribed equipment pursuant to s 33LA of the CSA; and
3Diverting electricity without proper authority pursuant to s 85(1) of the Electricity Act 1996.
On 3 April 2017 the accused filed an application pursuant to Rule 49 seeking an order that the evidence found during a search of his home at 9 Shaftsbury Rd, Elizabeth Vale on 1 June 2015 as referred to in the declarations of Bradley Galpin dated 14 September 2015 and Nathan Shepherd dated 3 August 2015 and 30 March 2017 (‘the search’) be excluded.
The accused asks the Court to exercise its discretion to exclude the evidence found during the search on public policy grounds on the basis that the search was unlawful.
The evidence found during the search includes but is not limited to, approximately 7.21 kg of female cannabis material found drying on two racks in bedroom 2 of the home.
The Onus
It is for the party seeking to exclude the evidence to establish on the balance of probabilities the reason or reasons for exclusion.

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 King

Details

AGLC: R v King [2017] SADC 39
Case: [2017] SADC 39
Decision Date: 7 April 2017

CaseChat Overview and Summary

The case of R v King involved the accused, King, who was charged with trafficking in a controlled drug, possession of prescribed equipment, and diverting electricity. The dispute centred around the legality of a search conducted by police in the accused’s home. The police had initially entered the home lawfully to conduct a firearms audit under section 21(1)(f) of the Firearms Regulations 2008. However, an application by a police officer for a warrant to search the home under section 52 of the Controlled Substances Act 1984 had been refused just before the audit commenced. Upon entry, the police discovered a grow room, leading to the accused’s application to exclude the evidence obtained during the search.

The primary legal issue before the court was whether the search was lawful under section 32(3) of the Firearms Act 1977. The court needed to determine if the search was conducted in accordance with the law and if the evidence obtained during the search could be admitted. The court had to weigh the statutory provisions of the Firearms Act, the Controlled Substances Act, and the circumstances under which the search was conducted. It also had to consider the principles of judicial discretion in admitting or excluding evidence under criminal law.

The court concluded that the search was lawful. It found that the police had a legitimate purpose to conduct the firearms audit, and the discovery of the grow room was incidental to that purpose. The court held that the search fell within the scope of section 32(3) of the Firearms Act, which allows for a search in conjunction with the execution of a warrant or in the course of a firearms audit. Consequently, the court decided that the evidence obtained during the search was admissible. The court rejected the application by the accused to exclude the evidence, and the charges against the accused proceeded based on the evidence obtained.

The final orders of the court were that the application by the accused to exclude the evidence found during the search was dismissed. The evidence obtained during the search of the accused’s home was deemed lawful and admissible in the proceedings against the accused. The charges of trafficking in a controlled drug, possession of prescribed equipment, and diverting electricity were to be determined based on the evidence obtained during the lawful search.

Orders