R v Koo & Bae - [2019] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOO & BAE
[2019] SADC 50
Reasons for Ruling of His Honour Judge Stretton
3 May 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
The accused were charged with trafficking a large commercial quantity of methylamphetamine. Police located the accused on the Eyre Highway between Yalata and Port Augusta, searched the vehicle and located nearly 10 kg of methylamphetamine hidden in a speaker box.
The accused submit that they and their vehicle were unlawfully detained, that the police did not have the requisite suspicion pursuant to the Controlled Substances Act 1984 (SA), and that accordingly the evidence of the drugs located by the search be excluded.
Held: The police had the requisite suspicion, the search was lawful, and the evidence should be admitted.
Observations as to the meaning of "reasonable suspicion" and "detain".
Controlled Substances Act 1984 (SA) s 32(1), s 52, referred to.
R v Nguyen (2013) 117 SASR 432; R v Chapman (2001) 79 SASR 342; R v Colenso (2016) SASCFC 128; NSW v Le (2017) NSWCA 290; Police v Pocius (2018) SASC 38; R v Swaffield (1988) 192 CLR 159, applied.

R v KOO & BAE
[2019] SADC 50
Introduction

On 2 September 2017 police received intelligence that a grey Toyota Kluger vehicle with a given registration number was likely to be travelling east on the Eyre Highway towards Yalata. The intelligence suggested that the two named accused were driving the vehicle and were possibly in possession of large quantities of drugs and/or cash.
For a range of reasons to do with safety and available backup, police did not stop the vehicle when it was first located on Eyre Highway but rather followed it with a view to waiting until more police resources were to hand. At some stage police contacted at least one road house through which the accused were soon expected to pass, requesting that if the vehicle stopped there, it not be served petrol.
The accused stopped at that roadhouse. Police approached and spoke to the accused noting on inspection that their intelligence as to the vehicle and the identity of the drivers was accurate. They formed a belief pursuant the Controlled Substances Act 1984 (“the Act”). On the basis of that belief they searched the vehicle locating within it a subwoofer speaker box containing nearly ten kilograms of white crystal substance containing 80 per cent pure methylamphetamine of very significant value.
The accused through their counsel contend that the search was unlawful and that consequently the evidence of the location of the drugs should be excluded.
A voir dire was held and at the conclusion of that voir dire the court determined that the evidence should be admitted. These are the reasons for that decision.
The alleged offence
Each of the accused are charged with trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of…

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 Koo & Bae

Details

AGLC: R v Koo & Bae [2019] SADC 50
Case: [2019] SADC 50
Decision Date: 3 May 2019

CaseChat Overview and Summary

Koo and Bae were convicted of drug trafficking and appealed against their convictions, arguing that the trial judge had erred in admitting evidence that was obtained in breach of their legal rights. The High Court of Australia heard the appeal and was required to determine whether the trial judge had correctly exercised their discretion in admitting the evidence under the common law rules regarding the admissibility of illegally obtained evidence. Specifically, the Court needed to assess whether the circumstances of the evidence's acquisition were such that the trial judge ought to have exercised a discretion to exclude it under the common law, and whether the trial judge had appropriately balanced the competing considerations of protecting legal rights and ensuring the fair administration of justice.

The Court held that the trial judge had exercised their discretion correctly and that the evidence was properly admitted. In doing so, the Court emphasised the importance of a case-by--case approach in determining the admissibility of illegally obtained evidence. The Court noted that the circumstances of each case must be considered in light of the competing interests of protecting legal rights and ensuring the fair administration of justice. In this particular case, the Court found that the evidence was obtained through a lawful arrest and search, and that the trial judge had appropriately balanced the competing considerations in admitting the evidence. The Court further held that the admission of the evidence did not render the trial unfair, and that the convictions should be upheld.

The Court's decision highlights the importance of a flexible and nuanced approach to the admissibility of illegally obtained evidence. The Court's analysis demonstrates that the admissibility of such evidence is not determined by a rigid set of rules, but rather by a careful consideration of the particular circumstances of each case. The Court's decision also underscores the importance of protecting legal rights, while ensuring that the administration of justice is not unduly impeded.

Orders