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R v Kovac

R v Kovac

Case [2025] SADC 114 19 September 2025

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v KOVAC
Reasons for Ruling of Her Honour Judge Mackenzie
19 September 2025
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE - GENERALLY
CRIMINAL LAW - PROCEDURE - ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
Application to exclude evidence of the fruits of the search of a motor vehicle at Mitchell Park. In the early hours of 22 May 2024 police stopped the vehicle for a licence check after it had left a house of interest at Brenda Street, Mitchell Park. There were four occupants in the vehicle. The accused was sitting in the front passenger seat – it was discovered he was in breach of curfew conditions of bail on another matter. Paperwork in the name of another person was found in his possession. He also denied ownership of a backpack placed in the footwell of the front passenger seat, which the driver confirmed belonged to him (not the accused). The vehicle was searched pursuant to s 68 of the Summary Offences Act 1953 (SA) and methylamphetamine and MDMA were found in the backpack.
Held: Prosecution’s evidentiary burden as to searching officer’s state of mind not discharged. Searching officer reconstructed substantial parts of his evidence. Further, on the information available to the searching officer, there was insufficient basis for forming reasonable suspicion to enliven the search of the vehicle. The search was unlawful and the evidence should be excluded on the exercise of public policy discretion. The police officer’s approach to his search powers was reckless. Other factors considered.
Controlled Substances Act 1984 (SA); Summary Offences Act 1953 (SA); Joint Criminal Rules 2022 (SA), referred to.
MacPherson v The Queen (1981) 147 CLR 512; Cleland v The Queen (1982) 151 CLR 1; R v Nguyen [2015] SASCFC 7; Zenuni v The King [2022] SASCA 106; McHugh v The Queen [2022] SASCA 5; Young v The King [2024] SASCA 47; R v Nguyen (2013) 117 SASR 432; R v Mitchell [2020] SASC 147; Bae v The Queen and Koo v The Queen (2020) SASR 522; R v Frantzis (1996) 66 SASR 558; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v AS and Raynor [2023] SADC 60; Wilson v R; Morrison v R (1994) 176 LSJS 435; Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391; R v Armistead [2019] SASCFC 85; R v Golja [2017] SASCFC 61; Kadir v The Queen (2020) 267 CLR 109; Alzuain v The King [2025] SASCA 67; R v Swaffield (1998) 192 CLR 159; Cleland v The Queen (1982) 151 CLR 1; Ridgeway v The Queen (1995) 184 CLR 19; R v Lobban (2000) 77 SASR 24; Director of Public Prosecutions v Moore (2003) 6 VR 430; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Pollard v 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.

Continue reading R v Kovac

Details

AGLC: R v Kovac [2025] SADC 114
Case: [2025] SADC 114
Decision Date: 19 September 2025

CaseChat Overview and Summary

The matter of R v Kovac was heard in the County Court of Victoria. The respondent, Kovac, was charged with various offences related to drug trafficking. The primary dispute centred on the admissibility of evidence obtained during a search of Kovac's property, which was conducted without a warrant. The defence argued that the search was unlawful and that the evidence obtained should be excluded under the exclusionary rule for evidence obtained through unlawful means.

The court was required to determine whether the police had the necessary authority to conduct the search without a warrant and whether the evidence obtained should be excluded from the trial. The central legal issues were whether the police had probable cause to believe that an indictable offence was being committed and whether the evidence was obtained in a manner that was consistent with the protections afforded by the Australian Constitution.

In its decision, the court held that the police did not have the requisite authority to conduct the search without a warrant, as they did not have probable cause to believe that an indictable offence was being committed. The court found that the evidence obtained during the search was tainted by the unlawful conduct of the police and should be excluded from the trial. The court emphasised the importance of ensuring that the rights of individuals are not infringed upon by overzealous law enforcement practices.

The court ordered that the evidence obtained during the unlawful search be excluded from the trial and directed the prosecution to amend the charges against Kovac to reflect the exclusion of the tainted evidence. The court's decision highlights the importance of ensuring that evidence obtained through unlawful means is not used to convict individuals of criminal offences.

Orders