Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ
DOYLE CJ. I have had the benefit of reading the reasons of Martin J in this matter. I agree with his conclusion that the appeal should be dismissed. I agree with his reasons for so concluding.
On reflection, my reasons in Police v Jervis (1998) 70 SASR 429 did not adequately identify the availability and scope of what Martin J has described as the general unfairness discretion. The approach which I took to the unfairness discretion in Jervis may, as a result of that, have been more limited than it should have been. In the light of the facts of the two appeals considered by the Court in that case, the approach taken by Martin J does not cause me to have any doubts about the correctness of the decision in Jervis. Mere failure to comply with or to satisfy a statutory requirement connected with the obtaining of evidence, to be used by the prosecution, does not of itself amount to unfairness. The exercise of the unfairness discretion requires a more careful consideration of the circumstances. The scope for the exercise of the general unfairness discretion, in cases like Jervis, will be limited when the matters relied upon by the defendant do not affect the reliability of the evidence tendered by the prosecution, and involve no impropriety or misconduct by the police or law enforcement authorities more generally. However, to the extent that my reasons in Jervis might imply that the unfairness discretion is available only in the sort of situation just identified by me, I have expressed myself more narrowly than I should.
In the light of that, I should add that I remain of the view that in Police v Erwin (2 October 1975, S6375, unreported), the judge wrongly treated the case as giving rise to the Bunning v Cross discretion. In the light of the reasons of Martin J, the judge was right to conclude that the general unfairness discretion arose. Whether, in the exercise of that discretion, it was appropriate for the magistrate to have excluded the relevant evidence is not something that it is necessary for me to consider further in these proceedings.
BLEBY J. I agree that the appeal should be dismissed. I agree with the reasons of Martin J. I also think it is appropriate that any possible misconception about the nature of the unfairness discretion arising out of Police v Jervis (1998) 70 SASR 429 should be corrected by what the Chief Justice and Martin J have said.
MARTIN J. The appellant was convicted of possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 (“the Act”) and producing cannabis contrary to s 32(1)(a) of the Act. He appeals against those convictions upon grounds that challenge the decisions of the learned trial judge to admit evidence of identification of the cannabis and to decline to order that the Information be…
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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AGLC
R v Lobban [2000] SASC 48
Case
[2000] SASC 48
Decision Date
CaseChat Overview and Summary
In the case of R v Lobban, the appellant appealed against convictions of possessing cannabis for sale and producing cannabis, challenging the trial judge's decision to admit evidence of identification of the cannabis and to decline to order that the Information be quashed or permanently stayed. The destruction of the cannabis by police was unlawful, but the appeal focused on the potential application of discretionary exclusion of evidence. The court considered the public policy discretion, the unfairness discretion, and a general unfairness discretion. The court concluded that the public policy discretion did not apply as the evidence was lawfully obtained. While the general unfairness discretion exists, the court found no significant unfairness caused by the unlawful destruction of the cannabis, and the evidence's reliability was not in question. Thus, the appeal was dismissed.