R v Mackinder No. Sccrm-99-34 Judgment No. S198

[1999] SASC 198

R  v  MACKINDER
[1999] SASC 198

Court of Criminal Appeal:  Doyle CJ, Prior and Mullighan JJ

1. DOYLE CJ:               This is an application for leave to appeal against conviction.  Mr Mackinder was convicted by the District Court on charges of possessing methylamphetamine for sale and of unlawful possession of $400.

2. The applicant, Mr Mackinder, seeks leave to appeal on the grounds that the trial judge erred in failing to exclude certain evidence tendered by the prosecution.  The trial judge made his ruling after hearing evidence and submissions on the voir dire relating to the admissibility of the relevant evidence.  Leave to appeal against the conviction was refused by Debelle J.

3. By application dated 8 April 1999, Mr Mackinder applied to have determined by the Full Court his application for leave to appeal against conviction.  The application was considered by the Full Court in private pursuant to rule 15(7) of the Criminal Appeal Rules.  The court for that purpose comprised me, Justice Prior and Justice Mullighan.  We are unanimously of the opinion that leave to appeal should be refused. 

4. The judge’s decision at the voir dire was based upon findings of fact that he made that were generally adverse to the case put forward by the applicant.  There is no reasonable prospect of those findings of fact being set aside.  As well, the judge said that he would have exercised his discretion to allow the evidence to be admitted, even if he had found that the relevant evidence was obtained unlawfully by the police officer in question.

5. Once again, in our opinion, there is no reasonable prospect of the judge’s exercise of his discretion being shown to be wrong.  For those reasons we concluded there was no reasonable prospect of the appeal succeeding and accordingly the order of the court is that leave to appeal be refused.