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R v Mckelliff No. DCCRM-02-1104

R v Mckelliff No. DCCRM-02-1104

Case [2003] SADC 145 24 September 2003

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R v Terry John McKelliff
[2003] SADC 145
Judge Clayton
Criminal
Background

Terry John McKelliff was charged with one count of possessing methylamphetamine for sale and one count of possessing lysergide for sale.
By application pursuant to rule 9 of the District Court Rules, he challenged the admissibility of five categories of evidence. Some items were agreed and for present purposes it is only necessary to deal with that part of the application which sought to exclude evidence of material located during a police search of premises.
The evidence in question was obtained during the course of a search purportedly in compliance with the powers in a general search warrant. The applicant argued that the search was illegal and constituted a trespass. It was said that the police officers who conducted the search did not possess a valid warrant, because the general search warrant was not validly issued and the holder of the warrant did not have a sufficient basis to search the premises. It was argued that entry to the property was forcibly gained before the officer purported to exercise any power under the warrant and that it was only after a shed at the rear of the premises had been illegally searched and cannabis found that the holder of the warrant used the fruit of that illegal search to justify breaking into the premises and locating the evidence which was the subject of the application.
The rule 9 application was considered at a lengthy hearing on the voir dire.
Before any evidence was heard on the voir dire, there was argument about a subpoena which had been served upon the Commissioner for Police. The applicant sought the production on the voir dire of material which would identify an informant who provided the information which caused the holder of the warrant to form the beliefs required to enliven the warrant.
During the course of the hearing the prosecution contention that information had actually been provided by an informant to a police officer was an issue. Also, the accused suggested as a defence the fact that the drugs which were found during the search may have some connection with the informant. The identity of the informant was, therefore, said to be relevant.
Some documents were produced by the Commissioner pursuant to the subpoena. In respect of others, I upheld the objection as to relevance and/or the Commissioner’s claim of public interest immunity and I declined to order that any documents which may have identified the informant, be produced.
The Crown argued that it was not possible to go behind the face of the warrant. It was submitted that the challenge to the warrant could go no further than a consideration of the ability of the Commissioner to delegate the power to issue warrants to others. It was submitted that it was not permissible to examine the process which had been undertaken by the Deputy Commissioner when he issued the relevant general search warrant. On 15 July 2003 I ruled that…

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 Mckelliff No. DCCRM-02-1104

Details

AGLC: R v Mckelliff No. DCCRM-02-1104 [2003] SADC 145
Case: [2003] SADC 145
Decision Date: 24 September 2003

CaseChat Overview and Summary

In the District Court of South Australia, Terry John McKelliff was charged with possession of methylamphetamine and lysergide for sale. McKelliff sought to exclude evidence obtained during a search of his premises, arguing the search was illegal and constituted a trespass. The crux of the case lay in the legality of the general search warrant used to authorise the search, and whether the search was validly executed. The Court had to determine if the warrant was validly issued and whether the search was conducted in accordance with the powers granted by the warrant.

The Court examined the power to issue general search warrants, noting that under the Summary Offences Act, the Commissioner could delegate this power. The Court found that the Deputy Commissioner had the authority to delegate this power to others, including the issuance of the warrants in question. The Court also held that the Deputy Commissioner's assessment of the suitability of the warrant recipients was sufficient, as the criteria for issuing the warrant were met.

Furthermore, the Court ruled that the warrant was not invalid merely because it was signed before its effective date. The Court clarified that the warrant's validity was determined by its effective date, not the date of signature. Lastly, the Court concluded that the search was validly executed under the warrant, as the officers had reasonable cause to suspect criminal activity, justifying the entry and search of the premises.

Ultimately, the Court rejected McKelliff's application to exclude the evidence obtained during the search, finding the warrant was validly issued and executed.

Orders