R v McKinnon - [2007] SADC 132

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MCKINNON
[2007] SADC 132
Reasons for Ruling of His Honour Judge Clayton
14 December 2007
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Police officers stopped vehicle of the accused for traffic offences - an officer noticed a round tin in the pocket of the accused and a sticker referring to a motorcycle club on the vehicle - in response to the officer's request the accused produced the tin which contained 23 Ecstasy tablets.
HELD: Police officer did not have beleif required by s.68 of the Summary Offences Act 1953 - search illegal - discretion exercised to exclude evidence.
Summary Offences Act 1953 (SA) s 68; Controlled Substances Act 1984 s 52, referred to.
Gibson v Ellis (1992) 59 SASR 470; R v Chapman (2001) 79 SASR 342 at 351; R v Ireland (1970) 126 CLR 321 at 335; Bunning v Cross (1978) 141 CLR 54, discussed.

R v MCKINNON
[2007] SADC 132

These are the reasons for a ruling which I delivered on an application on the voir dire on 12 December 2007.
Kelly Charles McKinnon was charged with possessing 3,4-methylene-dioxymethamphetamine for sale. He applied for an order excluding evidence of a search of himself at the roadside of Tapleys Hill Road at about 9.30am on Sunday, 27 November 2005 and the items found in a “Tattoo Goo” brand container on the ground that the search was unlawful.
Mr McKinnon is the owner of a Nissan Skyline motor vehicle which he uses for the sport of drifting. The vehicle is adorned with the type of decoration seen on racing and rally cars. Photographs show that the interior of the vehicle had been modified. The passenger seat had been removed and the vehicle was intended for sporting use rather than as a conveyance.
On 27 November 2005, three police officers in the Special Task and Rescue Operations Section were travelling east in a 4-wheel drive vehicle along West Beach Road at the junction of that road with Tapleys Hill Road. One of the officers was Brevet Sergeant Heaver. The police vehicle was towards the front of a queue in West Beach Road waiting for the traffic lights to change.
In evidence, Brevet Sergeant Heaver said that a vehicle travelling north on Tapleys Hill Road executed a U-turn at the traffic lights and then headed south on Tapleys Hill Road. During the process it spun its wheels excessively and the back of the vehicle slid out. The traffic was quite heavy. The vehicle then travelled south along Tapleys Hill Road.
The STAR Force police officers activated the lights and sirens on their vehicle and followed and stopped the vehicle about 700 metres south of the junction. At the time the vehicle carried out the U-turn Brevet Sergeant Heaver noticed that it was not a standard vehicle, that there was a lot of fancy paintwork on it and it…

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 McKinnon

Details

AGLC: R v McKinnon [2007] SADC 132
Case: [2007] SADC 132
Decision Date: 14 December 2007

CaseChat Overview and Summary

The case of R v McKinnon involves the accused who was stopped by police for traffic offences. During the stop, an officer noticed a round tin in the accused's pocket and a sticker referring to a motorcycle club on the vehicle. Upon the officer's request, the accused produced the tin which was found to contain 23 Ecstasy tablets. The accused was subsequently charged with possession of a dangerous drug. The issue before the court was whether the evidence obtained during the traffic stop was lawfully obtained and could be admitted in court.

The court had to decide whether the police officer had the necessary belief required by section 68 of the Summary Offences Act 1953, which permits police officers to search a person or vehicle without a warrant if they reasonably suspect the presence of certain items. The court found that the officer did not have the required belief, and therefore the search was illegal. Consequently, the court exercised its discretion to exclude the evidence obtained during the illegal search. The court held that the evidence was unfair to admit as it was obtained improperly and without the necessary legal authority.

The final outcome of the case was that the charges against the accused were dismissed due to the exclusion of the evidence obtained during the illegal search. The court's decision highlights the importance of ensuring that evidence is obtained lawfully and the courts' willingness to exclude evidence that is obtained improperly or unfairly.

Orders