R v Mitchell - [2020] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)

R v MITCHELL & ORS
[2020] SASC 147
Reasons for Ruling of the Honourable Justice Lovell
11 August 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
The accused, Alfred Rigney, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.
Application to exclude evidence obtained from search - whether police had reasonable cause to suspect - lawfulness of search - Bunning v Cross discretion
Held:
1. The application is dismissed.
Summary Offences Act 1953 (SA) ss 67, 75, referred to.
Bunning v Cross (1978) 141 CLR 54; George v Rockett (1990) 170 CLR 104; Hussein v Chong Fook Kam [1970] AC 942; Kadir v The Queen (2020) 375 ALR 80; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; R v Frantzis and Batas (1996) 186 LSJS 301; R v Golja [2017] SASCFC 61; R v Nguyen (2013) 117 SASR 432; R v Rockford (2015) 122 SASR 391; R v Rogers (2011) 109 SASR 307; R v Swaffield (1998) 192 CLR 159, considered.

R v MITCHELL & ORS
[2020] SASC 147
Criminal: Application for exclusion of evidence
LOVELL J:
Overview

Alfred Rigney (‘Rigney’) is charged, along with four others, with the murder of Urim Gjabri (‘the deceased’) at Para Vista, South Australia (‘the Para Vista murder’).[1] The murder allegedly occurred during a “drug rip”.[2] Rigney and his co-accused have pleaded not guilty to the charges and the trial is set for September 2020.
[1] Pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA).
[2] A drug rip is a home invasion at premises where drug crops are being grown.
By a rule 49(1)[3] application filed on 17 April 2020, Rigney seeks an order excluding from evidence items seized during a police search of 54 Ryan Street, Moonta (‘the Moonta address’). A black iPhone belonging to the deceased, found in a backpack during the search, is an important item of evidence on the prosecution case. Rigney contends that the police search, conducted under the authority of a General Search Warrant (‘GSW’), was unlawful as the officer holding the GSW, Detective Brevet Sergeant Loren Franz (‘Franz’), did not have “reasonable cause to suspect” as required by s 67 of the Summary Offences Act 1953 (SA) (‘the Summary Offences Act’).
[3] Supreme Court Criminal Rules 2014 (SA).
Background
The police attended the Moonta address on 26 October 2018 for two purposes: to arrest Rigney pursuant to a Parole Board Warrant and also to conduct a search of the premises pursuant to the GSW.
There were six people present at the Moonta address: Rigney, Stacey Karpany (‘Karpany’), Tamia Sansbury, Felicity Sansbury, Kym Sansbury and Tyler Mastrosavas.
During the search, the police…

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 Mitchell

Details

AGLC: R v Mitchell [2020] SASC 147
Case: [2020] SASC 147
Decision Date: 11 August 2020

CaseChat Overview and Summary

In the matter of R v Mitchell, the defendant, Rigney, sought an order under rule 49(1) of the Supreme Court Criminal Rules 2014 (SA) to exclude items seized during a police search of 54 Ryan Street, Moonta. The seized items included a black iPhone belonging to the deceased, which is critical evidence in the prosecution case. Rigney argued that the search conducted by Detective Brevet Sergeant Franz under a General Search Warrant (GSW) was unlawful because Franz lacked "reasonable cause to suspect" as required by s 67 of the Summary Offences Act 1953 (SA). The primary legal issue was whether Franz had a reasonable suspicion at the time of the search, and whether the evidence obtained should be excluded as unfair or improperly obtained.

The court examined the criteria for a reasonable suspicion, drawing from previous cases which establish that a suspicion involves a state of conjecture or surmise where proof is lacking, and must be based on a rational connection between the supporting material and the suspicion. The court assessed whether Franz's suspicion was objectively reasonable by considering the information available to him at the time of the search. Franz testified that he relied on information suggesting the presence of stolen goods or items that may afford evidence of an offence. However, Franz's testimony was inconsistent, as he initially believed there was only one search on 26 October 2018, but later admitted there were two separate searches, with the second occurring on 7 November 2018. Despite this confusion, the court found that Franz did possess sufficient information to form a reasonable suspicion at the time of the first search.

The court dismissed Rigney's application to exclude the evidence, concluding that the police search was lawful. The reasoning hinged on the objective assessment of Franz's knowledge and the information he had at the time of the search, which sufficiently supported a reasonable suspicion. Consequently, the items seized during the search, including the iPhone, were deemed admissible in the prosecution case against Rigney.

Orders

Orders of the court

Held:

1. The application is dismissed.

Background

Background to the litigation

By a rule 49(1)[3] application filed on 17 April 2020, Rigney seeks an order excluding from evidence items seized during a police search of 54 Ryan Street, Moonta (‘the Moonta address’). A black iPhone belonging to the deceased, found in a backpack during the search, is an important item of evidence on the prosecution case. Rigney contends that the police search, conducted under the authority of a General Search Warrant (‘GSW’), was unlawful as the officer holding the GSW, Detective Brevet Sergeant Loren Franz (‘Franz’), did not have “reasonable cause to suspect” as required by s 67 of the Summary Offences Act 1953 (SA) (‘the Summary Offences Act’).[3] Supreme Court Criminal Rules 2014 (SA).Background The police attended the Moonta address on 26 October 2018 for two purposes: to arrest Rigney pursuant to a Parole Board Warrant and also to conduct a search of the premises pursuant to the GSW. There were six people present at the Moonta address: Rigney, Stacey Karpany (‘Karpany’), Tamia Sansbury, Felicity Sansbury, Kym Sansbury and Tyler Mastrosavas. During the search, the police seized a number of items:[4][4] Ex VDD8.·two mobile phones located on Karpany;·black bag containing personal items;·camouflage bum bag;·black knife in cover;·left hand glove;·right hand glove;·red handled screwdriver;·yellow handled screwdriver;·large yellow handled screwdriver;·backpack located in the north-east bedroom; and·garbage bag containing personal clothing and items. The “black bag containing personal items” belonged to Karpany. An iPhone, located in that bag, is alleged to have belonged to the deceased. The iPhone is an important piece of evidence on the prosecution case. On 26 October 2018, Rigney was arrested pursuant to a Parole Board Warrant. On 7 November 2018, police conducted a second search of the Moonta address, as well as a search of a vehicle located at the premises. It is the search on 26 October 2018 that Rigney contends is unlawful.Legal principles Section 67(4) of the Summary Offences Act:67—General search warrants…(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:(a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—(i)an offence has been recently committed, or is about to be committed; or(ii)there are stolen goods; or(iii)there is anything that may afford evidence as to the commission of an offence; or(iv)there is anything that may be intended to be used for the purpose of committing an offence;(Emphasis added) The question of what amounts to reasonable cause to suspect (or a “reasonable suspicion”) has been discussed in a number of cases. From an analysis of the cases the following propositions emerge:1.suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. Suspicion arises at or near the starting-point of an investigation.[5]2.a suspicion that something exists is more than mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence.[6]3.there must be a rational connection between the supporting material and the suspicion.[7]4.suspicion and belief are different states of mind. Suspicion is a lesser state of mind than a belief. Facts which can reasonably ground a suspicion may be quite insufficient to ground a belief.[8]5.whether a reasonable suspicion attaches to certain conduct or circumstances is a factual question. The use of the expression “reasonable cause” imports an element of objectivity into the assessment. The test of reasonableness is to be judged by the court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held.[9]6.reasonableness attaches to the suspicion and requires consideration of the circumstances as known by the officer. The suspicion must be genuinely held by the officer.[10]7.a suspicion founded on information subsequently discovered to be wrong does not negative the existence of the suspicion or its reasonableness. A suspicion does not have to be well founded or factually correct to be reasonable.[11] Suspicion may be founded on evidence or statements which are inadmissible at trial.[12] However the requirement of reasonableness may require the officer to assess the reliability of the information that has been communicated.[13]8.the requisite degree of suspicion must exist at the time of the search.9.the force that can lawfully be used to enter, search and seize is that which could be reasonably considered to be necessary.[14][5] Hussein v Chong Fook Kam [1970] AC 942 at 948 per Lord Devlin.[6] George v Rockett (1990) 170 CLR 104 at 115–116; R v Rogers (2011) 109 SASR 307 at 311 [21] per Duggan J; R v Nguyen (2013) 117 SASR 432 at 437 [21].[7] R v Nguyen (2013) 117 SASR 432 at 437 [21].[8] George v Rockett (1990) 170 CLR 104 at 115–116.[9] R v Rogers (2011) 109 SASR 307 at 312 [21] per Duggan J.[10] R v Rogers (2011) 109 SASR 307 at 312 [21] per Duggan J.[11] R v Golja [2017] SASCFC 61 at 6 [27] per Stanley J. [12] Hussein v Chong Fook Kam [1970] AC 942 at 949 per Lord Devlin.[13] R v Rogers (2011) 109 SASR 307 at 312 [22] per Duggan J.[14] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 297 per Doyle CJ.

Evidence

Evidence Before The Court

Franz, the officer who held the GSW, gave evidence that he relied on the power contained in s 67(1)(iii) of the Summary Offences Act when searching the premises. He outlined the information he relied upon when forming his suspicion.Evidence Franz gave evidence at the voir dire hearing. In addition to his evidence, the following documents were tendered:·Exhibit VDP4 - chain of emails, final date being 7 November 2018;·Exhibit VDP5 - bundle of documents relating to information leading to exercise of general search warrant;·Exhibit VDP6 – Shield Intelligence Report printed 27 May 2020 in redacted form;·Exhibit VDP7 - Shield Intelligence Report printed 27 May 2020 at 15:33;·Exhibit VDD8 - Affidavit of Brevet Sergeant Franz dated 3 December 2018;·Exhibit VDD9 - Addendum Affidavit of Brevet Sergeant Franz dated 19 May 2020;·Exhibit VDD10 – Shield Intelligence Report printed 27 May 2020 at 15:38;·Exhibit VDD11 - email of Christine Mitchell to Detective Franz dated 18 May 2020;·Exhibit VDD12 - Affidavit of Jasmine McDonald sworn on 20 May 2020 annexing email shown to Detective Franz; and·Exhibit VDP13 - Affidavit of Patrick McManus dated 1 June 2020.Confusion regarding searches Franz initially stated in evidence that there was only one search and it was conducted on 26 October 2018. Under cross-examination and, after reviewing his notes, Franz accepted that he was mistaken and there had indeed been two separate searches of the Moonta address. He conducted the second search on 7 November 2018. Franz stated that he had melded the two searches into one.What information did Detective Brevet Sergeant Franz have at the time of the search? Franz gave evidence that the police attended the Moonta address on 26 October 2018 for two purposes: first, to arrest Rigney pursuant to a Parole Board Warrant and secondly, to conduct a search of the premises. Franz stated that he was tasked to conduct the search. He did not attend the Moonta address that day to arrest Rigney in relation to the Para Vista murder; he said he did not have sufficient information at that time to have a reasonable cause to suspect Rigney had committed the Para Vista murder. Franz stated that he believed he had sufficient information to justify his search of the Moonta address. As mentioned, Franz initially thought that he had conducted one search of the property on 26 October 2018. It was only when Franz was cross-examined by Mr Henchliffe QC for Rigney that it became apparent that he had conducted a second search at the premises on 7 November 2018. At the time of this second search, Mr Rigney was in custody having been arrested on 26 October 2018. Nothing of relevance to this matter was located during the second search. Franz, however, was confused about what information he possessed before conducting the search on 26 October 2018. During cross-examination, Franz conceded that some information he thought he possessed prior to the first search he did not discover until after 26 October 2018. His evidence about what information he possessed to support his “reasonable cause to suspect” changed during cross‑examination.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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