Legal Research
Cases
R v Ndreka

R v Ndreka

Case [2020] SADC 101 29 July 2020

Admissibility of Evidence

Evidence Law

Drug Offences

Illegally Obtained Evidence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NDREKA
[2020] SADC 101
Reasons for Ruling of His Honour Judge Press
29 July 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with one count of cultivating a commercial quantity of cannabis and one count of possessing prescribed equipment – police were conducting surveillance on a property when the accused was seen in the front yard – a determination was made by the police officers to search the house and to stop and search the accused at that time – the police officer with the most knowledge of the investigation did not execute his search warrant in relation to the house, that role was undertaken by another police officer in the car – the police officer with the most knowledge of the investigation stopped and detained the accused and spoke with him without issuing a caution – whether the police officer who stopped and detained the accused had sufficient cause to do so – whether the accused ought to have been cautioned prior to being spoken to – whether the police officer who executed his search warrant for the house held suspicion – whether the police officer’s suspicion was reasonable – exercise of the discretion to exclude unlawfully obtained evidence.
Summary Offences Act 1953 s 67, s 68, s 79A, referred to.
R v Nguyen (2013) 117 SASR 432; R v Nguyen (2015) 248 A Crim R 398; Manley v Tucs (1985) 40 SASR 1; R v Rogers (2011) 109 SASR 307; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177; Question of Law Reserved (No 1 of 1998) 70 SASR 281; R v Rockford (2015) 122 SASR 391; R v Marafioti (2014) 118 SASR 511; R v Willingham (No 2) [2012] SASCFC 104; Kadir v The Queen [2020] HCA 1; Police v Pocius [2018] SASC 38; Abbott v Ramm 1994 Unreported Judgment BC9503114; R v Dolan (1992) 58 SASR 501; Police v Pocius [2018] SASC 38; R v Dolan (1992) 58 SASR 501; Police v Moukachar (2010) 107 SASR 450; Police v Bain (2011) 112 SASR 10; R v Armistead [2019] SASCFC 85; Bae v The Queen; Koo v The Queen [2020] SASCFC 7; R v Golja [2017] SASCFC 61; Forrest v Normandale (1973) 5 SASR 524; R v Dam & Nguyen; Case stated on Question of Law (No 2 of 2015) (2015) 123 SASR 511; [2015] SASCFC 131; DPP v Smith (1994) 179 LSJS 25; BC9400911 Unreported Judgment, considered.

R v NDREKA
[2020] SADC 101

The accused is charged with one count of cultivating a commercial quantity of cannabis (27 plants) and one count of possessing prescribed equipment. The accused applied for the exclusion of evidence. The following are my reasons for refusing…

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 Ndreka

Details

AGLC: R v Ndreka [2020] SADC 101
Case: [2020] SADC 101
Decision Date: 29 July 2020

CaseChat Overview and Summary

In the case of R v Ndreka, the accused was charged with cultivating a commercial quantity of cannabis and possessing prescribed equipment. The charges arose after police conducted surveillance on a property and observed the accused in the front yard. Based on their observations, the police decided to search the house and detain the accused. The officer with the most knowledge of the investigation did not execute the search warrant himself but rather assigned that task to another officer. The officer with the primary knowledge stopped and detained the accused without issuing a caution. The central issues before the court were whether the officer who detained the accused had sufficient cause to do so, whether the accused should have been cautioned before being questioned, whether the officer who conducted the house search held any suspicion, and whether that suspicion was reasonable. Additionally, the court had to exercise its discretion regarding the exclusion of unlawfully obtained evidence.

The court examined whether the officer had grounds to stop and detain the accused, considering the officer's observations and knowledge of the circumstances. It was determined that the officer did not have sufficient cause to detain the accused without a warrant or a caution, leading to the conclusion that the detention was unlawful. Furthermore, the court found that the accused should have been cautioned before any questioning, as this is a requirement under the law. The court also assessed whether the officer who conducted the house search had a reasonable suspicion to execute the warrant, and whether that suspicion was based on lawful observations. The court concluded that the officer's suspicion was reasonable and grounded in lawful observations, justifying the search.

Given the unlawful detention of the accused and the failure to issue a caution, the court exercised its discretion to exclude the evidence obtained from the search of the house and the subsequent questioning of the accused. The court found that the evidence obtained as a result of the unlawful detention and the lack of a caution was inadmissible. Consequently, the court ruled that the evidence was to be excluded, impacting the prosecution's case against the accused. This decision underscored the importance of procedural compliance in criminal investigations to ensure the integrity of the evidence presented in court.

The court ordered that the evidence obtained from the unlawful detention and the subsequent questioning of the accused be excluded from the trial. This included any statements made by the accused during the uncautioned interview and any evidence derived from the search of the house conducted without proper authority. The exclusion of this evidence was deemed necessary to uphold the principles of fairness and legality in the criminal justice process.

Orders