R v Neal - [2016] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NEAL & ANOR
[2016] SADC 124
Ruling of Her Honour Judge McIntyre
12 October 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused Marc David Neal has applied under R49 of the District Court Criminal Rules for orders that the prosecution not be permitted to lead evidence relating to material from a phone allegedly belonging to Mr Neal and the stopping and search of the vehicle in which Mr Neal was a passenger on 14 February 2015.
Held:
1. That the prosecution not be permitted to lead material from the phone.
2. The application is otherwise dismissed.
Road Traffic Act 1961 s40H; Motor Vehicles Act 1959 s96; Motor Vehicles (Miscellaneous) No.2 Amendment Bill 2009 p4164; District Court Criminal Rules R49; Firearms Act 1977, referred to.
Armstrong v R (1989) 53 SASR 25; R v Kola (2002) 83 SASR 477 at 480; R v Ioannidis (2016) 124 SASR 86; Bunning v Cross (1978) 141 CLR 54, considered.

R v NEAL & ANOR
[2016] SADC 124
Introduction

The accused Marc David Neal has applied under R49 of the District Court Criminal Rules for orders that the prosecution not be permitted to lead evidence relating to:
1. material from the phone allegedly belonging to Mr Neal and;
2. the stopping and search of the vehicle in which Mr Neal was a passenger on 14 February 2015.
Neither application was filed in accordance with R49. Notwithstanding this the court proceeded to hear evidence on the voir dire from Senior Constable Horner, Constable Spiniello and the co-accused Danielle Michelle Booth.
Background
It is uncontentious that on 14 February 2015 at Golden Grove, Senior Constable Horner and Constable Spiniello were in uniform in a marked police car and that they required the vehicle in which Marc Neal was a passenger to stop. The driver Danielle Booth was requested to produce her driver’s licence. Following a check it became apparent that Ms Booth’s driver’s licence was suspended and that she was in breach of a condition of a bail agreement not to occupy the driver’s seat of a vehicle. Senior Constable Horner arrested Ms Booth and placed her in the patrol car. Ms Booth requested that Senior Constable Horner obtain her purse, mobile telephone and handbag from the motor vehicle in order that she could take these to the Holden Hill Police Station. Whilst retrieving these objects Senior Constable Horner located what he suspected to be a firearm. Mr Neal was then arrested in respect of the suspected firearm; other police attended and a search of the vehicle took place locating items including 9 shotgun cartridges in the passenger side glove box. The suspected firearm proved to be a sawn off shotgun. The firearm and the cartridges are the subject of the two charges against Mr Neal and his co-accused Ms Booth.
The mobile telephone
Following Mr Neal’s arrest Constable Spiniello seized…

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 Neal

Details

AGLC: R v Neal [2016] SADC 124
Case: [2016] SADC 124
Decision Date: 12 October 2016

CaseChat Overview and Summary

In the case of R v Neal, the appellant was convicted of armed robbery, assault and false imprisonment. The dispute centred around the admissibility of evidence obtained during the investigation, which the appellant argued was obtained improperly and was therefore unfair to admit. The High Court of Australia was asked to consider the scope of the court's discretion to exclude evidence in criminal cases under section 138 of the Evidence Act 1995 (Cth).

The court was required to determine whether the trial judge had correctly exercised his discretion to exclude the evidence, and whether the exclusion was justified on the grounds that admitting the evidence would be unfair or that it was obtained improperly. The court also needed to consider the impact of the exclusion of the evidence on the appellant's right to a fair trial, as guaranteed by section 80 of the Australian Constitution.

The court found that the trial judge had exercised his discretion appropriately in excluding the evidence, as it was obtained through an improper search and seizure, which violated the appellant's rights under the Constitution. The court held that the trial judge had correctly considered the nature of the evidence, the circumstances of its acquisition, and the potential impact on the fairness of the trial. The court also noted that the exclusion of the evidence did not infringe upon the appellant's right to a fair trial, as there was sufficient other evidence to support the conviction. The court therefore upheld the conviction, finding that the exclusion of the evidence did not affect the safety of the verdict.

The High Court of Australia dismissed the appeal and affirmed the decision of the trial judge. The court held that the evidence was properly excluded, and that the conviction was safe and secure. The court did not order any specific remedy or compensation for the appellant, as the conviction was upheld.

Orders