R v Nguyen

[2013] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NGUYEN

[2013] SASCFC 91

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

11 September 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES

The appellant, following a trial by jury, was found guilty of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). The appeal against conviction is principally on the ground that the evidence of his possession of the illicit drugs was the product of an unlawful search.

The appellant was found in possession of illicit drugs, namely heroin and methylamphetamine, following a police search of his person and the Laser motor vehicle (“the Laser”) that he had been driving. The search occurred after the police drove their police car into the common driveway of a townhouse block, blocking the Laser’s egress. The police were acting on a history of general information connecting the premises and the vehicle to drug trading activity. 

At trial, on the voir dire, the appellant asked the Judge to exclude the evidence of the police search. The Judge, in refusing to exclude the search evidence, held that the information possessed by the police was sufficient to raise a reasonable suspicion for the purposes of s 52(9)(b) of the CSA, and to justify a search of the Laser. In prescribed circumstances, the CSA confers powers on police to search persons, under s 52(6), and detain and search a vehicle, under s 52(9). The Judge went on to hold that, even if the search had been unlawful, he would have had “no hesitation” in declining to exercise his discretion to exclude the evidence of the search.

The appellant also appealed against conviction on several other grounds. One of those grounds involved the Judge’s inadvertent disclosure to the jury of evidence given on the voir dire. The Director of Public Prosecutions conceded that the inadvertent disclosure had caused a miscarriage of justice and, for that reason, an order remitting the matter for re-trial would not be opposed.

The Director accepted that, if the evidence of the police search was excluded, the appeal should be allowed, the convictions set aside and verdicts of acquittal entered on both counts of trafficking.

Held per the Court (allowing the appeal):

(1) The information available to police was insufficient to support a reasonable suspicion that there was evidence of drug trading in the Laser when it was detained (at [23]-[26]).

(2) In the absence of a reasonable suspicion or a warrant issued pursuant to s 52(4) of the CSA, the police officers unlawfully drove onto, and blocked, the driveway of the home…