R v Nguyen - [2018] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NGUYEN
[2018] SADC 10
Ruling of Her Honour Judge Chapman
26 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
Accused charged with three counts of Trafficking in a Controlled Drug - the heroin the subject of one count was found by police in the course of searching a motor vehicle at the roadside - whether the driver was lawfully directed to stop pursuant to s 40H of the Road Traffic Act 1961 (SA) - held that a lawful direction was given to stop the vehicle and the subsequent search was lawful.
Vehicle seized by police to conduct a further search - mistaken belief as to source of legal authority to seize - held seizure and subsequent search of the vehicle was lawful.
Police used keys seized from vehicle to gain access to premises to search - whether in breach of common law requirement to preserve seized items for trial - held the use of the keys was lawful.
Road Traffic Act, 1961 s 40H; Motor Vehicles Act, 1959 s 96; Controlled substances Act, 1984 s 52(9), referred to.
R v Neal (2017) 128 SASR 20, applied.
Bartlett v Weir & Ors (1994) 72 A Crim R 511, distinguished.
R v Sincovich (1994) 175 LSJS 130; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; The Queen v Romeo (1982) 30 SASR 243; Warke v Daire (1983) 32 SASR 321; R v Long and McDonnell (2002) 137 A Crim R 263, considered.

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
Admissibility of discreditable conduct - conviction for trafficking in drugs about 3½ years prior to charged offending - held the discreditable conduct does not have the required strong probative value.
Evidence Act, 1929 s 34P, referred to.
R v Long and McDonnell (2002) 137 A Crim R 263; R v Pringle [2017] SASCFC 9, considered.

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT
Three counts of Trafficking in a Controlled Drug and two counts of Unlawful Possession of cash - properly joined - whether separate trial should be ordered for the counts of Unlawful Possession - held no separate trial ordered.
Criminal Law Consolidation Act, 1935 s 278, referred to.
R v Perfili (2006) 95 SASR 560, distinguished.

R v NGUYEN
[2018] SADC 10

The accused made application pursuant to Rule 49(1)(e) of the District Court Criminal Rules for severance of counts and applications pursuant to Rule 49(1)(h) for exclusion of evidence to be led at her trial. On 30 January 2018, I made rulings in regard to those applications. The following are my reasons for those rulings.
The accused is charged on Information with three counts of Trafficking in a Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘the CSA’). Those charges concern heroin…

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 Nguyen

Details

AGLC: R v Nguyen [2018] SADC 10
Case: [2018] SADC 10
Decision Date: 26 February 2018

CaseChat Overview and Summary

The respondent, Nguyen, was charged with three counts of trafficking in a controlled drug, specifically heroin. The heroin in question was found during a roadside search of a vehicle by police. The first issue before the court was whether the police lawfully directed the vehicle to stop, pursuant to section 40H of the Road Traffic Act 1961 (SA). The court found that a lawful direction had been given, and therefore the subsequent search was also lawful. The second issue was whether the vehicle was lawfully seized by the police, and if the subsequent search of the vehicle was also lawful. The court determined that although there was a mistaken belief regarding the source of the legal authority to seize the vehicle, the seizure and subsequent search were still lawful. The third issue was whether the police breached the common law requirement to preserve seized items for trial by using keys seized from the vehicle to gain access to premises for a search. The court found that the use of the keys was lawful.

The court held that all the evidence obtained during the roadside search, the vehicle search, and the subsequent search of the premises was admissible. The court found that the police had acted within their legal authority, and there was no breach of any common law requirement to preserve seized items for trial. The court also found that the evidence obtained was not illegally obtained and should not be excluded from the trial. The court's decision was based on a careful analysis of the relevant statutes and case law, and the facts of the case. The outcome of the case was that the evidence obtained during the police searches was admissible and could be used in the trial of the respondent. The court's decision provides guidance on the legal principles that apply to roadside searches and the preservation of seized items for trial.

Orders