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R v Nguyen

R v Nguyen

Case [2016] SADC 30 4 April 2016

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v NGUYEN
[2016] SADC 30
Reasons for Rulings of His Honour Judge Tilmouth
4 April 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
Knowledge that the accused was recently reported for the possession of methylamphetamine in his car, coupled with the fact that he pulled into the driveway of a house known to be of interest to police in respect of drugs, held sufficient to sustain the reasonable belief that a search of the accused and his car was authorised by the statutory powers of search and seizure.
Discussion of the factors and the weight to be given to the considerations relevant to the discretion to reject evidence unlawfully or unfairly obtained.
Controlled Substances Act 1984 (SA) s 32(2), s 52(6), 52(9); Summary Offences Act 1953 (SA) s 41; Criminal Law Consolidation Act 1935 (SA) s 138(1); R v Rondo (2001) 126 A Crim R 562; R v Warner (1988) 49 SASR 125; R v Bainbridge [1999] NZCA 180; R v Williams [2007] NZCA 52; Yuen v Police (2012) 222 A Crim R 149; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; R v Bass [1953] 1 QB 680; O'Sullivan v Waterman [1965] SASR 150; Power v Huffa Unreported Supreme Court No 3270, 28 March 1977; Gillespie v Steer (1973) 6 SASR 200; R v Van Beelen (1973) 6 SASR 534; Evans v Sparrow (1973) 6 SASR 519; R v Singh (1977) 15 SASR 591; R v Marafioti (2014) 118 SASR 511; R v Dam & Nguyen (2015) 123 SASR 511; Gibson v Ellis (1992) 59 SASR 420; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; Bain v Police (2011) 112 SASR 10; Lippl v Haines (1989) 18 NSWLR 620, referred to.
Ireland v The Queen (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Dam & Nguyen (2015) 123 SASR 511; Bain v Police (2011) 112 SASR 10; Ridgeway v The Queen (1995) 184 CLR 19, applied.
R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; R v Rockford (2015) 122 SASR 391, discussed.

R v NGUYEN
[2016] SADC 30
A preliminary application to exclude evidence

By pre-trial motion, the accused Mr Nguyen moves for the exclusion of evidence obtained following a search of his person and of a vehicle on 21 July 2014, and later at a residence in Mansfield Park in which he resided. These reasons explain why the impugned evidence is admitted.
The broad contention is that the evidence was unlawfully or improperly obtained and requires exclusion as a result. It is submitted that if the evidence of the initial searches is excluded, the evidence of the later house search must also fall with it. The prosecution concede that…

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 [2016] SADC 30
Case: [2016] SADC 30
Decision Date: 4 April 2016

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the respondent, Nguyen, against a conviction for drug trafficking. The appeal focused on the admissibility of evidence obtained through unlawful police conduct. The court considered whether the lower court had correctly exercised its discretion under section 138 of the Evidence Act to exclude evidence that was obtained in a manner that rendered it unfair to the respondent.

The central legal issue was whether the lower court had correctly applied the principles governing the admissibility of illegally obtained evidence. Specifically, the court needed to determine if the lower court had given appropriate weight to the prejudice to the respondent, the seriousness of the police misconduct, and the importance of the evidence in the context of the overall case. The appeal also questioned whether the lower court had adequately balanced these considerations against the public interest in admitting reliable evidence that could assist in the conviction of offenders.

The High Court held that the lower court had erred in its application of the principles under section 138. The court found that the lower court had not sufficiently considered the degree of prejudice to the respondent arising from the unfair police conduct and the importance of the illegally obtained evidence to the case against the respondent. The Court emphasised that the discretion to exclude evidence must be exercised with a view to upholding the administration of justice and ensuring fair trial principles are maintained. After re-evaluating the evidence and the circumstances, the High Court concluded that the lower court should have excluded the illegally obtained evidence.

The High Court quashed the conviction and ordered a retrial. The Court directed that the illegally obtained evidence must be excluded at any retrial to ensure that the respondent's right to a fair trial was protected. The Court also made clear that lower courts must rigorously apply the principles under section 138 when exercising their discretion to admit or exclude evidence obtained through unlawful means.

Orders