R v Nguyen

Case [2016] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NGUYEN

[2016] SASCFC 96

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Doyle)

26 August 2016

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

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

The appellant was convicted following a trial by judge alone of two counts of trafficking in a commercial quantity of a controlled drug, money laundering and unlawful possession. On the voir dire, the appellant challenged the legality of the police searches that led to the discovery of methylamphetamine and cash in the appellant’s vehicle, and the later discovery of further methylamphetamine and cash in the appellant’s house. The trial judge ruled that the searches were lawful.

On his appeal against conviction, the appellant challenged the trial judge’s rulings as to the lawfulness of the searches of the appellant and his vehicle. The appellant contended that the trial judge erred in holding that the police officers held the requisite reasonable suspicions at the time they decided to carry out their searches. Accordingly, the appellant contended that the evidence obtained from them ought to have been excluded in an exercise of the Court’s discretion to exclude illegally obtained evidence.

Held per Doyle J (with Vanstone and Bampton JJ agreeing), dismissing the appeal:

1.       The combination of matters known to the police officers at the time was sufficient to establish a reasonable suspicion.

Controlled Substances Act 1984 (SA) s 52(6), s 52(9), referred to.
R v Nguyen [2015] SASCFC 7, distinguished.
Bunning v Cross (1978) 141 CLR 54; George v Rockett (1990) 170 CLR 104; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v Dam & Nguyen (2015) 123 SASR 511; Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) 112 SASR 10; R v Fazio (1997) 69 SASR 54; Azar v Director of Public Prosecutions (NSW) (2014) 239 A Crim R 75, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"reasonable suspicion"

R v NGUYEN
[2016] SASCFC 96

Court of Criminal Appeal – Vanstone, Bampton and Doyle JJ

  1. VANSTONE J:     I would dismiss the appeal.  I agree with the reasons written by Doyle J.

  2. BAMPTON J:   I agree with the reasons of Doyle J and would dismiss the appeal.

    DOYLE J:

  3. The appellant was convicted following a trial by judge alone of two counts of trafficking in a commercial quantity of a controlled drug (counts 1 and 2), money laundering (count 3) and unlawful possession (count 4).

  4. On the voir dire, the appellant challenged the legality of the police searches that led to the discovery of methylamphetamine and $950 cash in the appellant’s vehicle, and then later to the discovery of further methylamphetamine and $143,950 cash in the appellant’s house.

  5. The trial judge ruled…

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AGLC
R v Nguyen [2016] SASCFC 96
Case
[2016] SASCFC 96
Decision Date

CaseChat Overview and Summary

The appeal concerned the admissibility of evidence obtained from searches of the appellant, his vehicle, and his house. The dispute centred on whether this evidence, particularly that from the house search, should have been excluded as illegally obtained or as tainted fruits of earlier unlawful searches. The matter was before the Full Court of the Supreme Court of South Australia.

The primary legal issue was whether the evidence obtained from the search of the appellant's house should have been excluded. This involved considering the principles governing the discretionary exclusion of illegally obtained evidence and the concept of "tainted fruits" where later evidence is derived from earlier unlawful conduct. The court also considered whether a concession made by the prosecution regarding the admissibility of the house search evidence, if the earlier searches were deemed unlawful, was binding.

The court ultimately dismissed the appeal. While acknowledging that a concession regarding the exclusion of the house search evidence may have been made by the prosecution and relied upon during the proceedings, the judge stated that it was not necessary to determine the soundness or enforceability of that concession. The decision to dismiss the appeal did not rest on a concluded view regarding the admissibility of the evidence from the house search.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is also no need for me to consider whether the prosecution made, and should be held to, a concession to the effect that, if the evidence from the searches of the appellant and his vehicle are to be excluded in an exercise of the Court’s discretion to exclude illegally obtained evidence, then the evidence from the later search of the appellant’s house should also be excluded as the tainted fruits of the earlier searches. While it appears that the concession was made, and relied upon in the conduct of the voir dire and trial such that the prosecution should be held to its concession, it is not a matter upon which I need to express a concluded view. I also refrain from expressing any view as to the soundness of the concession apparently made.Conclusion For these reasons, I would dismiss the appellant’s appeal.

Ratio Decidendi

Legal Principle Established

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