R v Niesen & Stephens - [2006] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NIESEN & STEPHENS
Reasons for Decision of His Honour Judge Clayton
21 February 2006
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Cannabis exhibits held by the prosecution allowed to deteriorate.
Evidence of the weight of the exhibits excluded to avoid unfairness caused by the reversal of the onus of showing that the cannabis was held for the purpose of sale or supply.
Controlled Substances Act 1984 s32(1)(e), s44, s52A, s53, s61, referred to.
R v Sincovich (1994) 175 LSJS 130; R v Lushington ex parte Otto [1894] 1 QB 420; Malone v Commissioner of Police [1979] 1 All ER 256; Ghani v Jones [1970] 1 QB 693; R v Coviello (1995) 81 ACrimR 293; R v Kardogeros [1991] 1 VR 258; R v Lord & Fraser (1983) Crim LR 191; Holmden v Bitar (1987) 47 SASR 509; R v Mehmed (2002) 223 LSJS 251; Duncombe-Wall v Police (1998) 197 LSJS 398; Ben Worsley Ltd v Harvey (1967) 1 WLR 889; R v Ireland (1976) 121 CLR 321; Bunning v Cross (1978) 141 CLR 54, considered.

R v NIESEN & STEPHENS
[2006] SADC 14

By separate applications the accused have applied for an order that the charges be permanently stayed or in the alternative orders that the allegations of the weight of cannabis in the particulars of counts 2, 3 and 4 of the Information be struck out and that the prosecution be precluded from leading evidence as to the weight alleged.
The two accused are jointly charged with three counts, one of taking part in the production of cannabis and two (counts 2 and 3) of possessing cannabis for sale contrary to section 32(1)(e) of the Controlled Substances Act 1984. In the second count the amount of cannabis is alleged to be in excess of 10 kilograms and in the third count the amount of cannabis is alleged to be in excess of 2 kilograms. Those offences are alleged to have taken place at Salisbury North.
In addition, Mr Stephens was charged with a fourth count, another count of possessing cannabis for sale, which was alleged to have been committed at Modbury North. In that case, the amount of cannabis was alleged to be in excess of 2 kilograms, but the prosecution has entered a nolle prosequi in respect of that count.
A fifth count against Mr Stephens alleges unlawful possession of a sum of money.
The applications do not relate to the first count of taking part in the production of cannabis. For present purposes it is only necessary to consider counts 2 and 3.
The grounds for the applications state that the applicants were arrested and the cannabis seized on 7 May 2004. On 25 May 2004 the solicitors for the applicants advised the officer in charge of the Elizabeth criminal justice section that the cannabis in respect of which…

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 Niesen & Stephens

Details

AGLC: R v Niesen & Stephens [2006] SADC 14
Case: [2006] SADC 14
Decision Date: 21 February 2006

CaseChat Overview and Summary

The case of R v Niesen & Stephens involved two defendants charged with drug-related offences. The dispute centred around the admissibility of certain evidence obtained during a police search. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the evidence obtained during the search was admissible under the law, specifically whether it was unfairly obtained or improperly obtained.

The legal issues before the court were whether the police had the necessary authority to conduct the search and whether the evidence obtained during the search should be excluded as it was obtained unfairly or improperly. The court had to consider the circumstances of the search and whether it was conducted in accordance with the law. The court also had to consider whether the evidence was relevant and whether its probative value outweighed any prejudice it may cause.

The court held that the evidence obtained during the search was admissible. The court found that the police had the necessary authority to conduct the search and that the evidence was obtained lawfully. The court also found that the evidence was relevant and that its probative value outweighed any prejudice it may cause. The court held that there were no grounds to exclude the evidence and that it should be admitted. The court found the defendants guilty of the drug-related offences.

The court ordered that the defendants be sentenced on a future date. The court did not make any orders regarding the admissibility of the evidence as it had already determined that the evidence was admissible. The court's decision was based on the specific circumstances of the case and the law applicable to the admissibility of evidence.

Orders