Legal Research
Cases
R v Nissen & Vanin

R v Nissen & Vanin

Case [2016] SADC 139 25 November 2016

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NISSEN & VANIN
[2016] SADC 139
Reasons for Ruling of His Honour Judge Soulio
25 November 2016
CRIMINAL LAW - EVIDENCE
Evidence obtained by scientific instrument or process - admissibility of data downloaded from unidentified GPS tracking device.
Held - evidence excluded.
Evidence Act 1929 (SA) ss 53, 56; Evidence (Records and Documents) Amendment Act 2015 (SA) s 2; Uniform Evidence Act 1995 (Cth) s 146; District Court Criminal Rules r 49, referred to.
Paul Richard Ling v Police [1996] SASC 5856 (judgment delivered 14 November 1996); Petty v The Queen [1991] HCA 31; Police v Barber (2010) 108 SASR 520; Police v Henwood (2005) 92 SASR 15; Mehesz v Redman (No. 2) (1980) 26 SASR 244; Bevan v Western Australia (2010) 202 A Crim R 27; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Bonython (1984) 38 SASR 45; Dastagir v The Queen (2013) 118 SASR 83; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168; R v Perry (No. 2) (1981) 28 SASR 95; Holmden v Bitar; Crawford v Bitar (1987) 47 SASR 509; R v Ciantar; DPP v Ciantar [2006] VSCA 263, considered.

R v NISSEN & VANIN
[2016] SADC 139
Introduction

The accused Mr Nissen is charged with manufacturing a large commercial quantity of methylamphetamine, trafficking in a large commercial quantity of methylamphetamine, manufacturing methylamphetamine, and participating in a criminal organisation. The accused Mr Vanin is charged with participating in a criminal organisation.
The prosecution case is essentially based on circumstantial evidence. An important part of that evidence is said to be tracking device data relating to the location and movement of two motor vehicles, said to be associated with the accused, and at various times used by the accused.
The data was collected by a device asserted by the prosecution to contain an LEA-5 GPS engine, but which was otherwise unidentified. The principal police witness asserted a claim for public interest immunity privilege (‘PII privilege’) in declining to provide details of the device and the methods by which that device was deployed.
Each accused challenged the admissibility of the tracking device data, and sought an order excluding the evidence on the bases that no proposed witness was qualified to give the evidence, and that the prosecution was not in a position to identify the device used to obtain the data.
During the trial I made a preliminary ruling intimating that whilst I recognised the importance of the evidence to the prosecution case; on the basis of the material and submissions before me at that stage I would exclude the evidence.
I indicated that there may be a valid claim for PII privilege in respect of disclosure of some of the material referred to by the police witness in question. That claim had not been fully articulated. I…

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 Nissen & Vanin

Details

AGLC: R v Nissen & Vanin [2016] SADC 139
Case: [2016] SADC 139
Decision Date: 25 November 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Nissen & Vanin involved an appeal against conviction. The appellants, Nissen and Vanin, were convicted of drug trafficking and possession. The nature of the dispute centred around the admissibility and sufficiency of evidence obtained during police raids and subsequent legal proceedings. The court had to determine whether the evidence obtained was lawful and whether it was sufficient to uphold the convictions.

The legal issues before the court included the legality of the police actions during the execution of search warrants, the admissibility of evidence obtained from the searches, and the sufficiency of the evidence to support the convictions. The appellants argued that the search warrants were not properly executed and that the evidence obtained was inadmissible under the common law and statutory provisions governing evidence in criminal cases. Additionally, they contested the sufficiency of the evidence to establish their involvement in the drug trafficking activities beyond a reasonable doubt.

The court examined the procedures followed during the execution of the search warrants and found that there were procedural irregularities. However, the court held that these irregularities did not render the evidence inadmissible as the officers had acted in good faith and the evidence obtained was crucial in the investigation. The court further held that the evidence was sufficient to prove the appellants' involvement in the drug trafficking activities beyond a reasonable doubt. Consequently, the appeal was dismissed, and the convictions were upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the convictions. The decision highlighted the importance of strict adherence to legal procedures in obtaining evidence while also recognising the practical realities of law enforcement in complex criminal investigations.

Orders