R v Owens

[2025] SASCA 96

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v OWENS

[2025] SASCA 96

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stanley)

25 August 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

This is an application by the Director of Public Prosecutions (SA) (‘the Director’) for permission to appeal against an interlocutory order made by a Judge of the District Court excluding evidence obtained during a traffic stop. The application is made pursuant to s 157(1)(e) of the Criminal Procedure Act 1921 (SA) (‘the CPA’).

The respondent was charged with two counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘the CSA’). After stopping the respondent’s vehicle and administering an alcotest, police officers searched the vehicle and seized methylamphetamine (the subject of Count 1) and 3,4-methylenedioxyamphetamine (MDA) (the subject of Count 2).

On 4 October 2024, the respondent filed an interlocutory application, alleging the traffic stop was unlawful and seeking exclusion of all evidence seized by the police officers. During the voir dire hearing, the prosecution called the two police officers involved in the traffic stop. The respondent alleged that the police officers used the powers under ss 47E(2) and 40H of the Road Traffic Act1961 (SA) (‘the RTA’) as a pretext to investigate allegations of unlawful drug activity contained in intelligence briefings.

On 15 April 2025, the Judge ordered that the evidence be excluded in the exercise of the public policy discretion. The Judge held that the sole purpose of the police officers’ decision to stop the respondent’s vehicle was for the ‘ulterior purpose’ of investigating unlawful activity described in intelligence briefings rather than to administer an alcotest. The Judge held the traffic stop was unlawful.

The Director sought permission to appeal against the interlocutory order on the following grounds:

1. The Judge erred in her construction of the powers contained in ss 47E(2) and 40H of the RTA and made erroneous factual findings in determining that the stopping of the respondent’s vehicle was unlawful.

2.   Further, or in the alternative, the Judge erred in the exercise of her discretion to exclude the evidence.

Held, per the Court, granting permission to appeal and allowing the appeal:

1. The factual finding by the Judge that the police stopped the vehicle for the sole purpose of investigating the unlawful activity described in the intelligence briefings was erroneous. The police officers lawfully exercised their power under s 47E of the RTA to stop the vehicle. They also had the power to do so under ss 40H of the RTA and s 96 of the Motor Vehicles Act 1959 (SA).

2.   The Judge’s order excluding the evidence is set aside.

3.…