R v Pavic - [2021] SADC 8

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PAVIC
[2021] SADC 8
Ruling of his Honour Judge Kimber
5 February 2021
CRIMINAL LAW
Application by defendant to exclude drugs and other evidence found during search of car – whether search unlawful. Application by defendant to exclude evidence of a different drug first seen by police falling from body of defendant after both the search of the car and searches of his person – whether searches of the defendant’s person unlawful.
Held: The search of the car was unlawful. The evidence found during that search excluded in the exercise of the discretion. The personal searches of the defendant were not unlawful. Application to exclude the evidence of the drug first seen falling from the body of the defendant refused.
Controlled Substances Act 1984 (SA) s 32(3); s 52; District Court Criminal Rules 2014 (SA) Rule 49; Summary Offences Act 1953 (SA) s 68(1)(b), referred to.
R v Nguyen (2013) 117 SASR 432; Coleman v Zanker (1991) 58 SASR 7; Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; Pollard v The Queen (1992) 176 CLR 177, applied.

R v PAVIC
Introduction

The defendant is charged on an Information dated 7 August 2020 with three counts of Trafficking in a Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘CSA’). Counts one and two relate to amounts of 4‑Hydroxybutanoic Acid (‘GHB’) and cocaine located by South Australian Police officers in a Mercedes Benz sedan being driven by the defendant. Count three concerns an amount of methylamphetamine located by the same officers. The methylamphetamine was not found during the search of the car. It was seen to fall from the defendant’s person onto the ground.
The defendant has made an application pursuant to Rule 49 of the District Court Criminal Rules 2014, for the exclusion of the evidence of the items seized from the Mercedes Benz sedan and the methylamphetamine.
I grant the application to exclude the evidence of the search of the Mercedes Benz sedan. I decline to exclude the evidence of the methylamphetamine located by the police. My reasons follow.
Background
On 5 August 2019, officers Probationary Constable Lloyd (‘Lloyd’) and Senior Constable Pethers (‘Pethers’) were in a marked police vehicle in the suburb of Findon. At about 12.07 a.m. the officers observed a silver Mercedes Benz sedan (Registration number: WTZ 898) (the ‘car’) travelling east on Grange Road.[1] The car then made a left turn into Noblet Street.[2] A short time later, the officers observed the car reversing into a carpark of a unit complex at 3 Noblet Street.[3] The officers manoeuvred their vehicle in front of the car.[4] The officers observed the defendant exiting the car and another unknown male walking towards the unit complex.[5]
[1]     T7.5-10.
[2]     T8.9-11.
[3]     T10.14-6.
[4]     T14.32-7.

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 Pavic

Details

AGLC: R v Pavic [2021] SADC 8
Case: [2021] SADC 8
Decision Date: 5 February 2021

CaseChat Overview and Summary

The case of R v Pavic before the court involved a criminal proceeding against the defendant, who was charged with various drug-related offences. The dispute centred on the legality of a search conducted by police, the admissibility of evidence obtained during that search, and the defendant's personal searches. The matter was heard in the relevant criminal court, where the defendant challenged the admissibility of evidence obtained through the unlawful search of the vehicle in which he was a passenger.

The primary legal issues before the court were whether the search of the car and the personal searches of the defendant were lawful under the applicable criminal law provisions, and if not, whether the evidence obtained during these searches should be excluded from the trial. The court had to determine if the police had the necessary legal authority to conduct the searches, and whether any exceptions to the warrant requirement applied. Additionally, the court needed to decide if the evidence found during the search should be excluded under the court's discretion, and if the evidence of the drug falling from the defendant's person should be admitted despite the unlawful search.

In delivering the judgment, the court found that the search of the car was conducted without a warrant and without the necessary legal justification. Consequently, the evidence found during that search was deemed inadmissible and was excluded in the exercise of the court's discretion. However, the court ruled that the personal searches of the defendant were lawful, as they were conducted based on reasonable suspicion. As a result, the application to exclude the evidence of the drug first seen falling from the body of the defendant was refused.

The court's final orders were that the search of the car was unlawful, and the evidence found during that search was excluded. The personal searches of the defendant were not unlawful, and the evidence of the drug first seen falling from the defendant's person was admitted. The case highlights the importance of adherence to legal procedures and the application of judicial discretion in balancing the rights of individuals against the need to combat crime.

Orders

Orders of the court

Held: The search of the car was unlawful. The evidence found during that search excluded in the exercise of the discretion. The personal searches of the defendant were not unlawful. Application to exclude the evidence of the drug first seen falling from the body of the defendant refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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