R v Perrina No. DCCRM-98-955 - [2000] SADC 73

R v PERRINA
[2000] SADC 73

Judge Muecke
Criminal

Background

By Information filed on 9 December 1998 Antonio Perrina (‘accused’) was charged with producing cannabis contrary to s32(1)(a) of the Controlled Substances Act, 1984. Particulars of the offence were that between 17 March 1998 and 17 July 1998 at O’Sullivan Beach, he knowingly produced cannabis, a prohibited substance. It was further alleged that his offence involved 57 growing cannabis plants.
On 13 November 1998 the accused was committed for trial in this Court. He was arraigned on 14 December 1998 and pleaded not guilty. His trial was ultimately fixed to commence on 26 October 1999.
By Rule 9 application dated 5 July 1999 the accused sought a hearing on the voir dire to determine the admissibility of the following evidence:
(a) All items of physical evidence discovered as a result of the police search of premises at 1 Tingara Drive, O’Sullivan Beach (‘O’Sullivan Beach premises’) on 16 July 1998.
(b) All items of physical evidence discovered in the applicant’s van on 16 July 1998.
(c) All conversations with the applicant.
(d) Two keys discovered in the applicant’s possession.
The accused particularised the grounds relied on to exclude each of the above items and conversations.
As to the items in paragraph (a) (discovered in the house), he alleged the search of the O’Sullivan Beach premises was not conducted with his consent and was unlawful. He further alleged that sampling of cannabis found at the premises was not in accordance with regulation 8A of the regulations made pursuant to the Controlled Substances Act.
As to the items in paragraph (b) (discovered in his van), he alleged that search was conducted in breach of police standing orders and Crime Command Circular 93/14, and he further alleged that evidence was not relevant as it could not be related to any offending at the O’Sullivan Beach premises or, in the alternative, was more prejudicial than probative and is evidence of propensity.
As to the conversations (paragraph (c), he alleged they were not conducted in accordance with s74D of the Summary Offences Act.
Finally, as to the items in paragraph (d) (two keys found on the accused), he alleged his arrest was not a lawful arrest in that his requests to contact a solicitor were not facilitated as soon as reasonably practicable. At the voir dire hearing the accused added a further particular to his ground for excluding the two keys. He alleged the police had no basis for arresting him at the time he was arrested at the O’Sullivan Beach premises.
The voir dire hearing

A voir dire hearing on the Rule 9 application began on Tuesday 26 October 1999. During this hearing the Crown Prosecutor called the two detectives who were involved in the arrest of the accused on the night of 16 July 1998 at the O’Sullivan Beach premises. They were involved in searches of the premises and the accused’s van, they were involved in conversations with the accused, and they saw the…

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.

Keep reading for free

Create a free CaseChat account to read R v Perrina No. DCCRM-98-955 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] SADC 73
Decision Date: 16 June 2000

CaseChat Overview and Summary

Antonio Perrina was charged with producing cannabis, a prohibited substance, contrary to s 32(1)(a) of the Controlled Substances Act, 1984. The particulars of the offence were that between 17 March 1998 and 17 July 1998 at O’Sullivan Beach, the accused knowingly produced cannabis, a prohibited substance. It was further alleged that his offence involved 57 growing cannabis plants. Perrina was committed for trial in the Magistrates Court and pleaded not guilty. The case was heard before Judge Muecke. The accused sought a hearing on the voir dire to determine the admissibility of evidence discovered during police searches of premises at 1 Tingara Drive, O’Sullivan Beach and his van on 16 July 1998. He also sought to exclude conversations with police and two keys found in his possession. The Crown Prosecutor did not seek to rely upon any alleged consent of the accused for police to enter and search the premises and his van. The accused pleaded guilty but later applied to withdraw his plea. The court allowed the accused to withdraw his plea and re-arraigned him. The accused elected to be tried by a judge alone. The court found the police searches were lawful and evidence discovered was admissible. The accused was found guilty of producing cannabis and sentenced accordingly.

Orders