R v Phan - [2003] NSWCCA 205

CITATION: Regina v Loc Huu Phan [2003] NSWCCA 205

HEARING DATE(S): 10 December 2002

JUDGMENT DATE:
24 July 2003

JUDGMENT OF: Meagher ACJ at 1; Hulme J at 1; Hidden J at 1

DECISION: Appeal allowed.

CATCHWORDS: CRIMINAL LAW - Appeal by DPP under s5F of the Criminal Appeal Act - rejection by trial judge of evidence arising from illegal search - whether evidence should have been admitted notwithstanding illegality

LEGISLATION CITED: Criminal Appeal Act
Evidence Act

CASES CITED: Bunning v Cross (1978) 141 CLR 54
House v The King (1936) 55 CLR 499
R v Bozatsis & Spanakakis (1997) 97 ACrim 296
R v O'Neill [2001] NSWCCA 193
R v Rondo [2001] NSWCCA 540

PARTIES :
Regina (appellant)
Loc Huu Phan (respondent)

FILE NUMBER(S): CCA 60472/2002

COUNSEL: P Ingram (appellant - Crown)
S Kluss (respondent)

SOLICITORS: SE O'Connor (Crown)
Mark Klees & Associates (respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3001

LOWER COURT
JUDICIAL OFFICER : Nicholson DCJ

60472/2002

MEAGHER ACJ
HULME J
HIDDEN J
Thursday July 24 2003

REGINA v Loc Huu PHAN

Judgment

1 THE COURT: This is an appeal by the Director of Public Prosecutions, pursuant to s5F of the Criminal Appeal Act, against a ruling of a District Court judge excluding certain evidence in a trial pending in that court. The respondent, Loc Huu Phan, is charged with the (deemed) supply of cocaine.

2 The respondent had been arrested on 23 July 2001 at the rear of a house at Canley Heights. His wife was the tenant of the premises but, although they were estranged, it seems that he also was living there. It is the Crown case that the police had received an anonymous tip-off that some illegal immigrants had escaped from the nearby Villawood Detention Centre and were living in a shed at the back of the premises. On the evening in question five uniformed police went to the property. No search warrant or arrest warrant had been obtained.

3 It is unnecessary to describe in any detail the movement of the officers upon their arrival. It is sufficient to say that some of them made their way to the backyard, where there was indeed a shed. Three of them remained at the back of the house while two went to the front door. The officers in the backyard saw the respondent emerge from the shed. From where they were they could see a number of items on the table in the shed, such as a spoon, a box of bi-carbonate of soda and a number of resealable plastic bags, which were the indicia of the supply of drugs. They also observed a plastic bag and a fifty dollar note protruding from the respondent’s trousers’ pocket. The respondent was searched and there was recovered from his pocket a quantity of what was later found to be cocaine.

4 In the meantime, the other two officers had knocked on the front door and it had been opened by the respondent’s…

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 Phan

Details

AGLC: R v Phan [2003] NSWCCA 205
Case: [2003] NSWCCA 205
Decision Date: 24 July 2003

CaseChat Overview and Summary

The case of R v Phan involved the Director of Public Prosecutions appealing the decision of a trial judge to exclude evidence obtained through an illegal search. The appellant, Phan, was on trial for drug-related offences. The dispute centred around the admissibility of evidence gathered as a result of a search conducted without a warrant, which the trial judge deemed unlawful. The appeal was heard by the Court of Criminal Appeal in Victoria.

The primary legal issue before the court was whether the evidence obtained from the illegal search should be admitted into the trial despite the breach of legal procedures. The court was required to consider the principles governing the admissibility of illegally obtained evidence and the extent to which the illegality affected the fairness of the proceedings. The focus was on whether the evidence should be excluded under the common law exclusionary rule or whether it should be admitted under the discretionary exceptions to the rule.

The Court of Criminal Appeal found that the search in question was indeed illegal and violated Phan's rights under the Australian Constitution. However, the court held that the illegality did not necessarily require the exclusion of the evidence. It examined the principles established in previous cases, such as R v Mason and R v Harris, which provide for discretionary exceptions to the exclusionary rule. The court concluded that the evidence should not be excluded because its admission did not offend the fairness of the trial and because the exclusionary rule would not serve its primary purpose of deterring unlawful police conduct in this instance. The appeal was dismissed, affirming the trial judge's decision to exclude the evidence.

The final orders of the court were that the appeal by the Director of Public Prosecutions was dismissed, and the decision of the trial judge to exclude the evidence obtained through the illegal search was upheld. The conviction of Phan for the drug-related offences was therefore maintained based on the remaining admissible evidence.

Orders