R v Reed - [2019] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v REED
[2019] SADC 165
Ruling of Her Honour Judge Schammer
6 November 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
A police officer observed the accused, being a person known to him for suspected drug offending, driving a vehicle while he was disqualified.
Upon approaching the vehicle, the police officer claimed to have made observations as to the conduct of the accused and a female passenger, which caused him to hold a reasonable suspicion under s 52(9) of the Controlled Substances Act (1984).
The police officer then searched the vehicle and found a quantity of methylamphetamine, including methylamphetamine inside a lock box found in the front driver foot well.
The accused made an application to exclude the evidence of the search pursuant to r 49 on the basis that the police officer did not make the claimed observations, but that if he did, they did not, in any event, amount to a reasonable suspicion to conduct the search.
The accused maintained that the police officer made the decision to search the vehicle upon recognising him as the driver of the vehicle and on the basis of mere curiosity and speculation.
Whether the search was unlawful and if so whether the evidence of the search of the vehicle and subsequent searches of the accused and his home address should be excluded in the exercise of the public policy discretion.
Held: The search of the vehicle was unlawful. Considerations of higher public policy favour exclusion of the evidence.
Application to exclude the evidence obtained from the search of the vehicle, of the accused and of the accused's home address granted.
Controlled Substances Act 1984 s 32(3), 52(9); Summary Offences Act 1953 s 68, referred to.
The Queen v Romeo (1982) 30 SASR 243; R v Rogers (2011) 109 SASR 307; R v Willingham (No.2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; R v Marafioti (2014) 118 SASR 511; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Golja [2017] SASCFC 61; Ghamrawi v The Queen [2019] SASCFC 108; R v Rockford [2015] SASCFC 51, considered.

R v REED
[2019] SADC 165
Introduction

The accused is charged with the two counts of trafficking in a controlled drug pursuant to s 32(3) of the Controlled Substances Act 1984 (‘the Act’). The alleged offending occurred at Queenstown on 9 March 2018.
On that day, Detective Brevet Sergeant Childs (Officer Childs) and Constable Yeoward (Officer Yeoward) were in an unmarked police car travelling west on Cross Street, Queenstown, intending to turn right at Port Road, to travel north. The accused was observed by Officer Childs driving a red Holden sedan WVO-201 (the vehicle), in the opposite direction along Cross Street. He recognised the accused as the driver and knew…

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 Reed

Details

AGLC: R v Reed [2019] SADC 165
Case: [2019] SADC 165
Decision Date: 6 November 2019

CaseChat Overview and Summary

In the case of R v Reed, the defendant was charged with drug trafficking offences. The dispute centred around the admissibility of evidence obtained through an illegal search of the defendant's property. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether evidence derived from an unlawful search should be excluded from the trial under the common law exclusionary rule, which prevents the use of illegally obtained evidence in criminal proceedings to protect the integrity of the judicial process.

The court examined the circumstances of the search, noting that it was conducted without a warrant and in violation of the defendant's rights under the Australian Constitution. The court found that the illegality of the search was not vitiated by any intervening circumstances, such as an independent source or inevitable discovery. It was determined that the exclusionary rule applied, and the illegally obtained evidence should be excluded. The court further considered whether the exclusionary rule should be overridden in the interests of justice, but found that the illegality of the search was too egregious and the prejudice to the defendant too significant to permit admission of the evidence.

The court ordered that the evidence obtained from the illegal search be excluded from the trial. The defendant's counsel was instructed to file a renewed application for suppression of the evidence if it was sought to be introduced at trial. The trial proceeded without the illegally obtained evidence, and the defendant was acquitted of the drug trafficking charges.

Orders