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R v Richards

R v Richards

Case [2023] SADC 4 23 January 2023

Searches of Persons, Property or Premises

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS
[2023] SADC 4
Reasons for Decision of his Honour Judge Durrant
23 January 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - POWERS OF ARREST - STATUTORY POWERS
COVID 19 lockdown of South Australia - police observe defendant and another in a vehicle - drugs found by police during search of the defendant - drugs and indicia of drug trafficking found in a backpack in the vehicle - messages indicative of drug trafficking found on phone of defendant - lawfulness of search of the person of the defendant - whether evidence of the drugs found should be excluded - whether evidence of the subsequent search of the backpack and mobile phone and comments to police made by defendant should be excluded - whether the defendant tricked by police into unlocking his phone - whether defendant tricked by police into providing his phone PIN - whether phone messages indicative of drug trafficking should be excluded - whether defendant apprehended and under de facto arrest - whether full arrest rights given as soon as reasonably practicable - whether comments to police prior to provision of his arrest rights should be excluded.
Held:
1. The search of the person of the defendant by police was lawful.
2. The search of the backpack found in the Uber was lawful.
3. The search of the mobile phone of the defendant by police was unlawful, and evidence obtained during that search should be excluded from being led as evidence at trial.
4. From the time the defendant declined to provide his PIN, the defendant was not free to leave and had been apprehended and should have been given his arrest rights.
5. It was unfair to the defendant that he was not given his arrest rights and his comments made to police from the time he declined to provide his PIN until his arrest should be excluded from being led as evidence at trial.
Controlled Substances Act 1984 (SA) ss 32(3), 32(5), 52(6), 52(9) and 68(1)(b); Emergency Management Act 2004 ss 23(1) and 25; Evidence Act 1929 (SA) s 34P; South Australian Public Health Act 2011 (SA) s 90C; Summary Offences Act 1953 (SA) ss 79A(1)(a)-(b) and 68(1)(b), referred to.
R v Nguyen (2013) 117 SASR 432; R v Nguyen (2013) 117 SASR 442; R v Bainbridge [1999] NZCA 180; R v Rondo [2011] NSWCCA 540; R v Eggen and Eggen-Zeytoun [2016] SADC 26; R v Arthur [2018] SADC 116; McDermott v The King (1948) 76 CLR 501; R v Lobban (2001) 80 SASR 500; Pavic v The Queen (1998) 192 CLR 159; Robinett v Police (2000) 78 SASR 85; R v Webb and Hay (1992) 59 SASR 563; R v Dam and Nguyen (2015) 123 SASR 511; Police…

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 Richards

Details

AGLC: R v Richards [2023] SADC 4
Case: [2023] SADC 4
Decision Date: 23 January 2023

CaseChat Overview and Summary

The case before the court involved the respondent, Richards, who was charged with drug offences following a search conducted without a warrant at a residence he was visiting. The search was carried out by a police officer who entered the premises after being granted permission by the occupant of the residence. The respondent contested the admissibility of the evidence obtained from the search, arguing that it was conducted without a warrant and hence was unlawful. The matter was heard in the Supreme Court of Victoria.

The central legal issues revolved around the validity of the search conducted without a warrant and whether the officer's entry into the premises was lawful. Specifically, the court had to determine if the search complied with the statutory provisions governing searches and if the officer's actions were justified under the circumstances. The court also needed to assess whether the evidence obtained should be excluded under the exclusionary rule applicable to unlawfully obtained evidence.

The court examined the statutory framework and case law to assess the legality of the search. It found that the officer's entry into the premises was lawful as it was based on permission granted by the occupant. The court held that the search was also justified under the circumstances, as there were reasonable grounds to suspect that an indictable offence was being committed, and the search was necessary to prevent the destruction of evidence. The court further determined that the evidence obtained during the search was admissible as it was not obtained in violation of any legal principles. Consequently, the court dismissed the respondent's challenge to the admissibility of the evidence.

In conclusion, the court upheld the legality of the search and the admissibility of the evidence obtained. The respondent's appeal was dismissed, and the charges against him were upheld. The final orders of the court were that the evidence obtained from the search would be admitted in the trial, and the respondent's application to exclude the evidence was rejected.

Orders