R v Rousvanis - [2019] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROUSVANIS
[2019] SADC 9
Reasons for Ruling of His Honour Judge Cuthbertson
6 February 2019
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
Accused charged with trafficking in a controlled drug and unlawful possession of a large sum of cash – police engaged in pursuit of vehicle which was later located abandoned in a hotel carpark – police received information of accused acting suspiciously in the vicinity – whether reasonable grounds existed to justify searching a bag in the possession of the accused pursuant to s 68 of the Summary Offences Act 1953 – whether arrest of the accused was lawful – whether discreditable conduct regarding the accused’s driving conduct should be permitted at trial.
Held:
1) the search and the arrest were both lawful. If either or both were unlawful, the discretion would be applied to admit the evidence of the fruits of the search
2) discreditable conduct in the nature of the accused’s driving behaviour admissible to show knowledge of the drugs.
Summary Offences Act 1953 (SA) ss68(1), 74A, 75; Evidence Act 1929 (SA) s 34P, referred to.
Wilson and Morrison v R [1994] SASC s4554.1; R v Rockford [2015] SASCFC 51; Bunning v Cross (1978) 141 CLR 54, considered.

R v ROUSVANIS
[2019] SADC 9
Introduction

This is an application by Miltiadis Rousvanis (the applicant) pursuant to Rule 49(1) of the District Court Criminal Rules 2014 for the following orders:
1. That the evidence of observations of the manner of driving of the applicant not be admitted at trial; and
2. That the arrest of the accused be deemed unlawful, and any evidence subsequently obtained be held inadmissible in the trial.
On Australia Day 2017, at approximately 6.30pm in Mannum, Senior Constable Shapley engaged in the pursuit of a silver Pajero motor vehicle towing a jet ski. He later located the abandoned car in the carpark of the Pretoria Hotel.
Senior Constable Doecke joined in to assist, having received information of the pursuit over police radio. The applicant was located nearby and was spoken to by Senior Constable Doecke. It was put to him that he had tried to open car doors. When asked his full name he replied truthfully that it was ‘Miltiadis Rousvanis’. Senior Constable Shapley was not present and did not hear this conversation but he arrived at the scene shortly afterwards.
Senior Constable Doecke told the applicant that he intended to search his bag. Initially the applicant said it was not his bag and that the officers were not permitted to search it.
The applicant struggled and resisted the officers’ attempts to take possession of the bag. He was told by Senior Constable Doecke he could be arrested for Hinder Police and eventually he was taken…

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 Rousvanis

Details

AGLC: R v Rousvanis [2019] SADC 9
Case: [2019] SADC 9
Decision Date: 6 February 2019

CaseChat Overview and Summary

In the matter of R v Rousvanis, the accused was charged with trafficking in a controlled drug and unlawful possession of a large sum of cash. The dispute arose when police pursued a vehicle that was later found abandoned in a hotel carpark. Upon receiving information about the accused acting suspiciously nearby, the police sought to search a bag in the accused's possession under section 68 of the Summary Offences Act 1953. Additionally, the legality of the accused's arrest and the admissibility of discreditable conduct concerning the accused's driving were contested.

The primary legal issues revolved around whether the police had reasonable grounds to justify the search of the accused's bag, whether the arrest was lawful, and whether evidence of the accused's discreditable conduct should be admitted at trial. The court had to assess the sufficiency of the information received by the police to establish reasonable suspicion and consider the proportionality of the search and arrest. Furthermore, the court examined the relevance and admissibility of the discreditable conduct evidence under the propensity and tendency rules, balancing its probative value against the potential for unfair prejudice.

The court determined that the information received by the police was sufficient to establish reasonable suspicion, thus justifying the search under section 68 of the Summary Offences Act 1953. The court also found that the arrest was lawful as it was based on reasonable suspicion. Regarding the discreditable conduct, the court ruled that such evidence was relevant to the accused's credibility and could be admitted, provided it did not unfairly prejudice the accused.

The court ordered that the evidence obtained from the search be admitted, the arrest be upheld as lawful, and the discreditable conduct evidence be permitted at trial.

Orders