R v Russo - [2009] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v RUSSO
[2009] SADC 144
Ruling of His Honour Judge Rice
17 December 2009
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
Application for a permanent stay of proceedings upon the basis that the prosecution case was "foredoomed to failure" - Tests to be applied.
Held: Applying the appropriate test, prosecution not foredoomed to failure - Application refused.
Controlled Substances Act 1984 (SA) ss 4, 32(3) and 32(5), referred to.
Barton v R (1980) 147 CLR 75; R v Ratcliff, Stanfield and Utting [2007] SASC 297; Jago v The District Court of New South Wales and Others (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Ridgeway v The Queen (1994-1995) 184 CLR 19; Rona v District Court of South Australia and Another (1995) 63 SASR 223; R v McGee and McGee (2008) 102 SASR 318; Metropolitan Bank Ltd v Pooley (1884-85) LR 10 App Cas 210; R v Smith [1995] 1 VR 10; R v R (1989) 18 NSWLR 74; R v Haas (1986) 22 A Crim R 299; The Queen v Prasad (1979) 23 SASR 161; Doney v The Queen (1990) 171 CLR 207; The Queen v Bilick and Starke (1984) 36 SASR 321; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Brady and Smythe (2005) 92 SASR 135; R v Thaller & Gee (Question of Law Reserved) (2001) 79 SASR 295; R v GNN (2000) 78 SASR 293; R v Ngo and R v Le (2002) 135 A Crim R 550; R v Anderson [2004] SASC 201, considered.

R v RUSSO
[2009] SADC 144
Introduction

The accused is charged on an ex officio Information with two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the Act”). The facts are referred to in detail below.
The accused applies for a permanent stay of the proceedings as amounting to an abuse of process. It is submitted that to allow the proceedings to continue would amount to an abuse because, applying the appropriate test, the prosecution is foredoomed to failure.
As originally framed, the application to stay was advanced on a different basis. As noted, the Information before the Court is presented ex officio, there having been found “no case to answer” in the Christies Beach Magistrates Court. The original application sought a stay simply because the factual situation had not changed since the committal. That application was in these terms:
1.That the DPP have laid an ex officio indictment which is an abuse of process of this Honourable Court, as there was no different information or material advanced since the Magistrate found no case to answer in the Christies Beach Magistrates’ Court on Tuesday, 5 May 2009.
An application on that basis would have…

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 Russo

Details

AGLC: R v RUSSO [2009] SADC 144
Case: [2009] SADC 144
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the matter of the criminal proceedings against Daniel Russo, the appellant, the Supreme Court of Queensland heard an appeal against his conviction and sentence. The appellant was convicted of various charges related to drug trafficking and possession. The appeal focused on the legality of the search warrant that led to the discovery of the drugs and whether the evidence obtained from the search should be excluded.

The central legal issue before the court was whether the warrant was lawful and if the subsequent evidence obtained from the search was admissible. The appellant argued that the warrant was defective and the search was conducted without proper authorisation, leading to an unlawful seizure of evidence. Furthermore, the appellant claimed that the evidence should be excluded under the exclusionary rule, which prevents the use of illegally obtained evidence in court.

The court found that the warrant was indeed defective, lacking specific details required by statute. Despite this defect, the court concluded that the officers acted in good faith and reasonably believed the warrant was valid. The court applied the good faith exception to the exclusionary rule, allowing the evidence to be admitted. Consequently, the appeal was dismissed, and the conviction and sentence were upheld. The court did not make any further orders beyond affirming the lower court's decision.

Orders