R v Sarandoglou No. DCCRM-99-608 - [2000] SADC 66

Daniel John Sarandoglou
[2000] SADC 66

Judge David Smith
Criminal

On the 17th March 2000, upon his arraignment, Daniel John Sarandoglou pleaded not guilty to the offence of selling methylamphetamine contrary to s.32(1)(c) of the Controlled Substances Act 1984. The particulars of the offence are that he, on the 24th August 1998 at Adelaide, knowingly sold methylamphetamine, a drug of dependence, to another person.

The Application

The accused applied pursuant to Rule 9 to exclude the identification evidence of Constable Orlando Gollop firstly, because the procedure was so flawed that it rendered the identification unsafe and unfair and secondly, because its probative value is slight and is outweighed by the likely prejudicial effect on the accused. Further, the accused sought a ruling that Constable Gollop be prevented from identifying the accused in Court on the same grounds.
Counsel for the accused indicated that if the application to exclude the evidence of identification fails, then the accused will plead guilty as charged.
The accused’s application amounts to a contention that in the exercise of the Court’s discretion the identification evidence should be excluded because it is unfair to the accused, (ie more prejudicial than probative) and/or its admission would be contrary to public policy, (ie procured in breach of established procedures recognised by or required by the law) (see R v Hallam & Karger (1985) 42 SASR 126; R v Deering (1986) 43 SASR 252 per King CJ at p253; Alexander v R (1981) 145 CLR 395 per Gibbs CJ at 402, 403). In the circumstances of this case, if I excluded the out of Court identification evidence of Constable Gollop it would follow that I should also refuse to allow any “in dock” identification because there is no other evidence identifying the accused as the seller; (see R v Britten (1988) 51 SASR 567; R v Coleman (1987) 87 FLR 175).
The onus is upon the accused to establish, on the balance of probabilities, facts which justify the exercise of discretion in his favour on either of the above two grounds (see R v Collins (1976) 12 SASR 498 at 308-9; R v Lee (1950) 82 CLR 133; Wendo v R (1963) 109 CLR 559).
I turn to the evidence upon the hearing on the voir dire and my findings.

Hearing on the voir dire

The evidence on the voir dire consisted of the declarations together with oral evidence from Constables Orlando Gollop, Jonathon Jackson and Stephen Norman.
The events, the subject of the charge, took place in Hindley Street some time after 10.15 pm on the 24th August 1998. At that time, Constable Orlando Gollop (hereinafter referred to as “Gollop”), had been a police officer for only three months. He was off-duty that evening and had been to a movie in company with a friend at the Greater Union theatre complex on the northern side of Hindley Street. The film finished at about 10.15 pm and he walked in company with his companion, Andrei…

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.

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Details

Case: [2000] SADC 66
Decision Date: 1 June 2000

CaseChat Overview and Summary

In the case of R v Sarandoglou, the defendant, Daniel John Sarandoglou, pleaded not guilty to the charge of selling methylamphetamine, a controlled substance. The prosecution sought to admit identification evidence from Constable Orlando Gollop, who identified Sarandoglou as the person who offered to sell him the drug. Sarandoglou challenged the admissibility of this identification evidence, arguing that the procedure was flawed and unfair, and that its prejudicial effect outweighed its probative value. The court was tasked with deciding whether the identification evidence should be excluded under the principles of fairness and public policy.

The court considered the established legal principles regarding the admissibility of identification evidence, noting that while a formal identification parade is the most reliable method, other means of identification could be admissible if they are relevant and reliable. The court emphasised that the discretion to exclude such evidence should be exercised cautiously, taking into account the weight and sufficiency of the evidence and any prejudicial effect it might have on the accused.

After reviewing the evidence presented during the voir dire, the court found that the identification procedure was not flawed. Constable Gollop had ample opportunity to observe the accused, and the circumstances of the identification were reasonable given the urgency of the situation. The court also dismissed the argument that Gollop's role as an investigator compromised the probity of his identification, finding that he acted similarly to an ordinary civilian witness.

Consequently, the court ruled that the identification evidence should be admitted and that the prosecution could call Constable Gollop to make an in-court identification of the accused. The application to exclude the identification evidence was dismissed.

Orders