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R v Simunsen

R v Simunsen

Case [2020] SADC 156 30 October 2020

Arrest

Search & Seizure

Admissibility of Evidence

Voluntariness

Criminal Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SIMUNSEN
[2020] SADC 156
Ruling of His Honour Judge Durrant
30 October 2020
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with trafficking in a controlled drug - Police stopped vehicle in order to ascertain identity of driver - subsequent search of accused and the vehicle for drugs - whether reasonable grounds to justify searching the accused and the vehicle - applications to exclude fruits of search as Police did not hold requisite level of suspicion - whether Police obliged to comply with s 79A of Summary Offences Act 1953 - whether provision of PIN for mobile phone by the accused to Police was voluntary - whether Police obligation under s 74D of the Summary Offences Act 1953, enlivened - whether proposed Police witness suitably experienced and knowledgeable to assist jury in the consideration of the illicit trade in diverted prescription drugs.
Held:
1. The search of the accused and the vehicle were lawful. If unlawful, the discretion should be exercised to admit the fruits of the search notwithstanding.
2. Police were not obliged to comply with s 79A of the Summary Offences Act 1953, at the time asserted by the accused.
3. The provision to Police of the PIN for the accused mobile phone was voluntary and the obligation under s 74D of the Summary Offences Act did not arise at that time.
4. The proposed Police Officer witness was suitably experienced and knowledgeable to give evidence to the jury to assist its consideration of the illicit trade in diverted prescription drugs.
5. The applications to exclude evidence are dismissed.
Summary Offences Act 1953 (SA) ss 74D, 79A, referred to.

R v SIMUNSEN
[2020] SADC 156
Introduction

The applicant and accused Mr Simunsen, is presented on Information[1] charged with two counts of drug trafficking as follows:
First Count
On 8 May 2019 at Salisbury Downs, trafficked in a controlled drug, namely buprenorphine (1.68g), knowing or being reckless as top the fact the substance was a controlled drug (section 32(3) of the Controlled Substances Act 1984).
Second Count
On 8 May 2019 at Salisbury Downs, possessed a controlled drug, namely heroin (0.10g), knowing or being reckless as top the fact the substance was a controlled drug (section 33L(1) of the Controlled Substances Act 1984).
[1] Dated 29 May 2020.
Mr Simunsen has filed three applications[2] seeking orders that:
·       evidence obtained from the search of his person and his vehicle be excluded on the basis Police did not hold the requisite level of suspicion;[3]
· evidence obtained from his mobile phone be excluded as Police did not comply with s 79A of the Summary Offences Act 1953;
·       his provision of his mobile phone PIN to Police was involuntary;
· Police did not comply with s 74D of the Summary Offences Act 1953; and
·       the proposed evidence of DS Nguyen concerning…

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 Simunsen

Details

AGLC: R v Simunsen [2020] SADC 156
Case: [2020] SADC 156
Decision Date: 30 October 2020

CaseChat Overview and Summary

The matter of R v Simunsen involved the accused, Simunsen, who was charged with trafficking in a controlled drug. Police had stopped the vehicle Simunsen was driving in order to ascertain his identity, leading to a subsequent search of both Simunsen and the vehicle for drugs. The dispute centred on whether the police had reasonable grounds to justify the search and whether the fruits of the search should be excluded as the police did not hold the requisite level of suspicion. Additionally, the case examined whether the police were obliged to comply with section 79A of the Summary Offences Act 1953 and whether the provision of the PIN for Simunsen's mobile phone to the police was voluntary. It was also necessary to determine if the police obligation under section 74D of the Summary Offences Act 1953 was enlivened. Finally, the court had to assess whether the proposed police witness was suitably experienced and knowledgeable to assist the jury in considering the illicit trade in diverted prescription drugs.

The primary legal issues included the validity of the police stop and search, the applicability of statutory requirements for searches, the voluntariness of providing the mobile phone PIN, and the competency of the proposed police witness. The court had to determine if the police actions were justified under the circumstances and whether the evidence obtained should be admitted. Additionally, the court examined whether the statutory provisions were correctly applied and if the accused's rights were properly safeguarded.

The court found that the police did have reasonable grounds to stop and search Simunsen and his vehicle, given the context and circumstances of the stop. It was determined that the search was conducted in accordance with the law, and therefore the evidence obtained was admissible. The provision of the PIN for the mobile phone was found to be voluntary, and the court concluded that the police obligations under the relevant sections of the Summary Offences Act 1953 were not breached. Finally, the court accepted the proposed police witness as suitably experienced and knowledgeable to assist the jury.

As a result of the findings, the court ruled that the evidence obtained from the search would be admitted, and the trial would proceed with the proposed police witness providing expert testimony. The accused, Simunsen, faced the charges with the evidence from the search being a key component of the prosecution's case. The court's decision ensured that the statutory rights of the accused were considered, and the legal framework governing police powers and evidence admissibility was upheld.

Orders