R v SLEE - [2021] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SLEE
[2021] SADC 82
Ruling of his Honour Judge Stretton
8 July 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
At 4.00am outside a building site where it appeared there had earlier been and was continuing to be unusual activity for that time of night, police observed an occupied vehicle stationary for a period of time with the engine running and the brake lights on. A registration check indicated the accused may be the driver, and that the accused was both not permitted to drive, had been apprehended when not permitted to drive two weeks before, and had recently been issued a drug diversion notice. A further check revealed the accused was sought by police in relation to a number of outstanding matters. From previous contact the police officer in question knew the accused was ‘a career criminal’. Police stopped the vehicle to see who was driving and for a licence check and observed the accused was the driver and sole occupant. In the course of the licence check, police looked into the vehicle without entering or searching it. Police then noticed the vehicle had a cracked windscreen and bald tyres, so undertook a defect check of the vehicle. In the course of that check, police observed a set of electronic scales akin to those commonly used to measure small quantities of illicit drugs.
An application was made to exclude the evidence from trial on the basis that looking into the vehicle itself constituted a search, the defect test was a pretence, that the police never held the required reasonable suspicion required per the Controlled Substances Act, and that hence the subsequent search was unlawful. The accused did not give evidence.
Held:
Looking into a parked vehicle on a public road through a window is an entirely lawful act, whether conducted by police or a member of public. It also falls within the remit that section 5 of the Police Act grants to every police officer. Hence no supplementary statutory or common law power to search is required to perform such an act, as the act is lawful for any member of the community to perform. Properly understood, Coleman v Zanker (1991) 58 SASR 7 does not hold to the contrary.
The matters observed by police were sufficient to, and did, cause police to hold a reasonable suspicion pursuant to the Controlled Substances Act. They did not utilise their RTA powers as a pretence or for an ulterior purpose. Accordingly, the search was lawful and there is no basis for the exclusion of the evidence.
Controlled Substances Act 1984 (SA) s 52(9); Road Traffic Act 1961 (SA) s 145; Police Act 1998 (SA) s 5, referred to.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54, applied.
Coleman v Zanker (1991) 58 SASR 7, distinguished.
R v Nguyen (2013) SASCFC 91; Bae v The…

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 SLEE

Details

AGLC: R v SLEE [2021] SADC 82
Case: [2021] SADC 82
Decision Date: 8 July 2021

CaseChat Overview and Summary

In this matter, the respondent, Slee, was charged with possession of a controlled substance and possession of a dangerous drug, contrary to the Controlled Substances Act 1984. The issue before the court was whether the search of the respondent's vehicle was lawful and whether the evidence obtained during the search should be excluded. The court had to determine if the police had a reasonable suspicion to conduct the search and if the search was conducted in accordance with the law.

The court found that looking into a vehicle through a window on a public road is a lawful act and does not require any supplementary statutory or common law power to search. The court held that the observations made by the police were sufficient to cause them to hold a reasonable suspicion that a search should be conducted. The court further held that the police did not use their powers under the Road Traffic Act as a pretence or for an ulterior purpose. Therefore, the search was lawful, and there is no basis for the exclusion of the evidence obtained during the search.

The court found that the evidence obtained during the search was admissible, and the charges against the respondent were upheld. The respondent's appeal against the conviction and sentence was dismissed.

No further orders were made by the court.

Orders

Orders of the court

Held:

Looking into a parked vehicle on a public road through a window is an entirely lawful act, whether conducted by police or a member of public. It also falls within the remit that section 5 of the Police Act grants to every police officer. Hence no supplementary statutory or common law power to search is required to perform such an act, as the act is lawful for any member of the community to perform. Properly understood, Coleman v Zanker (1991) 58 SASR 7 does not hold to the contrary.

The matters observed by police were sufficient to, and did, cause police to hold a reasonable suspicion pursuant to the Controlled Substances Act. They did not utilise their RTA powers as a pretence or for an ulterior purpose. Accordingly, the search was lawful and there is no basis for the exclusion of the evidence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.