Pursuant to s 138(1) of the Evidence Act 1995 (Cth), evidence of the search of the person of the accused, and the finding of a quantity of heroin in a sleeve of the jacket of the accused, on 26 March 2003 in Canberra, is not admitted.

On 20 September 2004, I refused to admit evidence of a search of the person of the accused, and the finding of a small quantity of heroin in his jacket sleeve. I was prepared to permit evidence of the search of the accused’s car, and the finding of methadone in the vehicle. I said I would publish my reasons. These are those reasons.

The accused, Thomas Stankovich, has applied to the Court to exclude the evidence of a search of his person and of his motor vehicle on 26 March 2003, where police located heroin in the jacket that he was wearing, and a blister pack containing ten tablets which was determined to be methadone, in his motor vehicle. The accused is charged with two counts on the indictment which allege offences contrary to the Drugs of Dependence Act 1989 (ACT) (“the Act”). The first count alleges possession of a drug of dependence contrary to s 169 of the Act, namely methadone. The second count alleges possession of a prohibited substance contrary to s 171 of the Act, namely heroin.

The Crown case is that, on the morning of 26 March 2003, the accused had in a package secreted in the right cuff of his denim jacket 3.478 grams of white powder, of which 29.7 per cent or 1.033 grams was heroin. In his car he had a plastic blister pack which contained ten tablets of methadone. Shortly after the accused had climbed out of his car, having parked it adjacent to Reid Oval, police officers stopped the accused, and a Detective Senior Constable Hains searched the accused and the accused’s jacket, and later 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 Stankovich

Details

AGLC: R v Stankovich [2004] ACTSC 93
Case: [2004] ACTSC 93
Decision Date

CaseChat Overview and Summary

The case of R v Stankovich involved the accused, Thomas Stankovich, who was charged with possession of a drug of dependence, methadone, and possession of a prohibited substance, heroin. The Crown's case was based on evidence obtained from a search of Stankovich's person and vehicle on 26 March 2003. The legal issues in this case centred around the admissibility of the evidence obtained from the searches under the Evidence Act 1995 (Cth). Specifically, the Court had to determine whether the evidence was obtained improperly or in contravention of Australian law, and if so, whether the desirability of admitting the evidence outweighed the undesirability of admitting it. The Court found that the search of Stankovich's person was not authorised by the warrant, and the search and seizure of both the heroin and methadone were conducted by a person not authorised by the warrant. Additionally, the warrant to search the person of Stankovich was invalid on its face as it was based on the wrong statutory provision. Given the gravity of the departure from the statutory requirements for a valid warrant to search a person, the Court ruled that the evidence of the search which led to the seizure of the heroin found in the coat sleeve of Stankovich was not to be admitted. The Court also excluded the evidence of surveillance on each occasion, as its probative value was outweighed by the danger of unfair prejudice to the defendant.

Orders