R v Sutcliffe No. DCCRM-01-1299 - [2002] SADC 144

R v SUTCLIFFE Peter Lewis
[2002] SADC 144
Judge Lee
Criminal

This is a rule 9 application for determination prior to the trial.
The accused is charged with one count of producing cannabis, one count of possessing cannabis in excess of 2 kilograms for sale, and one count of unlawful possession of $1,410. When the police raided the accused’s premises at Nairne on 9 June 2001, they located and seized 8 cannabis plants, a substantial quantity of cannabis material, and various items of hydroponic equipment.
A number of orders are sought.
First, that Constable Peter Foulis be required to give evidence on the voir dire, and/or that his evidence be excluded from the trial.
The declaration of this witness describes the nature of cannabis and some aspects of the illicit drug trade. His evidence will be led by the prosecution primarily on the issue of the commerciality of the accused’s alleged possession of the drug. Mr Mancini contended that his evidence should deal also with the non-commercial use of the drug in the community. If it does not, Mr Mancini says, the evidence should be excluded.
I do not consider that either of the orders sought would be appropriate. The prosecution is entitled to confine the witness’s evidence to topics which arise on the prosecution case. Whilst the non-commercial use of the drug in the community may be a proper topic for cross-examination at the trial, I do not consider that Mr Mancini should be allowed to explore the topic with the witness at this stage. “The practice of directing a voir dire in appropriate cases must not lead to the supposition that counsel have an unrestricted right to a fishing expedition”: R v Williams (1976) 14 SASR 1 at 3.
The second order sought is that the prosecution not adduce evidence of the police search of the premises, and the results of that search, because the search was illegal.
As I understand Mr Mancini’s submission, although the search warrants held by the police officers who conducted the search were issued in compliance with s.52 of the Controlled Substances Act and are valid on their face, the holder of a warrant should entertain his own belief or suspicion about the possible commission of an offence against the Act before he conducts any search.
I consider that the submission should be rejected. Copies of 8 warrants are before me. Each states in identical terms that the issuing officer is “satisfied on information upon oath received by me this day that there are reasonable grounds for suspecting that an offence against the Controlled Substances Act, 1984, has been, or is being committed, and that a warrant is reasonably required in the circumstances”. Each warrant then goes on to authorise the holder to enter the accused’s premises at Nairne “for the purpose of ascertaining whether the provisions of the Act are being complied with or have been contravened, and, where reasonably necessary for that purpose, break into or open any part of 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.

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Details

Case: [2002] SADC 144
Decision Date: 11 November 2002

CaseChat Overview and Summary

The matter before the court is an application by the accused, Peter Lewis, regarding the admissibility of evidence in a criminal trial involving charges of producing cannabis, possessing cannabis in excess of 2 kilograms for sale, and unlawful possession of $1,410. The court considered four orders sought by the defence: the exclusion of evidence from a specific witness, the exclusion of evidence related to an illegal search, the severance of charges, and the exclusion of evidence regarding cannabis material due to its unlawful destruction by police. The accused argued that these orders were necessary to ensure a fair trial.

The court began by addressing the admissibility of evidence from Constable Peter Foulis, who was to testify about the nature of cannabis and the illicit drug trade. The defence argued that the evidence should cover both commercial and non-commercial use of cannabis. However, the court ruled that the prosecution could limit the evidence to topics relevant to their case. The court further held that the evidence should not be excluded at this stage as it would not be fair to allow the defence to conduct a fishing expedition.

Regarding the illegal search, the court found that the search warrants issued were valid, and there was no requirement for the holder of a warrant to entertain a personal suspicion about the commission of an offence. The court rejected the argument that the search was illegal and thus upheld the admissibility of the evidence obtained.

The court also considered the severance of charges, particularly the money found during the raid. The court found that the charges were properly joined and that evidence of the money was relevant to both counts. The court concluded that any prejudice to the accused could be mitigated by an appropriate direction to the jury.

Lastly, the court addressed the destruction of the cannabis material by police. Despite the non-compliance with procedures for the destruction of seized property, the court found that the destruction did not unfairly prejudice the accused's right to a fair trial. The court noted that the weight and quality of the cannabis were adequately established by other evidence and that the destruction of the hydroponic equipment did not significantly impact the accused's defence. Consequently, the court dismissed the application to exclude the evidence.

In conclusion, the court found no grounds to exclude any of the sought evidence and dismissed the application. The trial is set to proceed with all evidence considered admissible.

Orders