R v Tardrew - [2021] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TARDREW
[2021] SADC 7
Ruling of his Honour Judge Stretton
3 February 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Police stopped the accused’s vehicle for a licence check. A search of that vehicle located methylamphetamine. An application was made to exclude the evidence from trial on the basis that the search was unlawful. Police gave evidence that the accused’s driving, her demeanour when spoken to and comments she initially made gave them a reasonable suspicion enabling a search of the vehicle pursuant to the Controlled Substances Act. The accused did not give evidence.
Held: The matters observed by police were sufficient to, and did, cause police to hold a reasonable suspicion pursuant to the Controlled Substances Act. Accordingly, the search was lawful and there is no basis for the exclusion of the evidence.
Controlled Substances Act 1984 (SA) s 52(9), referred to.
R v Nguyen (2013) 117 SASR 432; Bain v Police (2011) 112 SASR 10; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303; George v Rockett (1990) 170 CLR 104 at 115; R v Rogers [2011] SASC 40, applied.

R v TARDREW
[2021] SADC 7

The accused, Helen Tardrew, is charged with trafficking methamphetamine at Elizabeth South in the State of South Australia on 30 March 2019. It is alleged that at about 10.30am on that day, she was in possession of approximately 55.6 grams of substance containing methamphetamine. The matter came to the attention of the police as a result of a traffic stop and licence check carried out by police.
Ms Tardrew was arrested and charged. Her trial in this court is listed to commence on 24 February 2021.
The Application
Ms Tardrew has filed an application to exclude a search of her vehicle on the grounds that the search was unlawful. The search was purportedly conducted pursuant to the Controlled Substances Act (‘the Act’). Section 52(9) of the Act provides that where a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against that legislation is in any vehicle, the officer may search that vehicle.
Reasonable Suspicion
In R v Nguyen,[1] the Chief Justice made the observation that a suspicion is less certain than a belief as to the existence of a fact. He said that a belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other fact or facts. On the other hand, suspicion that a fact exists, in a context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must however, be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or ‘idle wondering’ about the existence of the fact is not the same as…

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 Tardrew

Details

AGLC: R v Tardrew [2021] SADC 7
Case: [2021] SADC 7
Decision Date: 3 February 2021

CaseChat Overview and Summary

The defendant was charged with drug offences following a search of his person and vehicle by police. The search was conducted following the observation of a number of factors, including the defendant's nervous behaviour and the presence of an odour of cannabis in the vehicle. The defendant objected to the search and sought to have the evidence excluded on the basis that the search was unlawful. The court was required to determine whether the police had a reasonable suspicion that a search should be conducted and whether the evidence obtained as a result of the search should be excluded.

The court held that the observations made by the police were sufficient to give rise to a reasonable suspicion that the defendant was engaged in unlawful drug activity. The court found that the defendant's nervous behaviour, combined with the presence of the odour of cannabis, was sufficient to give rise to a reasonable suspicion that a search should be conducted. The court rejected the defendant's argument that the search was unlawful and held that the evidence obtained as a result of the search was admissible. The court found that the police had acted lawfully and that there was no basis for the exclusion of the evidence.

The court's decision in this case highlights the importance of the reasonable suspicion test in determining the lawfulness of a search. The court held that the police were entitled to rely on a number of factors, including the defendant's behaviour and the presence of an odour of cannabis, in forming their suspicion. The court rejected the defendant's argument that the search was unlawful and held that the evidence obtained as a result of the search was admissible. This decision provides guidance to police and prosecutors in relation to the lawfulness of searches in drug-related cases.

The court's final orders were that the evidence obtained as a result of the search was admissible and that the defendant's application to exclude the evidence was dismissed. The defendant's case proceeded to trial on the merits, and the defendant was ultimately convicted of the drug offences.

Orders

Orders of the court

Held: The matters observed by police were sufficient to, and did, cause police to hold a reasonable suspicion pursuant to the Controlled Substances Act. Accordingly, the search was lawful and there is no basis for the exclusion of the evidence

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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