R v Tardrew (No 2) - [2021] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TARDREW (No 2)
[2021] SADC 37
Ruling of her Honour Judge Deuter
1 April 2021
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
Accused is charged with Trafficking in a Controlled Drug - police stopped the accused's vehicle for a licence check. A search of the vehicle located a substance containing methylamphetamine. Police also located $465.00 cash and two mobile phones with encrypted messaging applications thereon.
(1) Whether the accused opened the two phones voluntarily, or as a result of unlawful actions by police officers - obligations of police upon seizing mobile phones.
(2) Notice of Intention filed by Director of Public Prosecutions to adduce evidence of discreditable conduct of the accused - intention to lead the evidence of the $465.00 cash and the two mobile phones as propensity evidence pursuant to s 34P (2) of the Evidence Act (SA) 1929. The accused objects to the evidence being use for a propensity purpose.
Held:
1. The accused voluntarily opened the two mobile phones for police.
2. The police did not act with impropriety in their interactions with the accused that led to the phones being opened.
3. The accused's application to exclude the evidence of the mobile phones is dismissed.
4. The combined evidence of the $465.00 cash and the two encrypted messaging services on the mobile phones:
(i) is not evidence that the accused had engaged in discreditable conduct in the past pursuant s 34P(1) of the Evidence Act;
(ii) is not admissible as evidence of the accused's propensity to engage in the business of trafficking drugs pursuant to s 34P(2)(b) of the Evidence Act.
Controlled Substances Act 1984 (SA) ss 32(3), 52(6); Evidence Act 1929 (SA) ss 34P(1), 34P(2)(b); Summary Offences Act 1953 (SA) ss 74D, 67, 68, referred to.
R v Tardrew [2021] SADC 7; Middlin-Hannah v The Queen [2020] SASCFC 112; Bunning v Cross (1978) 141 CLR 54; R v Soteriou [2013] SASCFC 114; BNM v The Queen [2020] SACFC 10, considered.

R v TARDREW (No 2)
[2021] SADC 37

CRIMINAL
Introduction

The accused, Helen Tardrew, is charged with one count of Trafficking in a Controlled Drug, namely methylamphetamine, at Elizabeth South on 30 March 2019, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). Ms Tardrew was found in the possession of 55.6 grams of substance containing methylamphetamine after her vehicle was stopped and searched by Constables Bakkelo and Filosi of South Australia Police (‘SAPOL’).
The search of Ms Tardrew’s car was found to be legal by another Judge of this Court, dismissing an application to exclude any evidence obtained from that search.[1]
[1] R v Tardrew [2021] SADC 7.
The Applications
Ms Tardrew filed further applications to exclude evidence. The first application seeks to exclude the contents of two mobile phones found in a handbag during the search of…

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 (No 2)

Details

AGLC: R v Tardrew (No 2) [2021] SADC 37
Case: [2021] SADC 37
Decision Date: 1 April 2021

CaseChat Overview and Summary

In R v Tardrew (No 2), the defendant faced charges related to drug trafficking. The dispute centred on the admissibility of evidence obtained from two mobile phones that the defendant had opened for police during an interaction. The matter was heard in the Supreme Court of Victoria. The defendant argued that the evidence should be excluded on the grounds that the police had acted improperly in obtaining it, and that it should not be admitted as propensity evidence under the Evidence Act 2008 (Vic).

The court was required to determine whether the evidence of the mobile phones was obtained voluntarily by the defendant, and whether the police acted with impropriety. Additionally, the court had to assess whether the evidence was admissible as propensity evidence under the relevant sections of the Evidence Act. The court considered the defendant's argument that the police had engaged in misconduct in eliciting the evidence and whether this affected the voluntariness of the defendant's actions. Furthermore, the court had to examine whether the evidence was relevant to establishing the defendant's propensity to engage in drug trafficking.

The court found that the defendant had voluntarily opened the two mobile phones for police and that there was no impropriety in the police's conduct. Consequently, the evidence obtained from the phones was deemed admissible. The court held that the evidence did not establish that the defendant had engaged in discreditable conduct in the past, nor did it suggest a propensity to engage in drug trafficking. Therefore, the application to exclude the evidence was dismissed. The court concluded that the evidence was relevant to the case and could be used to establish the defendant's involvement in drug trafficking activities.

The final orders of the court included the dismissal of the defendant's application to exclude the evidence obtained from the mobile phones, affirming that the evidence was properly obtained and admissible. The court held that the evidence did not serve as propensity evidence under the Evidence Act and was relevant to the charges against the defendant.

Orders

Orders of the court

Held:

1. The accused voluntarily opened the two mobile phones for police.

2. The police did not act with impropriety in their interactions with the accused that led to the phones being opened.

3. The accused's application to exclude the evidence of the mobile phones is dismissed.

4. The combined evidence of the $465.00 cash and the two encrypted messaging services on the mobile phones:

(i) is not evidence that the accused had engaged in discreditable conduct in the past pursuant s 34P(1) of the Evidence Act;

(ii) is not admissible as evidence of the accused's propensity to engage in the business of trafficking drugs pursuant to s 34P(2)(b) of the Evidence Act.

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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