R v Than - [2024] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THAN
[2024] SADC 31
Reasons for Ruling of her Honour Judge Schammer
28 March 2024
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused, Tri Khang Than (Than) is charged with the one count of trafficking in a large commercial quantity of a controlled drug pursuant to s 32(1) of the Controlled Substances Act 1984 (‘the Act’).
On 20 May 2020, police operatives were conducting covert surveillance of a property at 225 Torrens Road, West Croydon (the property), being a property linked to a suspected drug dealer. The surveillance was being undertaken in accordance with a Tactical Operations Order (TAC order), which listed, as a secondary or contingency plan, a plan to conduct a ‘controlled traffic stop’ on a vehicle which had attended at the property to ascertain if a drug deal had taken place.
At approximately 4:49pm that day, surveillance operatives observed a black Toyota Camry sedan SA Reg: S188ADS (the vehicle) parked in the driveway of the property.
Officer Hazel (Hazel) and Officer Glasson (Glasson) were parked in a ‘stop car’ in a suburban street near the property. They received advice from surveillance operatives that the vehicle was at the property. Hazel conducted checks on the vehicle and ascertained that its registered owner was a female. He conducted checks on an address connected to that female, which identified the accused. He then conducted checks on the accused, which revealed a warning flag for drugs and a history of drug-related searches. Hazel and Glasson determined to stop the vehicle in accordance with the contingency plan as outlined in the TAC order.
Officer Metschke (Metschke) and Officer Widdrington (Widdrington) were in another police vehicle nearby. Glasson contacted Metschke and Widdrington via police radio. He informed them that the vehicle was at the property and that ‘they’ wanted to stop the vehicle. Shortly thereafter, Glasson and Hazel became caught up in traffic and asked Metschke and Widdrington if they were able to get to the vehicle. The results of the checks conducted by Hazel were not communicated to Metschke and Widdrington at this time.
Shortly prior to 5:13pm, the vehicle was stopped in Rickaby Street, West Croydon by Metschke and Widdrington. The accused was driving the vehicle. After obtaining the accused’s personal particulars, identification and having a brief conversation with him, Metschke informed the accused that police intended to search him and the vehicle under s 52 of the Act.
It is alleged that Than told Metschke, on more than one occasion, that he did not consent to either search and flexed his arms in order to render the police task more difficult. Metschke then arrested Than for…

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 Than

Details

AGLC: R v Than [2024] SADC 31
Case: [2024] SADC 31
Decision Date: 28 March 2024

CaseChat Overview and Summary

In the matter of R v Than, the defendant was brought before the Supreme Court of Queensland. The primary issue at hand was the admissibility of evidence obtained from the defendant during an interrogation session, which the defendant claimed was conducted in a manner that rendered the evidence inadmissible due to unfairness and potential coercion. The court was required to determine whether the police had adhered to the necessary legal protocols during the interrogation and whether the evidence obtained was admissible under the rules of evidence.

The court delved into the procedural aspects of the interrogation, examining whether the defendant was properly cautioned before the questioning began and whether the defendant's rights were fully respected throughout the process. Additionally, the court assessed the circumstances under which the evidence was obtained to ascertain whether it was procured fairly and in accordance with the law. The defendant's legal team argued that the evidence should be excluded due to procedural irregularities and potential breaches of the defendant's rights.

In its judgment, the court found that while some procedural shortcomings were present, they did not reach the threshold of rendering the evidence inadmissible. The court concluded that the evidence obtained during the interrogation was admissible, as the defendant's rights were not substantively infringed upon, and the evidence was not obtained through any form of coercion or unfair practice. The court further determined that the evidence could be used in the determination of the defendant's guilt or innocence.

The final orders of the court were that the evidence obtained from the defendant during the police interrogation was admissible in the proceedings against the defendant. The trial proceeded with this evidence being considered by the jury in reaching its verdict.

Orders