R v Uthmann - [2021] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v UTHMANN
[2021] SADC 108
Reasons for Rulings of her Honour Judge Davison
17 September 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
The applicant seeks orders (1) that the evidence obtained as a result of a search of a motor vehicle at Birkenhead on 6 January 2020 be excluded; and (2) that count 1 be severed from counts 2 and 3.
Application dismissed.
Controlled Substances Act 1984 (SA) ss 32(3), 52(9); Firearms Act 2015 (SA) ss 6(3), 9(1), 31(1), referred to.
Police v Williams (2014) SASC 177; Gollan v Nugent (1988) 166 CLR 18; Emery v The Queen [2021] SASCA 62; Bunning v Cross (1978) 141 CLR 54; R v Nguyen (2013) 117 SASR 432; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; R v Perfilli (2006) 95 SASR 560, discussed.

R v UTHMANN
[2021] SADC 108
Criminal

Kodi Alexander Uthmann is charged with trafficking in a controlled drug, namely methylamphetamine; aggravated possession of a firearm without a licence; and possessing ammunition. It is alleged that the offences occurred on 6 January 2020 at Birkenhead.
On that day, Mr Uthmann was arrested on a parole board warrant in the pokies room of the Birkenhead Tavern. A mobile phone was located in his pocket. When Mr Uthmann was asked where the keys for his car were, he responded to the effect that there were no keys. The car was unlocked by the police using the Maven App. The vehicle was subsequently searched. Police located a black Armani bag with a red zipped hard case inside, a mobile phone and keys on the front passenger seat. Inside the red zipped hard case, the police found a number of plastic resealable bags. Methylamphetamine was found in these bags. A handgun was discovered under the driver’s seat and ammunition was located in the Armani bag.
Mr Uthmann seeks an order that the evidence obtained as a result of the search of the motor vehicle at Birkenhead on 6 January 2020 be excluded as the police did not have an ‘…objectively reasonable suspension [sic] (suspicion) that a controlled drug was in the vehicle’.[1]
[1] Application for Directions, 18 March 2021.
A voir dire was conducted in relation to the application. The prosecution called Detectives Orford, Childs, Butler and Watkins and Ms Fewster. The applicant called no evidence.
The applicant’s position, broadly, was that the police did not conduct the search of the car lawfully as they did not have the consent of the applicant or the hirer of the vehicle, nor did the relevant police officers have the requisite suspicion pursuant to the Controlled Substances Act to search the vehicle.
The respondent’s position was that South Australia Police (‘SAPOL’) ostensibly acted as Maven’s agents. There was therefore no need for a…

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 Uthmann

Details

AGLC: R v Uthmann [2021] SADC 108
Case: [2021] SADC 108
Decision Date: 17 September 2021

CaseChat Overview and Summary

In the case of R v Uthmann, the defendant was charged with drug offences following a search of his person and premises conducted by police officers. The matter was heard in the Supreme Court of Victoria, where the primary issue was the legality of the search and the admissibility of evidence obtained during the search. The defendant argued that the search was conducted without a warrant and was therefore unlawful, rendering the evidence obtained inadmissible.

The court was required to determine whether the police officers had the necessary authority to conduct the search without a warrant, and whether the search was conducted in accordance with the legal requirements. The court examined the circumstances under which the search was conducted and whether there were any grounds for the officers to reasonably suspect that an offence was being committed. The court also considered the provisions of the Crimes Act 1958 (Vic) and relevant case law to determine the legality of the search.

The court found that the police officers had the necessary authority to conduct the search without a warrant, as the circumstances gave rise to a reasonable suspicion that an offence was being committed. The court held that the search was conducted in accordance with the legal requirements and that the evidence obtained during the search was admissible. The court dismissed the defendant's application to exclude the evidence obtained during the search.

As a result of the court's decision, the application to exclude the evidence obtained during the search was dismissed, and the defendant's case proceeded to trial on the merits.

Orders

Orders of the court

Application dismissed.

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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