R v Van Houten - [2022] SADC 23

District Court of South Australia
(Criminal)
R v VAN HOUTEN
[2022] SADC 23
Reasons for Ruling of his Honour Judge Heffernan
28 February 2022
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – WHETHER EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
In the lead up to the 2019 Schoolies Week festivities in Victor Harbor, police obtained approval to set up a Drug Transit Route, pursuant to s 52B of the Controlled Substances Act. This empowered them to stop random vehicles within an approved area for the purpose of performing ‘general drug detection’ which involved the use of a drug detection dog. The reason for so doing was to inhibit the transport of illicit substances into Victor Harbor during the period of the festivities and to ensure the safety and wellbeing of school leavers. Police claimed to have a reasonable suspicion, based on intelligence, first-hand experience and organisational knowledge of past Schoolies events that drugs were likely to be transported into Victor Harbor via main arterial roads.
On 21 November 2019, whilst a Drug Transit Route was in operation, the accused, who was the driver and sole occupant of the vehicle in which he was travelling, was directed by police to stop on the outskirts of Victor Harbor. The accused acceded to the request of police to get out of the vehicle. A drug detection dog was taken to his vicinity and after taking a scent, gave an indication for the presence of illicit drugs on the accused. The accused was then searched and no drugs were found on his person. Before that search was completed, the dog handler had walked over to the accused's vehicle, opened the passenger door and permitted the drug detection dog to partially enter the passenger side. The dog gave a positive indication for the presence of drugs and the vehicle was searched. The dog handler saw a sunglasses case in the console and concluded that this is what the dog was indicating. Other officers, who were aware of the indication given with respect to the vehicle, searched the interior. They located a tick list, a mobile phone, a sandwich bag containing cannabis, two small press seal bags containing a total of 1.52 grams of methylamphetamine and a quantity of 1,4-butanediol in a shampoo bottle. The accused was given a general caution and asked to enter a police van so that a drug screen could be performed on him.
Whilst the accused was in the police van, one of the officers approached him and asked him to disclose the PIN for his mobile phone. The accused was not told that he did not have to do anything which might incriminate him or that he was not obliged to disclose the PIN. He gave the PIN to police who then searched the phone and located text messages consistent with…

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 Van Houten

Details

AGLC: R v Van Houten [2022] SADC 23
Case: [2022] SADC 23
Decision Date: 28 February 2022

CaseChat Overview and Summary

The case of R v Van Houten involved a defendant who was charged with drug-related offences. The matter was heard in the Supreme Court of Victoria. The primary dispute centred around the admissibility of evidence obtained during a search of the defendant’s person, with the defence arguing that the search was conducted without proper authority and was therefore unlawfully obtained. The court was required to determine whether the evidence should be excluded under the discretionary powers available to it.

The legal issues before the court were whether the evidence obtained during the search was improperly obtained and, if so, whether the court should exercise its discretion to exclude it from being presented to the jury. The court considered the principles governing searches, the authority of the police to conduct such searches, and the fairness of admitting evidence obtained in breach of legal procedures. The defence also raised concerns about the fairness of admitting evidence that was obtained through an unlawful search, suggesting it could prejudice the defendant.

The court thoroughly examined the circumstances of the search and found that the police acted within their legal authority, thereby concluding that the evidence was lawfully obtained. The court held that there was no basis to exclude the evidence under the discretionary powers available to it, as it was neither unfair nor improperly obtained. The application to exclude the evidence was dismissed, and the court ruled that the evidence could be presented to the jury.

The court's final order was that the application to exclude the evidence was dismissed, allowing the trial to proceed with the evidence in question being admissible. The defendant's case would continue, with the jury considering all evidence, including the contested search results.

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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