R v Vassallo - [2005] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VASSALLO
Reasons for Ruling of His Honour Judge Smith
10 May 2005
CRIMINAL LAW - EVIDENCE
Judicial discretion to admit or exclude evidence - whether General Search Warrant validly issued - discretion to issue General Search Warrant pursuant to s67 of Summary Offences Act 1953 (SA) delegated to Deputy Commissioner of Police - whether criteria for eligibility to hold General Search Warrant in general orders made by the Commissioner of Police constituted a fetter on the exercise of delegated discretion by the Deputy Commissioner such as to render the issue unlawful - application to exclude evidence obtained as a result of the search on the basis of the invalidity of the warrant dismissed.
Controlled Substances Act 1984 ss 32(1)(a), 32(1)(b), 32(1)(e); Summary Offences Act 1953 s67(1)(f); Police Act 1988 (SA) ss 11, 19, referred to.
Question of Law Reserved on Acquittal (No. 5) (2000) 76 SASR 356; Rv McKelliff (2004) 87 SASR 476; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; O'Sullivan v Farrer (1989) 168 CLR 210; Bread Manufacturers of NSW v Evans (1981) 56 ALJR 89; Rendell v Release on Licence Board (1987) 10 NSWLR 499; Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634; British Oxygen Co Ltd v Board of Trade [1971] AC 610; Quark Technologies v Workcover (1997) 70 SASR 153, considered.

R v VASSALLO
[2005] SADC 44

Upon his arraignment on the 8^th December 2004, in the absence of a jury panel, the defendant Cosimo Vassallo pleaded not guilty to the following four offences:
1.Producing cannabis. (Section 32(1)(a) of the Controlled Substances Act 1984).
Between the 1^st day of March 2003 and the 22^nd day of May 2003 at Woodside, knowingly produced cannabis, a prohibited substance.
2.Possessing Methylamphetamine for sale. (Section 32(1)(e) of the Controlled Substances Act 1984).
On the 21^st day of May 2003 at Woodside, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
3.Possessing Methylamphetamine for sale. (Section 32(1)(e) of the Controlled Substances Act 1984).
On the 21^st day of May 2003 at Woodside, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
4.Taking part in the manufacture of Methylamphetamine. (Section 32(1)(b) of the Controlled Substances Act 1984).
Between the 1^st day of May 2003 and the 22^nd day of May 2003 at Woodside, knowingly took part in the manufacture of methylamphetamine, a drug of dependence.
The declarations allege that in the early hours of the morning of the 21^st May 2003 police officers, including Detective Sergeant Rodney Arthur Ford who held a General Search Warrant, attended and searched the defendant’s residence at Woodside. They located cannabis plants, quantities of methylamphetamine…

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 Vassallo

Details

AGLC: R v Vassallo [2005] SADC 44
Case: [2005] SADC 44
Decision Date: 10 May 2005

CaseChat Overview and Summary

In the matter of R v Vassallo, the appellant, Vassallo, challenged the admissibility of evidence obtained during a search conducted under a General Search Warrant. The case was heard and determined by the Supreme Court of South Australia. The primary issue for the court was whether the General Search Warrant was validly issued and if the criteria for eligibility to hold the warrant constituted a fetter on the Deputy Commissioner's discretion.

The legal issues the court had to decide involved the validity of the warrant and the interpretation of the statutory provisions that govern the issuance of such warrants. Specifically, the court had to determine whether the delegation of the discretion to issue General Search Warrants under section 67 of the Summary Offences Act 1953 (SA) to the Deputy Commissioner was properly exercised, and whether the criteria for eligibility to hold the warrant, as specified in general orders made by the Commissioner of Police, unduly restricted the Deputy Commissioner's discretion.

The court found that the delegation of the discretion to issue General Search Warrants was lawful and that the criteria for eligibility did not constitute a fetter on the Deputy Commissioner's discretion. The court reasoned that the criteria provided a necessary framework within which the Deputy Commissioner could exercise the discretion responsibly and in accordance with the law. As such, the application to exclude the evidence obtained as a result of the search on the basis of the invalidity of the warrant was dismissed. The court held that the warrant was validly issued, and the evidence obtained during the search was admissible.

The final orders of the court were that the application to exclude the evidence was dismissed, and the evidence obtained during the search under the General Search Warrant was deemed admissible in the proceedings against the appellant.

Orders