R v Vester - [2013] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VESTER
[2013] SADC 71
Reasons for Ruling of His Honour Judge Chivell
24 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Accused charged with possession of a class H firearm without a licence and possession of an unregistered firearm. Motor vehicle stopped by police for random breath-testing of driver. Vehicle searched. Application for exclusion of the evidence of the search - whether there was a relevant reasonable suspicion at the time of the search pursuant to s 52(9) of the Controlled Substances Act 1984.
Search found to be illegal and discretion exercised against admitting the evidence.
Controlled Substances Act 1984 s 32, s 52(6), s 52(9); Serious and Organised Crime (Control) Act 2008 s 35(1), s 35(3), s 35(6)(b), referred to.
R v Moukachar [2010] SASC 199; Bain v Police [2011] SASC 228; Wilson and Morrison v R [1994] SASC s4554.1; R v Rogers (2011) 109 SASR 307; R v Lobban (2000) 77 SASR 24; Bunning v Cross (1977-8) 141 CLR 54, considered.

R v VESTER
[2013] SADC 71
Introduction

This is an application by Mr Vester pursuant to Rule 9 of the former District Court Criminal Rules for the exclusion of the following evidence:
(1)evidence of conversations and other matters arising from dealings between police and the witness Michael Rieck;
(2)evidence arising from the search of the vehicle driven by the accused;
(3)evidence of an interview between the accused and police officers.
The applications are based upon the suggestion that the approach by Sergeant Murphy to Rieck, and the subsequent search of the vehicle in which Murphy discovered the firearm and ammunition the subject of the charge, were illegal. It was accepted by Ms Sprod, for the Director of Public Prosecutions, that if the defence succeeded on those points, the record of interview should also be excluded.
The charges arise from an incident on 29 July 2011 at about 10:55 p.m., when Murphy and Senior Constable Hocking stopped a Ford Territory vehicle on Guilford Avenue, Prospect for a random breath test. Vester was the driver of the vehicle and Rieck was the front-seat passenger.
Hocking administered an alcotest to Vester, which was positive. Checks revealed that Vester’s driver’s licence had expired. Hocking directed Vester that he should accompany police to Holden Hill Police Station for a breath analysis. Vester complied and accompanied Hocking to the police vehicle.
Murphy approached Rieck, the passenger. He then searched the vehicle. He saw a black attaché case on the rear passenger seat. On inspection, he saw that the case contained the firearm in question, and some documents relating to Vester. He seized the bag and it was secured in the rear of the police vehicle.
Murphy said that in searching the vehicle, he was exercising his powers in s 52(9) of the Controlled Substances Act 1984 (‘CSA’). That section authorises a police officer to detain and search a vehicle…

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 Vester

Details

AGLC: R v Vester [2013] SADC 71
Case: [2013] SADC 71
Decision Date: 24 May 2013

CaseChat Overview and Summary

In the matter of R v Vester, the accused was charged with possession of a class H firearm without a licence and possession of an unregistered firearm. The charges arose after police stopped the accused's motor vehicle during a random breath-testing operation. A subsequent search of the vehicle led to the discovery of the firearms in question. The accused subsequently applied for the exclusion of the evidence obtained from the search, contending that the police did not have a relevant reasonable suspicion at the time of the search, as required by section 52(9) of the Controlled Substances Act 1984.

The court was required to determine whether the police had a reasonable suspicion to conduct the search of the vehicle, and whether such suspicion was relevant to the offences under the Controlled Substances Act. This involved an examination of the circumstances leading up to the search, the information available to the police at the time, and whether the suspicion was based on sufficient grounds to justify the intrusion into the accused's rights.

The court held that the police did not have a relevant reasonable suspicion at the time of the search. The suspicion was not based on specific and articulable facts that would justify the intrusion into the accused's rights. The search was not supported by the necessary legal criteria, and therefore, the evidence obtained from the search was deemed inadmissible. The court's reasoning hinged on the interpretation of the legal standards for reasonable suspicion and the specific context of the Controlled Substances Act.

The final orders of the court were that the evidence obtained from the search of the vehicle was excluded from the trial. This decision highlights the importance of ensuring that police searches are conducted within the bounds of the law and are supported by sufficient reasonable suspicion.

Orders