R v Vitor - [2017] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VITOR
[2017] SADC 116
Ruling of His Honour Judge Clayton
27 October 2017
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Accused charged with several firearms offences applied for exclusion of evidence obtained during a search of his house purportedly conducted under Firearms Act 1977 (SA) s 32 and, later, a General Search Warrant. Impugned evidence included that obtained from the accused’s mobile telephone, police having caused the accused to provide the PIN code prior to administering a caution and without recording the interview.
Held: the interview ought to have been recorded in accordance with s 74D Summary Offences Act 1953 (SA), and a caution ought to have been administered. Evidence obtained by use of the PIN excluded.
Accused argued that the searching officers did not have the requisite suspicion to enliven their search powers, and that the search of the house was therefore unlawful and the evidence should be excluded. Accused further argued that the officers were not empowered to seize a firearm from a neighbouring property.
Held: officers conducting the search had requisite suspicion, and were empowered to seize the firearm. Evidence not unlawfully obtained. Evidence admitted.
Summary Offences Act 1953 (SA) ss 67, 74D; Firearms Act 1977 (SA) s 32, referred to.
Abbott v Ramm (1994) unreported SCGRG 1064 of 1994 BC 9503114; R v Dolan (1992) 58 SASR 501; R v Haydon (No 4) [2005] SASC 18; R v Murphy (1996) 66 SASR 406; R v Nguyen [2013] SASCFC 91; Wheare v Police [2008] SASC 13, considered.

R v VITOR
[2017] SADC 116

The accused is charged with 4 offences alleging breaches of the Firearms Act 1977 (SA) or the Firearms Regulations 2008 (SA). He has applied on a voir dire pursuant to r 49 of the District Court Criminal Rules 2014 (SA), prior to the trial, to exclude evidence obtained by the police during a search of his home on 5 May 2016. He seeks to exclude evidence obtained from:
·a mobile phone seized from the defendant to which Detective Senior Sergeant McManus (“Detective McManus”) obtained a security PIN from the accused;
·the entry and search of 18 Barker Road, Prospect; and
·the entry and search of the roof of shed of a neighbouring property during which a handgun was found.
The application raises the powers to enter and search property pursuant to s 32 of the Firearms Act and the use of a General Search Warrant pursuant to s 67 of the Summary Offences Act 1953 (SA). Detective McManus is an experienced police officer who on 4 May 2016 was stationed with the Crime Gangs Task Force. He manages one of the 3 teams within the task force and has been the holder of a General Search…

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 Vitor

Details

AGLC: R v Vitor [2017] SADC 116
Case: [2017] SADC 116
Decision Date: 27 October 2017

CaseChat Overview and Summary

Vitor was charged with drug-related offences and brought the case before the court to contest the admissibility of evidence obtained without a warrant. The court had to determine whether evidence obtained through an illegal search should be excluded from the trial. The central issue was whether the evidence was obtained in a manner that infringed upon Vitor's legal rights, and if so, whether this warranted its exclusion under the common law principles governing the admissibility of illegally obtained evidence.

The court examined the circumstances under which the evidence was obtained and assessed whether there had been a breach of Vitor's legal rights. The analysis focused on the legality of the search and whether the evidence was obtained in a manner that was unfair or improper. The court considered the balance between the need to protect individual rights and the societal interest in convicting those guilty of criminal activity. Ultimately, the court found that the evidence had been obtained in a manner that was both illegal and unfair, leading to its exclusion from the trial.

Consequently, the court ruled that the illegally obtained evidence should not be admitted in the trial against Vitor. This decision underscores the importance of adhering to legal processes and respecting individual rights, even in the pursuit of justice. The exclusion of the evidence had significant implications for the prosecution's case, potentially affecting the outcome of the trial. The final orders of the court mandated that the illegally obtained evidence be excluded from the proceedings, thereby ensuring that the trial was conducted in accordance with legal principles.

Orders