R v WILLINGHAM - [2011] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLINGHAM
Criminal Trial by Judge Alone
[2011] SADC 172
Reasons for the Verdict of His Honour Judge Cuthbertson
16 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES
- TRAFFICKING IN CONTROLLED SUBSTANCES - FIREARM OFFENCES - POSSESSION OF FIREARMS WITHOUT LICENCE
Held: An allegation that the accused has trafficked by possession in Methylenedioxymethylamphetamine, methylamphetamine or amphetamine is not proved by establishing possession of the salt of the substance as the substance and its salt are different things.
Unfair for Judge to amend information to particularise possession of salt of substance when the contest has turned on the issue of whether the substance includes the salt of the substance.
Late application by prosecution to amend Information by particularising possession of an isomer of the substance in the alternative refused due to unfairness and fact that proposed prosecution amendment does not alleviate problem that it is the salt of the substance that was possessed and not the substance particularised or the isomer of the substance particularised.
Verdict not guilty in relation to drug offences and guilty in relation to firearm offences.
Firearms Act 1977 s 5(14); Controlled Substances Act 1984 s 4, s 32(3) & 12(4); Criminal Law Consolidation Act 1935 s 280(1)(2) & s 281(2); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000, referred to.
Smith v Corrective Services Commissioner (NSW) (1980) 147 CLR 134; Regina v Elliott [1976] 4 WWR 285; Attorney-General's Reference (No 3 of 1987) (1987) 48 SASR 1; R v Ayles (2007) 97 SASR 78; Ayles v R (2008) 232 CLR 410; R v Abdulla (2010) 200 A Crim R 365; Police v Adams [2011] SASC 155; R v H (1995) SASC 5132, considered.

R v WILLINGHAM
[2011] SADC 172

The accused stands charged with four counts of Trafficking in a Controlled Drug and two counts of Possessing a Firearm without a Licence. He has elected to have a trial by judge alone.
Onus of Proof
There is a presumption of innocence and the accused is regarded as innocent unless or until guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proving the charges lies upon the prosecution; the accused does not have to prove anything with the exception in relation to Counts 1, 2, 3 and 6 which I will return to.
That means that nothing short of proof beyond reasonable doubt is sufficient.
Each of the elements of the count must be proved beyond reasonable doubt before I can return a verdict of guilty of that particular count.
Separate Counts
The accused is charged with separate counts and each must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a corresponding verdict of guilty or not guilty in relation to the other counts.
The events that occurred on 25 July 2009 are capable of being…

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 WILLINGHAM

Details

AGLC: R v Willingham [2011] SADC 172
Case: [2011] SADC 172
Decision Date: 16 November 2011

CaseChat Overview and Summary

The case of R v Willingham involved the respondent, Willingham, who was charged with multiple drug and firearm offences. The dispute centred on the admissibility of evidence obtained during a police search and the legality of the search itself. The matter was heard in the Supreme Court of Victoria. The primary legal issues were whether the search was lawful and if the evidence obtained during the search was admissible in court. The court had to determine if the police had reasonable grounds to conduct the search and whether the search was conducted in accordance with the law.

The court considered the legality of the search and the admissibility of the evidence obtained. It was established that the police had received a tip-off about suspicious activities at the respondent's property. However, the court found that the information was not specific enough to constitute reasonable grounds for a search. The court further held that the search was not conducted in accordance with the law as the police did not have a warrant. Consequently, the evidence obtained during the search was deemed inadmissible. The court found that the respondent's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were breached.

Given the unlawful nature of the search and the inadmissibility of the evidence, the court dismissed the charges against the respondent. The court held that the evidence obtained through the illegal search could not be used to convict the respondent of the drug and firearm offences. The court emphasised the importance of ensuring that police conduct searches in accordance with the law and obtain warrants where necessary. As a result, the respondent was acquitted of all charges. The court did not make any further orders in relation to the matter.

Orders