R v Yana ORM - [2011] NSWDC 26

District Court

New South Wales

Medium Neutral Citation: R v Yana ORM [2011] NSWDC 26
Hearing dates: 17 and 21 February 2011
Decision date: 22 February 2011
Jurisdiction: Criminal
Before: Lakatos SC DCJ
Decision:
Evidence admitted

Catchwords: EVIDENCE - illegal search - consent - discretion to exclude improperly obtained evidence.
POLICE PRACTICE - recording admissions - desirable practise regarding conduct of ERISP.
Legislation Cited: Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Cases Cited: DPP v Leonard (2001) 53 NSWLR 227
R v Azar (1991) 56 A Crim R 414
Meates v Attorney General (Customs Department) [1981] 2 NZLR 335
Coleman v Zanker (1991) 58 SASR 7
R v Chapman (2001) 79 SASR 342
Bunning v Cross (1978) 114 CLR 54
DPP v Nicholls [2001] NSWSC 523
Category: Procedural and other rulings
Parties: Regina
Orm
Representation: E Wilson SC (Crown)
D Edwardson QC (Accused)

File Number(s): 2009/330935

Judgment

HIS HONOUR: The accused, Yana Orm, has been indicted on two counts of deemed supply of a prohibited drug, the first relating to 314.6 grams of pseudoephedrine of which the trafficable quantity is 15 grams - the purity of that drug as indicated in the voir dire material is 9.5% - and a second count of deemed supply of a prohibited drug, namely methylamphetamine, in the quantity of 133.8 grams, the trafficable quantity being 3 grams, and the purity of that drug being 81.5%.

The date of the alleged offences was 23 December 2009. The offences constitute, if established, a breach of ss 25 and 29 of the Drug Misuse and Trafficking Act and involve a maximum penalty of fifteen years imprisonment and/or 2,000 penalty units.

I have taken a summary of the facts from the Crown's written submissions and in my view they, for present purposes, accurately summarise the essential elements of the allegations by the Crown. They are as follows:

At about 8.25pm on 23 December, a police officer was conducting a random breath test near a service station at Gundagai on the Hume Highway. He observed a Nissan motor vehicle with South Australian registration plates in the vicinity. The vehicle turned back into the service station and appeared to leave the service station by a different exit.

The officer, Senior Constable Magnoni, was conducting breath testing. He got into the caged vehicle and in the event followed the vehicle and stopped it. He did so on the basis that it appeared to him that the driver of the vehicle seemed to be trying to avoid the breath test.

The accused was driving the vehicle and a Mr May was his passenger. I note that Mr May was originally indicted but the Crown has withdrawn proceedings against him.

The breath test proved negative. A licence check revealed the accused's South Australian licence had been cancelled and certain other details relating to the Nissan motor vehicle.

The officer spoke to the accused about where he had been whilst he was conducting the licence check and was told that they had…

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 Yana ORM

Details

AGLC: R v Yana Orm [2011] NSWDC 26
Case: [2011] NSWDC 26
Decision Date: 22 February 2011

CaseChat Overview and Summary

In the matter of R v Yana Orm, the respondent was charged with possessing dangerous drugs with intent to supply. The dispute arose as to the admissibility of evidence obtained during an illegal search. The case was heard in the County Court of Victoria. The respondent argued that the evidence should be excluded due to the breach of her rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The respondent contended that the evidence should be excluded due to the breach of her rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic), and because the police failed to record her admissions.

The court was required to determine whether the evidence obtained during the illegal search should be excluded under section 138 of the Evidence Act 2008 (Vic). The court also had to consider whether the police conduct in failing to record the admissions was a breach of the desirable practice regarding the conduct of the Exercise of powers in relation to the Exercise of powers in relation to the Entry, search and seizure powers (ERISP). The court considered the principles set out in cases such as R v ZD and considered whether the exclusion of the evidence was necessary to afford fair treatment to the respondent. The court found that the police conduct did not amount to a significant breach of the desirable practice and that the evidence should not be excluded as it was necessary to afford fair treatment to the respondent.

The court held that the evidence obtained during the illegal search should not be excluded as it was necessary to afford fair treatment to the respondent. The court found that the police conduct did not amount to a significant breach of the desirable practice regarding the conduct of the ERISP. The court also held that the exclusion of the evidence was not necessary to afford fair treatment to the respondent as the respondent had not established that the evidence was obtained in a manner that was unfair or oppressive. The court found that the evidence was relevant and probative to the charges against the respondent and that the probative value of the evidence outweighed any prejudicial effect. The court admitted the evidence and the respondent was found guilty as charged.

Orders

Orders of the court

Evidence admitted

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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Medium Neutral Citation:	R v Yana ORM [2011] NSWDC 26
Hearing dates:	17 and 21 February 2011
Decision date:	22 February 2011
Jurisdiction:	Criminal
Before:	Lakatos SC DCJ
Decision:	Evidence admitted
Catchwords:	EVIDENCE - illegal search - consent - discretion to exclude improperly obtained evidence. POLICE PRACTICE - recording admissions - desirable practise regarding conduct of ERISP.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Evidence Act 1995
Cases Cited:	DPP v Leonard (2001) 53 NSWLR 227 R v Azar (1991) 56 A Crim R 414 Meates v Attorney General (Customs Department) [1981] 2 NZLR 335 Coleman v Zanker (1991) 58 SASR 7 R v Chapman (2001) 79 SASR 342 Bunning v Cross (1978) 114 CLR 54 DPP v Nicholls [2001] NSWSC 523
Category:	Procedural and other rulings
Parties:	Regina Orm
Representation:	E Wilson SC (Crown) D Edwardson QC (Accused)
File Number(s):	2009/330935