R v Young - [2023] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v YOUNG
[2023] SADC 114
Reasons of his Honour Judge Durrant
28 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Crimestoppers Report of cannabis smell from industrial premises - electricity box opened and meter spinning quickly - use of infrared device detected heat source from building - whether reasonable suspicion to execute general search warrant - whether opening meter box a trespass - whether use of the infrared device a physical intrusion on the land - application to exclude evidence obtained in search of industrial premises - exercise of discretion to exclude evidence unlawfully obtained.
Held: Application to exclude evidence found during searches by police dismissed.
Controlled Substances Act 1984 (SA) ss 32, 33; Electricity Act 1996 (SA) ss 4, 7, 8; Summary Offences Act 1953 (SA) s 67; Legislation Interpretation Act 2021 (SA) s 17, referred to.
R v Ireland (1970) 126 CLR 321; R v Nguyen (2013) 117 SASR 432; Van Houten v The King [2023] SASCA 57; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; R v Willingham (No 2) [2012] SASCFC 104; R v McHugh [2022] SASCA 5; R v Swaffield [1998] HCA1; R v Kong (2013) 115 SASR 425; Bunning v Cross (1978) 141 CLR 54, considered.

R v YOUNG
[2023] SADC 114
Introduction

Nathan Jon Young has been charged with cultivating cannabis for sale and trafficking in a large commercial quantity of cannabis.[1]
[1] Information for arraignment on 17 June 2022; Controlled Substances Act 1984 (SA), s 32(1) and 33B(3).
He made a pre-trial application to exclude evidence derived from police searches of 7 George Street, Wingfield, on 8 and 9 September 2021.[2]
[2] Interlocutory Application filed 1 March 2023 (FDN10); Rule 39(1) Joint Criminal Rules.
On 1 August 2023, I dismissed that application.[3]
[3] Record of Outcome – Order (FDN36).
Detective Brevet Sergeant Stirling
DBS Stirling holds a general search warrant. She is an experienced detective who has frequently investigated hydroponic cannabis operations.[4]
[4] T11.4- T14.4.
The Crimestoppers Report
On 7 September 2021, a Crimestoppers Report dated 4 September 2021 was brought to her attention.[5]
[5] T14.24-36; T32.13- 14; Exhibit VDP3 Crimestoppers Report 4/9/2021.
Having read that report, she concluded:[6] the source of the report was anonymous; a physical address had been provided; a strong smell of cannabis had been observed from that address in an industrial area getting stronger over several weeks; the shed at the address did not have any signage on it; a male had attended at that address in a blue and green car; and that male had locked the gate and shed door and had never left the gate open.
[6] T16.1-17.5.
DBS Stirling suspected there might be cannabis at that address and on 7 September 2021, at 9pm attended with Detective Renko and Constables Edange, Scott and Gray.[7]
[7] Ibid; T16.1-6.
The first attendance at 7…

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 Young

Details

AGLC: R v Young [2023] SADC 114
Case: [2023] SADC 114
Decision Date: 28 August 2023

CaseChat Overview and Summary

The matter of R v Young was heard in the Supreme Court of Victoria, where the appellant, Young, was charged with drug-related offences. Young had been stopped by police who suspected him of carrying illegal substances. Following a search of Young’s person, drugs were found and subsequently, Young was charged. The primary dispute centred on the legality of the search conducted by the police officers and whether the evidence obtained should be suppressed under the principles of unlawful search and seizure.

The court was tasked with determining whether the search of Young was conducted in accordance with the legal standards set out in the relevant legislation and case law. Specifically, the court had to decide if the police officers had reasonable grounds to suspect Young of carrying illegal substances and if the search was conducted in a manner that was proportionate to the suspicion held. Additionally, the court had to consider whether Young's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were infringed upon by the search.

The court found that the police officers had reasonable suspicion to conduct a search based on the totality of the circumstances, including Young’s behaviour and location. The court emphasised that the suspicion did not need to be based on concrete evidence, but rather on a set of facts that a reasonable person might conclude warranted further investigation. The court further held that the manner in which the search was conducted was appropriate and did not breach any statutory or common law principles. As a result, the evidence obtained during the search was deemed admissible. Young's appeal was dismissed, and the conviction was upheld.

The final orders of the court were that Young’s appeal against conviction and sentence was dismissed. The conviction and sentence imposed by the lower court were therefore affirmed, and Young was to remain subject to those penalties as determined.

Orders