Smith v The Queen - [2022] SASCA 48

Supreme Court of South Australia
(Court of Appeal: Criminal)
SMITH v THE QUEEN
[2022] SASCA 48
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
2 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - UNLAWFUL ARREST AND DETENTION - GENERALLY
Application for permission to appeal against conviction.
The appellant was convicted by majority verdict of one count of trafficking in a controlled drug, contrary to s 32(3) of the Criminal Law Consolidation Act 1935 (SA). The complaint is that the judge erred, at the voir dire stage, in admitting evidence obtained from the search of the appellant’s person and car following a traffic stop.
The issues on appeal are whether there was any basis for an unlawful detention, on the basis that the police officers held the appellant’s licence for longer than necessary beyond the time taken for a licence check, and whether the judge erred in failing to exercise his discretion to exclude the evidence.
Held (by the Court), granting permission to appeal but dismissing the appeal:
1.The primary judge did not err in concluding that any continuing detention of the appellant, beyond that which was necessary to conduct a licence check, was unlawful.
2.Having found that the police had placed the appellant under de facto arrest prior to conducting an intimate search and had failed to comply with s 81(3)(f) of the Summary Offences Act 1953 (SA), the judge gave proper consideration to the policy underpinning the discretion to exclude the evidence. He brought to account the matters informing the application of the policy in the present case. It was open to the judge to conclude that it was in the public interest to admit the evidence.

Controlled Substances Act 1984 (SA) s 32(3); Road Traffic Act 1961 (SA) ss 40H, 40V; Motor Vehicles Act 1959 (SA) s 96; Summary Offences Act 1953 (SA) ss 79A, 81, referred to.
Bunning v Cross (1978) 141 CLR 54; R v Kola (2002) 83 SASR 477; R v Conley (1982) 30 SASR 226; R v Neal (2017) SASR 20; Police v Prinse (1998) 196 LSJS 267; R v Swaffield (1998) 192 CLR 159; Coco v The Queen (1994) 179 CLR 427; Kuru v New South Wales (2008) 236 CLR 1; R v Nguyen (2013) 117 SASR 432; R v Frantzis (1996) 66 SASR 558, considered.

SMITH v THE QUEEN
[2022] SASCA 48
Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA

THE COURT: Following a trial by jury, the appellant was convicted by majority verdict of one count of trafficking in a controlled drug, contrary to s 32(3) of the ControlledSubstancesAct1984 (SA). This appeal against conviction complains only…

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 Smith v The Queen

Details

AGLC: Smith v The Queen [[2022]] SASCA 48
Case: [2022] SASCA 48
Decision Date: 2 June 2022

CaseChat Overview and Summary

The appeal concerned the admissibility of evidence obtained from a search of the appellant. The appellant argued that the primary judge erred in failing to exclude evidence derived from an intimate search conducted by police. The central dispute revolved around whether the police had lawfully conducted this search and, if not, whether the evidence obtained should have been excluded in the exercise of the court's discretion.

The legal issues before the court were whether the primary judge erred in concluding that the appellant's detention beyond the initial licence check was unlawful, and more significantly, whether the judge erred in failing to exclude the evidence of the intimate search in the exercise of his discretion. The appellant contended that the intimate search was conducted without compliance with the procedural requirements of s 81(3)(f) of the *Summary Offences Act*, which mandates specific information be provided to a detainee before an intimate search.

The court affirmed the primary judge's finding that the appellant's detention was unlawful beyond the initial licence check, and that the police had failed to comply with s 81(3)(f) of the *Summary Offences Act* during the intimate search. However, the court applied the principles established in *Bunning v Cross* and discussed in *R v Swaffield* and *R v Rockford* regarding the judicial discretion to exclude evidence obtained unlawfully. The primary judge had concluded that the failure to comply with the administrative provision was not an excess of power, and even if it were, the circumstances did not warrant exclusion to censure police conduct or prevent the appearance of curial approval of abuse. The court found that the police acted on a genuine attempt to locate an object detected during an external search, based on a reasonably held suspicion of drug possession. The evidence obtained was cogent, and the breach was of an administrative nature, with no indication that the officers deliberately flouted the law.

The court granted permission to appeal but dismissed the appeal, upholding the primary judge's decision to admit the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For these reasons, the appellant has failed to demonstrate that the primary judge erred in concluding that any continuing detention of the appellant, beyond that which was necessary to conduct the licence check, was unlawful.Whether the judge erred in failing to exclude the evidence of the search in the exercise of his discretion As set out above, the primary judge found that by the time the police conducted the search of the appellant’s person, they had placed the appellant under de facto arrest. He reached that conclusion applying the observations of King CJ in R v Conley.[8] The Director does not challenge this conclusion. Neither does the Director challenge the conclusion that the police did not comply with the requirements of s 81(3)(f) of the Summary Offences Act.[8] (1982) 30 SASR 226 at 239-240 (King CJ). The appellant’s challenge is directed to the conducting of an intimate search (to the effect of retrieving the container from the appellant’s underwear) within the meaning of s 81(6) of the Summary Offences Act, without complying with s 81(3)(f). Specifically, as the primary judge noted, the unlawfulness comprised the failure by the police:to provide a written statement in a form approved by the Minster prior to the intimate search outlining:(A) The value of making an audio-visual record of the search; and(B) That the detainee may object to the search being recorded; and…(ii)Read the statement to the detainee (with the assistance of an interpreter if one is to be present during the search). The primary judge set out the accepted considerations relevant to the exercise of the Bunning v Cross discretion, as discussed by Kirby J in R v Swaffield[9] and Stanley J in R v Rockford.[10] He observed that the argument before him was expressed at the level that the ‘obvious’ failure of the police to comply with s 81 warranted the conclusion that the evidence should be excluded. He concluded that the failure to comply did not amount to an excess of power in the circumstances, but continued:… Even if I am wrong in that conclusion, the action of the Police performing the intimate search are not such as to give rise to the need to censure an excess of police powers in order to better secure compliance with the exercise of powers, or to give the appearance of curial approval or sanctioning of an abuse of police powers.Any unlawfulness resulted from the exercise by Senior Constable Brewer of his judgment based on a discussion with his patrol sergeant and based on a genuine attempt to locate an object he had detected during the course of an external search of the applicant. The presence of that object was corroborated by a further external search of the applicant by Constable Lawrence.The search occurred as the result of a reasonably held suspicion that the applicant had in his possession a substance in contravention of the CSA.The evidence obtained as a result of the search of the applicant is cogent evidence of the commission of a serious offence and its quality was not affected by the conduct of Senior Constable Brewer, Senior Constable Boyd, or Constable Lawrence.Further, the provision which was breached is in the nature of an administrative provision.I do not consider the Senior Constable Brewer, Senior Constable Boyd or Constable Lawrence deliberately flouted the law or police obligations.(Footnotes omitted)[9] (1998) 192 CLR 159 at [135].[10] (2015) 122 SASR 391 at [39]-[41].

Decision

Reasons for decision

This was done once the appellant was formally arrested after the search. Had there been a challenge to the admission of evidence based on the initial failure to comply with s 79A, it may be that the primary judge’s analysis of the application of the competing public policy considerations would have led to a similar result as his consideration of the search. However, given that s 79A was not in issue, it is unnecessary to decide how the judge should have approached the non-compliance with that section. Insofar as the challenge based on that failure was maintained at the hearing of the appeal, it should fail.Conclusion We would grant permission to appeal. We would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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