Softley v R No. Scgrg-99-70 Judgment No. S424

[1999] SASC 424

SOFTLEY v R
[1999] SASC 424

Court of Criminal Appeal:  Doyle CJ, Debelle and Wicks JJ (ex tempore)

1. DOYLE CJ, DEBELLE AND WICKS JJ: This is an application for leave to appeal against conviction. The applicant was convicted upon the verdict of a jury of taking part in the manufacture of amphetamine contrary to s.32(1)(B) of the Controlled Substances Act 1984.

2. A judge of this court has given the applicant leave to appeal in respect of certain grounds of appeal, set out in the applicant's notice of appeal.  The judge refused leave in respect of certain other grounds. 

3. By application dated 11 August 1999, the applicant applied to have determined by the Full Court his application for leave to appeal in respect of grounds 1.4, 2.1, 2.2, 2.4, 3 and 6.  However, the written summary of argument submitted by the applicant asks the court to grant leave to appeal only in respect of grounds 2.1 and 2.2. 

4. The application has been considered by the Full Court in private pursuant to rule 10(7) of the Supreme Court Criminal Appeal Rules.  The application was considered by the court comprising Debelle J, Wicks J and me.

5. The court is unanimously of the opinion that leave to appeal should be refused on ground 2.1.  That relates to a decision by the judge to permit the prosecution to give evidence at the trial explaining a certain matter, although the relevant matter had not been the subject of a statement provided for the purpose of the committal for before the trial. 

6. In making the Judge’s ruling he took into account all relevant matters.  The decision was one to be made by the judge having regard to the requirement of a fair trial.   The court is of the opinion that there is no reasonable prospect of success on this ground and, for that reason, has refused leave to appeal. 

7. As to ground 2.2, the court by majority is of the view that leave to appeal should be refused.  This ground relates to the refusal by the judge to exclude evidence that a relevant document has found in the possession of the applicant when he was searched by police.  It was conceded that the search was lawful.  The application to have the evidence excluded was based upon the fact that the applicant was not promptly informed of his rights as required by the relevant legislation.  For that reason the evidence should have been excluded.  The argument was that an uncertainty about the finding of the document in the applicant's possession would not have arisen had he been promptly informed of his rights because, had that happened, he would have requested a solicitor to be present and if the solicitor had been presented the relevant uncertainty about the handling of the document would not have arisen. 

8. In considering whether to exclude the evidence the judge addressed the relevant issues.  The argument for the applicant rested upon the proposition that the failure to advise the applicant of his rights, which does not affect the lawfulness of the search and seizure of the item, was relevant to the failure to keep good records of the items removed from the applicant's person during the search. 

9. The connection between the two is speculative.  The ruling by the judge discloses no error of law, and there does not appear to be a probable prospect of the applicant persuading the court that there is any connection between the failure to advise the applicant promptly of his rights and the defective recording keeping.  For those reasons, leave to appeal is refused on grounds 2.1 and 2.2, the grounds addressed in the written summary of argument.  Leave is also refused on grounds 1.4, 2.4, 3 and 6, the application in respect of those grounds not having been pursued.