State of South Australia v Timms No. Scciv-02-1547

[2002] SASC 435

STATE OF SOUTH AUSTRALIA  v  TIMMS

[2002] SASC 435

Magistrates Appeal: Criminal

1. GRAY J (Ex Tempore)                   This appeal is allowed by consent and the orders of the Magistrate made on 17 October 2002 are set aside.

2. I heard sufficient argument to form the view that it was inevitable that the appeal would be allowed. In reaching this conclusion I have had regard to the magistrate’s failure to give reasons for his decision, the failure to allow the police sufficient time to substantiate their submissions by evidence, the prima facie arguable case of the police with regard to the retention of the seized property, the possible use of that property as exhibits at a later date and the existence of regulation 57 of the Police Regulations which outlines the way in which seized property must be dealt with by the police.

3. Mr Timms also acknowledged that no prejudice would have resulted to him had the matter been adjourned for a short period to allow the issues I have mentioned to be addressed.

4. The appeal is allowed on the understanding, as indicated by Mr Lines on behalf of the Crown, that the police would not be seeking the return of the motor vehicle or mobile phone hardware from Mr Timms.

5. Accordingly, the formal orders of the court are as follows. That the appeal be allowed. The orders of the Magistrate made on 17 October 2002 are set aside. No order is made regarding costs on the appeal. The matter may proceed in the Magistrates’ Court. The time in which the police must file a defence is extended to a period of 14 days from today.