Yuen v Police

Case [2012] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

YUEN v POLICE

[2012] SASC 149

Judgment of The Honourable Justice White

30 August 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - WHEN OBJECTION NOT TAKEN

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - WITHOUT LAWFUL EXCUSE

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - OTHER CASES OF AMENDMENT

Appellant convicted by Magistrate of five weapons offences - appeal against all convictions.

Whether police search unlawful - whether suspicion held at time of entry of premises was sufficient for a continued search after the items which were the subject of that suspicion had been located - whether appellant's failure to object to the admission of the evidence of the continued search at the proper time precluded later challenge to its admission - whether Magistrate erred in failing to exclude unlawfully obtained evidence in exercise of her discretion - whether being a collector amounts to a "lawful excuse" within meaning of s 15(1b) Summary Offences Act 1953 - whether Magistrate erred in using Sch 3 of Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 when considering s 15(1b) - discussion of meaning of "lawful excuse" in s 15(1b) - whether fact that knives not double-edged should have resulted in acquittal on Counts 7 and 8 - whether Magistrate's amendments of Complaint in the course of her reasons was authorised by s 181 Summary Procedure Act 1921 - whether the amendments denied appellant procedural fairness - whether appellant's Ka-Bar knives "designed or adapted for hand to hand fighting" so as to be "prohibited weapons" within the meaning of s 15(1c)(b) Summary Offences Act 1953.

Held: appeal dismissed - continued police search unlawful - police must hold the requisite suspicion at the time of each activity authorised by s 32(3) of the Firearms Act 1977 - applications for the exclusion of admissible evidence on discretionary grounds should be made at or before the evidence is adduced or tendered - Magistrate correct in declining to exclude evidence on discretionary grounds - being a collector does not amount to a "lawful excuse" within meaning of s 15(1b) - Magistrate erred in using Sch 3 to consider s 15(1b) - "lawful excuse in s 15(1b) means positively authorised by law - Magistrate not obliged to acquit of Counts 7 and 8 upon finding knives not to be double-edged - Magistrate empowered by s 181 to amend Complaint as she did, subject to procedural fairness requirements - Magistrate did deny appellant procedural fairness by amending Complaint in her reasons - appellant's Ka-Bar…

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AGLC
Yuen v Police [2012] SASC 149
Case
[2012] SASC 149
Decision Date

CaseChat Overview and Summary

The case of Yuen v Police involved an appeal by the appellant against his conviction and sentence imposed by the Magistrates Court. The appellant was charged with various offences related to the possession of offensive weapons and ammunition, stemming from a search conducted by police at his residence. The appeal was heard by the Supreme Court of South Australia. The central legal issue was whether the police search of the appellant's home was lawful under the provisions of the Firearms Act 1977 (SA). Specifically, the appellant argued that once the police had seized the replica firearms, they lacked the reasonable suspicion required to continue the search, rendering the subsequent discoveries unlawful. This, in turn, would have activated the Magistrate's discretion to exclude any evidence obtained from the unlawful search. The court examined the statutory provisions and the evidence provided by the police to determine if the search remained within legal boundaries.

The Supreme Court held that the police search was unlawful once the replica firearms were seized, as the officers did not maintain the requisite suspicion to justify a broader search under section 32(3) of the Firearms Act. The court emphasised that for each activity authorised by section 32(3), the police must hold a suspicion at the time of the activity. Since the police did not articulate any further suspicion beyond the seizure of the replicas, the subsequent search was deemed unlawful. However, the court also noted that applications to exclude evidence on discretionary grounds should be made at or before the evidence is adduced or tendered, which was not done in this case. Therefore, the Magistrate was correct in declining to exclude the evidence on discretionary grounds. Furthermore, the court clarified that being a collector does not constitute a "lawful excuse" under section 15(1b) of the Firearms Act, and the Magistrate had erred in using Schedule 3 to consider this point. The court also addressed other issues, such as the Magistrate's power to amend the Complaint and the nature of the knives involved, ultimately upholding the convictions and sentence.

In conclusion, the appeal was dismissed. The court's decision underscored the necessity for police to maintain reasonable suspicion throughout any search authorised by section 32(3) of the Firearms Act. The court also reinforced the importance of timely applications to exclude evidence on discretionary grounds. The appellant's argument regarding the exclusion of evidence from the unlawful search was rejected, and the convictions and sentence were upheld. The court's decision provided clarity on the interpretation of "lawful excuse" under the Firearms Act and affirmed the procedural powers of the Magistrate in amending the Complaint.

Orders

Orders of the court

Held: appeal dismissed - continued police search unlawful - police must hold the requisite suspicion at the time of each activity authorised by s 32(3) of the Firearms Act 1977 - applications for the exclusion of admissible evidence on discretionary grounds should be made at or before the evidence is adduced or tendered - Magistrate correct in declining to exclude evidence on discretionary grounds - being a collector does not amount to a "lawful excuse" within meaning of s 15(1b) - Magistrate erred in using Sch 3 to consider s 15(1b) - "lawful excuse in s 15(1b) means positively authorised by law - Magistrate not obliged to acquit of Counts 7 and 8 upon finding knives not to be double-edged - Magistrate empowered by s 181 to amend Complaint as she did, subject to procedural fairness requirements - Magistrate did deny appellant procedural fairness by amending Complaint in her reasons - appellant's Ka-Bar knives designed or adapted for hand to hand fighting.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The notice of appeal contains 10 separate grounds of appeal. Ground One was abandoned. Grounds 2 and 3: Evidence of the Search The appellant contended that, after seizing the three replica firearms, the police had no basis to carry out any further search of his home and, in particular, the search which led to the seizure of the items which were the subject of Counts 1-9. Even if some further suspicion arose after the police found the bolt-action Winchester rifle, the search which had led to it being found[4] was unlawful, with the effect that all that followed was also unlawful. That was because, upon effecting the seizure of the three replicas, the purpose of their entry had been fulfilled and there was no circumstance justifying them engaging in some wider search. He submitted therefore that their continued search was unlawful, with the effect that the Magistrate’s discretion to exclude the admission into evidence of the items located by the police had been enlivened.[4] The evidence that the police did carry out a search which led to their finding the bolt‑action Winchester rifle is incomplete, but that does appear to be the effect of Constable McInerney’s evidence at Tx 8, lines 8-9.Was the Police Search Unlawful? It was common ground that the powers of search and seizure being exercised by the two police officers at the relevant time were those contained in s 32 of the Firearms Act. Section 32(3) provides:(3)A police officer may break into, enter and search any premises in which the police officer suspects on reasonable grounds—(a) there is a firearm, licence, mechanism, fitting or ammunition liable to seizure under this section; or(b) a firearm is kept contrary to the security requirements of this Act.It can be seen that s 32(3) authorises a police officer to break into, enter and search any premises in which the police officer suspects on reasonable grounds that, amongst other things, there is a firearm liable to seizure under s 32. The appellant accepted, as I understood it, that his three replica firearms were liable to seizure. The investigating officer, Constable McInerney, said that at the time of entry to the premises he was aware that the appellant had another registered firearm and that he wished to inspect it. He acknowledged, however, that he did not have a suspicion that the appellant had committed any other offence, or that he had any other firearm or item liable to seizure under s 32, or that the appellant was keeping a firearm in a manner which did not comply with the security requirements of the Act. Although he did not say so expressly, it was implicit in Constable McInerney’s evidence that he accepted that the three replicas which the appellant produced to him were the particular replicas which were the subject of his suspicion. Finally, Constable McInerney acknowledged that after locating the replica firearms he did not have any other suspicion about any other matter under the Firearms Act which may have entitled him to carry out his search.

Decision

Reasons for decision

WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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