R v Fagundez (No 1) [2023] NSWDC 508

R v Fagundez (No 1) [2023] NSWDC 508

The Crown did not establish that the seizure of the second mobile phone was authorised by ss 21, 27(1) or 28A of the Law Enforcement (Powers and Responsibilities) Act 2002. The evidence was illegally obtained and also improperly obtained because police did not warn the accused, after arrest and before asking him to pick up and hand over the phone, that he was not obliged to say or do anything at police request. Under s 138 of the Evidence Act 1995, the evidence was of limited probative value, while the breaches were reasonably egregious and involved reckless disregard of the accused's rights and limits on search and seizure powers. The desirability of admitting the evidence did not...

Jurisdiction
Australia
Judgment Date
20 November 2023
Procedural Posture
Criminal / Trial; Application for Exclusion of Evidence Sought to Be Tendered by the Crown
Outcome
Information obtained as a result of the seizure of the second mobile phone ruled inadmissible in the trial.
Legal Topics
['admissibility of Evidence' 'illegal Seizure' 'improperly Obtained Evidence' 'search and Seizure' 'mobile Phone Evidence']
['criminal Law' 'evidence' 'police Powers'] ['admissibility of Evidence' 'illegal Seizure' 'improperly Obtained Evidence' 'search and Seizure' 'mobile Phone Evidence']

Case Brief

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Procedural Posture

Criminal / Trial; Application for Exclusion of Evidence Sought to Be Tendered by the Crown

Legal Issues

  1. 1 ["Whether the second mobile phone seized on the accused's arrest was obtained lawfully by police under the Law Enforcement (Powers and Responsibilities) Act 2002." 'Whether information obtained from the seizure of the second mobile phone was improperly or illegally obtained.' 'Whether the evidence should be excluded under s 138 of the Evidence Act 1995.']

Ratio Decidendi

The Crown did not establish that the seizure of the second mobile phone was authorised by ss 21, 27(1) or 28A of the Law Enforcement (Powers and Responsibilities) Act 2002. The evidence was illegally obtained and also improperly obtained because police did not warn the accused, after arrest and before asking him to pick up and hand over the phone, that he was not obliged to say or do anything at police request. Under s 138 of the Evidence Act 1995, the evidence was of limited probative value, while the breaches were reasonably egregious and involved reckless disregard of the accused's rights and limits on search and seizure powers. The desirability of admitting the evidence did not...

Court Disposition

Information obtained as a result of the seizure of the second mobile phone ruled inadmissible in the trial.

Orders

  • ['Order that the information obtained as result of seizure of the second mobile phone is inadmissible in the trial.']