R v El-Kahil (No. 1) [2022] NSWDC 606

R v El-Kahil (No. 1) [2022] NSWDC 606

The application failed because the evidence did not establish that the police searches, detention, strip search decision, roadside drug test evidence, or observations of the accused's alleged assaults were obtained improperly, in contravention of Australian law, or in consequence of such conduct. The police had reasonable grounds to search the accused and vehicle based on MobiPol information, intelligence, prior drug-related matters, the accused's conduct in chewing after being told not to eat, white residue, and an unpersuasive explanation. The strip search was reasonably justified after arrest because police suspected concealed drugs or items that could be used for self-harm during...

Jurisdiction
Australia
Judgment Date
15 November 2022
Procedural Posture
Criminal / Voir Dire/pre Trial Application to Exclude Evidence Under S 138 Evidence Act 1995 Before Jury Selection
Outcome
Application to exclude evidence refused.
Legal Topics
['admissibility of Evidence' 'voir Dire' 'police Search Powers' 'vehicle Search' 'strip Search' 'assault Police' 'self Defence' 'section 138 Evidence Act 1995' 'roadside Drug Testing']
['criminal Law' 'criminal Procedure' 'evidence'] ['admissibility of Evidence' 'voir Dire' 'police Search Powers' 'vehicle Search' 'strip Search' 'assault Police' 'self Defence' 'section 138 Evidence Act 1995' 'roadside Drug Testing']

Case Brief

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Procedural Posture

Criminal / Voir Dire/pre Trial Application to Exclude Evidence Under S 138 Evidence Act 1995 Before Jury Selection

Legal Issues

  1. 1 ['Whether evidence gathered after the accused was stopped for a worn tyre should be excluded under s 138 Evidence Act 1995 as obtained improperly, in contravention of Australian law, or in consequence of such impropriety or contravention.' 'Whether police had reasonable grounds to search the accused and his vehicle for prohibited drugs.' 'Whether the strip search procedure was justified by reasonable suspicion, seriousness and urgency under the Law Enforcement (Powers and Responsibilities) Act 2002.' 'Whether evidence of the roadside drug test should be excluded because of alleged contamination, lack of retention, or unfair prejudice.' 'Whether evidence of the alleged assaults during the struggle was obtained in consequence of unlawful police conduct.']

Ratio Decidendi

The application failed because the evidence did not establish that the police searches, detention, strip search decision, roadside drug test evidence, or observations of the accused's alleged assaults were obtained improperly, in contravention of Australian law, or in consequence of such conduct. The police had reasonable grounds to search the accused and vehicle based on MobiPol information, intelligence, prior drug-related matters, the accused's conduct in chewing after being told not to eat, white residue, and an unpersuasive explanation. The strip search was reasonably justified after arrest because police suspected concealed drugs or items that could be used for self-harm during...

Court Disposition

Application to exclude evidence refused.

Orders

  • ['The application to exclude the evidence of the police witnesses describing events to the point of the struggle in which it is alleged the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed is refused.' "To the extent that the application is understood to extend to the...