R v Kerry John Wallace [2014] NSWDC 348

R v Kerry John Wallace [2014] NSWDC 348

The search was lawful because Senior Constable Lay formed a reasonable suspicion, based on his observations of the accused and the surrounding intelligence and event circumstances, that the accused may have a prohibited drug in his possession. The drug analysis was obtained unlawfully because the drugs were submitted for analysis three days outside the mandatory 14 day period in regulation 10, but the evidence was admitted under s 138 because its high probative value and importance to the proceedings, the seriousness of the offence, and the limited three-day delay meant the desirability of admitting it outweighed the undesirability of admitting unlawfully obtained evidence.

Jurisdiction
Australia
Judgment Date
26 November 2014
Procedural Posture
Criminal Judge Alone Trial / Voir Dire Applications to Exclude Evidence
Outcome
Both exclusion applications were refused and the challenged evidence was admitted.
Legal Topics
['application to Exclude Evidence' 'search Without Warrant' 'reasonable Suspicion' 'prohibited Drugs' 'unlawfully Obtained Evidence' 'evidence Act 1995 S 138 Discretion']
['criminal Law' 'evidence' 'police Powers' 'drug Offences'] ['application to Exclude Evidence' 'search Without Warrant' 'reasonable Suspicion' 'prohibited Drugs' 'unlawfully Obtained Evidence' 'evidence Act 1995 S 138 Discretion']

Case Brief

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Procedural Posture

Criminal Judge Alone Trial / Voir Dire Applications to Exclude Evidence

Legal Issues

  1. 1 ['Whether the search of the accused and his bag without warrant was lawful under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 because the officer suspected on reasonable grounds that the accused had a prohibited drug in his possession or control.' 'Whether evidence arising from the search should be excluded if the search was unlawful.' "Whether the analysis of drugs found in the accused's possession was obtained unlawfully because the drugs were submitted for analysis outside the 14 day period required by regulation 10 of the Drug Misuse and Trafficking Regulations 2011." 'Whether, despite non-compliance with regulation 10, the evidence of analysis should be admitted under s 138 of the Evidence Act 1995.']

Ratio Decidendi

The search was lawful because Senior Constable Lay formed a reasonable suspicion, based on his observations of the accused and the surrounding intelligence and event circumstances, that the accused may have a prohibited drug in his possession. The drug analysis was obtained unlawfully because the drugs were submitted for analysis three days outside the mandatory 14 day period in regulation 10, but the evidence was admitted under s 138 because its high probative value and importance to the proceedings, the seriousness of the offence, and the limited three-day delay meant the desirability of admitting it outweighed the undesirability of admitting unlawfully obtained evidence.

Court Disposition

Both exclusion applications were refused and the challenged evidence was admitted.

Orders

  • ['Accept that the officer conducting search formed a reasonable suspicion, therefore the search was lawful under s 21 and evidence arising from that search is admissible.' 'On balance the desirability of admitting the evidence of analysis of the drugs found on the accused outweighs the undesirability of doing so....