R v Yana ORM [2011] NSWDC 26

R v Yana ORM [2011] NSWDC 26

The accused failed to establish on the balance of probabilities that the police search was illegal or improper, as the evidence shows he interpreted the officer’s statement as a request rather than a direction, and his consent was willingly given. Any impropriety was neither intentional nor reckless. Even if impropriety had been established, the desirability of admitting the evidence outweighed the undesirability under s 138 of the Evidence Act. Therefore, the evidence is admitted.

Jurisdiction
Australia
Judgment Date
22 February 2011
Procedural Posture
Criminal / Voir Dire Ruling on Evidentiary Admissibility Prior to Trial
Outcome
Evidence admitted
Legal Topics
['exclusion of Evidence' 'illegally Obtained Evidence' 'police Powers' 'consent to Search' 'admissibility of Admissions']
['criminal Law' 'evidence'] ['exclusion of Evidence' 'illegally Obtained Evidence' 'police Powers' 'consent to Search' 'admissibility of Admissions']

Case Brief

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Procedural Posture

Criminal / Voir Dire Ruling on Evidentiary Admissibility Prior to Trial

Legal Issues

  1. 1 ["Whether police search of accused's vehicle was illegal or improper" "Whether accused's consent to search was genuinely given or overborne by police conduct" 'Whether evidence obtained in the search ought to be excluded under s 138 of the Evidence Act 1995']

Ratio Decidendi

The accused failed to establish on the balance of probabilities that the police search was illegal or improper, as the evidence shows he interpreted the officer’s statement as a request rather than a direction, and his consent was willingly given. Any impropriety was neither intentional nor reckless. Even if impropriety had been established, the desirability of admitting the evidence outweighed the undesirability under s 138 of the Evidence Act. Therefore, the evidence is admitted.

Court Disposition

Evidence admitted

Orders

  • ['Evidence of the search and admissions made by the accused are admitted for trial.']