R v Alqudsi (No 2) [2015] NSWSC 1783

R v Alqudsi (No 2) [2015] NSWSC 1783

The seized evidence was admitted because the offences charged were serious, the items had probative value and relative importance in the Crown's circumstantial case, and the illegality in executing the warrant was a technical non-compliance with s 3E(5) of the Crimes Act 1914 (Cth) that was neither deliberate nor reckless, was relatively trivial, gave the AFP no advantage, and made no difference to whether the evidence could have been obtained lawfully. The desirability of admitting each item substantially outweighed the undesirability of admitting evidence obtained in those circumstances.

Jurisdiction
Australia
Judgment Date
27 November 2015
Procedural Posture
Criminal Law Procedural Ruling on Admissibility of Evidence / Pre Trial Ruling Before Jury Trial
Outcome
Evidence admissible under s 138 of the Evidence Act 1995 (NSW).
Legal Topics
['illegally Obtained Evidence' 'execution of Search Warrant' 'evidence Act 1995 (nsw) S 138' 'crimes (foreign Incursions and Recruitment) Act 1978 (cth) Offences' 'probative Value and Importance of Evidence']
['criminal Law' 'evidence'] ['illegally Obtained Evidence' 'execution of Search Warrant' 'evidence Act 1995 (nsw) S 138' 'crimes (foreign Incursions and Recruitment) Act 1978 (cth) Offences' 'probative Value and Importance of Evidence']

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Procedural Posture

Criminal Law Procedural Ruling on Admissibility of Evidence / Pre Trial Ruling Before Jury Trial

Legal Issues

  1. 1 ['Whether evidence seized during execution of an unlawful search warrant was obtained in contravention of an Australian law within the meaning of s 138 of the Evidence Act 1995 (NSW).' 'Whether the desirability of admitting the seized evidence outweighed the undesirability of admitting evidence obtained through the unlawful execution of the warrant.' 'How the mandatory considerations in s 138(3) applied to the seized items, including probative value, importance, seriousness of the offences, gravity of the contravention, and whether the contravention was deliberate or reckless.']

Ratio Decidendi

The seized evidence was admitted because the offences charged were serious, the items had probative value and relative importance in the Crown's circumstantial case, and the illegality in executing the warrant was a technical non-compliance with s 3E(5) of the Crimes Act 1914 (Cth) that was neither deliberate nor reckless, was relatively trivial, gave the AFP no advantage, and made no difference to whether the evidence could have been obtained lawfully. The desirability of admitting each item substantially outweighed the undesirability of admitting evidence obtained in those circumstances.

Court Disposition

Evidence admissible under s 138 of the Evidence Act 1995 (NSW).

Orders

  • ['Evidence admissible under s 138 of the Evidence Act 1995 (NSW).']