R v Yongcheng Zhang [2022] NSWDC 457

R v Yongcheng Zhang [2022] NSWDC 457

The police officers used their power under the Road Transport Act 2013 (NSW) not for a genuine or primary purpose of road safety random testing, but as a pretext to question the accused about suspected drug supply, in circumstances where they had no power to search under LEPRA. This conduct was improper and did not comply with the statutory authority, rendering all evidence obtained (as described in items 1-4 of MFI 5) inadmissible under s 138 of the Evidence Act 1995 (NSW); the Crown did not discharge its onus to justify admission despite the evidence's high probative value.

Jurisdiction
Australia
Judgment Date
04 May 2022
Procedural Posture
Criminal / Pre Trial Voir Dire (admissibility of Evidence)
Outcome
Objection to admissibility upheld; evidence excluded.
Legal Topics
['illegally Obtained Evidence' 'exclusion of Evidence' 'police Powers' 'search and Seizure' 'drug Offences' 'proceeds of Crime' 'weapon Offences' 's 138 Evidence Act Discretion']
['criminal Law' 'evidence Law'] ['illegally Obtained Evidence' 'exclusion of Evidence' 'police Powers' 'search and Seizure' 'drug Offences' 'proceeds of Crime' 'weapon Offences' 's 138 Evidence Act Discretion']

Case Brief

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Procedural Posture

Criminal / Pre Trial Voir Dire (admissibility of Evidence)

Legal Issues

  1. 1 ['Whether evidence obtained from stopping, questioning, and searching the accused and his vehicle should be excluded as improperly or illegally obtained under s 138 of the Evidence Act 1995 (NSW)' 'Whether police powers under the Road Transport Act 2013 (NSW) and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) were exercised lawfully or for an ulterior purpose']

Ratio Decidendi

The police officers used their power under the Road Transport Act 2013 (NSW) not for a genuine or primary purpose of road safety random testing, but as a pretext to question the accused about suspected drug supply, in circumstances where they had no power to search under LEPRA. This conduct was improper and did not comply with the statutory authority, rendering all evidence obtained (as described in items 1-4 of MFI 5) inadmissible under s 138 of the Evidence Act 1995 (NSW); the Crown did not discharge its onus to justify admission despite the evidence's high probative value.

Court Disposition

Objection to admissibility upheld; evidence excluded.

Orders

  • ['The evidence described in items 1-4 of MFI 5 should not be admitted in the proceedings.']