R v Mihajlovic (No 2) [2019] NSWDC 141

R v Mihajlovic (No 2) [2019] NSWDC 141

The initial stopping of the vehicle for RBT and RDT under Operation Northmore XIV was not unlawful and the accused was not unlawfully interrogated or detained during the RDT, but police lacked reasonable grounds to suspect the vehicle contained prohibited drugs or other illicit items, so the search was unlawful. Nevertheless, under s 138 of the Evidence Act (NSW) 1995, the desirability of admitting the evidence outweighed the undesirability of admitting it because the cash evidence was highly probative, essential to the Crown case, involved a large amount of Australian currency, and related to serious offending under s 193C(1) of the Crimes Act 1900.

Jurisdiction
Australia
Judgment Date
14 March 2019
Procedural Posture
Criminal / Judgment on Preliminary Issue Concerning Admissibility of Evidence Obtained During Vehicle Search
Outcome
Evidence obtained during unlawful search admitted.
Legal Topics
['unlawful Search of Motor Vehicle' 'reasonable Suspicion' 'random Breath Testing and Random Drug Testing' 'exclusion of Improperly or Unlawfully Obtained Evidence Under S 138 Evidence Act 1995' 'use of Drug Detection Dog']
['criminal Law' 'evidence' 'police Powers'] ['unlawful Search of Motor Vehicle' 'reasonable Suspicion' 'random Breath Testing and Random Drug Testing' 'exclusion of Improperly or Unlawfully Obtained Evidence Under S 138 Evidence Act 1995' 'use of Drug Detection Dog']

Case Brief

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Procedural Posture

Criminal / Judgment on Preliminary Issue Concerning Admissibility of Evidence Obtained During Vehicle Search

Legal Issues

  1. 1 ['Whether police used random breath testing powers for an ulterior criminal-investigation purpose not otherwise authorised by law.' 'Whether police improperly or unlawfully interrogated or detained the accused during the random drug test.' "Whether police had reasonable grounds to search the accused's vehicle." 'Whether evidence obtained during the unlawful search should be excluded pursuant to s 138 of the Evidence Act (NSW) 1995.']

Ratio Decidendi

The initial stopping of the vehicle for RBT and RDT under Operation Northmore XIV was not unlawful and the accused was not unlawfully interrogated or detained during the RDT, but police lacked reasonable grounds to suspect the vehicle contained prohibited drugs or other illicit items, so the search was unlawful. Nevertheless, under s 138 of the Evidence Act (NSW) 1995, the desirability of admitting the evidence outweighed the undesirability of admitting it because the cash evidence was highly probative, essential to the Crown case, involved a large amount of Australian currency, and related to serious offending under s 193C(1) of the Crimes Act 1900.

Court Disposition

Evidence obtained during unlawful search admitted.

Orders

  • ["The evidence obtained during the unlawful search of the accused's vehicle on 16 November 2016 at Boggabilla is admitted pursuant to s 138(1) of the Evidence Act (NSW) 1995."]