R v Ali Alkan [2010] NSWLC 1

R v Ali Alkan [2010] NSWLC 1

The prohibited-drug evidence was excluded because it was obtained as a consequence of an unlawful and improper arrest: objectively, the defendant was compliant and moving onto the footpath when Tased, there were sufficient police present, arrest was not reasonably necessary, and the two Taser deployments were excessive and contrary to the applicable police procedures. Applying s138 Evidence Act 1995, the gravity and deliberateness of the illegality and impropriety, the minor nature of the drug possession charge, the breach of Article 9 of the International Covenant on Civil and Political Rights, and the ease of obtaining evidence by lawful means outweighed the probative value and...

Jurisdiction
Australia
Judgment Date
12 January 2010
Procedural Posture
Criminal Proceeding for Possession of Prohibited Drugs / Voir Dire on Admissibility of Prosecution Evidence Under S138 Evidence Act 1995
Outcome
Evidence excluded and charge dismissed.
Legal Topics
['exclusion of Improperly or Illegally Obtained Evidence' 'arrest Without Warrant' 'use of Force by Police' 'taser Use' 'possession of Prohibited Drugs']
['criminal Law' 'evidence' 'police Powers'] ['exclusion of Improperly or Illegally Obtained Evidence' 'arrest Without Warrant' 'use of Force by Police' 'taser Use' 'possession of Prohibited Drugs']

Case Brief

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Procedural Posture

Criminal Proceeding for Possession of Prohibited Drugs / Voir Dire on Admissibility of Prosecution Evidence Under S138 Evidence Act 1995

Legal Issues

  1. 1 ['Whether the evidence of prohibited drugs found after the defendant was Tased was obtained improperly or in contravention of Australian law.' "Whether the defendant's arrest or detention was reasonably necessary." 'Whether the force used by police, including two deployments of a Taser, was reasonably necessary.' 'Whether, if the evidence was improperly or illegally obtained, the desirability of admitting it outweighed the undesirability of admitting it under s138 Evidence Act 1995.']

Ratio Decidendi

The prohibited-drug evidence was excluded because it was obtained as a consequence of an unlawful and improper arrest: objectively, the defendant was compliant and moving onto the footpath when Tased, there were sufficient police present, arrest was not reasonably necessary, and the two Taser deployments were excessive and contrary to the applicable police procedures. Applying s138 Evidence Act 1995, the gravity and deliberateness of the illegality and impropriety, the minor nature of the drug possession charge, the breach of Article 9 of the International Covenant on Civil and Political Rights, and the ease of obtaining evidence by lawful means outweighed the probative value and...

Court Disposition

Evidence excluded and charge dismissed.

Orders

  • ['Evidence excluded.' 'Charge dismissed.']