R v Fortescue, Michael [2010] NSWDC 272

R v Fortescue, Michael [2010] NSWDC 272

The defence failed to prove that the accused had been stopped before police asked questions about drug use. By the time the accused was stopped for the search, police had observed dilated pupils, white paste in the corner of the mouth, a trembling leg and clenched jaw, in the context of the early morning time, location near the Tank Nightclub and surrounding circumstances. Those matters afforded reasonable grounds for suspecting possession of prohibited drugs, so there was no impropriety or contravention of Australian law and s 138 Evidence Act 1995 was not engaged.

Jurisdiction
Australia
Judgment Date
15 March 2010
Procedural Posture
Criminal Trial on Indictment Alleging Supply of Ecstasy / Defence Application to Exclude Evidence of Search and Drugs Found on the Accused
Outcome
Defence application to exclude evidence of the search and drugs found upon the accused rejected.
Legal Topics
['application to Exclude Evidence' 'search of the Person' 'reasonable Suspicion' 'stop, Search and Detain Without Warrant' 'possession of Prohibited Drugs' 's 138 Evidence Act Discretion']
['criminal Law' 'evidence' 'police Powers' 'drug Offences'] ['application to Exclude Evidence' 'search of the Person' 'reasonable Suspicion' 'stop, Search and Detain Without Warrant' 'possession of Prohibited Drugs' 's 138 Evidence Act Discretion']

Case Brief

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Procedural Posture

Criminal Trial on Indictment Alleging Supply of Ecstasy / Defence Application to Exclude Evidence of Search and Drugs Found on the Accused

Legal Issues

  1. 1 ['Whether police had reasonable grounds to suspect the accused had prohibited drugs in his possession when he was stopped, searched and detained.' 'Whether the evidence obtained from the search was unlawfully obtained and should be excluded under s.138 Evidence Act 1995.']

Ratio Decidendi

The defence failed to prove that the accused had been stopped before police asked questions about drug use. By the time the accused was stopped for the search, police had observed dilated pupils, white paste in the corner of the mouth, a trembling leg and clenched jaw, in the context of the early morning time, location near the Tank Nightclub and surrounding circumstances. Those matters afforded reasonable grounds for suspecting possession of prohibited drugs, so there was no impropriety or contravention of Australian law and s 138 Evidence Act 1995 was not engaged.

Court Disposition

Defence application to exclude evidence of the search and drugs found upon the accused rejected.

Orders

  • ['Application to exclude evidence of the search and drugs found upon the accused rejected.']