R v Large [2019] NSWDC 627

R v Large [2019] NSWDC 627

The accused established that the stopping and continued detention of the vehicle were improper and likely unlawful because the purported RBT power was used primarily for investigative questioning aimed at developing grounds for a search under s 36 of LEPRA. The police had no reasonable suspicion justifying the search before the unlawful or improper detention and questioning, and the asserted bases for suspicion were unreliable. Although the evidence was highly probative and important, the deliberate or reckless misuse of police powers and the need to protect statutory constraints on police conduct meant the desirability of admitting the evidence was outweighed by the undesirability of...

Jurisdiction
Australia
Judgment Date
05 April 2019
Procedural Posture
Criminal / Pre Trial Voir Dire Ruling on Admissibility of Evidence
Outcome
Evidence excluded.
Legal Topics
['admissibility of Evidence Obtained by Search' 'section 138 Evidence Act Discretion' 'random Breath Test Powers' 'reasonable Suspicion for Vehicle Search' 'improper or Unlawful Detention and Questioning']
['criminal Law' 'evidence' 'criminal Procedure' 'police Powers'] ['admissibility of Evidence Obtained by Search' 'section 138 Evidence Act Discretion' 'random Breath Test Powers' 'reasonable Suspicion for Vehicle Search' 'improper or Unlawful Detention and Questioning']

Case Brief

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Procedural Posture

Criminal / Pre Trial Voir Dire Ruling on Admissibility of Evidence

Legal Issues

  1. 1 ['Whether evidence obtained from questioning the accused and searching the motor vehicle should be excluded under s 138 of the Evidence Act 1995 because it was obtained improperly or in contravention of Australian law.' 'Whether police used the Road Transport Act 2013 random breath test power for an ulterior investigative purpose rather than for administering a roadside breath test.' 'Whether police had reasonable grounds under s 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 to search the vehicle.' 'Whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way it was obtained.']

Ratio Decidendi

The accused established that the stopping and continued detention of the vehicle were improper and likely unlawful because the purported RBT power was used primarily for investigative questioning aimed at developing grounds for a search under s 36 of LEPRA. The police had no reasonable suspicion justifying the search before the unlawful or improper detention and questioning, and the asserted bases for suspicion were unreliable. Although the evidence was highly probative and important, the deliberate or reckless misuse of police powers and the need to protect statutory constraints on police conduct meant the desirability of admitting the evidence was outweighed by the undesirability of...

Court Disposition

Evidence excluded.

Orders

  • ['Evidence of the questioning of the accused in Hopetoun Street, Paddington not be admitted.' 'Evidence of the search of the motor vehicle driven by the accused not be admitted.' 'The product of that search not be admitted.']