Regina v Leigh Jason McKeough [2003] NSWCCA 385

Regina v Leigh Jason McKeough [2003] NSWCCA 385

The appeal was allowed because the District Court judge did not properly undertake the balancing exercise required by s 138 of the Evidence Act 1995. Even assuming the search was illegal, the evidence was highly probative and important, the offence of supplying prohibited drugs was serious, the impropriety was not shown to be deliberate or reckless, and the public interest in admitting the evidence outweighed the undesirability of admitting evidence obtained in that way. Once the search evidence was admissible, there was no basis to exclude the electronically recorded interview.

Jurisdiction
Australia
Judgment Date
03 December 2003
Procedural Posture
Crown Appeal Under S 5 F of the Criminal Appeal Act 1912 Against District Court Evidentiary Rulings in a Criminal Drug Supply Trial / Appeal to the New South Wales Court of Criminal Appeal
Outcome
Appeal allowed.
Legal Topics
['illegally or Improperly Obtained Evidence' 'police Search of Motor Vehicle' 'reasonable Suspicion' 'discretion to Admit Evidence' 'drug Supply']
['criminal Law' 'evidence'] ['illegally or Improperly Obtained Evidence' 'police Search of Motor Vehicle' 'reasonable Suspicion' 'discretion to Admit Evidence' 'drug Supply']

Case Brief

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Procedural Posture

Crown Appeal Under S 5 F of the Criminal Appeal Act 1912 Against District Court Evidentiary Rulings in a Criminal Drug Supply Trial / Appeal to the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the search of the respondent's motor vehicle was authorised by s 357E of the Crimes Act 1900." 'Whether evidence of the drugs found in the vehicle should be excluded under s 138 of the Evidence Act 1995 if the search was illegal or improper.' 'Whether the electronically recorded interview should be excluded because it followed the vehicle search.' 'Whether the District Court judge properly performed the balancing exercise required by s 138 of the Evidence Act 1995.']

Ratio Decidendi

The appeal was allowed because the District Court judge did not properly undertake the balancing exercise required by s 138 of the Evidence Act 1995. Even assuming the search was illegal, the evidence was highly probative and important, the offence of supplying prohibited drugs was serious, the impropriety was not shown to be deliberate or reckless, and the public interest in admitting the evidence outweighed the undesirability of admitting evidence obtained in that way. Once the search evidence was admissible, there was no basis to exclude the electronically recorded interview.

Court Disposition

Appeal allowed.

Orders

  • ['Evidence of search of motor vehicle and of electronically recorded interview admissible in trial of respondent.' "Matter remitted to District Court for continuation of respondent's trial."]