R v Cochran & Reihana [No. 1] [2017] NSWDC 368

R v Cochran & Reihana [No. 1] [2017] NSWDC 368

The warrant was invalid because it identified the wrong premises and the remaining description was insufficient to specifically identify 7/4 Stewart St, so the defect affected the substance of the warrant in a material particular and the search and seizures were unlawful. However, applying s 138 Evidence Act 1995, the evidence was highly probative and important, the offences were serious, the impropriety was inadvertent rather than deliberate or reckless, and the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way.

Jurisdiction
Australia
Judgment Date
27 November 2017
Procedural Posture
Criminal / Preliminary Legal Issue During Jury Trial Concerning Admissibility of Evidence From a Search Warrant
Outcome
Evidence admissible under s 138 Evidence Act 1995 despite invalid warrant and unlawful search.
Legal Topics
['search Warrants' 'invalid Warrant' 'wrong Address on Warrant' 'illegally or Improperly Obtained Evidence' 'section 138 Evidence Act 1995']
['criminal Law' 'evidence' 'criminal Procedure'] ['search Warrants' 'invalid Warrant' 'wrong Address on Warrant' 'illegally or Improperly Obtained Evidence' 'section 138 Evidence Act 1995']

Case Brief

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Procedural Posture

Criminal / Preliminary Legal Issue During Jury Trial Concerning Admissibility of Evidence From a Search Warrant

Legal Issues

  1. 1 ['Whether a search warrant referring to 7/3 Stewart St Wollongong authorised the search of 7/4 Stewart St Wollongong.' 'Whether the wrong address on the warrant was a defect of form or a defect affecting the substance of the warrant in a material particular.' 'Whether evidence obtained from the unlawful search should nevertheless be admitted under s 138 Evidence Act 1995.']

Ratio Decidendi

The warrant was invalid because it identified the wrong premises and the remaining description was insufficient to specifically identify 7/4 Stewart St, so the defect affected the substance of the warrant in a material particular and the search and seizures were unlawful. However, applying s 138 Evidence Act 1995, the evidence was highly probative and important, the offences were serious, the impropriety was inadvertent rather than deliberate or reckless, and the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way.

Court Disposition

Evidence admissible under s 138 Evidence Act 1995 despite invalid warrant and unlawful search.

Orders

  • ["Pseudonyms have been used for names of the complainant and another witness, and pursuant to s578A Crimes Act 1900 there is to be no publication of a victim's name or anything that may lead to identification of the complainant." 'The evidence of the search and subsequent seizures can be admitted subject to any...