How can I beat a Criminal Charge Due to an Illegal Search?
How can I beat a criminal charge due to an illegal search?
Section 138 of the Evidence Act 1995 provides for the exclusion of improperly or illegally obtained evidence, such as evidence of prohibited drugs or other illegal items found during an unlawful search.
The section says that evidence obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or contravention of an Australian law must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way in making that assessment, the court must take into account:
- The probative value of the evidence
- The importance of the evidence
- The nature of the offence charged
- The gravity of the impropriety
- Whether the impropriety was deliberate or reckless
- Whether the impropriety contravened a right recognised by the International Covenant on Civil and Political Rights
- Whether other proceedings have been, or are likely to be, commenced in relation to the impropriety, and
- Any difficulty of obtaining the evidence without the impropriety or contravention.
The section enables defendants, or lawyers on their behalf, to demand that police or the DPP withdraw criminal charges based on unlawful conduct, or to apply for the charges to be dismissed in court.
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