Event and Time
Event Description
On Christmas Day 2020, Victoria Police received information regarding CM, a 17-year-old girl in state care, who had absconded with concerns for her welfare. A safe custody warrant was issued by the Children’s Court, and police searched a residence in Greensborough, suspected to be where CM was located. Upon realizing CM was not present, police conducted a lengthy and invasive search of the house, which resulted in unlawful trespass after the initial purpose was fulfilled.
Application and Claims
The applicant claimed that the evidence seized during the April search of his residence should be excluded from his trial, arguing it was obtained unlawfully due to the improper execution of the Christmas Day search warrant. The applicant sought to exclude all items identified during the April search under s 138 of the Evidence Act 2008, claiming that the initial illegality tainted the subsequent seizure.
Judicial Decisions
The County Court judge refused the exclusion request with hesitation. However, an appeal was later granted following a determination that the lower court had erred in admitting the evidence obtained during the April search. The appellate court concluded that the unlawful search by police led to a serious violation of the applicant's rights and determined that evidence obtained from that search should be excluded.
Dispute Points and Legal Basis
Dispute Points
- Applicant’s Claims:
- Evidence obtained from the April search was tainted by the unlawful search conducted on Christmas Day. - The warrant did not authorize a thorough search beyond locating CM. - The violated rights and privacy during the extensive search warranted the exclusion of the evidence.
- Prosecution’s Arguments:
- The urgency of the circumstances justified the actions of police on Christmas Day. - The relevance and seriousness of the charges against the applicant outweighed the impropriety associated with the search.