R v Austin (No 2) [2010] ACTSC 136 (5 November 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/136.html

PRACTICE AND PROCEDURE – proper certification of affidavits relied upon by a represented party.

CRIMINAL LAW – search warrants – warrant authorising search of residential premises.

CRIMINAL LAW – nature and extent of search under the warrant – power of police under the search warrant to: use forcible entry without warning or announcement, search the residence, search any person on the residence and seize items not specified in the search warrant.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant – “exigent circumstances” unclear meaning in Australian law – “exigent circumstances” found to permit entry to premises to execute search warrant without prior announcement – application dismissed.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant – “exigent circumstances” exception includes the need to ensure evidence in the contemplation of the search warrant is not destroyed – application dismissed.

Evidence Act 1995 (Cth), s 138