Della Patrona v Director of Public Prosecutions (Cth) [No 2]

The New South Wales Court of Appeal considered an application by Della Patrona for leave to appeal against a decision of the Supreme Court of New South Wales. The Director of Public Prosecutions (Cth) was the respondent. The dispute concerned the validity of a search warrant issued under the *Crimes Act 1914* (Cth) and the admissibility of evidence obtained pursuant to that warrant.

The primary legal issue before the Court of Appeal was whether the search warrant was invalid due to a failure to comply with the requirements of s 3E of the *Crimes Act 1914* (Cth). This section mandates that a justice of the peace or other authorised person must be satisfied that there are reasonable grounds for suspecting that an indictable offence has been, or is about to be, committed before issuing a search warrant. The Court also had to determine whether, if the warrant was invalid, the evidence seized should have been admitted under s 138 of the *Evidence Act 1995* (NSW).

The Court of Appeal found that the justice of the peace who issued the warrant had not been sufficiently satisfied of the grounds for suspicion as required by s 3E. The information before the justice was vague and did not establish reasonable grounds for suspecting an indictable offence. Consequently, the warrant was held to be invalid. However, the Court then considered the admissibility of the evidence under s 138 of the *Evidence Act 1995* (NSW), which allows for the admission of improperly or illegally obtained evidence if its probative value outweighs the undesirability of admitting it. The Court concluded that, despite the invalidity of the warrant, the admission of the evidence was not unfair and its probative value was significant, thus upholding the decision of the trial judge to admit the evidence.