Karout v Stratton & Ors

The applicants, Karout and others, sought leave to appeal a decision of the Supreme Court of New South Wales, which had dismissed their appeal against a decision of a Magistrate. The dispute concerned the admissibility of evidence obtained during the execution of search warrants at the applicants' premises. The applicants contended that the warrants were executed irregularly, specifically by failing to announce police presence and their intention to execute the warrants, and by providing an incomplete Notice to Occupiers.

The central legal issue before the Court of Appeal was whether the Magistrate had erred in admitting the evidence under section 138 of the *Evidence Act 1995* (NSW), despite the alleged irregularities in the execution of the search warrants. Section 138 provides that evidence obtained improperly or in contravention of an Australian law must be admitted if the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.

The Court of Appeal affirmed the Magistrate's decision, finding that while there were irregularities in the execution of the warrants, these did not necessarily render the evidence inadmissible. The Court reiterated the principles governing the exercise of discretion under section 138, emphasising that the Magistrate was required to balance the public interest in the admission of relevant evidence against the public interest in the observance of the law. The Court concluded that the Magistrate had properly considered all relevant factors and had not erred in exercising her discretion to admit the evidence.

Consequently, the summons for leave to appeal was dismissed with costs.