Nicholas v Cann

In the case of Nicholas v Cann, the respondent, Sharon Cann, appealed against the decision of the Local Court, which had held that evidence of alcohol found during the search of her residence was inadmissible. The respondents argued that the search was unlawful as it was a "planned operation" carried out without a warrant and in breach of the Police General Order "Search Warrants." The appeal centred on whether the police officer's suspicion was objectively reasonable and whether the evidence obtained was lawful and admissible. The Court of Appeal found that the police officer's suspicion was reasonable, and therefore, the search was lawful. The evidence obtained was not improperly obtained and was admissible.

The primary legal issue before the Court of Appeal was whether the police officer had objectively reasonable grounds for suspicion to conduct the search and seizure without a warrant under section 95(1)(a) of the Liquor Act. The respondents contended that the search was improper because it was a "planned operation" carried out without a warrant, in breach of the Police General Order "Search Warrants." They argued that evidence of the respondents' possession or control of alcohol was "obtained improperly" and, therefore, should not have been admitted under section 138(1) of the Evidence (National Uniform Legislation) Act 2011 (NT). The Court of Appeal had to determine whether the evidence was obtained improperly and whether the police officer's actions complied with the legislative requirements.

The Court of Appeal held that the police officer's suspicion was reasonable and, therefore, the search was lawful. The Court found that the primary purpose of the Police General Order was to ensure that police officers obtain evidence that is admissible and not rendered inadmissible by statutory or regulatory non-compliance. The protection of the civil rights of members of the public was not a primary purpose, although it may be an incidental purpose. The Court rejected the respondents' argument that the evidence in contention was obtained improperly or as a result of an impropriety. The Police General Order could not lawfully detract from the powers given to a police officer under legislation. The Liquor Act trumped the Police General Order, and there was no reason why the powers of a police officer under section 95 of the Liquor Act should be subject to a non-statutory constraint that did not apply to an inspector who was not a police officer.

The Court of Appeal allowed the appeal and remitted the matter to the Local Court for hearing. The evidence obtained during the search of the respondents' residence was lawful and admissible. The Court of Appeal's decision highlights the importance of objectively reasonable suspicion in determining the admissibility of evidence obtained during a search and seizure without a warrant, as well as the role of the Police General Order in ensuring the admissibility of evidence.