R v Mihajlovic (No 2)

The case involved a defendant, Mihajlovic, who was charged with possession of a prohibited drug. The police had stopped Mihajlovic's vehicle and conducted a search without a warrant or his consent, discovering the drug. Mihajlovic applied to have the evidence excluded under section 138 of the Evidence Act 1995, which allows for the exclusion of evidence obtained in a way that was unfair to the defendant. The matter was heard in the Supreme Court of Queensland.

The central legal issue was whether the evidence obtained during the unlawful search should be excluded. Mihajlovic argued that the search was conducted without a warrant and without his consent, and therefore was unfair and unlawful. The prosecution contended that the evidence should be admitted as it was relevant and reliable, and the exclusion of the evidence would not necessarily lead to a fair trial.

The court found that the search was unlawful as it was conducted without a warrant or the defendant's consent, and therefore was unfair. However, the court held that the evidence obtained should not be excluded as it was not obtained in a way that would bring the administration of justice into disrepute. The court reasoned that the evidence was relevant and reliable, and excluding it would not necessarily lead to a fair trial. The court also noted that the police had acted in good faith and reasonably believed that the search was lawful.

The court admitted the evidence obtained during the unlawful search. The defendant's application to exclude the evidence was dismissed.