District Court
New South Wales
Medium Neutral Citation: R v Yongcheng Zhang [2022] NSWDC 457 Hearing dates: 02 May 2022
03 May 2022Decision date: 04 May 2022 Jurisdiction: Criminal Before: Coleman SC DCJ Decision: The evidence described in items 1-4 of MFI 5 should not be admitted in the proceedings
Catchwords: CRIMINAL LAW – pre-trial hearing – discretion to exclude evidence – illegally or improperly obtained evidence – alcohol breath test – “random testing” – use of motor traffic power for improper purpose – illegal stop and search – search and seizure – exercise of a power for ulterior purpose
Legislation Cited: Crimes Act 1900 (NSW) ss 193B, 193C
Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
Evidence Act 1995 (NSW) ss 138(1), 138(3)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Part 9, ss 21, 36
Road Transport Act2013 (NSW) Schedule 3, cl 3 and 6, s 114
Weapons Prohibition Act 1988 (NSW) s 7(1)
Cases Cited: Coco v The Queen [1994] HCA 14
Daniel Fromberg v R [2017] NSWDC 259
R v Mihajlovic (No 2) [2019] NSWDC 141
R v Pizarro (NSWDC 20 October 2015 unreported)
Robinson v Woolworths Ltd (2005) 64 NSWLR 612
Streat v Bauer (NSWSC 16 March 1998 unreported)
Category: Procedural rulings Parties: Regina (Crown)
Yongcheng Zhang (Accused)Representation: Counsel:
Solicitors:
Mr D Patch (Crown)
Mr C McGorey (Accused)
Ms A Leonard (Crown)
Ms E Grant (Accused)
File Number(s): 2017/357484
Judgment
Background
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By indictment dated 3 August 2020 the accused stands charged with four counts, namely that:
between 20 November 2017 and 26 November 2017 he did supply a prohibited drug namely, methylamphetamine in an amount of approximately 100 g in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985;
on 25 November 2017 he did possess proceeds of crime, namely, $82,680 Australian currency in circumstances where he knew that the currency was proceeds of crime in contravention of s 193B(2) of the Crimes Act 1900;
on 25 November 2017 he did possess property, namely, a $82,680 Australian Currency in circumstances where there were reasonable grounds to suspect that the currency was proceeds of crime with a value of less than $100,000 in contravention of s 193C(2) of the Crimes Act 1900; and
on 25 November 2017 he did possess a prohibited weapon, namely, an extendable baton in contravention of s 7(1) Weapons Prohibition Act 1988.
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The matter came before me on 2-3 May 2022 for the determination of an application on the voir dire as to the admissibility of certain evidence. The trial is due to commence on 9 May 2022. As can be seen from the date of the offences alleged in the indictment, the accused has stood charged with the offences for four and a half years. Even with the…
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- Case
- [2022] NSWDC 457
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the evidence obtained during the traffic stop and subsequent breath test should be excluded due to its illegal or improper nature. The defence argued that the police had no reasonable suspicion to stop Zhang's vehicle and that the breath test was conducted without proper authority. The court needed to determine whether the evidence was obtained in a manner that infringed on Zhang's legal rights and, if so, whether this would render the evidence inadmissible.
In reaching its decision, the court examined the circumstances surrounding the traffic stop and the subsequent search and seizure. The court found that the police had no reasonable grounds to stop Zhang's vehicle and that the stop was conducted for an improper purpose, specifically to conduct a random alcohol test without legal authority. The court held that the use of motor traffic powers for such a purpose was unlawful and that the evidence obtained as a result of this illegal stop and search should be excluded. The court ruled that the evidence described in items 1-4 of the Material Furnished to the MFI should not be admitted in the proceedings.
The court's ruling effectively excluded key evidence from the prosecution's case, which may have a significant impact on the outcome of the trial. The evidence in question, which included the results of the alcohol breath test, was central to the prosecution's case against Zhang. By excluding this evidence, the court has potentially weakened the prosecution's ability to prove the charge of driving under the influence. The final orders of the court were that the evidence described in items 1-4 of MFI 5 should not be admitted in the proceedings.
Orders
Orders of the court
The evidence described in items 1-4 of MFI 5 should not be admitted in the proceedings
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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