Smith v The Queen

The appeal concerned the admissibility of evidence obtained from a search of the appellant. The appellant argued that the primary judge erred in failing to exclude evidence derived from an intimate search conducted by police. The central dispute revolved around whether the police had lawfully conducted this search and, if not, whether the evidence obtained should have been excluded in the exercise of the court's discretion.

The legal issues before the court were whether the primary judge erred in concluding that the appellant's detention beyond the initial licence check was unlawful, and more significantly, whether the judge erred in failing to exclude the evidence of the intimate search in the exercise of his discretion. The appellant contended that the intimate search was conducted without compliance with the procedural requirements of s 81(3)(f) of the *Summary Offences Act*, which mandates specific information be provided to a detainee before an intimate search.

The court affirmed the primary judge's finding that the appellant's detention was unlawful beyond the initial licence check, and that the police had failed to comply with s 81(3)(f) of the *Summary Offences Act* during the intimate search. However, the court applied the principles established in *Bunning v Cross* and discussed in *R v Swaffield* and *R v Rockford* regarding the judicial discretion to exclude evidence obtained unlawfully. The primary judge had concluded that the failure to comply with the administrative provision was not an excess of power, and even if it were, the circumstances did not warrant exclusion to censure police conduct or prevent the appearance of curial approval of abuse. The court found that the police acted on a genuine attempt to locate an object detected during an external search, based on a reasonably held suspicion of drug possession. The evidence obtained was cogent, and the breach was of an administrative nature, with no indication that the officers deliberately flouted the law.

The court granted permission to appeal but dismissed the appeal, upholding the primary judge's decision to admit the evidence.