/\ /\ Cheers BigTrancer!....... haha the gear in the jocks is the ooooooonly way I reckon..... just a word of warning to everyone: don't make the mistake of forgetting that you wore boxer shorts before deciding to pack your stash away safely, only to realise three hours later when you get home that only your factory-standard equipment is to be found downstairs!
Originally posted by MaDMAn_Project
Thanks for trying to restore my faith in the system Charles and I'm really enjoying our discussion here, the point i'm trying to make is that if you are in possession of drugs and are searched otherwise loose grounds for "reasonable suspicion" become extremely plausible as you are committing an offence.
The case you presented had a search which turned up nothing. In that case I am absolutely with you on the "reasonable suspicion" not being present.
No problem at all MaDMAn, and I too am enjoying our discussion!
Thanks for clarifying the point you are making. Firstly, let me say that there is nothing written into the laws regarding Reasonable Suspicion or the Evidence Act that makes provisions for the variability of what constitutes 'reasonable suspicion' based upon the results of a search executed under 'reasonable suspicion' legislation.
Put simply, the judge is OBJECTIVE. It is the job of the judge to decide whether or not the evidence is to be admitted by first deciding whether or not it was lawfully obtained. It is NOT the judge's job to decide whether the outcome of an unlawful search justifies an unlawful search which was conducted without reasonable cause PRIOR to the police officer knowing ANYTHING about the drugs on the person searched.
The judge may allow the evidence to be submitted if it was unlawfully obtained, based upon the following conditions listed below.... That doesn't mean that the search is considered lawful - it just means that what was found in the search is far more compelling and important than the officer's violation of legislation in conducting an unlawful search. Hence, the finding will be admitted as evidence. Again, regardless of what is found, the law is clear about Reasonable Suspicion, and all legislation and definitions of Reasonable Suspicion are independent of the outcomes of unlawful searches. They stand alone as State Legislation. The reasonable suspicion must exist PRIOR to the search being conducted, and the formulation of this reasonable suspicion (and any judgements about whether or not it was reasonable) only consider what motivated the officer to conduct the search, not what was found.
Let me illustrate what I mean in the above paragraph with this hypothetical example. Let's say that a police officer conducts a (unlawful) search on Mary in a busy shopping centre without reasonable cause - Mary objected and resisted against the search, but the search was still carried out; this search is unlawful, fair enough. But the search uncovers a vest of TNT sticks beneath Mary's jacket. Mary goes to court and is charged with Refusing to Submit to Lawful Search and Conspiracy to Commit Terrorism or whatever. The judge would not accept a defense team arguing that the charges against Mary should be dropped as the evidence against her was illegally obtained; this is due to the serious nature of the evidence found and the charge laid, as detailed in Subsection 3 below. Hence, the proceedings would continue regarding the Terrorism charge, but the Refusing to Submit to Lawful Search charge would most probably be dropped. The court could drop that charge and still pursue the charge based on unlawfully obtained evidence because of the serious nature of the evidence.
Here is another scenario. Leon is walking down the street and is unlawfully searched by a police officer, despite objecting and then not letting the police officer conduct the search. Leon is arrested for Refusal to Submit to Lawful Search, found with two pills on him, charged with Possess Prohibited Substance and is summonsed to court. At the courthouse, the judge establishes that Leon was unlawfully searched and the first charge is dropped. The judge then finds that the evidence that builds the police case for the second charge against Leon was unlawfully obtained, and hence it should not be admitted as evidence, also taking into account the relative triviality of the offence - the judge concludes that court decision should not be seen to support misuse of police authority for the purpose of allowing such small offences to be prosecuted, and decides that it is in the public interest to reject the evidence rather than allow it to proceed. The police no longer have evidence against Leon, charges are dropped and he is free to go - but the poor bastard loses his two orange butterflies. Case Closed.
I must reiterate that this statement is completely misleading, and incorrect:
if you are in possession of drugs and are searched otherwise loose grounds for "reasonable suspicion" become extremely plausible as you are committing an offence.
Unless the police lie about their original reasonable suspicion, and then proceed to manufacture a false testament of the 'valid' reasonable cause that led to their search, doing so confidently after discovering the drugs. This boils down to your and your witnesses word against the statements of police officers. Again, this shows why it is important to make a formal complaint after being searched unlawfully, especially when nothing is found; if enough complaints accumulate about particular police officers who are prone to misusing their authority, then their credibility will be damaged in future court cases, they will not be able to lie and incriminate people unfairly, and they will eventually be reprimanded.
13 Section 138 of the Evidence Act provides:
“Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)………..
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the Internationl Coventant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law”
The case you presented had a search which turned up nothing. In that case I am absolutely with you on the "reasonable suspicion" not being present.
I'll post a more relevant case when I find one, if the above explanation is still not convincing you.
Trying to argue your way out of a possession charge in front of a magistrate using the reasonable suspicion defence while the prosecution has a bag of pills, probably isn't going to work. Magistrates take a very dim view of people who try to loophole their way out of obvious convictions. Again you'll need to call O.J.'s lawyer.
What bag of pills? A small bag of pills obtained by a police officer who just arbitrarily tackled you to the ground and put his hands in your pockets? Fucking oath a magistrate would reject that evidence! Magistrates take a very dim view of police officers who do not follow the laws that exist to prevent police from getting too confident and doing a Rodney King here in Australia, seeing as though our democracy made the decision to create those laws, they are the collective voice of the state and its people and no magistrate would piss on their significance over a bag of pills. If a magistrate were to accept police violating the laws that govern their powers, it would be tantamount to supporting police corruption. You could call OJs lawyer, just bring a pair of pants with no pockets and get the lawyer to demonstrate that "There is no WAY that this bag of ecstasies belongs to my client - he didn't have any pockets when he was caught by police!" (the glove don't fit, says OJ. remember?)
Walking around with a bag containing trace elements of amphetamine doesn't sound suspicious to you!? How so...
Ofcourse it doesn't sound suspicious to me.... I'm a bluelighter! I'm frequently in the midst of good people walking around with bags of MDMA, methamphetamine, cannabis, and whatever recreational substance is available and enjoyed. In fact, if I was on the bus or something, and saw someone with a baggie of trace elements, I'd probably be LESS suspicious of them, and unless they had a hatchet or some nasty shit like that I'd go dip my pinkie in their crystals and strike up a conversation about something meaningful like the weather. Maybe you find it suspicious because its terrible Tuesday....how many biccies did you munch on the weekend you paranoid madman??
