- By Marwa Shabbar

What happens when a police search is unlawful? Does it mean that the evidence will always be excluded, or are there exceptions? These questions were the subject of two recent decisions on stop and search issues.

Illegal Police Search

R v Armistead - unlawful police search

Police were called to a suburban neighbourhood after residents reported a large van driving loudly on the street. They found the van parked partially on a driveway and partially on the street but didn’t think anyone was inside. They left but later returned after receiving a report that someone was in the van. They found a man sitting in the van and questioned him. While doing so, they saw a black pair of gloves and what they thought was a screwdriver (it was later discovered to be a straw) in the van.

Police believed that this gave them reasonable suspicion that there were stolen items in the van. They conducted a search and found cash, drugs and other drug-related items. The man was charged with four drug offences.

Reasonable suspicion

Police have the power to stop and search people, cars and boats when they have a reasonable suspicion that there are:

  • stolen goods, or
  • weapons, or
  • illicit drugs, or
  • there is evidence that a serious offence has been or is being committed.

In other words, if there is reasonable suspicion of involvement in a crime.


The man argued that the police search was unlawful and sought to exclude the evidence that had been seized during the search. If the Court decided to exclude the evidence, this would mean that at trial the prosecution would not be able to rely on it and its case against the man would probably collapse.

The Court found that:

  • The police were responding to a domestic disturbance, nothing more.
  • The gloves and screwdriver may have been related to the man’s work.
  • When the police searched the man’s licence record, they found no criminal history.
  • The police may have been influenced by their knowledge that the van had been searched a few hours prior.
  • The police admitted that they hadn’t seen any drugs in the van prior to their search.

It said that there were no grounds to form a suspicion that the van contained stolen goods. The officer’s “gut feeling” about what was in the van wasn’t enough to form a reasonable suspicion.

R v Golja

This case involved drug trafficking charges. A man was arrested after police received a complaint that he had attempted to break into a woman’s home. The woman was the man’s former partner. After his arrest, the man was taken to a police station for questioning and his van was left outside the woman’s home. The police returned later in the day to search the van and found illicit drugs, firearms, cash and other items that indicated that the man was involved in drug trafficking.

When the police later asked him whether there was an address to which he could be bailed, he gave a friend’s residential address that was in fact the woman’s home.

The police then searched the woman’s home and found more drugs and items related to drug trafficking. The man and woman were both charged with trafficking in a controlled drug and unlawful possession.

After her trial, the woman was found guilty. She appealed the decision, saying that the search of her home was illegal and that the evidence relating to the search should not have been admitted at trial. The appeal Court considered whether the police had enough information to have formed a reasonable suspicion of illegal activity.


The woman argued that one police officer had deliberately misled the second officer so that the second officer believed that the man lived at the address. But despite this, the Court decided that the trial judge was correct and that the search was legal because:

  • The police believed that the man was living at the woman’s home.
  • They had found drugs and other material in the man’s van.
  • The house had previously been investigated.

The Court also noted that if it was the case that the man had previously lived at the home, that wouldn’t have been enough to create reasonable suspicion. It was because they believed that he currently lived there that the suspicion was reasonable.

The Court found that there was no conscious wrongdoing by the police. It said that where there is serious offending, there is a public interest in detecting and prosecuting the offending.

What does it mean?

Here, we have two cases concerning unlawful searches but with different outcomes.

In Armistead, even though the Court found the police hadn’t engaged in wrongdoing or deliberate flouting of the law, it excluded the evidence because the circumstances weren’t strong enough for the suspicion to be “reasonable.”

In Golja the Court found that there hadn’t been conscious wrongdoing by the police, even if the reasonable suspicion had been formed from a mistaken belief that the man lived at the house. Even so, the Court found that the search had been lawful.

The upshot of these decisions is that even if a police search is unlawful, it doesn’t necessary mean that the evidence seized during the search will be excluded from a court case. Courts are willing to undertake a balancing process to work out whether it is in society’s best interests to have the evidence admitted even if it was obtained from an unlawful search.

This means that it’s more important than ever to get legal advice if you are facing criminal charges as a result of a police search. There are many technicalities that can be navigated by an experienced criminal lawyer to get the best outcome for you.

Websters Lawyers has an outstanding team of criminal lawyers and traffic lawyers. Contact us today for a free first interview. Because the sooner you act, often the better off you’ll be.

R v Armistead [2017] SADC 63

R v Golja [2017] SASCFC 61





call now

*Conditions Apply


Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner


Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.


West Ryde NSW

Helpful, explained fully, patient, excellent service.



Patient and helpful in explaining the process.



Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.



Making my will was effortless on my part, with everything explained clearly. Well done to all.



Great service, professional, explains things clearly, definitely recommend Websters Lawyers.


Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.



Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.


Christie Downs

All in all my experience was great. Thank you for your time and expertise.


Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.



Practical and very helpful. Reasons and explanations given where needed



I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.



The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.



[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.


Golden Grove


I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.



It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.


Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.


Wynn Vale

[My lawyer] was excellent. 



Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!


Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].



[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.



[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.



Professional. Smooth Transaction. 


Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.



This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.


Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair


With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park


Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys


I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright 2017 All Rights Reserved
Website By A to Z Marketing