Lismore Court House.
Lismore Court House. Cathy Adams

Accused ice dealer let off despite being caught red-handed

A MAN on trial for the supply of the drug ice has walked free after a District Court judge sensationally threw out the key evidence against him because it was obtained unlawfully by police.

Josiah O'Brien was stopped and searched by a police officer on June 30 last year while travelling with three other men in a car on High St, Lismore.

A quantity of ice was allegedly found in O'Brien's bag, alongside hash, cash and a hunting knife.

He was taken to Lismore police station and charged with the supply of ice and other offences.

The officer justified the search of the vehicle on the basis that two other men in the car were known to have engaged in drug dealing, and the car was seen leaving a suspected drug house. Only O'Brien was charged.

But in the Lismore District Court this week, Judge Laura Wells said the justification for the police search was "deeply concerning".

She said relying on hearsay was a "dangerous thing", as it was often from "dubious sources", and searching the car went beyond the scope of police powers.

"An officer might have instinct about everyone who walks down the street... that doesn't mean they stop them and search them," Judge Wells said.

"The impropriety [by the police officer] was a very serious one," and it was a "grave contravention" of police powers to search a person under those circumstances, she said.

Defending the police action, the prosecutor argued that the officer's instincts on illicit activity were borne out by the drug find.

"He followed the line of inquiry as it presented itself and his suspicions were proven," she said of the police officer.

Judge Wells agreed that the officer was acting from "a genuine concern" and the drug ice had caused a "great deal of damage" to the community.

But she said the "gravity of the impropriety" on the part of the officer outweighed the value of the drug bust.

"It is grave because the only basis for his suspicion was there was two people in the car about which he had knowledge or evidence about dealing drugs in the past," she said.

"To allow the conduct of searches in this way would be tantamount to allowing searches of people associated with other people who are known to have engaged in (drug) supply."

She said the evidence had a critical value to the case, but "the court cannot admit evidence which is contrary to Australian law."

"Without the evidence, the charge would fail."

O'Brien had just completed eight months in jail for breaking the conditions of his bail granted over the same charges and by pleading guilty to other charges.

There was no other evidence in the case, so the accused was discharged and walked free.

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