DPP v Marijanevic (2011) 33 VR 440

Facts: Defendant (D) (Marijanevic) was charged with drug manufacture and trafficking. Affidavits in support of warrants were not sworn properly. The warrants invalid but the DPP tried to get the evidence in anyway under s 138 Evidence Act. The trial judge (TJ) rejected this. 

Held: There was no error on the part of the TJ. It is not just a matter of fairness to D, but also the weighing of public policy factors:

• Public interest in admitting reliable probative evidence (to secure conviction)

• Public interest in vindicating individual rights and deterring misconduct

The impropriety was balanced against the significant probative value of the evidence. Here, the Court considered: it was a serious offence, the exclusion would weaken the case,  but it would have been easy to swear the affidavits, it was deliberate or reckless.