The Ghani v Jones principle permitting seizure of goods incidental to arrest or pursuant to warrant does not apply where the property seized is not reasonably believed to be material evidence in relation to the crime for which the person in possession was arrested. Where police seize property in the absence of a warrant or arrest of the owner, the applicable principle (if Ghani v Jones applies in Victoria) is the five-requirement test for seizure without warrant. The question whether those five requirements are good law in Victoria remains open. Evidence obtained from a seized mobile phone may be admitted under s 138 of the Evidence Act 2008 (Vic) even where the seizure and search are assumed to be unlawful, where the probative value is significant, the evidence forms part of a strong circumstantial case, and the offence is serious.
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