Improperly obtained evidence PDF

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Improperly obtained evidence...

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Improperly obtained evidence 1. 2. a. 1.

Is the conduct improper or illegal? If yes, does the desirability of admitting it outweigh the undesirability? Consider s138(3) factors – public policy. If yes, should it be excluded under s90 for unfairness to accused?

Undesirability discretion 

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S138 – Exclusion of improperly or illegally obtained evidence: S138(1) – Evidence obtained improperly or in contravention to law or in consequence of an impropriety or contravention will not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence in the way it was obtained. This exclusion is based on public policy – balancing exercise to deter improper or illegal conduct, and to protect rights that have been breached. In consequence of impropriety = e.g. obtaining admission in interview after not cautioning the accused of their right to remain silent. S138(2) – Evidence of an admission made during questioning is taken to be improper if the person conducting the questioning: A) did or omitted to do an act that they knew or should have known would substantially impair the ability of the person being questioned to answer rationally; or B) Made a false statement in the course of questioning that they knew was false and was likely to cause the person being questioned to make an admission. S138(3) – To determine desirability of admitting evidence, court may consider: Probative value E.g. No cause for search but a large quantity of heroin in the boot of a car is highly probative. Importance of the evidence in the proceeding Nature of offence More serious the offence, the more leeway afforded to police in excusing conduct Gravity of impropriety – DPP v Marijancevic: Lower end of spectrum of improper conduct = no knowledge that conduct was illegal and no advantage gained Middle range = Conduct known to be illegal but not undertaken for purpose of gaining advantage that would not have been obtained if conduct was legal High range = Known to be illegal and pursued to obtain benefit or advantage that could not be possible with lawful conduct. Whether impropriety was deliberate or reckless Whether impropriety was contrary to right of person recognised in International Covenant on Civil and Political Rights. Whether any other proceeding has or is likely to be taken in relation to impropriety – if only one proceeding, more likely to be excluded. Difficulty of obtaining the evidence without the impropriety Onus The onus is on the party wanting to exclude the evidence to show that it falls within s138.

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Once this is established, the burden shifts to the party wanting to rely on the evidence to persuade the court that the desirability of admitting the evidence outweighs the undesirability if admitting it. This applies to evidence tendered by any party.

What is improper conduct?   

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Robinson v Woolworths – To establish impropriety consider: Identify what may be viewed as a minimum standards which a society should expect and require of those entrusted with powers of law enforcement. The conduct in question must not merely blur or contravene standards in minor respect, but must be clearly inconsistent. Where entrapment is alleged, concepts of harassment and manipulation must suggest a level of encouragement, persuasion or persistence in relation to committing an offence, not just mere opportunity. Murray, Hale & Olsen v The Queen – Search of vehicle (required reasonable suspicion there would be drugs). Evidence obtained in the search was objected to because the search was conducted illegally as police did not have reasonable suspicion. Trial judge held (COA agreed) that police did not have reasonable suspicion, but the desirability of admitting evidence outweighed undesirability. Mid-range on Marijancevic scale. Evidence admitted. Deceit

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R v Cowan – Police sting operation where offender believed they were part of criminal gang. Held admission was voluntary – no coercion. Evidence was admissible.

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Wilson v The Queen – Undercover operation into drug activities of motorcycle gang. To boost credibility of undercover operative, police got bogus search warrant, laid bogus charges, prosecuted him. Held abuse of court system. Bogus proceedings had capacity to undermine justice system. Entrapment

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Putting a person in the position of committing an offence that they would not have committed but for the situation created. See requirement in Robinson v Woolworths above. Example of what is of NOT entrapment – Officers on internet forum where men talking to underage girls. Arrange a meeting and charge the person. Does not matter that the officer is not underage – conduct of officer did not force them to do any illegal activities. Ridgeway v The Queen – AFP allowed accused to import drugs then arrested. Evidence was rejected on public policy grounds as the importation by officers was an offence.

Unfairness discretion

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S90 – Court has discretion to exclude evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence. Safety net provision Focus is on the effects of conduct on the accused (rather than public policy). Unfairness is not defined. Consider: Nature and extent of infringement on accused’s rights Impact of such infringement on accused Unlawfulness or impropriety relevant to s138 discretion Misrepresentation or trickery used Misapprehension of circs by accused Circs which make admission unreliable but do not enliven s84 (admissions excluded if influenced by violence or other conduct). Mental incapacity Consider also Informers and non-police investigators – Pavitt v R. Pretext conversations – calls by complainant to accused under the pretext of ‘getting closure’ to induce admission....