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70617 Evidence Research Essay INTRODUCTION Within a New South Wales jurisdiction, the relevance of evidence is a foundational concept upon which evidence law is built, as it ultimately dictates admissibility. While there is a presumption that any piece of evidence relevant to a legal proceeding will be admissible,1 certain exclusions apply in cases where inefficiency,2 confusion,3 or prejudice,4 would arise. Where evidence has been obtained through improper or illegal means, a court holds discretion over admission, subject to a balancing act between holistic factual knowledge and the contravention of public interest.5 It is here where the competing public interests of admitting improperly or illegally obtained evidence are to be assessed.

In light of the above, this essay will first examine the Section 138 of the Evidence Act,6 the legislative provision presiding the admissibility of illegally or improperly obtained evidence. With regard to this section, this essay will also assess the case of Kadir v The Queen; Grech v The Queen (‘Kadir’),7 and highlight its significance to the development of evidence law. Finally, this essay will draw upon jurisprudentia to discuss the dichotomy in perspective when considering a court’s admission of improper or illegal evidence. It will examine the utility admitting all evidence, and how a complete factual scenario can assist the courts. Contrastingly, it will also explore the consequences that arise out of admitting improperly or illegal obtained evidence, such as the indirect promotion of vigilantism, the abuse of police 1 Evidence Act 1995 (NSW). 2 Ibid s 135 (a). 3 Ibid sub-s (b). 4 Ibid sub-s (c). 5 Ibid s 138. 6 Ibid. 7 Kadir v The Queen; Grech v The Queen (2020) 375 ALR 80 (‘Kadir’).

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power, and the decay of judicial integrity. In scrutinising the competing public interests in the admission of evidence under Section 138 of the Evidence Act,8 this essay will conclude that a balance must be struck in appeasing public interests, in order to allow the efficient and just operation of evidence law.

SECTION 138 AND THE IMPORTANCE OF KADIR As mentioned above, the legislative provision presiding over the admittance of improperly or illegally obtained evidence is Section 138 of the Evidence Act.9 The section purports to excluding evidence obtained through, or as a consequence of improper or illegal conduct.10 For the purposes of this section, evidence is taken to have been obtained improperly if an individual had engaged in conduct which was likely to impair the reasoning of the individual being questioned,11or induced an admission through false statements.12 However, the provision also states that admittance is allowed where ‘the desirability of admitting the evidence outweighs the undesirability of admitting [the] evidence’.13 The assessment of desirability occurs on a case-by-case basis, and must be informed by, but is not limited to, the consideration of the following factors:14 

Probative value



Importance in the proceeding



Nature of the legal proceeding



Gravity of the impropriety



Whether the impropriety was deliberate, reckless, or in violation of personal rights

8 Evidence Act 1995 (NSW) s 138. 9 Ibid. 10 Ibid sub-ss (1)(a)–(b). 11 Ibid sub-s (2)(a). 12 Ibid sub-s (2)(b). 13 Ibid s 138(1). 14 Ibid s 138(3)(a)–(h).

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

Whether a proceeding is likely in response to the impropriety



Difficulty in obtaining the same evidence without improper or illegal conduct

Given the discretion available to courts to assess the desirability of Section 138 evidence, it may be useful to examine a case where a court deliberated on the desirability of admitting such evidence. In the case of Kadir, there were three pieces of evidence pertaining to the trial of two greyhound trainers on trial for serious animal cruelty charges: First, a diary recording the cost of rabbits, seized by way of search warrant. Second, an improperly obtained admission from one of the trainers that rabbits were used in the process of greyhound training. The last of the three pieces of evidence was a collection of surveillance tapes depicting the abuse of rabbits, obtained by an activist in contravention of Section 8(1) of the Surveillance Devices Act.15 The HCA accepted the first two pieces of evidence on the basis that they were respectively lawful and the probative value of admittance would be high, and would outweigh the impropriety of the admission.16 However, the HCA affirmed the decision of the trial judge, reiterating that the involvement of unlawful trespass in obtaining the surveillance video is deliberate and illegal to a great degree, thus outweighing the desirability of admitting the evidence.17 It is thus evident that the importance of HCA’s ruling in Kadir in relation to evidence law is that it informs the discussion upon the merits of allowing illegally or improperly obtained advice to be admitted.18 On one hand, it expresses that evidence obtained due to a serious breach of the law will generally be precluded from being admitted. On the other hand, the decision articulates that where there is mere impropriety, the admittance of resulting evidence should be weighed against the public interest. 15 Surveillance Devices Act 2007 (NSW) s 8(1). 16 Kadir v The Queen; Grech v The Queen (2020) 375 ALR 80, 96 [51]. 17 Ibid 93 [38]. 18 Talitha Fishburn, ‘High Court rules on admissibility of evidence in animal cruelty case’ [2020] (64) Law Society Journal 80, 81.

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THE ARGUMENT FOR ADMISSION Within a jurisprudential context, the overarching argument in favour of the admission of Section 138 evidence is its value in providing a complete factual scenario to a court.19 Interestingly, on multiple occasions, the HCA has noted the public interest in allowing all relevant pieces of evidence, regardless of the means used to obtain them.20 To understand the utility attached to allowing any and all relevant evidence in legal proceedings, we must first turn to the purpose of criminal trials – to determine whether an accused has committed a crime beyond reasonable doubt. Therefore, some argue that providing the courts with a holistic set of facts for determination is argued to uphold the efficient and effective administration of justice, and thus the impropriety of obtaining evidence should be immaterial if relevance, reliability and accuracy is established.21

As such, this perspective on the irrelevance of impropriety or illegality draws parallels to evidence legislation within the United Kingdom. Section 76 of the Police and Criminal Evidence Act articulates that even in the event of impropriety or illegality, the presence of these factors is immaterial unless the reliability of the evidence obtained was compromised.22 Although there is a prima facie enhancement of a court’s ability to determine the facts, it is the opinion of some that the English courts focus too narrowly on the principle of reliability,23 and thus do not fully consider the nuance in balancing public interests. The ALRC also argues 19 Chief Justice TF Bathurst and Sarah Schwartz, ‘Illegally or improperly obtained evidence: in defence of Australia’s discretionary approach’ (2016) 13 The Judicial Review 79, 81. 20 Bathurst CJ and Schwartz (n 19) 82, citing R v Ireland (1970) 126 CLR 321,335 (Barwick CJ); Bunning v Cross (1978) 141 CLR 54, 64 (Barwick CJ), 74 (Stephen and Aicken JJ). 21 Bathurst CJ and Schwartz (n 19) 82, citing P Polyviou, “Illegally obtained evidence and R v Sang” in C Tapper (ed), Crime, proof & punishment: essays in memory of Sir Rupert Cross (Butterworths, 1981) 226. 22 Police and Criminal Evidence Act 1984 (UK) s 76. 23 Kerri Mellifont, Fruit of the poisonous tree: evidence derived from illegally or improperly obtained evidence (Federation Press, 2010) 25.

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that such an approach would compromise the overarching role of the courts in overseeing fairness.24

THE ARGUMENTS AGAINST ADMISSION Deterrence against Vigilantism and the Abuse of Police Power Within the discourse advocating for the non-admittance of Section 138 evidence, there is a strong focus on deterring the practice of gathering evidence improperly, or illegally. At a community level, the scope of deterrence is to reduce the occurrence of purposeful illicit conduct in order to obtain evidence. In the decision of Kadir, it was noted that if a court were to admit evidence obtained by an individual through deliberate unlawful conduct, they would be indirectly encouraging vigilantism,25 even if the intentions of an individual are for the greater good of the community. As such, the argument against admitting such evidence is a compelling one, as it functions to limit the performance of quasi-law-enforcement duties by activists.

In light of this, the exclusion of Section 138 evidence is also argued to act as a deterrent to the abuse of police powers. While police officers can exercise a certain degree of power in the investigation of criminal matters under the Law Enforcement (Powers and Responsibilities) Act,26 the rule of law dictates that they are not exempt from being found to have contravened the law.27 Therefore, the rationale for requiring evidence to be obtained through legal and proper avenues is to ‘[deprive] them of the fruits of their improper

24 Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) [964]. 25 Kadir v The Queen; Grech v The Queen (2020) 375 ALR 80, 95 [48]. 26 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). 27 Bram Presser, ‘Public Policy, Police Interest: A Re-Evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence' (2001) 25(3) Melbourne University Law Review 757.

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behaviour’,28 and to remove any incentive to procure evidence through illegal or otherwise improper means.29 A demonstration of this rationale can be seen in the case of Director of Public Prosecutions (NSW) v Mathews-Hunter.30 In this case, police were found to have illegally and improperly arrested an individual in the absence of a warrant, in violation of the Law Enforcement (Powers and Responsibilities) Act. It was held in this case that if police engage in conduct that is that is illegal or improper, the admissibility of any evidence can be jeopardised, and result in and charges being dismissed. It is therefore evident that the exclusion of improper or illegal evidence will function as an effective deterrent to police acting outside the scope of their powers, and by extension, a persuasive argument against the admission of Section 138 evidence.

Decay of Judicial Integrity It can be said with confidence that the judicial system in Australia represents the cornerstone of accuracy and morality. However, with respect to Section 138 evidence, courts must not purely focus on the attainment of accurate decisions, but rather must take into account the potential ramifications in the acceptance of illegal evidence as admissible.31 Furthermore, in deeming Section 138 evidence as admissible, courts may place themselves at risk of the public seeing them as permitting, and by extension, condoning community misconduct and the exploitation of police power.32 This can be demonstrated by examining the NSW Court of Criminal Appeal’s decision in the case of R v Gallagher; R v Burridge.33 In this case, a police officer arrived at a rural property for the purposes of a firearm audit. The police officer was 28 Bathurst CJ and Schwartz (n 19) 84. 29 Ibid. 30 Director of Public Prosecutions (NSW) v Mathews-Hunter (2014) 242 A Crim R 319. 31 Bathurst CJ and Schwartz (n 19) 87, citing Andrew Choo and Susan Nash, ‘What’s the matter with section 78?’[1999] Criminal Law Review 929, 933, 939. 32 Bathurst CJ and Schwartz (n 19) 87. 33 R v Gallagher; R v Burridge [2015] NSWCCA 228.

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alone at the premises, and walked around the property, ultimately located cannabis plants and arranged the issue of a search warrant. At trial, the evidence was found to be obtained by way of trespass on private property, and thus excluded from the trial. However, on appeal, the Court of Criminal appeal held that his ‘honest belief that he was entitled to act as he did’ allowed the evidence to be deemed admissible.34 Therefore, it can be seen that courts have the power to excuse the careless contravention of police powers, on the basis of a police officer’s honest belief.

Hence, by admitting evidence obtained by illegal or improper means, the scope of judicial discretion may propagate to the paradoxical point where the illegality of an action is immaterial in the name of achieving justice. This substantial departure from the principles of fairness and morality would reasonably lead to a general distrust of the judicial system, and thus presents a strong case in the non-admissibility of Section 138 evidence.

CONCLUSION In light of the discussion above, it is apparent that the contrasting perspectives regarding the admissibility of improperly or illegally obtained evidence have received a mixture of criticism and support from academics within the field. This essay has illustrated that the argument for admitting all relevant evidence, notwithstanding any impropriety or illegality attached, is a flawed argument in that it fails to strike the balance between public interest and the operation of the judicial system. In juxtaposition, this essay has demonstrated that the arguments against the admissibility of Section 138 evidence are numerous and influential in their reasoning. These arguments can be identified as non-admissibility acting as a deterrent to vigilantism and abuse of police power, alongside the dilution of public trust in the justice

34 Ibid [52].

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system. Therefore, upon the deliberation of these conflicting public interest considerations, this essay concludes that in order for the operation of Section 138 evidence to be just and effective, there must be a presumption of non-admissibility, upon which the courts must assess the merits of admitting the evidence, much like the discretionary approach currently in force within New South Wales.

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