LAWS1206 Lecture Notes - Lecture 3: Title 47 Cfr Part 15, Inherent Jurisdiction, False Imprisonment
Week 3 – Criminal Procedure
Lecture overview
What is the significance of a procedural problem?
os 138 Evidence Act 1995 (NSW)
oRobinson v Woolworths
oHuy Huu Lee
Investigation
oPerson’s rights
oPolice powers
oRondo
Arrest
oPolice
oCan citizens arrest people?
oCAN and FCAN
oDPP v Carr
Evidence Act 1995 (NSW)
s138 Exclusion of improperly or illegally obtained evidence
S138 (1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the
undesirability of admitting evidence that has been obtained in the way in which the evidence
was obtained.
Meaning of ‘improper’
Robinson v Woolworths
Facts: (entrapment case) Dept Health employed minors to buy cigarettes from stores
to test compliance. The appellant sold cigarettes to the minors and was convicted.
Basten JA (Barr J agreeing):
“section 138 has a broad scope. For example, it applies not merely to evidence
obtained unlawfully, but also to evidence obtained ‘improperly’…Circumstances can
conceivably exist in which a law enforcement officer intentionally brings about the
opportunity for the commission of a criminal offence by conduct which is not
criminal but which is quite inconsistent with the minimum standards which a society
such as ours should expect and require of those entrusted with powers of law
enforcement… In circumstances where there is no unlawfulness on the part of any
law enforcement officer, mere doubts about the desirability or appropriateness of
particular conduct will not be sufficient to demonstrate impropriety. . . where no
relevant pre-existing standard has been breached, it should be a rare case in which
impropriety would lead to exclusion.”
Huy Huu Lee [2009] ACTSC 98 (27 August 2009)
that evidence may be obtained “in consequence of” an impropriety not only where the
evidence is an immediate product of the impropriety but also where the evidence can
be directly linked to the impropriety
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Defective Warrant
Execution of
warrant at a
house.
At this time Mr
Lee was
photographed
Evidence used
Photograph
used by
undercover
police to
indentify Mr
Lee as person
observed in a
drug
transaction
Defence argued s 138
Def argued
that the
photograph
was evidence
obtained in
consequence
of an
impropriety.
Crown to show why evidence ought to be admitted
R v Coulstock (1998) 99 A Crim R 143
Hunt CJ at CL said, …It is clear that the onus still lies on the accused to establish the
impropriety or illegality before any onus is placed upon the Crown to persuade the
trial judge that the evidence should nevertheless be admitted. This discretion is
therefore to admit the evidence notwithstanding the impropriety or illegality.
R v Rooke (unreported, 2 September 1997, NSWCCA)
Barr J said …S 138 has changed the position and it is now for the Crown to show why
unlawfully obtained evidence that it tenders ought to be admitted. That is the intent of
subs (1).
Balancing ‘public interests’
R v Camilleri [2007] NSWCCA 36 (20 February 2007)
McCLELLAN CJ at CL said:
[31] As Howie J made plain in R v EM (2003) NSWCCA 374 at [74]- [78] s 138 is
concerned with balancing public interests. The prejudice to the individual accused, which to
varying degrees must be present in every case, will rarely be material…, the fundamental
concern of the section is to ensure that, if the law has been breached, or some other
impropriety has been involved in obtaining the evidence, this is balanced against the public
interest in successfully prosecuting alleged offenders. The competing interests are obedience
to the law in the gathering of evidence and enforcement of the law in respect of offenders.
R v Ireland (1970) 126 CLR 321, 335
Barwick CJ said:
On the one hand there is the public need to bring to conviction those who commit criminal
offences. On the other hand is the public interest in the protection of the individual from
unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may
be obtained at too high price. Hence the judicial discretion.
Relevant matters to take into account (subsection 3 of s138)
(3) Without limiting the matters that the court may take into account under subsection
(1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the
subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a
right of a person recognised by the International Covenant on Civil and Political
Rights, and
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(g) whether any other proceeding (whether or not in a court) has been or is likely to
be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or
contravention of an Australian law.
Investigate/Interview/Charge
1. Investigation
Person’s rights
Police powers
Meaning of ‘reasonable suspicion’, ‘reasonable grounds to suspect/believe’
2. Arrest
Without a warrant
With a warrant
Further obligations
3. Interview
Person’s rights
Police obligations
1. Investigation
Under the common law you are not required to answer police questions or assist them:
Williams v R (1986) 161 CLR 278.
But see LE(PR)A [Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)]
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Document Summary
What is the significance of a procedural problem: s 138 evidence act 1995 (nsw, robinson v woolworths, huy huu lee. Arrest: police, can citizens arrest people, can and fcan, dpp v carr. Evidence act 1995 s138 exclusion of improperly or illegally obtained evidence (nsw) Facts: (entrapment case) dept health employed minors to buy cigarettes from stores to test compliance. The appellant sold cigarettes to the minors and was convicted. Lee was photographed n a r r a. 1 s d e u g r a e c n e f e. D that the photograph was evidence obtained in consequence of an impropriety. e s u e c n e d v. E i used by undercover police to indentify mr. Lee as person observed in a drug transaction. Crown to show why evidence ought to be admitted. R v coulstock (1998) 99 a crim r 143. This discretion is therefore to admit the evidence notwithstanding the impropriety or illegality.
