LAWS1206 Lecture Notes - Lecture 3: Indictable Offence, All England Law Reports, Reasonable Suspicion
Week 2 Wednesday
Wednesday, 1 March 2017
16:02
Overview
What is the significance of a procedural problem?
s 138 Evidence Act 1995 (NSW)
Robinson v Woolworths
Huy Huu Lee
Investigation
Person’s rights
Police powers
Rondo
Arrest
Police
Can citizens arrest people?
CAN and FCAN
DPP v Carr
S138 Exclusion of improperly or illegally obtained evidence
S138 (1) Evidence that was obtained:
(a) improperly (not inaccordance with truth, fact, inaccurate, erroneous) or in
contravention (the act, violation, infringement) of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
(means a law of the Cth, state or territory)
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 [2005] NSWCCA 426:
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):
“ [36] . . . 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. . .
[37] where no relevant pre-existing standard has been breached, it should be a rare
case in which impropriety would lead to exclusion.”
Breach of professional standards: improperly obtained evidence
S138 Exclusion of improperly or illegally obtained evidence
s138(1) Evidence that was obtained:
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(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. (setting up where the interest of the community)
(2) Without limiting subsection (1), evidence of an admission that was made during or
in consequence of questioning, and evidence obtained in consequence of the admission,
is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or
she knew or ought reasonably to have known that the act or omission was likely to
impair substantially the ability of the person being questioned to respond rationally
to the questioning, or
(b) made a false statement in the course of the questioning even though he or she
knew or ought reasonably to have known that the statement was false and that
making the false statement was likely to cause the person who was being
questioned to make an admission.
Huy Huu Lee [2009] ACTSC 98 (27 August 2009):
The identification hinged on the photograph, but the operation was defective, no
effective warrant
Penfold J
[31] I am inclined to the view that evidence obtained through the use of that
photograph could also be described as obtained in consequence of an impropriety;
that is, 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 (albeit through a process
involving several steps). In this case there is a clear chain of causation between the
taking of the photograph (in circumstances in which, I have found, it would not
have been taken but for the reliance on the defective warrant), the retention of the
photograph, and the use of the photograph in the subsequent surveillance
operation. It is true that possibly the retention of the photograph, and certainly the
use of the photograph in the subsequent operation, required decisions that were
separated from the warrant operation in terms of both decision-makers and time,
but it is also clear that neither of those decisions could have been made if the
photograph had not been taken. I am satisfied that this chain of causation is
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find more resources at oneclass.com
sufficient to identify the evidence arising from the use of the photograph as
evidence that has been obtained “in consequence of” the impropriety associated
with the defective warrant (see R v Michael Ryan Malloy [1999] ACTSC 118 (9
November 1999), per Crispin J at [20], and Rondo per Spigelman CJ at [5]).
RESULT: photograph was inadmissible, the prosecution could not proceed any
further with their case, they didn;'t have to use the photograph that was obtained
illegally.
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.
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).
S138 of the Evidence Act
(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.
…
(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 (the strength of the evidence)
(b) the importance of the evidence in the proceeding, and (if greater importance,
weigh favour in submission)
(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 (public interest,
conviction obtained too higher price, don;'t want to be seen as condoning gross
breaches)
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find more resources at oneclass.com
Document Summary
S138 exclusion of improperly or illegally obtained evidence. 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. 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. [37] 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): The identification hinged on the photograph, but the operation was defective, no effective warrant. November 1999), per crispin j at [20], and rondo per spigelman cj at [5]). Result: photograph was inadmissible, the prosecution could not proceed any further with their case, they didn;"t have to use the photograph that was obtained illegally. Crown to show why evidence ought to be admitted.
