16. Discretionary and Mandatory Exclusions

Exclusion of improperly or illegally obtained evidence

16.77 Section 138(1) provides that, in civil and criminal proceedings, evidence that was obtained improperly or illegally ‘is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence’ given the manner in which it was obtained.

16.78 Section 138 does not define ‘improperly’ obtained evidence. However, s 138(2) identifies some of the circumstances in which an admission will be considered to have been improperly obtained and s 139 provides that the failure of an investigating official to caution a suspect prior to questioning will render the statement ‘improperly obtained’.

16.79 Section 138 provides a non-exhaustive list of the factors that a court may take into account in conducting the balancing exercise specified in s 138(1). Section 138(3) provides:

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;[123] 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

(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.

16.80 Section 138 differs from the exclusions and limitations contained in ss 135–137 in that it is principally concerned with broader considerations of public policy, whereas the latter provisions are concerned with considerations of fairness to the individual defendant in the particular trial.[124]

16.81 The exclusion contained in s 138 derives from the Bunning v Cross[125] discretion at common law, but differs from the latter in the following respects:

  • the Bunning v Cross discretion places the onus on the accused to prove misconduct and justify the exclusion. In contrast, s 138 requires the party seeking exclusion to establish that the evidence was improperly or illegally obtained. Once this is done, the onus is on the party seeking admission to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained;[126]

  • s 138 applies to derivative evidence[127] and evidence of an admission;[128]

  • s 138 is guided by a non-exhaustive list of the factors which must be taken into account in the exercise of the discretion;[129] and

  • s 138 applies to both civil and criminal proceedings.[130]

16.82 In ALRC 26, the relative merits of the various options available for dealing with illegally or improperly obtained evidence (including a test focusing on the reliability of the evidence, a strict rule of exclusion, and various discretionary approaches) were evaluated.[131] The ALRC considered that mandatory exclusion was too extreme, particularly given that police officers are sometimes faced with situations in which the legal requirements are vague or unclear.[132]

16.83 The ALRC acknowledged the concerns expressed by Stephen and Aickin JJ in Bunning v Cross that

to treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it.[133]

16.84 In order to provide safeguards against the above concern and to avoid some of the uncertainties as to the application of the common law discretion, the ALRC considered that the discretion should be guided by the inclusion of a list of factors to be taken into account, reflecting ‘the fundamental dilemma … between the public interest in admitting reliable evidence (and thereby convicting the guilty) and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the judicial system’.[134] These factors include an assessment of the gravity of the misconduct, whether it constitutes part of a wider pattern of misconduct, and other available accountability mechanisms.[135]

16.85 In addition, the ALRC recommended that the onus and standard of proof be shifted:

[T]he policy considerations supporting non-admission of the evidence suggest that, once misconduct is established, the burden should rest on the prosecution to persuade the court that the evidence should be admitted. After all, the evidence has been procured in breach of the law or some established standard of conduct. Those who infringe the law should be required to justify their actions and thus bear the onus of persuading the judge not to exclude the evidence so obtained. Practical considerations support this approach. Evidence is not often excluded under the Bunning v Cross discretion. This suggests that the placing of the onus on the accused leans too heavily on the side of crime control considerations.[136]

Submissions and consultations

16.86 In IP 28, opinion was sought as to whether the operation of s 138 raises any concerns.[137] In particular, it was asked whether the factors to be taken into account in s 138(3) require clarification.[138]

16.87 The primary concern expressed in relation to s 138 pertains to the factors in s 138(3) and how they should apply to the balancing test. While some judicial officers express the view that these factors are facilitative and do not create any difficulties,[139] other commentators express concern that it is uncertain what weight ought to be given to each factor[140] and whether the factors weigh in favour of or against admission.[141] One view is that the section should be amended so as to specify how the factors in s 138(3) should be applied to the balancing test.[142] Another view is that such difficulties should not be resolved via legislative amendment, and that judicial education is a preferable solution.[143]

16.88 One submission considers that although the section works well in practice, for reasons of principle the wording should be altered so as to render presumptively inadmissible any evidence obtained as a result of any illegal action.[144]

16.89 In contrast, Victoria Police expresses concern that shifting the onus of proof onto the prosecution may impact upon evidence gathered by undercover operations.[145] In consultation, it is suggested that the onus of proof should be reversed so as to reflect the discretion at common law.[146]

16.90 Civil Liberties Australia (CLA) submits that illegally obtained evidence should not be subject to a discretionary test on the bases that: it leads to uncertainty of outcome; in practice, trial judges exercise the discretion predominately in favour of the state; and appellate courts seldom overturn the decision not to exclude illegally or improperly obtained evidence. CLA also submits that this problem is exacerbated in small communities where the magistrate is likely to have an association with the police officers, and is therefore less likely to exercise the discretion against the police officers. CLA considers that there should be mandatory exclusion of illegally obtained evidence where the laws infringed were intended to protect individual liberty, freedom and privacy. It states:

We recommend that s 138(1) be amended such that a judge may rule evidence admissible only if there are strong and compelling reasons why the illegally obtained evidence should be admitted, and the reasons for the admission must be set out in writing.[147]

The Commissions’ view

16.91 The Commissions concluded in DP 69 that no case for legislative amendment of s 138 had been made out.[148] The Commissions remain of this view, and note that very few submissions were made in response to the DP 69 in relation to this issue.

16.92 Although some concern is expressed with the discretionary nature of s 138, the Commissions consider that the policy basis for s 138, as expressed in ALRC 26 and ALRC 38, remains sound. A form of balancing test is the only way to meet the competing policy concerns involved. In particular, the shifting of the onus of proof onto the prosecution in s 138 emphasises that crime control considerations should be balanced equally with the public interest in deterring police illegality, protecting individual rights and maintaining judicial legitimacy.

16.93 The list of factors that the court must consider, articulated in s 138(3), emphasises these competing concerns and reinforces that the court must find a positive reason for exercising the discretion in favour of admissibility. Although some concern is expressed that it is unclear how these factors should be applied and what weight should be given to them, the Commissions consider that it would be inappropriate to attempt to guide the balancing test legislatively. This is particularly so given that the weight to be given to any particular factors listed in s 138(3) will vary depending on which of the other factors in that subsection arise in the context of a particular case.

16.94 One issue raised in DP 69 was the relevance of the ‘seriousness of the offence’ to the balancing process.[149] In R v Dalley, the majority held that the more serious the offence, the more likely it is that the public interest requires the admission of the evidence.[150] In a dissenting judgment, Simpson J stated that:

In my opinion it would be wrong to accept as a general proposition that, because the offence charged is a serious one, breaches of the law will be more readily condoned. In my judgment there may be cases in which the fact that the charge is a serious one will result in a more rigorous insistence on compliance with statutory provisions concerning the obtaining of evidence. That a person is under suspicion for a serious offence does not confer a licence to contravene laws designed to ensure fairness.[151]

16.95 Submissions and consultations express some concern regarding the majority interpretation of this provision.[152] In accordance with the policy articulated in ALRC 26,[153] the Commissions are of the view that the correct approach is that the more serious the offence, the more weight should be given to the public interest in admitting evidence which might result in the apprehension of criminal offenders. However, this does not mean that breaches of the law will necessarily be condoned where the offence is a serious one. The nature of the offence is only one of the factors which the court is to take into account in the exercise of this discretion. Whether illegally or improperly obtained evidence is admitted will also depend on factors such as the nature of the impropriety or illegality. Where the infringement involves isolated or accidental non-compliance, the weight to be given to the nature of the offence may be greater than if the infringement involves a serious and deliberate breach of procedure. Hence, the fact that the offence charged is serious is by no means determinative of how the discretion in s 138 will be exercised.

16.96 This approach to the interpretation of s 138(3)(c) is also supported by the fact that s 138 addresses the public interest supporting exclusion by placing the onus on the prosecution to justify admission in the event that impropriety or illegality is found.

[123] For further discussion of s 138(3)(c), see Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [14.68]–[14.70].

[124] See J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, 2005), [16.1].

[125] Bunning v Cross (1978) 141 CLR 54.

[126] R v Coombe (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Smart and McInerney JJ, 24 April 1997).

[127] Uniform Evidence Acts s 138(1)(b).

[128] Ibid s 138(2).

[129] Ibid s 138(3).

[130] Ibid s 138(1); Nicholas v The Queen (1998) 193 CLR 173, [197].

[131] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [960]–[964].

[132] Ibid, [964].

[133] Bunning v Cross (1978) 141 CLR 54, 79.

[134] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [964].

[135] Uniform Evidence Acts s 138(3).

[136] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [964].

[137] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 12–7.

[138] Ibid, Qs 12–8, 12–9.

[139] New South Wales Local Court Magistrates, Consultation, Sydney, 5 April 2005.

[140] J Garbett, Consultation, Sydney, 28 February 2005.

[141] G Bellamy, Consultation, Canberra, 8 March 2005; New South Wales Public Defenders Office, Submission E 50, 21 April 2005; S Tilmouth, Consultation, Adelaide, 11 May 2005.

[142] G Bellamy, Consultation, Canberra, 8 March 2005.

[143] J Garbett, Consultation, Sydney, 28 February 2005.

[144] Confidential, Submission E 31, 22 February 2005.

[145] Victoria Police, Submission E 111, 30 September 2005.

[146] G Bellamy, Consultation, Canberra, 8 March 2005.

[147] Civil Liberties Australia (ACT), Submission E 109, 16 September 2005.

[148] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [14.79].

[149] Ibid, [14.68].

[150] R v Dalley (2002) 132 A Crim R 169, [3].

[151] Ibid, [97].

[152] New South Wales Public Defenders Office, Submission E 50, 21 April 2005; S Tilmouth, Consultation, Adelaide, 11 May 2005.

[153] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [964].