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Episode 73
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Substantive Law
Objection! Excluding Illegally or Improperly Obtained Evidence in Criminal Proceedings
Law as stated: 25 January 2023
What is this?
This episode was published and is accurate as at this date.
Criminal defence lawyers Helen Christinson and Damien Mahon join the podcast to discuss the use and abuse of evidence in criminal proceedings, touching on that famous Blackstone evidence maxim and section 138 of the Evidence Act.
Substantive Law| What area(s) of law does this episode consider? | Excluding improperly or illegally obtained evidence. |
| Why is this topic relevant? | Renowned English jurist William Blackstone wrote that “[i]t is better that ten guilty persons escape than that one innocent suffer”. This idea is a cornerstone of our legal system, playing out in practice day-in and day-out in criminal courts across Australia. The imbalance of power between the state and someone accused of a crime is vast, and ensuring that the evidence used by the state to convict someone is properly obtained is crucial to the administration of the criminal justice system. Enter section 138 of the Evidence Act, which provides for the exclusion of improperly or illegally obtained evidence in contravention of Australian law – unless the desirability of admitting that evidence outweighs the undesirability of its admission. Understanding when it’s appropriate to seek to exclude evidence is a key skill for an Australian lawyer. |
| What legislation is considered in this episode? | Evidence Act 1995 (NSW) (Evidence Act) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) |
| What cases are considered in this episode? | Robinson v Woolworths Ltd (T/as Woolworths Plus Petrol Werrington) [2005] NSWCCA 426 (Jade Link)
Kadir v The Queen [2020] HCA 1 (Jade link)
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| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Centre for Policy Development, Partners in Crime: the relationship between disadvantage and Australia’s criminal justice systems, 2020 Mark Halsey, Pathways into Prison: Biographies, Crimes, Punishment, 2008 William Blackstone, Commentaries on the Laws of England, 1769 |
| David Turner:
1:00
2:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Renowned English jurist William Blackstone once wrote (echoing some similar sentiments by Voltaire and Peter the Great) that “[it’s] better that 10 guilty persons escape than that one innocent suffer.” Now, this idea is a cornerstone of our criminal justice system, playing out in practice day-in and day-out in criminal courts across Australia. Blackstone’s oft-recited maxim is extracted from a much larger quote, which begins with the statement that “all presumptive evidence of felony should be admitted cautiously“. It’s with good reason then that our laws related to evidence are complex; there’s a massive imbalance of power between the accused and the state, and it’s the state’s case against an individual leading up to a conviction that should be above reproach. Enter section 138 of the Evidence Act, which provides for the exclusion of improperly or illegally obtained evidence in contravention of Australian law – unless the desirability of admitting that evidence outweighs the undesirability of its admission. So how does excluding evidence in criminal matters work in practice, and what can an accused’s lawyer do to ensure that any evidence under scrutiny is promptly and properly excluded? Joining me today to discuss improperly and illegally obtained evidence is Helen Christinson and Damien Mahon from Hugo Law Group. Helen is an Associate and Damien is a Senior Lawyer at east coast criminal law firm Hugo Law Group. Damien and Helen, thank you for joining me on Hearsay. |
| Helen Christinson: | Thank you for having us. |
| Damien Mahon: | Yeah, delighted to be here. |
| DT: | Now, tell us a little bit about your backgrounds. Have you always been in criminal law? How did you end up at Hugo? |
| HC: | I have not always been in criminal law. I actually worked as an actor for quite a few years before deciding to study law and after a few years of that, I thought law might be very interesting. So, I enrolled, got in, started studying and really loved it and I always wanted to do criminal law, so, as soon as I graduated, I was lucky enough to get work and I worked for a bit in Sydney, then I moved regional for about three years and then back to Sydney and with Hugo Law Group since about 2020. |
| DT: | Wow. So quite a varied career in law and before it. |
| HC: | Yes. |
| DT: | So, stage, television? |
| HC: | Bit of both. Mostly stage, little bit of TV. Don’t go searching, you won’t find anything. |
| DT: | No big long list on your IMDB page. |
| HC: | No. |
| DT: 3:00 | I did a NIDA course once. This was when I was still at the bar and I was doing it through the Law Society and I mentioned that I was a barrister, it was of course for lots of people in other professions, and the course instructor there said that advocates are sensible actors. So, there you go. You’ve taken the sensible path. |
| HC: | There you go. I’ve done something sensibly in my life then. |
| DT: | And what about you, Damien? |
| DM: | I’m not an actor. I’ve done a couple of different things. I was in the army for a few years after school, I studied a business degree at the same time. I got out, had a bit of a gap, wasn’t sure what I was going to do, decided to start studying law, for the most part, just to have an excuse to continue to fool around and hang out with my partner who was studying at the time. |
| DT: | As good an excuse as any. |
| DM: | Yeah. Yeah. So, just dive into a degree. So, I had to stay there. It was a law degree and I really enjoyed it and quite soon into doing that degree, I decided I wanted to do criminal law. Since being admitted I’ve done nothing but criminal defence |
| DT: | Do you think your careers before law have helped you as criminal lawyers? |
| HC: 4:00 | I think so. I think that any amount of life experience before you start practicing as a criminal lawyer is going to assist you. Just to get used to human nature and working with lots of different people, things like that and I suppose from my perspective, that performative aspect, having a little bit of practice with that I think helps me a bit. I don’t know. |
| DT: | What about you, Damien? |
| DM: | Yeah, I couldn’t agree more. I think, not so much just in law, but any profession, any job, it’s good to have a bit of background in other areas, have a bit of understanding of other things. It’s hard to pinpoint exactly how it helps, but in short, I agree. I think it helps to have some different background. |
| DT: | Yeah, absolutely. I think we’ve talked on the show before about the power of a generalist. Not to say that you’re generalists, but to say that having lots of those different skill sets, they’re more than the sum of their parts. Now, you both work in criminal law, as we mentioned. What kind of criminal matters are you dealing with day-to-day? Who are you helping? |
| HC: | We get a pretty wide array of matters at our firm. We’re very lucky. If I look at what I’ve done this year, I started the year with a murder trial… |
| DT: | Wow. |
| HC: 5:00 | … and then went into an aggravated robbery and then moved into sexual assault matters and have littered that throughout with sentence matters for less serious offences, mental health applications, all of that sort of thing. Damien’s also had a pretty varied year. |
| DM: | Yeah, my practice is similarly varied as well. I’ve appeared in a sexual assault matter this morning – an administrative mention – I have a judgment on sentence for a murder matter this afternoon. As Helen said, it’s not always that serious. We take on all types of criminal matters and traffic related matters at times, quasi-criminal proceedings, so some investigation such as ICAC or Crime Commission matters. So, it is very much a kind of varied practice, but all under that umbrella of criminal defence law. |
| DT: | I’ve heard it said once that a career in criminal law is really a career in evidence and the law of evidence. Would you say that’s the common thread running through that varied criminal practice? |
| HC: 6:00 | There’s a very strong element of that. I always feel that practicing as a criminal lawyer, a lot of my job is to tell someone’s narrative, to tell their story. So, it’s a combination of that very heavily evidence based aspect along with that human side of it where we are there to tell their story. |
| DT: | We’ve done some episodes on sentencing before on Hearsay and that’s always come through to me that in sentencing it’s really about narrative and getting a feel for the person in what might be an incredibly busy list. |
| HC: | That’s exactly right. Yeah. |
| DT: | Now, we’re talking today about excluding improperly obtained evidence. At the start of the episode, I mentioned that Blackstone quote, it’s commonly attributed to Blackstone. I did a bit of research and found, I think, Peter the Great was the first person who said it. Now, why is it important that we exclude evidence that’s been obtained improperly? |
| HC:
7:00 | I think one of the most important reasons is if someone is going to be convicted of an offence, you want the evidence that establishes that offence to be relevant and reliable evidence. So, ensuring the integrity of that evidence is really important. There’s also the notion of ensuring that bad behaviour or impropriety in gathering that evidence isn’t rewarded by just letting it in carte blanche and there’s a notion of protecting the rights of people that are accused. |
| DM: | It’s a matter of fairness. |
| HC: | Yeah. |
| DM:
8:00 | I think, if you’re going to hold out that the criminal justice system is a fair one, each step of the way, and I think Helen’s used the term integrity, has to have integrity and that starts with generally, a police investigation, then it leads to charge, then it leads to proceedings, which may ultimately go before a jury and I think it’s important, I think most people in the community would want to know that the evidence used, which may ultimately be used to convict someone and imprison them, has been obtained fairly. It does go to the integrity of the system and if we looked at it the other way. If we had no regard to evidence that was improperly obtained or unlawfully obtained, it would certainly encourage some pretty shoddy practice along the lines because it would be an “’ends justify the means” approach, which would cut across all the maxims that you’ve taken us through in the introduction. |
| DT:
9:00 | Absolutely. This particular rule of evidence is really critical to the rule of law, isn’t it, but it’s interesting that we do strike that balance, that it’s not an absolute rule. TIP: In a 2016 speech, then-NSW Chief Justice Tom Bathurst outlined the dilemma of allowing improperly or illegally obtained evidence to be admitted. He says: “When evidence which has been improperly obtained is relevant, reliable or highly probative, courts are faced with a fundamental dilemma. On the one hand, there is a public interest in convicting offenders who are found on relevant and reliable evidence to have committed a crime beyond reasonable doubt. On the other hand, there is a public interest in ensuring that law enforcement officers who engage in illegal or improper investigatory practices are disciplined and deterred, that the rights of citizens are upheld, and that the integrity of court processes are maintained.” Like Damien, the then-CJ noted his conviction in this last principle as the most important. He quoted US Supreme Court Justice Brennan’s statement that “by admitting unlawfully seized evidence, the judiciary becomes a part of what is, in fact, a single governmental action.” Improperly obtained evidence can be admitted if its probative value is high. So, tell us a bit about how excluding evidence under section 138 works in practice, who bears the onus of proving or disproving that evidence has been improperly obtained? |
| HC:
10:00 | It’s a bit of a split onus really. So, initially the onus is on the party that’s seeking to exclude the evidence to establish that it’s been improperly or illegally obtained and then the onus switches and the onus shifts then to the party that’s seeking to adduce the evidence to persuade the court that despite the impropriety or the illegality, that the court should exercise its discretion to admit the evidence. |
| DT: | So, effectively I make an objection to admissibility, on what standard of proof do I have to establish that it’s been improperly obtained. |
| HC: | It’s on a balance of probabilities. |
| DT: | And then having established that, it’s for the Crown or whichever party is adducing the evidence… |
| HC: | Generally the Crown. |
| DM: | Generally the Crown. |
| DT: | I was about to say the rule applies both ways, but generally the Crown to satisfy the court that its probative value outweighs the undesirability of it being admitted. |
| DM:
11:00 | Yes and I think that two-step process is very important to break down because as criminal defence lawyers, if it’s established on the balance that it’s unlawfully obtained or improperly obtained, that’s the evidence subject to the objection, as soon as that threshold is met, the evidence is out, it’s inadmissible, and it then shifts to the Crown to convince the court why it should go in. We use those terms ‘in’ and ‘out’ because in evidence, often it is black and white. It’s admissible and it goes in or it’s inadmissible and it’s out. So, after that first stage, it’s out. Now, it’s your turn to convince the Court as to why it should go in. |
| HC: | Yeah. |
| DT: | And you say it’s black and white because it’s not the sort of application with hearsay evidence, for example you wouldn’t admit it for one purpose, but not for another. It’s either in or out. |
| DM: | Generally under 138 it’s not limited. It’s either in or out completely. |
| HC: | Yeah. |
| DT: | Now, it is a two-step process, as we just said, but in your experience as criminal advocates, where’s the real battle fought? Does it tend to be that initial objection, on the facts, was this improperly obtained or does the real contention tend to be its probative value? Is this high or not this high? |
| HC: | I suppose with everything in law, we could pretty safely say it comes down to the facts of each matter. |
| DT: | Yes, of course. |
| HC: 12:00 | But I think that for the Court, and Damien may correct me here, but I think to my mind it’s probably more so the second part of it. |
| DM: | Yeah. I completely agree. |
| HC: | Oh, phew! That’s a relief. Subsection 3 of section 138 has a non-exhaustive but pretty comprehensive list of mandatory considerations that the Court’s got to consider in their discretion and balancing exercise. There’s a fair bit more for the Court to consider when we get to that second step. |
| DM: | Generally, you’ll have an idea as to whether something is unlawful or improper by virtue of the type of conduct it is. If someone hasn’t been cautioned prior to questioning, it’s quite black and white… |
| HC: | Yeah. |
| DM:
13:00 | … that there’s been some impropriety in that conduct. So, of course, the battleground shifts to the second part, subsection 3. Equally, if police search a house without a search warrant, it’s plainly unlawful, so there’s no fight about it. Sometimes the waters are muddied a little bit if we’re looking at some type of deceptive conduct on the part of police but generally as we’ve identified it’s the second part. TIP: Let’s dive into that subsection for just a moment. As mentioned in the intro, section 138 sets out that evidence that was improperly or illegally obtained should not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting it. Subsection 3, which Damien just mentioned, provides a non-exhaustive list of what the Court is required to consider in balancing the competing interests. These are:
Among other things. These paragraphs make up the battleground that Damien mentioned. |
| HC: 14:00 | I actually had a trial matter a few years ago. My client had been observed by police to be standing on the street with literally a bucket of drugs. He had a white paint bucket full of drugs. |
| DT: | Wow. |
| HC: | Yeah. |
| DT: | That is a lot of drugs. |
| HC: | Yeah, it’s a lot of drugs. He was trying to sell them. He came to their attention. They’d been looking for him because there was a warrant out. They had suspected that he had been involved in a break and enter and he was known to police. They saw him with his bucket of drugs and went to arrest him and he took off with the bucket of drugs. He didn’t ditch the bucket. He might have got away if he had, but he took it with him. |
| DT: | It’s quite a burden to bear. |
| HC: | It’s quite a burden. |
| DT: | Yeah. |
| HC:
15:00 | So, a chase ensued. It went for a couple of blocks and the police caught up with him. They arrested him, took him back to the station and commenced an interview with him and they did read him his rights. They said, “you can call a lawyer. You don’t have to speak to us.” They cautioned him and then they said to him, “do you want to exercise any of your rights?” And he’d just been chased for blocks and he said, “oh mate, I’m too tired to exercise.” That was the high point of the interview. It went downhill from there. So, then they started asking him questions and he kept saying, “look, I want to speak to a lawyer. I do want to speak to a lawyer. I don’t really want to answer your questions” and they said “okay, no problem but while we’re here…” and continued to push and push until he started answering the questions, despite him saying several times, “I don’t want to do an interview, I want to talk to a lawyer.” So, that was one aspect of it and then they also, half an hour in, said to him, “there’s this building that’s been broken into. Is there any reason why your fingerprints would be on the door because your fingerprints were on the door. Can you tell us why that would’ve been?” And of course, they hadn’t done any forensic examination of this building, so it was a complete fabrication that there were fingerprints found on the door and he then proceeded to scramble and try to explain why they might be there, and it didn’t go well and at trial we sought to have the interview excluded because all of that was, in our submission, improperly done and we were successful in having the interview excluded. |
| DT: 16:00 | And before we move on to what we mean by improper, because we’ve glossed over that first stage a little bit, Helen, you mentioned that in subsection 3 there’s some factors that the Court has to consider in weighing up that test on the second limb. Can you tell us some of the most common factors that the Court tends to take into account or perhaps the ones that tend to bear the most weight in your experience? |
| HC:
17:00 | Sure. So, one of the biggest considerations is obviously the probative value of the evidence and we all know that’s got to be taken at its highest. So, when the Court’s considering that, there’s no consideration of its reliability or credibility. It’s just taken at its highest and the Court considers how probative that evidence is. When they’re considering that they can tend to, in conjunction, consider the extent of the impropriety or the gravity of that contravention that can sometimes be considered hand in hand. They’ll consider the importance of the evidence in the proceedings and whether or not the evidence that would be adduced through that improperly obtained evidence could be adduced in any other way. If there’s any other evidence that would be before the court of that particular issue? I think they’re the major things. Would you agree, Damien? |
| DM: | Yeah, I certainly would and often what feeds into the gravity of the impropriety is, of course, whether it’s deliberate or reckless and we’re often talking about police officers because it’s a criminal investigation, if someone’s acted in a deliberately unlawful manner that feeds into the gravity it’s a factor which points in the direction that the evidence should not be admitted when considering the balancing exercise. |
| DT: | I suppose, like you were saying before, one of those purposes for this provision is that we don’t want to reward conduct that’s flagrantly in breach of the law of evidence and so that intentionality should bear on it. |
| HC: | I should also say, I think that we’ll probably come to talk about this in a little moment when we talk about the Greyhound case, but they’ll consider also how difficult it would be to get that evidence lawfully, that’s another consideration that comes into it. |
| DM: 18:00 | Yeah, of course. It’s been a tricky one though. That’s why it had to go to the High Court to get to the bottom of that particular factor. |
| HC: | Yeah. |
| DT: | Yeah, absolutely. We’ll come onto that one in a minute. I did want to ask a point of practice though, which being a civil litigator myself, I’ve not had much experience with. There are some bases on which to exclude evidence that I understand apply a little differently in a jury trial versus a judge alone trial. For example, excluding evidence on the basis of relevance. You might be more likely to admit evidence in a judge alone trial because a judge can pretty fairly exclude from their own consideration irrelevant evidence, even if it’s technically been admitted but this seems like the sort of basis on which to exclude evidence that would be applied the same way before a jury or a judge because it is about the fairness and the rule of law rather than some impression that it might leave on the tribunal of fact. Is that fair or am I wrong about that? |
| HC: 19:00 | I think I’d agree with that and Damien actually has had quite a few matters where he’s had to run a section 138 argument in the Local Court. So of course there’s only a magistrate in that court, do you agree? |
| DM: | Yeah, I tend to agree. It is sometimes a little bit disappointing when you think you have a strong 138 argument and we turn to the balancing exercise and whoever the judicial officer is at the time says “I’m going to be the finder of facts. I’m going to be the finder of law. I’m just going to let it in and it’ll be a question of weight.“ |
| DT: | Yeah. |
| DM: | And we talked before about black and white and my view is, if it’s inadmissible when considering these factors, it shouldn’t proceed to questions of weight. It should simply be out but that’s my personal view and I certainly see the sensibility in having considered the evidence if the judge or the magistrate takes the view that it’s to go in, but they’ll obviously moderate their consideration in light of matters they’ve already heard on the initial application to exclude. |
| DT: 20:00 | I suppose the contrarian view is they’ve had to see the content of the evidence to assess its probative value already. The cat’s out of the bag, the horse has bolted. Might as well admit it. |
| HC: | That’s right. |
| DT: | And give it… little late at that point. Now, we’ve danced around a very important part of this provision, which is what improperly means. That’s that first test, that the defence or the accused bears the onus of proving. Now, what is impropriety in this context because it’s not the same as illegally obtained, is it? |
| DM:
21:00 | It’s not defined, so that makes it difficult as a starting point. Superior Courts have applied the Oxford Dictionary definition to the ordinary words to give some guidance. It’s certainly not limited in any way, as in, the classes of improper evidence are not set out but there are many different examples and I think we’ve spoken very briefly about, for example, deceptive conduct and that’s not to say that deceptive conduct is always improper. Police can use certain manners of deception perfectly lawfully but sometimes they overstep and the decision as to whether it’s an overstep ultimately comes down to the Court and it falls under this somewhat ambiguous umbrella of what’s improper. |
| HC:
22:00 | I talked about earlier that case that I had and that was improperly obtained, but a case that I wasn’t in, but it’s a case that is relevant to 138, it’s the Woolworths case and it involved police getting minors to go and try and purchase cigarettes and the minors were told that they couldn’t lie and if they were asked how old they were, they had to tell the truth, but they were told to go in there and say, “I don’t have any ID. Can I buy some cigarettes?” And Woolworths was prosecuted for selling them the cigarettes and it transpired that that wasn’t improper. Damien mentioned before that it’s not a blanket approach to what’s improper, it depends on the circumstances. TIP: The case that Helen just mentioned is a law school favourite – Robinson v Woolworths Ltd (T/as Woolworths Plus Petrol Werrington) [2005] NSWCCA 426. We’ll leave a link to it in the show notes for this episode. |
| DT: | There is this sort of continuum of deception, there’s a gray blurry line somewhere in that, where it descends into impropriety. That’s an interesting story because I was just about to ask you, what’s a good example of a proper deception? |
| HC: | There you go. |
| DT: | There you go. There you have it. The Woolworths case. Can you give any other examples of what might be improper but not illegal because obtaining evidence in breach of statute seems to be a pretty bright line where this sort of provision would apply. I think all the time in a civil context of breaches of the Surveillance Devices Act, we’re all carrying recording devices on ourselves all the time, and fairly regularly in civil practice people say, “oh, I’ve got some evidence of those oral representations that I’m relying upon because I had my phone recording in my pocket the whole time.” And then there’s a question of whether that’s not just improperly obtained evidence, but actually a criminal offence. Are there any other examples of improperly obtained evidence that doesn’t necessarily involve breach of the law? |
| DM: 23:00
24:00 | Often when we’re dealing with 138, we’re thinking about admissions and admissions aren’t always as clear cut as “I did it. You’ve got the right man.” Admissions can be anything that’s adverse to the interest of the accused. They may, for example, make admissions to knowing someone. Another example is they make admissions to being in a certain area at a certain time, and those representations or statements strengthen the Crown case. So, I guess, to hone into your question, a lot of cases which surround improperly obtained evidence go to the conduct of investigating police when questioning people. A caution’s a clear one. It is set out in statute, it’s under LEPRA which sets out that you have to caution but also effectively conducting a cross examination during the course of a recorded interview with someone, instead of putting the accusation to someone and giving them an opportunity to answer questions in an open way, failure to provide an interpreter or support persons, conducting a record of interview at 3 o’clock in the morning when someone’s been up for two days for whatever reason. So, some of these things are now captured under statute, but previously were set out under common law or just examples. Often those types of things fall under the umbrella of being improper. |
| DT: | Those are great examples of something that might not neatly fall under statute, or at least didn’t always. That lack of a support person, I would imagine is particularly important for a minor accused or minor client. |
| HC:
25:00 | And people where English is a second language as well. Having a support person as well as a translator. Sometimes you get an accused where English is their second language, but they seem to speak and understand the language quite well but they should have a support person that can sometimes create an impropriety. TIP: We’ve touched on LEPRA recently in a Hearsay Sidebar podcast with Andrew Tiedt – also a criminal defence lawyer – of J Sutton Associates. If you’re keen to hear more about LEPRA in the context of the recent abortive Danny Lim arrest check us out on your favourite podcast platforms by searching for Sidebar by Hearsay The Legal Podcast. LEPRA is the established acronym for the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). And alongside the Law Enforcement (Powers and Responsibilities) Regulation 2016, it’s the legislative gospel for the eponymous powers and responsibilities of law enforcement. Clause 31 of the regs highlights that a person who is considered a “vulnerable person” is entitled to have a support person with them during any investigative procedure, such as police questioning. A person is deemed vulnerable if they are a child, they are intellectually or physically impaired, they are Aboriginal or a Torres Strait Islander or, as Helen points out, they are of a non-English speaking background. |
| DM: 26:00 | A lot of people in the criminal justice system are vulnerable, and that vulnerability comes from a variety of different ways. Can be just economic disadvantage, could be mental health issues, substance abuse issues but often having a support person there, someone that they know, or even an external person who’s trained in a particular way, is able to identify those issues and raise them with police. Again, and it comes down to fairness and it may be the case they take a break. They allow this person to get some sleep or have a meal or to have their rights explained to them a second time. So, those are the reasons those things are introduced. On the face of it, having a support person might seem kind of unnecessary or a little bit fluffy, but it’s not, it’s there for a reason. |
| HC:
27:00 | Yeah. TIP: Damien makes a point worth repeating. There’s well-established criticism that disadvantaged people are overwhelmingly overrepresented in the criminal justice system…. and the data backs this up. According to Halsey (2008), trauma, lower socio-economic circumstances and educational attainment, marginalisation, drug and/or alcohol misuse, homelessness, family violence and racism are all factors consistently associated with pathways to crime and custody. Likewise a report from the Centre for Policy Development called Partners in Crime: the relationship between disadvantage and Australia’s criminal justice systems, notes that “cycles of disadvantage drive people onto Australia’s criminal justice conveyor belt”. It found that any contact with criminal justice systems, “even short periods in remand, or even just contact through a parent, is associated with poorer outcomes for families and communities”. Frighteningly, the worst part of the report is the finding that more people are trapped in these cycles than ever before – the incarceration rate is above the global average in every state and territory except for the ACT. |
| DT: 28:00 | It’s an important practical tip for our listeners, I think, to have this in your procedural toolkit, isn’t it? That that 138 exclusion isn’t just limited to your illegal search or interview without a caution, that if there is that disadvantage and so often in criminal matters, there is, that it’s an opportunity to look at whether that disadvantage might have contributed to some impropriety in any statement against interest. Now, we foreshadowed it earlier. Let’s talk about the Greyhounds case or Kadir v the Queen. This has gone all the way to the High Court. |
| HC: | Yes. |
| DT: | Tell us a little bit about the facts of the case, just to start us off. |
| DM: | I’m happy to run through the facts. They are a very interesting set of facts. It was of course very topical for a long period of time. The live baiting scandal that broke and of course it’s been subject to a lot of political scrutiny as well in this particular area. |
| DT: | Briefly resulted in a announced ban of greyhound racing in New South Wales. |
| HC: | Yeah. |
| DT: | And then a backflip on the ban and… |
| DM: | Yeah. |
| DT: | Yes. That has had a lot of political consequences. |
| DM:
29:00 | And in the backdrop of that these types of practices were being investigated because obviously when something comes to light authorities take notice and they, in this case rightly, wanted to stamp it out because these practices represent criminal offences, in New South Wales and around Australia. Kadir is in New South Wales. The RSPCA were the prosecuting authority but in this case they were assisted by evidence obtained from, I believe, it’s an animal protection group. That group took an interest in a particular greyhound trainer who was rumored to be involved in the practices of live baiting. He was based in Western Sydney, north of Penrith, Richmond area. They entered his property of course without warrant because they’re a private civilian group. |
| DT: | Couldn’t get one if they tried. Yep. |
| DM:
30:00
31:00 | Not something in their toolkit. So, they entered the property, they set up cameras, so, surveillance devices, and then when they seized that footage, when they obtain that footage they provided it to the RSPCA. The RSPCA is an entity who can apply for surveillance device warrants, but also search warrants. They put the evidence of the footage obtained by animal protection before a judicial officer who signed off on a warrant. They executed a warrant on the property. They found further evidence of live baiting, carcasses, cages, all this type of thing. Further, in the background, animal protection wasn’t done. They attended on the house under the guise of being, I think it was a Greyhound owner, and spoke to Mr. Kadir, who’s obviously one of the accused, the defendants in the Greyhound case, and they had a listening device at the time and during that conversation there was admissions made by Mr. Kadir to, I think, purchasing a number of rabbits per month and indicated quite strongly that the reason he purchased them was to use them for live baiting in training his own greyhounds. So, those are the facts which give rise to the prosecution and then there was a series of 138 challenges against those different heads of evidence. First being the surveillance device evidence, second being the search warrant evidence, and third being the admission evidence. |
| DT: | And the search warrant evidence is an example of a 138 application because why? Because the RSPCA did obtain a warrant. So, why was there an application made in respect of that evidence? |
| HC: | As I recall it, it was the notion that it had been essentially poisoned by the initial surveillance evidence. So, I think the argument was because that surveillance evidence was inadmissible and was illegally obtained then so too would be the search warrant evidence because the search warrant was sought on the basis of this illegally obtained evidence. |
| DT: | That sort of fruit of the poisonous tree. |
| HC: | That’s it. |
| DM: | Such a lovely quote. |
| HC: | Such a lovely quote and sadly we didn’t adopt it. |
| DT: | I was going to say, it’s very American, isn’t it? |
| HC: | It is very American. |
| DT: | The fruit of the poisonous tree. Now, what was the result at first instance, and I suppose in the Court of Criminal Appeal? |
| DM: | At first instance, everything was out. It was excluded on the basis of the impropriety or the unlawfulness. |
| HC: | Yeah. |
| DM: 32:00 | It was appealed to the Court of Criminal Appeal. |
| HC: | It was. There were seven recordings that constituted the first head of evidence and the CCA admitted the first recording, but not the balance of the recordings and then they admitted the search warrant evidence and the admissions evidence. Their view was that because it would’ve been really difficult for the animal rights group to obtain that evidence that that was a reason to admit it. |
| DT: | That’s not a situation where we’re arguing about the impropriety. It’s plainly illegal. |
| HC: | Yes. |
| DT: | But one of those factors, that that evidence really can’t be obtained any other way. There’s no other way to adduce that evidence. It’s so desirable that it should be admitted. |
| HC: | That’s right. |
| DT: | That’s the Court of Criminal Appeal’s finding. |
| HC: | Yeah. |
| DT: | And then in the High Court, we got a mixed result. |
| DM: 33:00
34:00 | Yeah, that’s right. So, going through it, 1, 2 and 3, the surveillance device recording was deemed inadmissible, but in relation to the search warrant material it was deemed admissible and in relation to the admissions, it was deemed admissible. The High Court had a pretty close look at that subsection, the provision which details the difficulty in obtaining the evidence in accordance with law and they said there will be some situations in the heat of the moment where there’s a risk, for example, that evidence would be lost, that you could justify an investigating authority, or in this case a public citizen, cutting corners, if you like, to obtain and secure that evidence and there would be some desirability in having that evidence secured for future trial but in the absence of that urgency, they did stress that it’s a factor which can weigh against the admission of the evidence. If it can be lawfully obtained, it should be done lawfully. In this case, for example, animal protection could have approached the RSPCA and raised the complaint and suspicions with them directly, who could have in turn investigated it by applying for a warrant. |
| DT: | That sort of gloss on that factor about whether this can be obtained in any other way in terms of that urgency that might admit or permit the illegal or improper obtaining of the evidence is an interesting point that the High court’s made. Other than that insight, is this the sort of case that is a useful recitation of the principles? It’s a good primer on how 138 works or are there some other new insights, new advances in the common law around this area that the High Court’s made? |
| DM:
35:00 | Kadir is definitely, I think the most recent and in-depth examination of 138 and it is a good judgment to read. You can go a long way back and even prior to the enactment of uniform evidence law to find cases which deal with this balancing exercise when it comes to unlawful evidence. So, there’s a long string of High Court authority and other superior court authority but Kadir is a very good starting point and it’s an interesting factual matter. So, it’s not a bad one to read if you’re into reading High Court judgments, you could probably do worse. |
| HC: | It’s long, but it’s good. |
| DT: | Now, we’ve talked about quite a few cases where evidence has been excluded on the basis that it was improperly or illegally obtained, Kadir being one of them. Could you give me an example of a case that you’ve either seen or read where evidence has been admitted, although it’s been improperly or illegally obtained, and why was that evidence so probative or so desirable that it justified being admitted, notwithstanding the way in which it was obtained? |
| DM:
36:00
37:00 | I’ll be humble and profess to an example where I lost, I went down on 138. As many criminal defence practitioners encounter, I found myself representing someone who had been charged with having stolen goods in their custody. In this case, he was stopped by police and having had a look at his criminal history and the circumstances in which they saw him, that is, he was just out on the street in the middle of the night and they thought he looked suspicious. They decided to search his bag. They go through his bag and he’s got a series of relatively inexpensive but quite plainly stolen items, which still had tags and security tags and that type of things on it. He wasn’t able to produce a receipt. Prior to conducting this search, they told him he was under arrest. They didn’t tell him the reason he was under arrest. They didn’t caution him. It was as plain as to say, “Helen, you’re under arrest” and then they proceeded to perform the search. Now, that’s unlawful because when you arrest someone they have the right to know why they’re under arrest and then when you’re exercising powers such as search powers, you’re meant to tell the person that you’re now exercising that particular power. In this case, they didn’t but the local court magistrate as it was then found that because the police had another power to search this person without arresting them, as in it wasn’t actually necessary in the circumstances of this person even be arrested, the power exists under LEPRA, just if you have a reasonable suspicion that someone is in possession of stolen goods, the police have the right to exercise that power. So, in that case, effectively the reasoning of the magistrate was, “okay, there’s a technicality. Okay, they haven’t told him what they’re meant to tell him, but ultimately they were right about it. They found the stolen goods and I’m going to let it in.“ |
| HC: | Yeah. |
| DM: | And clearly still smarting from that decision… |
| HC: | You were most upset when you got back. |
| DM: | … but it’s an example. |
| DT:
38:00 | I was about to say. It doesn’t sound from the recounting that you’re quite ready to let that one rest. Now, is that an example of a basis on which improperly obtained evidence can be admitted? Oh, well, it could have been obtained another way. It wasn’t, but it could have been and so it’s permissible to admit it? I thought the rule was the opposite, that if it could be obtained another way, then you should go and obtain it that way. Am I preaching to the choir? |
| DM: | Yeah. That’s how Kadir assists because that particular subsection I think there was a lot of confusion as to how it should be applied in different cases it can point in one direction or the other but at least we have a little bit more clarity following Kadir. |
| HC: | Yeah. |
| DM: | And with that caveat that you know, unless time does not permit you to cross the Ts and dot the Is… |
| HC: | Yeah. |
| DM: | … effectively, it suggests that you should. |
| HC: | Yeah. |
| DT:
39:00 | And I suppose that also guards against, a little bit, what someone listening to this who isn’t commonly practicing in criminal law might be concerned about, which is to say this whole balancing exercise really is an exercise in the end justifying the means, isn’t it, because the probative value of the evidence is the end. You want to obtain inculpatory evidence, and if it’s very convincing, then we can obtain it illegally. That’s what the provision seems to suggest but of course, that’s not the case, is it? |
| DM: | It is a balancing exercise and sometimes it tips some ways and sometimes it tips the other. |
| HC: | Yeah. |
| DT: | Let’s talk specifically about admissions. We had a brief example from you before, Helen… |
| HC: | Yes. |
| DT: | … about your fellow with the bucket of drugs and, Damien, you mentioned that admissions are a particularly relevant example where 138 comes into play because they’re often obtained in the course of an interview that’s being conducted illegally or improperly without a support person. |
| DM:
40:00
41:00 | I’ve got another example comparable to Helen’s bucket of drugs example. I acted for a gentleman who was accused of sexual touching. The facts surrounding this matter are inherently unsavoury. The victim or the complainant in the matter was a relatively young prostitute. It was accepted between both parties that the accused had been in the car at the same time as her, and that he’d effectively offered to give her a lift. It’s also accepted between both parties that the accused propositioned this girl for sex, and it was undisputed that the journey ended by virtue of the accused kicking the prostitute out of the car, not physically, but telling her she’s no longer welcome and that she had to go. So, it’s an unsavoury set of facts. The complainant in this case said that prior to being kicked out, the accused person had touched her in a sexual manner. It was effectively a groping accusation. Back at the police station, after the accused person was arrested, sometime after there was a line of questioning. He confirmed all these things and confirmed he was in the car and said he’d met the girl and it appeared that the interview effectively was at a point where there was going to be no further crossover. He made denials to any touching and at that stage there’s a pause and the police can be seen looking through their files and they say “we’ve seized her clothes. We’ve got her DNA. We’ve got your DNA. What can you say about that?” And that prompts this kind of unraveling in the way he’s dealing with it and he starts saying, “oh, she got in the car and I put my hand out to change gears and there’s a chance that I touched her as she reached across to me” and, of course, that doesn’t make for very good viewing in front of a jury. |
| HC: | Yeah. |
| DM:
42:00 | It casts real doubt on the certainty of his initial denial but the problem with what the police had done is that although they had seized the person’s clothes, they’d only seized them two hours before, and no forensic testing had, in fact, been conducted. TIP: Subsection 2 of section 138 relates to admissions during or in consequence of questioning. This subsection automatically deems an admission (and evidence obtained as a result of an admission) to be improperly obtained if, during the questioning, the questioning officer did or did not do something even though they knew or reasonably should have known that it was likely to impair the ability of the person being questioned to respond rationally to that questioning. Also deemed automatically improper is if the police officer questioning makes a false statement even though they knew or reasonably should 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. So, again, very comparable to Helen’s example with the fingerprints. They’ve planted false evidence and tested the accused person on the basis of that false premise and that was found to be improper questioning and that latter portion of the record of interview was excluded. |
| HC: | It’s also not scientifically sound. Secondary transfer. She’s in his car. |
| DM: | Yeah. Yeah. |
| DT: | Good point, actually. |
| HC: | Good point. |
| DM: 43:00 | But the poor accused wasn’t completely up to speed with secondary transference and DNA and he tried to explain it the best way he thought he could. |
| HC: | Yeah. |
| DM: | But we made a forensic decision. We didn’t want that portion of the record of interviewing, and it was an unfair line of questioning. |
| DT: | In that example, where the improperly obtained evidence might go to credit, but it isn’t necessarily an admission or something that puts the guilt of the accused beyond doubt, for example, is there a legitimate forensic decision to make there in not making the challenge because it might shine an unfavourable light on the investigative process that led to the accused being charged, in that the investigators have conducted some impropriety that’s then before the jury? |
| DM: | There could be. Certainly if you just wanted to run a case that this has been a very sloppy investigation and how come you didn’t do this? How come you didn’t do that? Oh, you did that. That’s not accordance with LEPRA. |
| HC: | Yeah. |
| DM: 44:00 | And kind of just poke holes in police practices without actually formally raising an objection to the evidence. There are those types of cases, certainly, but even absent admissions, there’s sometimes evidence you would prefer not be considered as part of someone’s trial and once you’ve made that decision the tool you have is 138. |
| HC: | Yeah, that’s right.. |
| DT: | Now, we’ve referred to the impact of technology on this particular objection with its particular tool. We mentioned before that we’re all carrying recording devices at all times, and that makes breaches of the Surveillance Devices Act a little bit more common. How is the law of improperly or illegally obtained evidence keeping up with the extent and volume of information that law enforcement agencies can obtain about an accused person. Recording devices, of course, are one example, and Kadir is a great example of that but what about things like metadata or a person’s ISP records? Are these sorts of digital records being used in the prosecution of accused persons and have they ever been excluded under section 138? |
| HC: 45:00 | I can’t say I’ve personally been involved in a case where we’ve had to consider excluding any evidence of that nature under 138 and I don’t know of any cases. I haven’t read any recently. I don’t know if you know of any, Damien. |
| DM:
46:00 | I think it’s got a bit of momentum that the challenge to the download of Cellebrite evidence from someone’s phone. So, just to explain that particular technology, it’s effectively a download of all the data included on someone’s phone. Now, you’ve. described the development of different technology, but previously, maybe a decade ago, when you see someone’s phone, you might look for text messages or contacts and that was the limit of the information but now a smartphone is a far stronger tool. Often it has GPS tracking, which will show where someone is hour to hour throughout a day and as it stands a search of someone’s phone includes often, or it’s taken to include, a Cellebrite download of the contents of a person’s phone and that’s an area which I think we’ll shortly receive some kind of judicial scrutiny… |
| HC: | Yeah. |
| DM: | … as to whether that exceeds the ambit of a search. The evidence is far more voluminous than it would’ve been previously and that’s an interesting one. There haven’t been any decisions as far as I’m aware, which deal with it but that’s one example. |
| DT: | Interesting space to keep watching, I suppose, yeah. Now, we’re just about out of time today, but before we go, what are your key takeaways for our listeners today? If there’s one thing you wanted them to remember from this episode for the next time they make a 138 application, what would it be? |
| HC: | I think when you’re making a section 138 objection, you just need to be conscious of the purpose of the section, the competing public policy issues, and take all of that into account when you’re formulating your submissions. |
| DM: 47:00 | Exactly right and when you’re presented with evidence, criminal hearing, criminal trial, it’s just about scrutinising the evidence. It’s quite broad. If something doesn’t seem right or something seems unfair maybe explore it a little bit further and there’s rarely anything to lose… |
| HC: | Yeah. |
| DM: | … if something appears unfair, in bringing it to the Court’s attention. |
| DT: | And finally we’ve got some listeners who are students. Now, Damien, you said before you’ve exclusively practiced in criminal law. Very few people are fortunate enough to do that. I know there’s lots of law students listening and former law students who aspire to a career in criminal law. What are your tips for any aspiring criminal lawyers? |
| HC: | Do it. It’s great. |
| DM: | Yeah exactly right. Just do your best to find a mentor at an early stage, whether that’s at university or freshly admitted. Try to find someone who will take you on either in the capacity of a solicitor, paralegal, law clerk and just watch and absorb as much as you can. It’s a great area of law. You get to appear so often, you get to meet your clients directly, the subject matter is inherently interesting. Yeah. |
| HC: | It’s fantastic. |
| DM: | Just get stuck into it. |
| HC: 48:00 | And I think that’s a good point. I wish that when I was studying I had worked in criminal law. I started practicing in criminal law as soon as I’d graduated and there is a lot that you can learn when you’re not able to practice yet so that when you do get admitted, you can hit the ground running and really embrace your practice. |
| DT: | Absolutely. Great tip for anyone hoping to practice in criminal law or any area of the law. |
| HC: | Indeed. |
| DT: | Helen and Damien, thanks so much for joining me today on Hearsay. |
| HC: | Thanks so much for having us. |
| DM: | Thanks. |
| Ross Davis:
50:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our guests Helen and Damien for coming on the show. If you want to hear more criminal law, check out episode 70 with Andrew from J Sutton Associates – we’ve also got some cool, free criminal law content on your podcast platform of choice. Just look out for Sidebar by Hearsay the Legal Podcast. If you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law point. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes CPD. Finally, I’d like to ask you a favour. If you like us, please leave us a Google Review. It helps other listeners find us and that means that we can keep making great content. Thanks for listening, we’ll see you on the next episode of Hearsay. |
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