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s 138 – Exclusion of improperly or illegally obtained evidence

138 Exclusion of improperly or illegally obtained evidence

(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.

(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.

(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

(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.

Note

The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

Expressions defined in the Dictionary are identified in bold print. Click here to access the Dictionary.

Continuity and change – major change

  1. Section 138 provides that, when an impropriety or contravention in obtaining evidence is established (in civil or criminal proceedings), the party adducing the evidence must persuade the court that the evidence ought still to be admitted.
  2. There is no significant distinction between evidence obtained ‘in contravention of an Australian law’ and evidence obtained ‘in consequence of’ such a contravention; and ‘impropriety’ and ‘in consequence of an impropriety’ should be approached in the same way (Parker v Comptroller-General of Customs [2007] NSWCA 348 at [55] per Basten JA (Mason P and Tobias JA agreeing)).

    Procedure

  3. Section 138 requires determining whether:
  4. The qualified proscription ‘the evidence is not to be admitted unless’ indicates the importance of according appropriate weight to the effect of any impropriety or unlawfulness (Parker v Comptroller-General of Customs [2007] NSWCA 348 at [57]-[58] per Basten JA).
  5. In determining whether to exclude the improperly or illegally obtained evidence pursuant to s138:

    the ultimate question … is to resolve the conflict between the benefit of bringing a wrongdoer to conviction, against the adverse impact upon the integrity of court processes by giving curial approval or encouragement to the unlawful conduct of those whose task it is to uphold the law (Gedeon v R [2013] NSWCCA 257 at [216] per Bathurst CJ (Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing), citing Ridgeway v R (1995) 184 CLR 19 at 31; [1995] HCA 66 per Mason CJ, Deane and Dawson JJ).

    Onus and burden of proof

  6. The onus is:
  7. In carrying out that balancing exercise, the court must take into consideration the criteria in s138(3) (Gedeon v R [2013] NSWCCA 257 at [174] per Bathurst CJ (Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)).
  8. In Parker v Comptroller-General of Customs [2009] HCA 7, French CJ described the two stage onus as follows:

    The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained (at [28]).

  9. The ALRC commented on the policy justification for the onus:

    policy considerations supporting the non-admission of the evidence suggest that, once the 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 (ALRC 26:1 at [964]).

  10. The onus of proving illegality or impropriety is on the party objecting to the evidence even where the alleged illegality or impropriety is the breach of a statutory obligation, such as the police cautionary rules in s464A(2) or (3) and s464G (Willis v R [2016] VSCA 176 at [111]-[116]).
  11. The burden of proof is the balance of probabilities (ss140, 142).

    Subsection 138(1)

    ‘evidence that was obtained … improperly or [unlawfully] or, … in consequence of impropriety or an [illegality]’

    (i) Causal connection

  12. For s138 to apply the evidence must have been obtained in one of the two proscribed ways and that proscribed conduct must have caused the evidence to be obtained (either directly or in consequence) (R v Dalley [2002] NSWCCA 284 at [86]; R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97 at [25]).
  13. The temporal nature of this causal requirement is not settled. In R v Haddad and Treglia [2000] NSWCCA 351, Spigelman CJ (James and Newman JJ agreeing) did not accept the proposition that there could never be the required causal link if the evidence is obtained prior to the relevant transgression. His Honour stated that it:

    is at least arguable that the formulation ‘obtained in contravention’ should be construed so as to encompass the entirety of an integrated scheme, particularly a scheme designed to protect fundamental freedoms. The formulation ‘obtained improperly’, not presently relied upon, may well be even broader (at [74]-[75]).

  14. However, the point was not ultimately resolved because the Court found the police had complied with the relevant statutory rule (R v Haddad and Treglia [2000] NSWCCA 351 at [72], [76]).
  15. A similar approach was taken in R v Dalley [2002] NSWCCA 284, where Simpson J held that evidence obtained before the illegality occurred cannot be ‘as a result of, or in consequence of’ an impropriety or contravention (R v Dalley [2002] NSWCCA 284 at [86] per Simpson J (Spigelman CJ and Blanch AJ agreeing)).
  16. In that case, the evidence was obtained under a detention warrant and prior to the contravention of that warrant. The contravention arose because the warrant was issued by telephone and the verification requirements for its issue were not complied with 24 hrs later as required. It was at this time that the contravention occurred, which was after the evidence had been obtained.
  17. In R (Cth) v Petroulias (No 8) [2007] NSWSC 82, Johnson J held that the connection between the improper conduct and the obtaining of the evidence may be ‘indirect’ – for instance a misstatement in a warrant application may engage this provision (R (Cth) v Petroulias (No 8) [2007] NSWSC 82 at [25]).

    (ii) 'Improperly or in contravention' 

  18. ‘Impropriety’ is not defined under the uniform evidence legislation. In Parker v Comptroller-General of Customs [2009] HCA 7, French CJ noted that the definition of 'improper' in the Oxford English Dictionary includes 'not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong'.
  19. In that case, French CJ observed, in obiter, that ‘mere failure to satisfy a condition necessary for the exercise of a statutory power’ would not ‘be characterised as ‘impropriety’ although that word does cover a wider range of conduct than the word ‘contravention’’ (Parker v Comptroller-General of Customs [2009] HCA 7 at [30]).
  20. Heydon J, in dissent, approached the question differently, suggesting that if evidence is obtained and a pre-requisite for the exercise of a statutory power to seize the evidence is not satisfied, then the evidence is improperly obtained. This is consistent with the approach taken by Simpson J at first instance and by Basten JA in the Court of Appeal (Parker v Comptroller-General of Customs [2009] HCA 7 at [162]-[163]).
  21. The other members of the Court did not consider this question. Odgers suggests that Heydon J’s approach should be preferred over that of French CJ (Odgers, Uniform Evidence Law in Victoria (2010) at [1.3.14920].
  22. ‘Impropriety’ under the uniform evidence legislation is to be understood according to the general law principles enunciated in Ridgeway v R (1995) 184 CLR 19 at 36-40; [1995] HCA 66 (Robinson v Woolworths (2005) 64 NSWLR 612; [2005] NSWCCA 426 at [22] per Basten JA; see also Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164 at [80] per Branson J; Hills v R [2011] VSCA 364 at [18]).
  23. In Robinson v Woolworths (2005) 64 NSWLR 612; [2005] NSWCCA 426, Basten JA noted the language of Ridgeway (which is not concerned with admissions) refers to ‘the public interest in the fair and proper exercise of law enforcement powers’ and improper conduct of authorities rather than to unfairness to the accused (notwithstanding the fine line between these concepts).
  24. As there is no significant difference between an ‘impropriety’ and ‘in consequence of an impropriety’, the real issue is ‘to identify the scope of an impropriety that will result in the qualified exclusion of evidence’ in the absence of a contravention of an Australian law, for example, inducement to commit a crime through deception (Parker v Comptroller-General of Customs [2007] NSWCA 348 at [55] per Basten JA).
  25. In Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426, Basten JA (at [23]) noted that ‘to establish impropriety’ it is necessary:
  26. His Honour noted these principles should inform the determination of what constitutes ‘improperly’ obtained evidence or ‘impropriety’ for the purposes of s138. 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 (Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 at [36] per Basten JA).
  27. In R v Cornell (2003) 57 NSWLR 82; [2003] NSWSC 97, Howie J observed:

    [n]ot every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand, the terms of s138(3)(e) … make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power’ (R v Cornell (2003) 57 NSWLR 82; [2003] NSWSC 97 at [20]).

  28. Although determining whether evidence has been improperly obtained does not depend on establishing intentional conduct or conscious impropriety, it will be relevant in assessing impropriety (Director of Public Prosecutions v AM [2006] NSWSC 348 at [38]-[40] per Hall J).
  29. There may also be a fine line between impropriety and an acceptable degree of ‘deception and trickery’ (see R v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1 (citing Ridgeway)).
  30. The right to silence will be infringed only when it was another person who caused the accused to make the statement and when that other person was acting as an agent of the State at the time the accused made the statement (Pavitt v R [2007] NSWCCA 88 at [70]).
  31. Other examples of ‘impropriety’ (apart from the circumstances detailed by s138(2) and s139) are detailed by Odgers, Uniform Evidence Law in Victoria (2010) at [1.3.14920].

    (iii) Illegal conduct

  32. Whether this arm of s138 is enlivened requires discrete consideration of whether the conduct is illegal under other law, often with respect to legislation on such matters as warrants, arrests and searches.
  33. In Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66 (a common law case), the High Court held that the common law discretion to exclude evidence for public policy reasons extends to excluding evidence of an offence, or an element of an offence, obtained by unlawful conduct by law enforcement officers.
  34. In R v Ladocki [2004] NSWCCA 336, Mason P held that not every act done in breach of the Law Enforcement (Controlled Operations) Act 1997 (NSW) (enacted to overcome Ridgeway, ‘the LECO Act’) (or its Code of Conduct) means a particular Authority under the LECO Act is invalid (R v Ladocki [2004] NSWCCA 336 at [59] (Sully and Sperling JJ agreeing)).
  35. If a particular Authority is invalid, then the shield of the LECO Act is removed, which may enliven s138 but only to the extent that substantive evidence sought to be adduced by the Crown is obtained illegally or improperly (R v Ladocki [2004] NSWCCA 336 at [52]).
  36. The illegality was distinguished from that in Ridgeway on the basis that this case involved no more than proof of the accused’s own illegal conduct. The Court observed the impugned evidence was of a type regularly encountered in criminal trials without needing to be sanctioned by the LECO Act.
  37. In Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 (at [46]-[58]), the High Court did not make a finding with respect to s138, but did note the scope for its operation diminishes when the LECO Act is complied with and increased when there is non-compliance (at [12]).

    ‘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 the evidence was obtained’

    (i) ‘desirability’

  38. ALRC 26:1 explains there is a public interest in reliable evidence being admitted and considered by the tribunal of fact, and that two considerations should be taken into account in assessing this ‘desirability’ – accurate fact determination and crime control.
  39. This public interest supports admitting relevant evidence of a person’s guilt to form the basis for the necessary factual determination and, if the evidence is excluded for reasons not associated with the fact finding process, the interest is sacrificed (ALRC 26:1 at [958]).

    (ii) ‘undesirability’

  40. ALRC 26:1 lists and discusses considerations relevant to ‘undesirability’ (at [959]). They include:
  41. The balancing exercise is discussed in Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66 and Bunning v Cross (1978) 141 CLR 54.

    (iii) Statutory guidance

  42. There is a non-exhaustive list of relevant matters in s138(3) – see paragraphs 30-66below. Also, given the s138(3) factors are not exhaustive, see other potentially relevant considerations discussed in paragraphs 67-75 below.

    Subsection 138(2): Admissions

    (i) General

  43. An admission is taken to be improperly obtained if it is obtained through questioning or in consequence of questioning and the conditions of either paragraph s138(2)(a) or (b) are met. If so, then it is subject to discretionary exclusion under s138(1). Whereas s138(2)(a) is concerned with coercive conduct, s138(2)(b) is concerned with deceptive conduct.
  44. The ALRC noted that while Part 3.4 works to ensure the likely truth of an admission (and includes s90, which addresses unfairness to an accused), the focus of the s138(2) discretion is public interest (see also R v Em [2003] NSWCCA 374 at [74]-[75] per Howie J; Em v R (2007) 232 CLR 67; [2007] HCA 46 at [119] per Gummow and Hayne JJ; R v Mallah [2005] NSWSC 358 at [102]-[140] per Wood CJ at CL).
  45. Fact situations where s138(2) needs to be considered will often also require Part 3.4 to be considered (especially s84, s85 and s90) (Em v R (2007) 232 CLR 67; [2007] HCA 46 at [91]-[125] per Gummow and Hayne JJ).
  46. In any event, each provision of the Act must be applied in its own terms (R v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1 at [74] per Toohey, Gaudron and Gummow JJ; at [128] per Kirby J).

    (ii) 'False statement'

  47. In R v Weaven (Ruling No 1) [2011] VSC 442, Weinberg JA considered the argument that 'false statements' made pursuant to an undercover operation would enliven s138. He considered that 'a deception of that kind seemed unlikely to fall within the description of a 'false statement' of the kind to which s138 is directed' (at [64]). Further, it:

    would be strange to conclude that an investigative technique of a kind that has received the specific approval of the High Court should be characterised as 'improper' merely because it involves the use of a legitimate deception on the part of the police (R v Weaven (Ruling No 1) [2011] VSC 442 at [64]).

    Subsection 138(3): Matters the court must take into account

  48. This subsection provides the only guidance about how s138 should be applied, but no factor is determinative and the list is not exhaustive (see fairness considerations at paragraphs 68-73 below). The court must consider the listed factors, emphasising that it ‘must find a positive reason for exercising the discretion in favour of admissibility’ (ALRC 102 at [16.93]).

    Statutory guidance

    (i) Weighing the factors

  49. In weighing the various factors:

    [N]o preponderance is ascribed to any of the matters identified … over others; each, if applicable, is to be weighed in the balance in favour of or against the exercise of the discretion (ASIC v Macdonald (No 5) [2008] NSWSC 1169 at [27] per Gzell J; see also Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) (2013) 42 VR 513; [2013] VSC 575 at [148] per J Forrest J).

  50. An important reason for there not being any legislative guidance as to the exercise of the balancing test is that the weight to be accorded any particular factor will vary depending on which of the other factors arise in the context of a particular case (ALRC 102 at [16.93]).
  51. In criminal proceedings, a comparison of the gravity of the offence/s with the gravity of the misconduct in the particular case will form part of the balancing process required by s138(3) (Gedeon v R [2013] NSWCCA 257 at [180] per Bathurst CJ (Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)).
  52. For more detailed discussion of the factors, see ALRC 26:1 at [964].

    (ii) ‘the probative value of the evidence’: s138(3)(a)

  53. ‘Probative value’ is defined as the ‘extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ (see Dictionary).
  54. The greater the probative value of evidence, the greater the interest in its admission (R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 at [35]; R v Helmhout [2001] NSWCCA 372 at [52]). The ALRC explains this is because:

    [e]xclusion of an item of evidence is more likely to endanger accurate fact finding if the evidence is highly probative than if it is of minimal relevance (ALRC 26:1 at [964]).

  55. In assessing the probative value of the evidence:

    it is not enough for a court merely to form an impression of the probative value … there must be a systematic analysis of the impugned body of evidence sufficient to reach at least a preliminary view as to its “quality and frailties”. However, this assessment must necessarily take place within the limits imposed by the nature of the evidence and the time at which the application is made (Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) (2013) 42 VR 513; [2013] VSC 575 at [162] per J Forrest J).

    (iii) ‘the importance of the evidence in the proceeding’: s138(3)(b)

  56. The ALRC explains that:

    [w]hatever the probative value of the evidence, equally cogent evidence, untainted by any impropriety, may be available to the prosecution at trial. If so, the public interest in admitting the evidence is reduced (26:1 at [964]).

  57.  Many of the matters relevant to s138(3)(a) are also relevant when assessing the importance of the evidence pursuant to s138(3)(b) (Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) (2013) 42 VR 513; [2013] VSC 575 at [188] per J Forrest J).

    (iv) ‘the nature of the relevant offence, cause of action or defence … and the proceeding’: s138(3)(c)

  58. ALRC 26:1 states ‘[t]here is, for example, a greater public interest that a murderer be convicted and dealt with under the law than someone guilty of a victimless crime’ (at [964]). This Report cites the common law authority of Bunning v Cross (1978) 141 CLR 54 at 80 (per Stephen and Aicken JJ) (see also Pollard v R (1992) 176 CLR 177 at 203-204 (per Deane J)).
  59. This has found support in the case law, where it has been suggested that the public interest in convicting and punishing offenders may be given greater weight in respect of crimes of greater gravity, both at common law and pursuant to s138(3)(c) (R v Dalley [2002] NSWCCA 284 at [1]-[7] per Spigelman CJ and Blanch AJ).
  60. In contrast, Simpson J argued that the legislation did not express the ALRC view, either explicitly or implicitly, Further, it is wrong to accept the general proposition because there may be cases where the fact that the charge is a serious one will result in a more rigorous insistence on compliance with statutory provisions about obtaining evidence (R v Dalley [2002] NSWCCA 284 at [96]-[97] per Simpson J (dissenting)). 
  61. Civil matters raise different and various public interest issues. In Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164, Branson J noted that, in addition to being about freedom of association, relevant considerations included that the matter was a civil proceeding and that it had been brought in the exercise of a statutory function (Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164 at [95]).

    (v) ‘the gravity of the impropriety or contravention’: s138(3)(d)

  62. The integrity of the justice system is at the core of this concern. The ALRC notes relevant considerations include the seriousness of the misconduct, whether there is a pattern of misconduct and whether any relevant legislation itself impliedly forbids the use of facts or things obtained in breach of its terms (at [964]).
  63. Evidence arising from serious, deliberate or entrenched police illegality or impropriety will frequently be excluded (Ridgeway v R (1995) 184 CLR 19 at 38-39; [1995] HCA 66 per Mason CJ, Deane and Dawson JJ).
  64. In R v Gilham [2008] NSWSC 88, Howie J noted:

    the more egregious the illegality or the impropriety accompanying the obtaining of the evidence, the more likely it is that the balance will fall in favour of the exclusion of the evidence (R v Gilham [2008] NSWSC 88 at [22]).

  65. In DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 335, the Victorian Court of Appeal was particularly damning of the 'endemic' practice of not requiring the accuracy and truthfulness of affidavits in support of warrants to be sworn to on oath or by affirmation.
  66. The Court notes that:

    [t]o proffer to a magistrate material which is not sworn or affirmed in order to obtain a search warrant has a tendency to subvert a fundamental principle of our law (DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 335 at [58]).

  67. However it did note that it was not an impropriety of the highest order, giving examples of varying levels of improprieties in the following way:

    At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct (DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 335 at [68]; cited with approval in Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) (2013) 42 VR 513; [2013] VSC 575 at [196] per J Forrest J).

  68. It is therefore important for the court to examine a police officer’s state of mind and motivations for their conduct (R v Gallagher & Burridge [2015] NSWCCA 228 at [53]-[54]).
  69. However, the ‘fact that a police officer has acted lawfully, honestly and with integrity does not prevent [an] impropriety being serious’ (DPP v Carr [2002] NSWSC 194 at [82] per Smart AJ). That case involved a person’s arrest for a minor offence when the defendant's name and address were known to police and there was no risk of the defendant departing and there was no reason to believe a summons would not be effective.
  70. Contraventions and improprieties are likely to be more serious if they breach procedures established to protect rights, for example, warrants (R v Burrell [2001] NSWSC 120 at [25] per Lockhart J (citing Crowley v Murphy (1981) 52 FLR 123 at 141-142 per Lockhart J)) or if they fail to comply with a statutory scheme designed to protect vulnerable persons (R v Helmhout [2000] NSWSC 208 at [19] per Bell J, affirmed in R v Helmhout [2001] NSWCCA 372).
  71. In R v Helmhout [2001] NSWCCA 372, two members of the Court held that this usually requires consideration of the individual’s personal characteristics (at [12] per Ipp J; and at [39]-[41], [50] per Hulme J).
  72. A ‘mere breach’ of a police code of conduct does not necessarily mean the evidence obtained should be excluded, especially when the charged offence is serious (R v Em [2003] NSWCCA 374 at [93]-[95] per Howie J (Ipp JA and Hulme J agreeing) (and not considered on appeal after retrial)).

    (vi) ‘whether the impropriety or contravention was deliberate or reckless’: s138(3)(e)

  73. ALRC 26:1 notes that an officer’s mental state is relevant in terms of both discipline and deterrence. In a case of an officer’s mistaken belief, there is less need for discipline and there is less taint on the judicial system, but deterrence is concerned with the future. Also, such mistake is largely irrelevant to the person whose rights were infringed (at [964]).
  74. At common law, the degree of deliberation in a breach is a key factor in the exercise of the discretion (see, for example, Bunning v Cross (1978) 141 CLR 54 per Stephen and Aicken JJ).
  75. The Act does not define ‘reckless’. Courts have interpreted the term in various ways, ranging from:
  76. In DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355, the Court of Appeal concluded that recklessness must involve:

    as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a ‘don't care’ attitude generally (DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 at [84]-[85], citing with approval R v Helmhout [2001] NSWCCA 372 at [33] per Hulme J).

  77. The Court said that:

    [t]hat passage accords with the conventional understanding of recklessness within the criminal law. Conduct would be reckless if the officer had foresight that it might be illegal but proceeded with indifference as to whether that was so. What is described as an alternative of a ‘don’t care’ attitude expressed in the passage from Helmhout must be understood as meaning that the offender, recognising that the conduct might be illegal, did not care whether it was (DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 at [85]).

  78. This approach to recklessness has been subsequently upheld in R v Gallagher & Burridge [2015] NSWCCA 228. Recklessness must be distinguished from negligence or carelessness (at [51]-[52]).
  79. The common law has also observed that evidence admitted notwithstanding ‘isolated’ and ‘accidental non-compliance’ with statutory provisions ‘does not demean the court as a tribunal whose concern is in upholding the law’ (Bunning v Cross (1978) 141 CLR 54 at 78 per Stephen and Aicken JJ).
  80. Similarly, there are decisions under the Act which consider that a police breach of statutory duty which represents ‘inexperience’ and a ‘lack of training’ rather than ‘reckless’ or ‘dishonest’ conduct is ‘a significant matter affecting the s138 judgment’ (in favour of admission) (R v Dalley [2002] NSWCCA 284 at [93] per Simpson J).
  81. If a breach is innocent and the alleged offence is serious, then this is a powerful argument against rejection; and high probative value will favour admission (R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 at [27]-[29], [35] per McClellan CJ at CL (Bell and Howie JJ agreeing)).

    (vii) ‘whether the impropriety or contravention was contrary to or inconsistent with.. the International Covenant on Civil and Political Rights’: s138(3)(f)

  82. ALRC 26:1 notes that, while infringement of individual rights may be seen as an aspect of seriousness of the misconduct, the high level of public interest in these rights means it is ‘more appropriate’ to deal with their infringement separately (at [964]).
  83. In R v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1, Kirby J referred to Article 14.3(g) (in relation to the privilege against self-incrimination and the right to silence) of the International Covenant on Civil and Political Rights (ICCPR) (R v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1 at [135], fn178; see also Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164 at [95]-[96]).
  84. A copy of the ICCPR as it applies in Australia is set out in Schedule 2 of the Human Rights and Equal Opportunity Act 1986 (Cth).

    (viii) ‘whether any other proceeding… has been or is likely to be taken in relation to the impropriety or contravention’: s138(3)(g)

  85. As the court noted in R v Gallagher & Burridge [2015] NSWCCA 228, the fact that no other proceedings will be taken in relation to the contravention is a factor in favour of rejecting the evidence, as this will be the only way to mark the contravention (at [45]).
  86. This affirms the ALRC's view that

    [t]he availability of alternatives to evidentiary exclusion should be an important factor in the exercise of the judicial discretion … [including] civil actions, criminal prosecutions and internal and external disciplinary procedures (ALRC 26:1 at [964]).

  87. Further:

    If the action [is] disowned by those in higher authority and appropriate action taken, it would be unlikely that ‘considerations of public policy relating to the integrity of the administration of criminal justice’ would require exclusion of the evidence in question (Ridgeway v R (1995) 184 CLR 19 at 53, 64; [1995] HCA 66; cited in Nicholas v R (1998) 193 CLR 175 at [76] per Gaudron J).

  88. Basten JA has observed that an ‘incongruity’ may exist between a situation where an officer is disciplined for misconduct and so the evidence is not excluded, and convicting a person on the basis of evidence obtained by that misconduct. Further, it is not always possible to know whether disciplinary procedures will be taken against an officer (sometimes this decision is left until proceedings are completed). And in some instances, a finding in a judgment of a contravention or impropriety in obtaining evidence may, itself, lead to disciplinary action, irrespective of whether the evidence was excluded (Parker v Comptroller-General of Customs [2007] NSWCA 348 at [64]).

    (ix) ‘the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law’: s138(3)(h)

  89. ALRC 26:1 notes relevant considerations for this element include:

    Other considerations

  90. The list of factors under s138(3) is not exhaustive. Thus, there is scope for courts to consider others.

    (i) Unfairness to a defendant

  91. Neither s138(1) nor s138(3) refers to ‘unfairness’ to a defendant. Section 90 (Discretion to exclude admissions) does so refer but it is restricted to admissions.
  92. The concept of unfairness has been expressed in the ‘widest possible form’ in s90 and s138 and reflects the ‘policy discretion’ developed by the common law (R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [67]-[68] per Toohey, Gaudron and Gummow JJ); Pavitt v R [2007] NSWCCA 88 at [30]).
  93. However, the discretion to admit evidence under s138 is distinct and separate from that arising under s90. Section 138 seeks to balance two public interests (the desirability of admitting reliable evidence and the undermining of public confidence in the administration of justice).
  94. McHugh J has suggested (in obiter) that fairness to the accused is ‘almost irrelevant’ to ‘high public policy’ considerations. On the other hand, in Pollard v R (1992) 176 CLR 177,Deane J observed that fairness to an accused can readily intersect with considerations of high public policy in the administration of criminal justice (at 407). In DPP v Farr [2001] NSWSC 3, Smart AJ acknowledged that it is the policy of the law that a trial be fair (at [86]).
  95. More recent authority suggests that, while relevant, fairness to the accused is not ‘paramount’ (R v Em [2003] NSWCCA 374 at [74] per Howie J (Ipp JA and Hulme J agreeing)). That Court held that the trial judge’s discretion miscarried by according too much weight to fairness to the accused.
  96. Odgers observes that fairness to the accused is ‘not determinative’ under s138. But when improper methods create a significant danger that evidence is unreliable, it will be a ‘powerful consideration’ favouring the conclusion that the ‘desirability’ of admitting evidence is outweighed by the ‘undesirability’ of doing so (see Odgers, Uniform Evidence Law in Victoria (2010) at [1.3.15020]; see also R v Syed, Islam, Mahmood [2008] NSWCCA 37 at [37] per Hulme J (McClelland CJ at CL and Harrison J agreeing)).

    (ii) Other factors

  97. The ALRC cites other potentially relevant factors as the public interest in convicting the guilty (see ALRC 26:1 at [958]); the mental state of the relevant law officer; and the urgency with which officers acted (see ALRC 26:1 at [964]; see also Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) (2013) 42 VR 513; [2013] VSC 575 in the context of a civil claim for damages).
  98. The interviewee’s personal circumstances are relevant under s138, as the terms of s138(2) refer to the subjective impact on the interviewee’s ability to respond rationally to the questioning (DPP v MD (2010) 29 VR 434; [2010] VSCA 233 at [33]-[44]).
  99. Other potentially relevant factors identified in the common law include:

    Appellate review

  100. Like s137, s138 is not discretionary but requires an evaluation, the outcome of which determines whether the evidence is admissible. Consistently with the approach to s137, it is suggested that decisions applying s138 may be reviewed on appeal only in accordance with House v R principles (DPP v MD (2010) 29 VR 434; [2010] VSCA 233 at [27]-[32]; DPP v Marijancevic; DPP v Preece (2011) 33 VR 440; [2011] VSCA 355 at [13], [81]; Em v R (2007) 232 CLR 67; [2007] HCA 46 at [55]; Norbis v Norbis (1986) 161 CLR 513 at 518-519; [1986] HCA 17; but see Riley v R [2011] NSWCCA 238 at [161], albeit relating to s137 of the Act; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 at [39], [41]-[43]).

    Significant other sections that are or may be relevant

Other sections include:

Last updated: 4 July 2017

See Also

Part 3.11: Discretionary and Mandatory Exclusions (ss 135 – 139)

s 135 – General discretion to exclude evidence

s 136 – General discretion to limit use of evidence

s 137 – Exclusion of prejudicial evidence in criminal proceedings

s 139 – Cautioning of persons