1 contents · 2.1 s 135 general discretion in civil and criminal to exclude • may refuse if...

1 CONTENTS

2 Discretionary and mandatory exclusions S 135-138 ....................................................................... 5

2.1 S 135 General discretion in civil and criminal to exclude evidence ........................................ 5

2.2 S 136 General provision is to limit the use of evidence .......................................................... 6

2.3 S 137 A court must refuse evidence if its probative value would outweigh any prejudicial to

the accused ......................................................................................................................................... 6

2.4 S 138 Considers illegal evidence – improperly or illegally obtained ....................................... 6

2.5 ALRC-unfair prejudice ............................................................................................................. 7

2.6 MAJOR CASES TO CONSIDER ................................................................................................... 8

2.7 Cases considering s 135 .......................................................................................................... 8

2.7.1 **Ordukaya v Hicks – discretion of s135 where evidence has little/no weight. ............ 8

2.7.2 Ainsworth v Burden – unfairly prejudicial = evidence will be used wrongly by the jury.

8

2.7.3 La Trobe Capital & Mortgage Corp v Hay Property Consultants..................................... 8

2.8 Cases considering s 137 .......................................................................................................... 9

2.8.1 **R v Lisoff- s137 “requires a real risk of unfair prejudice….. ........................................ 9

2.8.2 R v Dann -s137, unattractive evidence does not equal prejudicial. ............................... 9

2.8.3 **R v Shamouil –s137 weighing unfair prejudice is like comparing a weight of a rock

with length of a line. ..................................................................................................................... 10

2.8.4 R v Sood – s137, a case where it was not unfairly prejudicial. ..................................... 10

2.8.5 Aytugrul v The Queen ................................................................................................... 11

2.9 Cases considering s 138 ........................................................................................................ 11

2.9.1 DPP v Carr – improperly obtained evidence ................................................................. 11

2.9.2 Robinson v Woolworths – discretion to exclude improperly obtained evidence. ........ 12

2.9.3 DPP v Marijancevic; DPP v Preece ................................................................................ 12

3 Admissions : crim s82, 82, 90/Civil s82, 84, 87. ............................... Error! Bookmark not defined.

3.1 Major Cases to Consider .......................................................... Error! Bookmark not defined.

3.1.1 **R v Zhang –s84, shows the onus is on Crown to establish the admission was made

voluntarily to be admissible. ............................................................ Error! Bookmark not defined.

3.1.2 Kelly v R ............................................................................ Error! Bookmark not defined.

3.1.3 R v Zhang .......................................................................... Error! Bookmark not defined.

3.1.4 R v Moffat ......................................................................... Error! Bookmark not defined.

3.1.5 R v McLaughlan ................................................................ Error! Bookmark not defined.

3.2 v Helmhout ............................................................................... Error! Bookmark not defined.

3.2.1 ................................................................................................. Error! Bookmark not defined.

3.3 Forster v The Queen................................................................. Error! Bookmark not defined.


3.3.2 **R v Swaffield- unreliable evidence and voluntariness of admissions AND public

policy exclusion grounds. ................................................................. Error! Bookmark not defined.


3.3.4 **Pavic v The Queen-public policy and illegality ............. Error! Bookmark not defined.

3.3.5 **Em v The Queen- right to silence (rejected) ................ Error! Bookmark not defined.

3.4 Petty and Maiden v The Queen S89- admissions alleged to be inferred from silence ... Error!

Bookmark not defined.

4 Tendency and Coincidence: s95-101 .............................................. Error! Bookmark not defined.

4.1.1 Summary: ......................................................................... Error! Bookmark not defined.

4.2 Major Cases to Consider .......................................................... Error! Bookmark not defined.

4.2.1 **Pfennig v The Queen – TEST: the Crown must satisfy that there was no rational

view of the evidence consistent with an accused’s innocence. VERY DIFFERENCE FROM

STATUTE! Error! Bookmark not defined.

4.2.2 **R v Ellis: the Pfennig test NO LONGER APPLIES. NEW TEST: whether probative effect

outweighs prejudicial effect. ........................................................... Error! Bookmark not defined.

4.2.3 **AE v The Queen : possibility of concocted story. ......... Error! Bookmark not defined.

4.2.4 **Phillips v The Queen : QLD case so it applied Pfennig test. ........ Error! Bookmark not

defined.

4.2.5 **Jacara Pty Ltd v Perpetual Trustees : STARTING POINT! S97(1) must have significant

probative value. ............................................................................... Error! Bookmark not defined.

5 Credibility (s101) and Character (s110, 111-crim) ........................... Error! Bookmark not defined.

5.1 Credibility ................................................................................. Error! Bookmark not defined.

5.2 MAJOR CASES TO CONSIDER .................................................... Error! Bookmark not defined.

5.2.1 **Palmer v The Queen: s103 –final rule and bolster rule. Evidence relevant to

fact/credit distinction. ..................................................................... Error! Bookmark not defined.

5.2.2 **Nicholls v The Queen- collateral evidence rule............ Error! Bookmark not defined.


5.2.4 **Adam v The Queen s102: EA altered due to this case Error! Bookmark not defined.

5.2.5 **R v RPS- s103 limits cross-examination of credit issues, must have substantial

probative value. ............................................................................... Error! Bookmark not defined.

5.2.6 State Railway Authority of NSW V Brown ........................ Error! Bookmark not defined.

5.2.7 R v Ngo ............................................................................. Error! Bookmark not defined.

5.2.8 v Whitmore ...................................................................... Error! Bookmark not defined.

5.2.9 Hargraves v The Queen; Stolen v The Queen .................. Error! Bookmark not defined.

5.3 Character -criminal................................................................... Error! Bookmark not defined.

5.3.1 MAJOR CASES TO CONSIDER ............................................ Error! Bookmark not defined.

5.3.2 Melbourne v The Queen .................................................. Error! Bookmark not defined.

5.3.3 **R v Zurita – could not raise character evidence ........... Error! Bookmark not defined.

5.3.4 Braysich v The Queen ....................................................... Error! Bookmark not defined.

5.3.5 **Stanoevski v The Queen ............................................... Error! Bookmark not defined.

6 Documentary Evidence .................................................................... Error! Bookmark not defined.


6.1.1 **Butera v DPP- best evidence rule ................................ Error! Bookmark not defined.

6.1.2 Foreign Media v Konstantinidis........................................ Error! Bookmark not defined.

6.1.3 **NAB v Rusu – authentication of documents ................ Error! Bookmark not defined.

6.1.4 R v Iva Milat ...................................................................... Error! Bookmark not defined.

6.1.5 Evans v The Queen ........................................................... Error! Bookmark not defined.

6.1.6 R v Skaf ............................................................................. Error! Bookmark not defined.

6.1.7 Kozul v The Queen ........................................................... Error! Bookmark not defined.

6.1.8 **O’Meara v Dominican Fathers [2003] ACTCA 24, [85] . Error! Bookmark not defined.

6.1.9 **Kingham v Sutton (No3) [2001] FCA 1117, [127]- s48 proof of document. ........ Error!


6.1.10 **ASIC v Rich[2005] NSWSC 417 –inferences to authenticate documents ............ Error!


7 Witnesses ......................................................................................... Error! Bookmark not defined.

7.1 Section 20 Cases ....................................................................... Error! Bookmark not defined.

7.2 Section 38 case ......................................................................... Error! Bookmark not defined.

7.3 Section 46 case ......................................................................... Error! Bookmark not defined.

8 Relevance- s55. ................................................................................ Error! Bookmark not defined.

8.1 MAJOR CASES TO CONISDER .................................................... Error! Bookmark not defined.

8.1.1 Smith v The Queen – look for rational probative value. .. Error! Bookmark not defined.

8.1.2 Papakosmas v The Queen- important for complaint evidence ...... Error! Bookmark not

defined.

8.1.3 Evans v The Queen ........................................................... Error! Bookmark not defined.

9 Hearsay: s59 ..................................................................................... Error! Bookmark not defined.


9.1.1 Subramaniam v Public Prosecutor- difference between hearsay and original evidence.

Error! Bookmark not defined.

used to prove the fact that the representation was made.............. Error! Bookmark not defined.

9.1.2 Kameleh v The Queen – an example where evidence of a previous representation is

relevant for a non-hearsay purpose. ............................................... Error! Bookmark not defined.

9.1.3 Lee v The Queen - 2nd hand hearsay, consider ONLY what was intended to be

represented. ..................................................................................... Error! Bookmark not defined.

9.1.4 Caterpillar Inc v John Deere – Hearsay exceptions- 1st hand hearsay in civil

proceedings s64(2) ........................................................................... Error! Bookmark not defined.

9.1.5 Williams v The Queen- Hearsay exceptions- contemporaneous representations

s65(2)(b) Error! Bookmark not defined.

9.1.6 Graham v The Queen- representations in CRIMINAL proceedings- s66(2). ........... Error!


Fresh in the memory = recent or immediate and involves quality or memory. Measures by

days/hours. ...................................................................................... Error! Bookmark not defined.

9.1.7 Section 69(3) Cases: what documents are admissible as business records? .......... Error!


9.1.8 Vitali v Stachnik ................................................................ Error! Bookmark not defined.

9.1.9 Thomas v State of New South Wales – for ‘Australian proceeding’ accepted ....... Error!


9.1.10 Lithgow City Council v Jackson- s69(2)- personal knowledge requirement. .......... Error!


10 Opinion is excluded s 76 (exceptions s78-s79) ............................ Error! Bookmark not defined.


10.1.1 Lithgow City Council v Jackson- ambulance officers did not witness, hence excluded by

opinion rule. ..................................................................................... Error! Bookmark not defined.

10.1.2 Expert Opinion Cases ....................................................... Error! Bookmark not defined.

10.1.3 HG v The Queen- must be expert opinion, NOT: speculation, inference, personal or

second hand view as to credibility. .................................................. Error! Bookmark not defined.

10.1.4 S79 application: Adler v ASIC ........................................... Error! Bookmark not defined.

10.1.5 Darseef Pty Ltd v Hawchar: s79 application ..................... Error! Bookmark not defined.

10.1.6 R v Hien Phuoc Tang- ad hoc expert, not a recognised training, not good enough.

Error! Bookmark not defined.

10.1.7 Wood v R – expert must understand his responsibilities under Supreme Court. .. Error!


11 Privilege: s117 .............................................................................. Error! Bookmark not defined.

11.1.1 MAJOR CASES TO CONSIDER ............................................ Error! Bookmark not defined.

11.1.2 Baker v Campbell dominant purpose test ....................... Error! Bookmark not defined.

11.1.3 **Esso Australia Rescources Ltd v Federal Commissioner of Taxation: evidence

adduced at trial only. Legal advice. .................................................. Error! Bookmark not defined.

CLP was governed by common law for pre-trial matters (EA with adducing evidence)- s131A EA

now governs pre trial too. ................................................................ Error! Bookmark not defined.

11.1.4 Southland Coal Pty Ltd ..................................................... Error! Bookmark not defined.

11.1.5 Loss of CLP ........................................................................ Error! Bookmark not defined.

11.1.6 **Mann v Carnell- waiver of CLP can be express or implied. ......... Error! Bookmark not

defined.

11.1.7 Sovereign Motor Inns v Bevillesta .................................... Error! Bookmark not defined.

11.1.8 Divall v Misfud .................................................................. Error! Bookmark not defined.

11.1.9 Kang v Kwan ..................................................................... Error! Bookmark not defined.

11.1.10 Exemptions from giving evidence ................................ Error! Bookmark not defined.

11.1.11 Stergis- self-incrimination ............................................ Error! Bookmark not defined.

11.1.12 Public Interest Immunity – s130- government ............ Error! Bookmark not defined.

11.1.13 Commonwealth v Northern Land Council(1973) 176 CLR .......... Error! Bookmark not

defined.

11.1.14 Settlement negotiations s131: Rush and Tompkins v Greater London Council . Error!


11.1.15 Director-General, Dept of Community Services v D .... Error! Bookmark not defined.

11.1.16 R v Lodhi ....................................................................... Error! Bookmark not defined.

12 Burden and standard of proof ..................................................... Error! Bookmark not defined.

**Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments

......................................................................................................... Error! Bookmark not defined.

12.1.1 Qantas Airways v Gama ................................................... Error! Bookmark not defined.

12.1.2 Green v The Queen .......................................................... Error! Bookmark not defined.

12.1.3 Shepard v The Queen ....................................................... Error! Bookmark not defined.

2 Discretionary and mandatory exclusions S 135-138

Everything relevant will go in, and then look at exclusionary rules + discretions

• Operate to exclude evidence otherwise not excluded through some other rule

• Ultimately it allows evidence that is admissible to become inadmissible

• Discretions to exclude evidence that can’t be excluded through another rule

• Irregularity or improperly obtained evidence

• Exclusion is only an option if the court is satisfied that the probative value of the evidence

is substantially outweighed by the danger that the evidence might be unfairly prejudicial

• Just because something is unfair doesn’t mean it should be excluded-Papakosmas (not unfair

if it makes it more likely D will be convicted)

• ALRC- danger if fact finder use the evidence on an emotional basis

• Reliability and credibility only looked at in extreme cases, where unreliability has been

proven to be an issue in the proceedings

• R v Ireland- discretionary-public need to convict criminals, but public interest in protection of

rights

2.1 S 135 GENERAL DISCRETION IN CIVIL AND CRIMINAL TO EXCLUDE • ‘may refuse’ if misleading or confusing-135 (b)

• If it would cause a waste of time-135 (c)

• Unfairly prejudicial to a party

• Basic proposition is relevance

• Ordukaya v Hicks- 92 y/o woman, negligence over foot path, impossible to give evidence.

Allowed to do a stat dec over issue, this was admitted as evidence, unsuccessful bid under s

135 to exclude because couldn’t examine. Probative value outweighed, any prejudice.

• R v Clarke-account of murder, prosecution gave evidence of relationship through witness

testimony, questioning seemed unfair, Clarke wanted the evidence excluded. It wasn’t

misleading, confusing, time wasting. It was adverse to Clarke’s trial but wasn’t unfair. The

court went on to consider Papaksomas-not unfair because there is a likelihood that the

accused will be convicted

• If you don’t apply 135 this precludes 137

• Look at probative value- evidence that could rationally affect the assessment of the

existence of a fact in issue

• R v Ames- gruesome photos, admitted because they showed the direction of blood, relevant

to decide whether the deceased had been murdered or committed suicide

• R v McLean and Funk ex p Attorney General (1991) 1 Qld R 231- evidence from an accomplice

testifying for the prosecution-a high risk of fabrication if has been given an immunity from

the proseuction

2.2 S 136 GENERAL PROVISION IS TO LIMIT THE USE OF EVIDENCE • Can only operate when evidence is relevant for more than one purpose

• If wanting to be used for non-hearsay but for opinion evidence for example

• R v Toai Siulai; R v Madigan-comment to the jury. Later case considered a log book of

conversations, judge told jury not to take evidence as proof of the identity of the person said

to be speaking

2.3 S 137 A COURT MUST REFUSE EVIDENCE IF ITS PROBATIVE VALUE WOULD

OUTWEIGH ANY PREJUDICIAL TO THE ACCUSED • Not really discretionary as it says ‘must’ not ‘may-mandatory

• Again look at probative value

• Refuse to admit it because its unfair to the defendant

• R v Lisoff- if probative value is outweighing by judicial effect. Can’t be just a mere possibility

that the jury will act in a way, just focusing on the court refusing evidence by prosecutor

• Evans v The Queen- balaclava theft, different views –wasn’t misleading or confusing, didn’t

cause a waste of time, could have helped his case if he didn’t look like the suspect

• Papkosmas [86]- s 137 not invoked, however was relied on in high court. Probative value is

an important consideration in this discretion. Reliability. Case by case basis. Did not invoke s

136. Said that reliability should be considered.Is a real risk the evidence will be misused by

the jury in some unfair way

• R v Shamouil-there is a presumption that the evidence is to be considered to be accepted, a

restrictive approach to reliability was favoured. Probative value was not established

• R v Mundine- notions of reliability should not be considered

• Look at reasons the evidence cannot be rested or cross examined

• The extent to which the fact finder will miss-estimate the weight of the evidence

2.4 S 138 CONSIDERS ILLEGAL EVIDENCE – IMPROPERLY OR ILLEGALLY OBTAINED • Unlawfully or improperly obtained evidence, exclude unless considerations supporting

admission of the evidence outweighs those supporting it’s exclusion

• Public policy discretion

• Look at probative value

• “fruit of the poisonous tree”-state shouldn’t be allowed to gain an advantage from an

unlawful act

• Improper investigation

• Coercion or deceptive methods

• No caution given

• Making false statements in order to obtain information

• Must refer to common law cases

• Includes evidence that could not be lawfully obtained without an unlawful act

• Not how they got the evidence, look at the process which let it to being in court

• To uphold the legitimacy of the judiciary

• There is no general right t privacy-few implications for the conduct of investigators

• There are various statutory rights that exist for investigative powers such as; searching

people, enter and search property, detain people for investigations, use of technology

methods

• Police must have reasonable grounds, suspicions-should include warrant in circumstances

(deliberate or reckless, inconsistent with civil and political rights)

• S 139 (3) seriousness of misconduct

• Coco v R- statute authorising the use of a listening device did not provide investigators with

an implicit power to trespass on private property to plant the device

• DPP v Carr- improperly or obtained evidence, police investigated rock throwing, arrested

witness for foul language, struggle between officer and boy. Arrest wasn’t proper as there

were alternative procedures. Chose to arrest because that would avoid doing paperwork.

• Swaffield;Pavic- didn’t caution, this triggered the right to use the discretion but does not

necessarily mean the evidence should be excluded. Covertly recorded conversations.

Connection with s 90. Wore wires, non-investigative ears such as friends. Test on pg 346

palmer.

• Parker v Comptroller-General of Customs (2009)- 2 step approach, is it illegally or improperly

obtained? Is its inclusion desirable?

• Ridgeway v R- can be extended to exclude things prior to the commission of a crime. Police

allowed the heroin to come through customs to enter defendant’s possession. Concerned

entrapment

• R v Lobban- plants seized and destroyed although there was a statutory requirement to

preserve them for a certain amount of time-wasn’t sufficient to exclude the evidence

2.5 ALRC-UNFAIR PREJUDICE • Unfair if decision maker basis judgement on emotion, improper basis unconnected with the

case

• Sense of horror provokes an instinct to punish

• Bases a decision on something other than the established propositions of a case

• Evidence unfairly prejudicial if used to evoke a response of shock from the jury and incite an

emotional response

2.6 MAJOR CASES TO CONSIDER

2.7 CASES CONSIDERING S 135

2.7.1 **Ordukaya v Hicks – discretion of s135 where evidence has little/no weight. • Plaintiff unsuccessfully sued a 92 year old defendant for negligence in respect of a paving

step

• Was unable to attend to give evidence

• Use of statutory declaration stated she was unaware of the instability in the paving step

• The plaintiff was unsuccessful in having the evidence excluded under s 135

• Look at unfairness in obtaining the evidence, that is the circumstances in which the evidence

was procured

• To exclude the evidence if the strict rules of admissibility would operate unfairly against the

accused

• The discretion will only exclude the evidence if it has little or no weight

• Stat dec was rightfully admitted into evidence

2.7.2 Ainsworth v Burden – unfairly prejudicial = evidence will be used wrongly by the

jury.

• It is not unfairly prejudicial to a party if the material tendered by his opponent merely proves

or strongly supports the opponents case

• Unfairly prejudicial if there is a real risk that the evidence will be misused by the jury in some

unfair way

• Substantially outweighs

• Trial judge thought the jurors would find it practically impossible to put the documents out

of their minds when considering the truth

• The defendant would not have been procedurally disadvantaged by the admission

• The rejection of the evidence was erroneous

2.7.3 La Trobe Capital & Mortgage Corp v Hay Property Consultants

• La Trobe claimed that Hay negligently valued land for purposes of the loan and if properly

advised, La Trobe would have sought to make an alternative loan

• Would not have lent the money to Jet

• Ruled that the evidence was relevant and was not inadmissible according to s 135

• La Trobe tendered a witness, Mr Gidman whom explained the process typically followed

when dealing with a new loan application

• The controversial aspect of his evidence was he said La Trobe would not have lent the

money to Jet

• Hay argued the evidence was of limited probative value and they were prejudiced against

because of their inability to cross examine Gidman

• Judge rejected this evidence

• The evidence was straightforward and could easily be challenged if untrue

• There are no compelling reasons to exclude the evidence

• Guide Dog case-latter was opinion

• There is nothing paractically unusual about his evidence

• There was nothing unexpected that was likely to arise in cross-examination

• Held that the primary judge did not err in admitting Mr Gidman’s evidence


2.8.1 **R v Lisoff- s137 “requires a real risk of unfair prejudice…..

……to the defendant by reason of the admission of the evidence complained of” (per Spigelman CJ,

Newman and Sully JJ).

• Lisoff was one of three defendants on trial for assault.

• Evidence taken from his clothing

• The evidence was initially excluded on the basis that there was a real danger that the jury

may be unduly swayed by the scientific nature of the evidence

• Held it was incorrectly excluded

• DNA evidence had clear probative value

• Not unfairly prejudicial because it damaged the accused’s case. It must damage in some

unacceptable way, provoking some irrational, emotional response or giving it more weight

than it should have”

• A jury properly directed as to the relevant law and as to the relevant law, would have been

ok

• Intervention of court should have been admitted evidence

2.8.2 R v Dann -s137, unattractive evidence does not equal prejudicial.

• Dann was convicted of having sexual intercourse with his seven year old stepson

• Appeal that Dr’s evidence should have been excluded – stepson had dilation of the anus,

could be from sexual abuse or constipation

• The complainant suffered from a condition which could easily have been caused by

constipation

• The risk of unfair prejudice was substantial

• Probative as part of the crown fell sharply however there was some mild support for the

defence case

• No prejudice

• Capable of being used by the defence in support of a submission negating abuse Appeal

dismissed

2.8.3 **R v Shamouil –s137 weighing unfair prejudice is like comparing a weight of a

rock with length of a line.

• Videotape evidence of a photo-board identification excluded on the basis that the probative

value was outweighed by the danger of unfair prejudice to the defendant

• S was on trial for shooting Dawood

• Dawood initially had a clear and quite firm opinion of what the assailant looked like

• Unfair because the jury would assume that the attempt to retract the identification was

after a threat of reprisal, religious issue

• The evidence could rationally effect the assessment

• Appeal allowed Crown would have instructed the jury to prevent such views

2.8.4 R v Sood – s137, a case where it was not unfairly prejudicial.

• Sood, medical practitioner based on fraud

• Said she didn’t place the cash books in the bin for fear of medicare fraud Is it relevant?

• Is it probative?

• is there danger of unfair prejudice?

• Probative value is one which will rationally affect the assessment of the probability of the

existence of a fact in issue

• Reliability should not be considered-R v Shamouil

• Taken at its highest, its probative value is outweighed by the prejudicial effect

• Reliability and credibility considerations should be limited-R v Cook

• In this case held reliability and credibility should play no part in assessing the probative value

of the evidence

• Take the evidence to its highest

• The trial judge said it wasn’t probative that placing the documents in the bin was a sign of

her guilt

• The trial judge thus took on the role of the jury

• Not unfairly prejudicial because its probative value sustainably outweighed any prejudicial

effect

• Appeal allowed, judgement set aside

2.8.5 Aytugrul v The Queen

• Appellant convicted of murder, admissibility of DNA analysis

• Hair found under deceased’s finger nail- how common was this found in the community

• Expressed as a frequency ratio and as an exclusion percentage

• Appellant argued the evidence should have been excluded under s 135 or s 137

• Exclusion percentages will always convey more to a hearer then the evidence allows

regardless about what other evidence is given

• Claimed prejudicial affect outweighed the probative value and that it was misleading or

confusing

• The evidence was clear, and although adverse to the appellants case this in no sense is

unfairly prejudicial or misleading or confusing

• The evidence was not given and did not establish that the DNA profile found in the hair

definitely came from the appellant

• The appellant accepted that the percentage was relevant

• Usually such evidence is tendered to show that there is a small pool of persons, including the

accused that could have left such a trace

• The trial judge did warn the jury to not treat the DNA evidence as ‘definitely or necessarily’

from the appellant

• No danger of unfair prejudice to the appellant -Appeal dismissed


2.9.1 DPP v Carr – improperly obtained evidence

• Carr was arrested for swearing at a policeman, resisting arrest, assaulting and intimidating

police

• Police did not consider summons

• Did not read the NSW Police Service Handbook

• Knew the defendant’s name and address

• A process not requiring arrest was not chosen because it was ‘far quicker’ to arrest then

issue any caution or field court attendance notice

• Improperly- an act that is highly irregular, impermissible or clearly inconsistent with

standards of acceptable police conduct. Test is objective

• Lawfulness is one thing appropriateness is another

• There was nothing to suggest that the claimant was departing

• No issue of public safety, no evidence of anything exceptional to justify from the Handbook

• The initial decision to arrest was born of expediency

• The actions of the officer escalated the incident and led to the alleged commission of further

offences

• The offences carried out after were closely related and interconnected with the arrest, they

were also at the lower end of the criminal scale

• The magistrate was entitled to hold that the impropriety was reckless

2.9.2 Robinson v Woolworths – discretion to exclude improperly obtained evidence.

• The department of health procured minors to purchase cigarette’s as part of it’s

investigation into the compliance of retailers to the prohibition of the supply of cigarette’s to

minors

• The minimum standards which society such as ours should expect and require of those

entrusted with powers of law enforcement

• In cases of mere opportunity the accused person is fairly regarded as wholly responsible for

his own actions

• But in cases which go beyond mere opportunity, where the offence results from the illegal

actions of those whose duty it is to uphold the law, it is they who in a real sense are

responsible for the commission of a crime, not the accused

• The onus lies on the accused to establish the impropriety or irregularity

• Use of public and a friend to enter a shop and seek to purchase an item which was legally

and openly available for sale

• Did not involve the application of any form of pressure, persuasion or manipulation

• Involved a straightforward request, made in a public place in the course of legitimate

business and therefore involved no intrusion on individual rights

• Young person who purchased the tobacco is unlikely to complain about a contravention, the

conduct constitutes a viable and practical means of achieving a better level of compliance

• When a compliance program does not involve unlawful conduct on the part of the

enforcement agency and does not involve any intrusion on human rights and liberties of the

person being tested, there is a less of a concern related to propriety

• Evidence was not improperly obtained

2.9.3 DPP v Marijancevic; DPP v Preece

• Respondents charged with various offences relating to drug manufacturing and

traffickingexecution of warrants under Acts

• Trial judge found that the affidavits relied on to obtain the warrants had not been sworn

• Found that the search warrants were invalid and that the entries, purportedly pursuant to

the warrants were unlawful and constituted trespass

• Ruled all the evidence gathered pursuant to the warrants were inadmissible

• The gravity of the impropriety was of the highest order

• The conduct of the police officers who signed the affidavit was deliberate

• That the police officers conduct was at the very least reckless behaviour of the highest order

• Cutting corners or culture

• The swearing of the oath is significant and would take at the most 15 seconds

• Reflects poorly on the police members involved

• A search warrant authorises an entrance upon property and the seizure of property which

would otherwise constitute an unlawful trespass

• The common law has jealously guarded private property rights and has upheld the right of

property owners to exclude other people and the state

• Probative value of the evidence was not contested

• Judge looked at public interest in admitting the evidence

• There would have been no difficulty in obtaining the evidence without impropriety

• The impropriety was of the highest order

• Rejected prosecutions submissions that the contravention was only a technical error brought

about by slight oversight and it was neither serious or grave

• Conduct was held to be serious and grave

• Impropriety was of such a high order that the evidence should not be admitted

• He did not accept that this was not a deliberate practice by these two officers, it was a

culture held by the crime squads of Victoria Police at that time Appeal dismissed

1 contents · 2.1 s 135 general discretion in civil and criminal to exclude • may refuse if...

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