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Presser, Bram --- "Public Policy, Police Interest: A Re-Evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence'" [2001] MelbULawRw 24; (2001) 25(3) Melbourne University Law Review 757


RESEARCH NOTE

PUBLIC POLICY, POLICE INTEREST: A RE-EVALUATION OF THE JUDICIAL DISCRETION TO EXCLUDE IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE

BRAM PRESSER[*]

[This research note evaluates the public policy head of the discretion to exclude illegally or improperly obtained evidence in light of the recent changes contained in the Evidence Act 1995 (Cth) and (NSW) and the High Court’s decision in R v Swaffield; Pavic v The Queen. It examines 39 cases, decided both before and after the changes, and concludes that, while the discretion remains largely impotent, the changes do give some cause for hope that the discretion may yet turn out to be an effective police accountability mechanism, albeit in limited circumstances.]

CONTENTS

INTRODUCTION

Over the past three decades, numerous government inquiries and academic studies have raised serious concerns about the manner in which the police investigate crime and, perhaps more significantly, the efficacy of the investigative process itself. In particular, these studies have identified process corruption,[1] corruption for personal gain,[2] discrimination,[3] the use of excessive force[4] and procedural incompetence[5] as impeding ethical and effective criminal investigations.

A complex web of accountability mechanisms has evolved in an attempt to deal with these problems. Internal mechanisms, civil actions, criminal prosecutions, civilian review bodies, and independent commissions of inquiry have all played an important part in improving investigative and ethical standards. Yet none of these mechanisms is so directly geared to the minutiae of the investigative process as the judicial discretion to exclude evidence obtained through illegal or improper means. Indeed, it could be argued that the exclusion of evidence may be — at least in theory — the most effective of the existing mechanisms in that it is part of the criminal justice system itself, and targets the main purpose of criminal investigations, namely successful prosecutions.

Previous analyses of the discretion have concluded that it is not effective as an accountability mechanism. For example, Sallman and Willis assert that police failure to conform to laws and guidelines has ‘often been tolerated by courts who have seen the conviction of persons they perceived to be clearly guilty [to be] of more importance than the control of police practices’.[6] Similarly, the Wood Report found that process corruption, even though unlawful, ‘accords with long standing practice [and] only infrequently leads to the exclusion of evidence’.[7] However, recent changes to the law of evidence, as contained in the Evidence Act 1995 (Cth) and (NSW) (‘uniform evidence legislation’) and R v Swaffield; Pavic v The Queen[8] necessitate a re-evaluation of the discretion. Both of these developments sought to clarify the operational contours of the discretion and to allow for its coherent invocation by judges. Yet it remains to be seen whether they were merely cosmetic changes or whether the discretion might finally take its place as an effective and important police accountability mechanism.

II THE EXCLUSIONARY PHOENIX: POLICE MISCONDUCT,
FAIRNESS AND PUBLIC POLICY

The discretion to exclude illegally or improperly obtained evidence is but one part of a large body of rules regulating the admissibility of evidence. Police misconduct undoubtedly affects the operation of other rules but it is only a peripheral consideration in the admissibility equation pertaining to those rules. Indeed, most of those rules are independently defendant- and condition-focused, designed to ensure that only relevant and reliable evidence is admitted. Where police conduct renders evidence unreliable, it will lead to exclusion. But it is not the nature of the misconduct that is at issue. Rather, it is the effect the conduct had on the defendant — whether the conditions created were such as to cast doubt upon the reliability of the evidence. Furthermore, many other factors completely unrelated to the police might also render evidence inadmissible. The discretion to exclude improperly or illegally obtained evidence, on the other hand, is wholly concerned with the conduct of the police and may, at times, result in the exclusion of otherwise reliable evidence.

Two bases for discretionary exclusion have been recognised, one resting on notions of fairness to the accused and the other on notions of higher public policy. Although these two heads have co-existed for some time, often being liberally interchanged, their respective operational contours were finally distinguished and definitively set down in both the uniform evidence legislation and the Swaffield case.

A Fairness

Traditionally, fairness has been the dominant head of the discretion to exclude improperly or illegally obtained evidence and, until R v Ireland,[9] it encompassed in conceptual terms what is now the public policy head as well. Given the conceptual vagueness of ‘fairness’, it is not surprising that there was little consistency in the application of the discretion. Indeed, the High Court approached the discretion in two quite distinct ways.[10] The ‘“narrow approach” looks solely at the question of whether reception of the evidence is likely to preclude a fair trial ... This approach is therefore concerned only with those factors which may affect the outcome of the trial’, making it, in operational terms, little more than another rule used to render unreliable evidence inadmissible.[11] The ‘broad approach’ included similar considerations but was also concerned with ‘factors which can have no impact on the outcome of the trial, but which are contrary to more general notions of fairness.’[12] These included disciplining the police and protecting the integrity of the criminal justice system.

In Swaffield, the High Court finally settled on the narrow view. Toohey, Gaudron and Gummow JJ, with whom Brennan CJ substantively agreed, stressed that the subject of the discretion is not some general unfairness to the accused, but rather only that which ‘relates to the right of an accused to a fair trial.’[13] Of particular concern was the possibility of ‘forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained.’[14] Forensic disadvantage will be occasioned where the accused is forced to defend him or herself against unreliable evidence.[15] Only in very limited circumstances will identifiable police misconduct lead to exclusion on the basis of fairness — that is, where the misconduct causes the reliability of the confession to be brought into question.[16] In other situations, where there is alleged police misconduct, exclusion should only be considered on the grounds of public policy.

B Public Policy

Public policy, as a distinct ground for exclusion, developed from the decision in Ireland which recognised other considerations to be taken into account when choosing to admit or exclude evidence. At first, it was unclear whether this statement merely extended the fairness discretion, but the subsequent case of Bunning[17] found that it had created a new and independent discretion to be exercised in its own right.

Rather than notions of fairness to the accused, this new discretion was concerned with higher notions of public policy.[18] In exercising the discretion, the court must balance

two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.[19]

The public policy discretion is, therefore, exclusively concerned with police conduct, although its justification is not purely disciplinary. In Pollard v The Queen,[20] Deane J stressed the importance of maintaining an air of perceived legitimacy in judicial proceedings. His Honour noted that exclusion was necessary to ‘prevent statements of judicial disapproval appearing hollow ... [and] to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality.’[21]

In Bunning, Stephen and Aickin JJ set out several factors that a judge should consider when exercising their discretion to exclude evidence on the basis of public policy. These include: the nature of the offence charged; whether the conduct was deliberate, reckless or accidental; whether the nature of the conduct affected the cogency of the evidence so obtained; the ease with which those responsible might have complied with the law in procuring the evidence in question; and the legislative intention (if any) in relation to the law that is said to have been infringed.[22]

Subsequent cases have added factors to the equation — most notably Ridgeway v The Queen,[23] which expanded the Bunning discretion to include cases in which the commission of the crime itself was illegally procured by the police for the purposes of obtaining a conviction. In Ridgeway, the Court rejected the defence of entrapment[24] but recognised the existence of different levels of procurement, the highest of which will lead to exclusion. At the lower end are cases in which the police had induced the accused to commit the offence which he or she committed. In these cases, the public interest generally favours the conviction of the offender. At the higher end are cases in which the police conduct constitutes the principal offence to which the charged offence is ancillary, or where the police conduct creates, or itself constitutes, an essential ingredient of the crime charged. To bring about exclusion, there must be ‘a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances.’[25]

As a consequence of the distinction drawn in Ridgeway, it has become extremely difficult to have evidence excluded when that evidence was obtained as part of an undercover operation which necessarily involved police participation in criminal activities to obtain evidence of the existence of the offences.[26] This is particularly relevant to drug-related cases.[27]

In Swaffield, the majority reiterated the factors that Stephen and Aickin JJ in Bunning had suggested ought to be taken into account when weighing up the competing public policies.[28] Kirby J, in his dissent, followed suit but added two more factors of his own:

For my part, I would add two further considerations to this non-exhaustive list, namely:
[First] whether the conduct, if proved in court, would involve the court itself in giving, or appearing to give, effect to illegality or impropriety in a way that would be incompatible with the functions of a court, or such, or which might damage the repute and integrity of the judicial process; and
[second] whether the conduct would be contrary to, or inconsistent with, a right of the individual which should be regarded as fundamental.[29]

It is difficult to see how the first factor adds substantially to the existing common law position as set out in Bunning and expanded in Ridgeway. However, it does give substance to the oft-expressed fear that the courts should not be seen to give curial approval or encouragement to the unlawful conduct of those whose specific task is to uphold the law. The second additional factor is unproblematic and allows for courts to look to international treaties, to which Australia is a signatory, and ensure that the judicial process is run in accordance with them. It is, however, too early to see whether these factors will be followed in jurisdictions that have not enacted the uniform evidence legislation.[30] One may speculate that the answer will be in the affirmative.

C Uniform Evidence Legislation

Although the uniform evidence legislation ‘is not a restatement in statutory form of common law and existing statutory rules of evidence’,[31] substantial similarities do exist. Indeed, a somewhat symbiotic relationship appears to exist between the two, in that the legislation was modelled around existing rules and has influenced the development of those rules subsequent to its enactment.[32]

The common law judicial discretion to exclude evidence on the basis of public policy has been substantively replicated in s 138[33] of the uniform evidence legislation.[34] There is, however, one major difference. Under the common law, evidence tainted by police misconduct is prima facie admissible with the trial judge having the discretion to exclude it. Under the legislation, however, such evidence is prima facie inadmissible, although the trial judge has a discretion to allow its admission. This therefore shifts the onus away from the defendant once the illegality has been satisfactorily made out. The onus is on the prosecution to convince the judge to admit the evidence obtained through the illegality.

III METHOD

A Scope of Study

In light of the majority’s finding in Swaffield that disciplining the police could only be considered under the public policy head of the discretion, and the ALRC’s intention that s 138 should reflect the practices of the common law — as well as the fact that s 138 appears to be little more than a codification of the expanded Bunning public policy factors[35] — this study does not cover issues such as voluntariness, prejudice, fairness and ‘time wasting’. Nor does it cover the other exclusionary sections of the legislation.[36] Whilst this may appear to neglect issues that in practice render police accountable, now that the accountability aspect of the discretion has been distilled, it is essential to first evaluate its operation as a self-contained accountability mechanism. Only then can other factors affecting police accountability be assessed. Such an assessment is, however, beyond the scope of this study.

B Methodological Limitations

A number of years have passed since the introduction of the uniform evidence legislation and the High Court’s decision in Swaffield, making a preliminary evaluation possible. However, it must be noted that accurately evaluating the discretion’s effectiveness in the day-to-day running of Australia’s court system is somewhat difficult. For the discretion to be considered an effective accountability mechanism, it would have to be applied routinely to all cases in which the breach of the law is significant and, more importantly, where the probative value of the evidence is such that its exclusion would substantively affect the prosecution’s case. Unfortunately, to conduct a proper evaluation of this, the researcher would have to be aware of all cases in which the police have actually obtained evidence illegally or improperly, as well as possess the transcripts of all the trials arising therefrom. Furthermore, the research would have to include surveys of police attitudes as well as the identification of changing trends in investigative practice. Such research is beyond the scope of the present study: the data would be too vast and the sources are not readily accessible.

C Methodological Process

Nevertheless, there is a valid way to circumvent this obstacle. In order to evaluate the effectiveness of the discretion, I conducted a search of the online database LexisNexis on Bunning and Swaffield to find cases in which an application to invoke the discretion had been made. Of particular interest were the most recent cases, heard following both the decision in Swaffield and the enactment of the uniform evidence legislation. Similar searches were then conducted on the AustLII and CaseBase online databases.

The initial search revealed 371 cases, the majority of which were heard at State appellate level. I immediately culled civil cases, because very few of them concerned the police.

A more difficult elimination process arose when it came to cases in which the exclusion was based primarily upon the fairness discretion. As stated above, fairness is no longer a valid ground of exclusion when it comes to police impropriety. However, prior to Swaffield, fairness and public policy appear to have been rather liberally interchanged. Furthermore, it appears that there has been a good deal of judicial confusion following Swaffield, with many public policy cases being couched in fairness terms. I chose to retain a random sample of pre-Swaffield cases and eliminate those that had wrongly applied the discretion after Swaffield. This was because it may be assumed that errors of this kind will become less prevalent over time as the reasoning in Swaffield is given the opportunity to properly disseminate into the wider legal discourse.

Finally, I eliminated cases which had only tenuous relevance to the public policy discretion (that is, where it was mentioned in passing but not specifically applied). This left 39 cases. Of these, there were 13 original voir dire decision transcripts. Whilst this is a small sample, a judicial trend is still apparent.

There remained one substantive flaw with this method of evaluation. As noted earlier, the ideal evaluation would include an analysis of cases heard at all levels, including the intermediate and, if possible, lower courts. In fact, given that the vast majority of cases are heard at the lower levels, an evaluation that fails to adequately consider them is inherently flawed. Unfortunately, access to such cases is severely limited. LexisNexis does not often provide decisions from these courts. In order to overcome this, I used the decisions in the appellate courts as a form of narrative ‘telling’ as to how the lower courts have exercised (or failed to exercise) the discretion. While there are some minor residual problems in doing this, it is, in the absence of a viable alternative, the best method available.[37]

IV FINDINGS

Given the sometimes sizeable variations between the laws and guidelines that dictate the conduct of police investigations,[38] I divided the cases according to the jurisdiction in which they were heard. I then analysed each case by identifying the nature of the offence, the nature of the evidence at issue, the alleged police misconduct, and whether the judge exercised their discretion to exclude evidence at trial and, where applicable, on appeal. Original voir dire decisions are marked with an asterisk (*) (see Table 1). Case citations are provided in Table 2.[39]

Table 1: Cases Applying the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence

Excluded on Appeal?
N/A.
Yes. Appeal allowed.
No. Unclear whether illegal. Appeal
dismissed.
Excluded at Trial?
No. But found police acted
illegally.
No. Conduct not illegal.
No. But found police acted
illegally.
Alleged Police
Misconduct
Procedural breach of Crimes Act 1958 (Vic) s 460 (unlawful
detention).
Procedural breach of Crimes Act 1958 (Vic) s 460 (unlawful
detention), deception.
Illegal recording.
Evidence at Issue
Record of interview.
Record of interview.
Tape-recorded
conversations.
Charge(s)
Armed robbery,
rape.
Burglary, indecent assault, rape.
Burglary, armed robbery, false
imprisonment, blackmail.
Case
R v Kelcey*
(1985)
Victoria
R v Becker
(1985)
Victoria
R v Robinson
(1989)
Victoria

Excluded on Appeal?
No. Conduct not illegal.
Yes. Appeal allowed.
No. Appeal dismissed.
No. One video not even illegal. Appeal
dismissed.
Excluded at Trial?
No. But found police acted
illegally.
No. But found police acted
illegally.
No. But found police acted
illegally.
No. But found police acted
illegally.
Alleged Police
Misconduct
Illegal compulsion of defendant to attend a search of his premises.
Failure to comply with guidelines regulating the questioning of
intellectually disabled
offenders.
Procedural breach. Failure to allow solicitor to attend upon request.
Improper use of warrant.
Evidence at Issue
All evidence obtained subsequent to arrest.
Record of interview.
Blood analysis
(objection
withdrawn) and record of interview.
Three video
recordings.
Charge(s)
Trafficking,
assaulting a police officer.
Rape.
Armed robbery.
Trafficking.
Case
R v Clune
(1989)
Victoria
R v Warrell
(1993)
Victoria
R v Percerep
(1993)
Victoria
R v McNamara
(1994)
Victoria

Excluded on Appeal?
No. Appeal dismissed.
No. Conduct not illegal. Appeal dismissed.
Yes. Appeal dismissed.
No. Appeal dismissed.
Excluded at Trial?
No. Conduct
not illegal.
No. But found police acted
illegally.
Yes. Crown
appealed.
No. But found police acted
illegally.
Alleged Police
Misconduct
Witness agreed to
co-operate only due
to oppressive police
conduct.
Obtaining evidence while defendant
unlawfully detained.
Failure to follow
statutorily prescribed procedure in asking defendant to accompany police.
Unlawful detention.
Evidence at Issue
Evidence of
witnesses.
Identification
evidence.
Follow-up breath
test at station.
Record of interview.
Charge(s)
Trafficking.
Aggravated burglary, assault, causing serious injury.
Driving while
intoxicated.
Importation of
heroin.
Case
R v Komljenovic
(1994)
Victoria
R v Hoxha
(1995)
Victoria
DPP v Nicholson
(1997)
Victoria
R v Tang
(1998)
Victoria

Excluded on Appeal?
No. Appeal dismissed.
N/A.
N/A.
N/A.
Excluded at Trial?
No. Conduct not illegal.
No. But found police acted
illegally.
No. But found police may have acted illegally.
No. But found police acted
illegally.
Alleged Police
Misconduct
Failure to comply with Crimes Act 1958 (Vic) s 464A (regulating detention of persons in custody).
Use of leading questions and continuation of interrogation after
defendant requested it cease.
Improper procurement of conversation to
circumvent defendant’s previous exercise of right to silence.
Deception, unlawfully compelling defendant
to attend hospital.
Evidence at Issue
Record of interview.
Video-taped record
of interview.
Secretly taped
conversation.
Blood samples.
Charge(s)
Rape.
Accessory to
murder.
Murder.
Rape, murder.
Case
R v Lancaster
(1998)
Victoria
DPP v Starr*
(1999)
Victoria
R v Ince*
(1999)
Victoria
R v White*
(1990)
New South Wales

Excluded on Appeal?
No. Appeal dismissed.
No. Appeal dismissed.
No. Appeal dismissed.
N/A.
Excluded at Trial?
No. But found police acted
illegally.
No. Conduct not illegal.
No. Conduct not illegal.
No. Conduct not illegal.
Alleged Police
Misconduct
Deception, unlawful detention.
Transaction only
occurred because of officer’s harassment
and pressure.
Active police
participation in crime itself.
Active police
participation in crime itself.
Evidence at Issue
Record of interview.
Taped conversation between defendant
and undercover officer.
All evidence of conspiracy.
All evidence of conspiracy and
delivery.
Charge(s)
Kidnapping, sexual penetration of child under 10, assault.
Supplying a
prohibited drug.
Conspiracy to
import heroin.
Conspiracy to
import heroin.
Case
Hawkins v The Queen
(1992)
New South Wales
R v Reidy
(1995)
New South Wales
R v Kolalich
(1996)
New South Wales
R v Huang-Tung*
(1997)
New South Wales

Excluded on Appeal?
No. But found police acted illegally.
No. Appeal dismissed.
No. Appeal dismissed.
No. Appeal dismissed.
Excluded at Trial?
No. Conduct not illegal.
No. But found police acted
illegally.
No. But found police acted
illegally.
No. Conduct not illegal.
Alleged Police
Misconduct
Unlawful detention, failure to bring accused before magistrate as soon as practicable.
Active police and agent participation in crime itself.
Transaction induced by illegal police conduct.
Offence solicited and incited by police.
Evidence at Issue
Record of interview.
Evidence of police agent.
All evidence of transaction.
Taped conversation between defendant and undercover officer.
Charge(s)
Receiving a stolen vehicle, accessory after the fact,
assaulting a police officer.
Supplying heroin.
Supplying a
prohibited drug.
Supplying a
prohibited drug.
Case
R v Rooke
(1997)
New South Wales
R v Salem
(1997)
New South Wales
R v Cummins
(1998)
New South Wales
R v Coulstock
(1998)
New South Wales

Excluded on Appeal?
No. Appeal dismissed.
No. Appeal dismissed.
No. Police may not have acted illegally. Retrial ordered.
N/A.
Excluded at Trial?
No. But found police acted
illegally.
No. Conduct not illegal.
Yes.
No. But found police acted
illegally.
Alleged Police
Misconduct
Statement given
following illegal police entry onto defendant’s premises.
Active police
participation in crime itself.
Unlawful and excessive detention.
Failure to caution,
obtaining blood sample in breach of statutory provision.
Evidence at Issue
Written statement.
All evidence of conspiracy and
importation.
Seven records of interview.
Evidence of officer
in charge of
investigation, DNA.
Charge(s)
Dangerous driving.
Conspiracy to
import heroin.
Thirteen counts
each of burglary
and theft.
Murder.
Case
R v McDonald
(1985)
Queensland
R v Gudgeon
(1995)
Queensland
R v Williams*
(1985)
Tasmania
R v Brown*
(1990)
Tasmania

Excluded on Appeal?
N/A.
N/A.
N/A.
No. Appeal dismissed.
Excluded at Trial?
Yes. But not
solely on policy grounds.
No. But found police acted
illegally.
No. But found police acted
illegally.
No. Never asked to exercise
discretion.
Alleged Police
Misconduct
Unlawfully obtaining evidence after defendant refused to participate
in identification parade.
Unlawful detention.
Illegal retention of
print used in analysis.
Unlawful application
of blood alcohol
content test.
Evidence at Issue
Identification
evidence of two witnesses.
Confessional
evidence.
Fingerprint evidence.
Preliminary breath test.
Charge(s)
Robbery.
Theft.
Burglary.
Driving while
intoxicated.
Case
R v Wright*
(1991)
Tasmania
R v Sammuk*
(1992)
Tasmania
R v Bryan*
(1998)
Tasmania
McLeod v Visser
(1999)
Tasmania

Excluded on Appeal?
No. But there may have been police
misconduct.
N/A.
N/A.
N/A.
Excluded at Trial?
No. Conduct not illegal.
Yes.
No. But found police acted
illegally.
Yes. But only on the basis of
fairness.
Alleged Police
Misconduct
Unlawful detention, defendant did not realise he was free to leave.
Police procurement of offence.
Police participation in crime itself.
Inadequate police
caution, interview
conducted while
defendant intoxicated.
Evidence at Issue
Record of interview.
Taped conversation between defendant
and victim.
Evidence of
undercover officer and taped
conversation.
Record of interview.
Charge(s)
Rape.
Demanding money with menaces.
Trafficking and supplying cannabis.
Unlawfully detaining another, assault, recklessly inflicting bodily harm.
Case
Kelly v The Queen
(1989)
Australian Capital Territory
R v Hinton*
(1995)
Australian Capital Territory
R v Haughbro*
(1997)
Australian Capital Territory
R v Taylor*
(1999)
Australian Capital Territory

Excluded on Appeal?
N/A.
No. But found police may have acted illegally.
No. But found police may have acted illegally.
No. But found police acted illegally.
3/26
Excluded at Trial?
Yes to all three.
No. Conduct not illegal.
No. Conduct not illegal.
No. Conduct not illegal.
6/39
Alleged Police
Misconduct
Search conducted
without warrant and not pursuant to any statutory provision, failure to caution.
Unlawful detention, failure to bring
defendant before
magistrate within
reasonable time.
Misuse of legally
obtained blood sample.
Illegal recording of conversations.
TOTAL EXCLUSIONS
Evidence at Issue
Evidence of
possession and two records of interview.
Record of interview.
Blood sample.
Taped conversations.
.
Charge(s)
Possession of
traffickable quantity of prohibited
substance.
Importation of
cannabis, attempting to take $32 702 from Australia without permission.
Sexual offences.
Defrauding the Commonwealth.

Case
R v Malloy*
(1999)
Australian Capital Territory
Salihos v The Queen
(1987)
Western Australia
King v The Queen
(1996)
Western Australia
Barker v The Queen
(1994)
Commonwealth

Table 2: Citations of Cases Contained in Table 1

R v Kelcey
R v Becker
(Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Bryan and Vincent JJ, 21 November 1985).
R v Robinson
R v Clune
R v Warrell
R v Percerep
R v McNamara
R v Komljenovic
R v Hoxha
(Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Charles and Callaway JJA and Vincent AJA, 1 November 1995).
DPP v Nicholson
R v Tang
R v Lancaster
DPP v Starr
[1999] VSC 143 (Unreported, Eames J, 5 May 1999).
R v Ince
[1999] VSC 418 (Unreported, Teague J, 1 September 1999).
R v White
(Unreported, Supreme Court of New South Wales, Studdert J, 28 February 1990).
Hawkins v The Queen
(Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Priestley JA, McInerney and Badgery-Parker JJ, 17 December 1992).
R v Reidy
(Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Sheller JA, Sully and James JJ, 31 May 1995).
R v Kolalich
(Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Newman and Hidden JJ, 17 June 1996).
R v Huang-Tung
(Unreported, Supreme Court of New South Wales, Barr J, 25 February 1997).
R v Rooke
(Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Newman, Levine and Barr JJ, 2 September 1997).
R v Salem
R v Cummins
(Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Abadee BM, James and Barr JJ, 23 November 1998).
R v Coulstock
R v McDonald
R v Gudgeon
R v Williams
(Unreported, Supreme Court of Tasmania, Court of Criminal Appeal, Neasy, Cox and Underwood JJ, 14 May 1985).
R v Brown
(Unreported, Supreme Court of Tasmania, Wright J, 20 June 1990).
R v Wright
R v Sammuk
(Unreported, Supreme Court of Tasmania, Underwood J, 10 August 1992).
R v Bryan
[1998] TASSC 155 (Unreported, Slicer J, 9 December 1998).
McLeod v Visser
Kelly v The Queen
R v Hinton
R v Haughbro
R v Taylor
[1999] ACTSC 47 (Unreported, Higgins J, 26 May 1999).
R v Malloy
[1999] ACTSC 118 (Unreported, Crispin J, 9 November 1999).
Salihos v The Queen
King v The Queen
Barker v The Queen

V ANALYSIS

A General Reluctance to Exclude at Trial Level

The most significant, albeit least surprising finding is that evidence is only rarely excluded in the exercise of the judge’s discretion at trial level. In only six of the 39 cases did the objection raised on the voir dire lead to the evidence at issue being excluded.[40] The Crown appealed in one of those cases, but the appellate court upheld the trial judge’s decision to exclude the contested evidence.[41] Four of the remaining five did not ascend beyond trial level.[42] Although the sample is small, it does provide some indication of the way in which judges at first instance exercise their discretion when objections concerning the admissibility of evidence are raised.

B General Reluctance of Appellate Judges to Overturn the
Decisions of Trial Judges

The cases included in this sample also demonstrate a general reluctance on the part of appellate judges to find that the trial judge erred in failing to exercise their discretion to exclude the contested evidence. Indeed, of the 26 cases that went to appeal only three decisions were overturned and sent back for retrial.[43] It may be speculated that the reason for this lies in the fact that appellate judges are being asked to second guess the exercise of a discretion, rather than the failure to follow a procedural rule. Indeed, a number of the appellate judges in the sample emphasised that the discretion had been exercised by the trial judge, just not in the defendant’s favour.[44] This being the case, there could be no reason to uphold the appeal because the exercise of the discretion will rest on the credibility of evidence before the trial court, which is not readily discernable by a judge hearing an appeal.

C Liberal Judicial Attitudes to Police Misconduct

In almost all jurisdictions, there appears to be a significant degree of tolerance of police misconduct, such that judges are willing to give police a high degree of latitude in the conduct of their criminal investigations.

Often judges will refuse to even classify the alleged misconduct as unlawful.[45] Yet, even when judges are willing to classify police conduct as such, they will often find the misconduct to have only been accidental and not deliberate or reckless. In so doing, they greatly lessen the likelihood of the evidence obtained as a result of that misconduct being excluded. Indeed, this was observed in 10 of the cases examined.[46]

This is even apparent in certain cases where the misconduct was clearly reckless. For example, in the case of R v Tang,[47] Tadgell and Batt JJA and Vincent AJA refused to classify the conduct as such despite admissions made by the police at trial that they had not bothered to familiarise themselves with the law they were charged with applying.

This finding is of particular concern because it means that judges are giving curial approval to police incompetence. Should voir dire objections continue to be dismissed in this manner, there will be little incentive for police to properly familiarise themselves with the laws regulating criminal investigations, or to adhere to investigative standards. One may even go further and say that the failure to exclude evidence simply because the illegality was not deliberate in fact encourages police negligence, because police know of the greater potential to have evidence admitted at trial if their actions are incompetent rather than malicious and they may therefore actively refrain from properly familiarising themselves with the laws and guidelines regulating criminal investigations.

This judicial latitude seems to have increased in NSW since the introduction of the uniform evidence legislation[48] although, perhaps somewhat surprisingly, this has not been the case in the ACT. It may be speculated that the fact that evidence obtained illegally is now prima facie inadmissible is, at least in part, responsible for the heightened tolerance of police misconduct amongst NSW judges, particularly those at trial level. If the proper exercise of the discretion requires that judges start from a position of inadmissibility, it is easier for judges to avoid having to consider the issue altogether by classifying the conduct as lawful. This allows judges to substantively continue the pre-uniform evidence legislation trend of admitting contested evidence in the balance of competing public policy interests.

There are a number of possible reasons explaining why a similar trend could not be discerned in the ACT. Firstly, judges in the ACT appear to be more willing than judges in any other jurisdiction to exclude illegally obtained evidence.[49] Secondly, the ACT had fewer drug-related cases, the effect of which shall be discussed presently.

D Extra Latitude in Drug-Related Cases

The latitude extended to police in the conduct of their investigations is particularly pronounced in cases involving drug supply and trafficking. Indeed, Ridgeway[50] appears to have granted police a judicial licence to engage in a higher degree of questionable conduct when investigating drug-related crime than would otherwise have been legitimate. In five of the 14 cases involving drugs, the police actively participated in the crime, but the evidence afforded them in doing so was not held to have been unlawfully or improperly obtained.[51] As such, there was no reason to consider whether it should be excluded in the exercise of the discretion. Of the five drug-related cases that involved active police participation in the crime and in which the judge was willing to classify the police conduct as illegal — even though there was no appreciable difference between the conduct in those cases and the other five — none actually led to exclusion.[52] Rather, the judges in those cases ruled that the seriousness of drug-related crime in society, and the character of the defendants involved, outweighed the public interest in curbing police misconduct.

These findings indicate that police subterfuge, deception, participation and even a certain degree of procurement are now considered merely to be, as it was put by one judge, ‘depressing by-products of the hermetically sealed drug culture.’[53] Although disturbing, they are thus still legitimate tactics in the policing of drug-related crime. In R v Huang-Tung,[54] Barr J offered a more rounded justification for the types of police conduct encountered in these cases. His Honour noted that courts have ‘frequently referred to the entitlement of police to provide opportunities for the commission of offences where they have a reason to believe that the persons concerned are already engaged in a criminal enterprise’.[55] As most drug-related cases involve ‘known’ offenders who deal in drugs on an ongoing basis, they will fall into this wider category.

E More Likely to Find Police Illegality on Appeal Where
It Will Not Change the Outcome

In a number of cases, the basis of the appeal was that the trial judge had erred in failing to find that the alleged illegality had been adequately made out by the defendant. In these cases, appellate judges appeared willing to overturn the trial judge’s finding only where such acceptance would not affect the outcome.[56] For example, in R v Percerep,[57] the appellate judges found that there had in fact been a deliberate breach of s 464C of the Crimes Act 1958 (Vic) which was not recognised by the trial judge. However, as there was an overwhelmingly strong circumstantial case against the defendant, no miscarriage of justice was found to have occurred. Similarly, in Hawkins v The Queen, Badgery-Parker J held on appeal that the police had deliberately and illegally detained the appellant at the police station in breach of a court order.[58] However, given the seriousness of the crime — Hawkins had kidnapped and raped a 15 month-old baby — the illegality was insufficient to warrant the exclusion of the evidence.

F Misconduct Unlikely to Lead to Exclusion in Serious Cases

As was discussed earlier, it has often been contended that police misconduct is unlikely to lead to the exclusion of evidence in cases where the offence alleged is considered serious. However, these assertions were based on cases decided prior to Swaffield. Nevertheless, the findings in this study confirm these assertions and provide no evidence to suggest that judicial attitudes have changed significantly in the four years since Swaffield. Furthermore, it appears that failure to exclude does not only apply to ‘serious’ cases. Illegal police conduct is often successfully established without it necessarily leading to exclusion. Of the 30 cases in the sample that were decided before Swaffield, illegal police conduct was found to have taken place in 21 of them, four of which led to exclusion.[59] Evidence in two other cases was excluded on appeal.[60] Of the nine cases in the sample that were decided after Swaffield, misconduct was found in six, only one of which led to exclusion on public policy grounds.[61] In some cases, such as Hawkins v The Queen,[62] R v Brown,[63] Barker v The Queen[64] and R v Bryan,[65] where the crimes charged were of a very serious nature, one would expect other factors in the Bunning/Swaffield equation to outweigh the police misconduct. However, in others, such as R v Sammuk[66] and R v Rooke,[67] where the crimes charged were considerably less serious, the failure to exclude was more unexpected.

There were two exceptions to this, both of which occurred before Swaffield. In R v Becker,[68] which involved charges of burglary, indecent assault and rape, an interview record was excluded because of a procedural breach. Similarly, in R v Warrell,[69] another rape case, evidence was excluded because of the investigating officer’s failure to comply with police guidelines. Both of these cases contradict the general assumption regarding exclusion of evidence in serious cases, although the latter may have had more to do with the type of defendant involved, as will be discussed forthwith.

G More Likely to Invoke Where Defendant Is within ‘Protected’ Class

Another minor finding was that judges appear more willing to invoke the discretion for minor breaches where the defendant falls into a class that might be considered in need of protection. In the case of R v Warrell,[70] an intellectually impaired defendant was charged with rape and convicted at trial. In questioning him, the police failed to follow the guidelines set down to govern the interrogation of intellectually impaired suspects. On appeal, the conviction was set aside because the trial judge was held to have erred in the exercise of his discretion to admit the contested record of interview. Similarly, in R v Taylor,[71] where an intellectually impaired man was charged with unlawful detention and numerous assaults, evidence of a record of interview was excluded because the police did not properly caution him or ensure that he understood the substance of his rights as a suspect.

Although not statistically significant in its own right, R v Warrell provides an example of appellate judges contesting the exercise of a trial judge’s discretion in a serious case where the police misconduct was only of a minor procedural nature. It also demonstrates the kind of case where the public policy and fairness discretions might merge to favour exclusion of evidence. Police misconduct may itself bring about the unfairness upon which the exclusion is based. However, no significant trend can be made out from the restricted case sample in this study.

H Discretionary Nature May Lead to Inconsistency

The study sample indicates that part of the problem with using the discretion as a police accountability mechanism lies in the fact that it is just that: a discretion.[72] Although there are guidelines that are supposed to regulate the exercise of the discretion, they are not hard and fast rules that automatically require a judge to exclude contested evidence. Rather, they provide a set of factors that the judge will take into account, assessing their relative weight in each particular case. Different judges may attach varying significance to what are essentially the same facts in different cases.

This problem could be discerned in the different outcomes in the Tasmanian cases of R v Williams[73] and R v Sammuk.[74] In both of these cases, the offence charged was theft and the police misconduct alleged was unlawful detention. The defendants were held for approximately 25 hours before being brought before a magistrate. However, only the evidence in R v Williams was excluded. While there is nothing inherently wrong with the inconsistencies that come about as a result of the discretion, they do limit its ability to hold police accountable on an ongoing basis, and allow police to take calculated risks if they believe that they have an equal chance of having the evidence admitted or excluded.

I Effect of Uniform Evidence Legislation

Given that the legislative changes are, in operational terms, substantively different and were designed, at least in part, to assist in the curbing of police misconduct, arguably the most important findings in a study such as this will relate to the effects of the new uniform evidence legislation on judicial practice.[75] These findings are particularly pertinent to other jurisdictions considering adopting the legislation.[76]

The first, and least surprising, finding concerning the new rules is that there were significant teething problems following their promulgation, particularly in NSW. In that jurisdiction, no case in the sample considered the legislation until R v Rooke[77] in 1997. Even then, Newman, Levine and Barr JJ appear to have been confused about the nature of the legislative changes, claiming that s 138 of the Evidence Act 1995 (NSW) is substantively the same as the common law rules. Judges in cases decided subsequent to R v Rooke, such as those in R v Salem,[78] R v Cummins[79] and R v Coulstock,[80] demonstrate a better understanding of the changes, even though the contested evidence was not excluded in any of those cases.

Although less immediately apparent, similar teething problems were encountered in the ACT. No attention appears to have been paid to the shifted onus in the first ACT case to consider the legislation, R v Haughbro.[81] However, the more recent cases of R v Taylor[82] and R v Malloy[83] show a greater level of judicial comfort with the new rules and a greater willingness to exclude contested evidence.

The findings from these two jurisdictions augur well for the future of the discretion as an effective accountability mechanism. Although not yet routinely applied, the fact that illegally obtained evidence is now prima facie inadmissible forces judges to scrutinise police conduct more carefully before simply dismissing an application for exclusion. It also requires police to defend their conduct once an objection has been raised. The only remaining obstacle to effective accountability is judicial reluctance in uniform evidence jurisdictions to classify police conduct as illegal in order to avoid having to work backwards from a starting point of inadmissibility. Perhaps it is not only the police who find inventive ways to sidestep new rules imposed upon them!

J Unrealised Potential

All the findings thus far have painted a somewhat grim picture of the effectiveness of the judicial discretion as a police accountability mechanism. However, to dismiss it altogether would be both premature and naive. There were a number of cases in which evidence was excluded and the police involved were severely reprimanded for their misconduct. Of the six cases in which evidence was excluded at trial, three occurred in the ACT after the Evidence Act 1995 (Cth) came into force.[84] No such trend can be discerned regarding those cases in which the evidence was excluded on appeal.

Although statistically insignificant at this point in time, these cases may be cause for some guarded optimism in cases that are not drug-related. Indeed, there may be a shift towards exclusion, although it will be another few years before a trend can be properly observed. The majority of cases in New South Wales after the enactment of the Evidence Act 1995 (NSW) related to drugs. Consequently, the fact that there were no exclusions is not surprising given the latitude discussed earlier. It is the ACT, therefore, that is best representative of any wider trend amongst the Australian judiciary.

Unfortunately, it is beyond the scope of this study to evaluate whether exclusion ever leads to the re-evaluation of particular police practices. As a trend towards exclusion in the ACT seems to be discernable, it would be useful to conduct a study on the actual effects of such a trend on police at the operational level. It may be speculated however that, should the trend crystallise, police will be forced to alter their behaviour if they want investigations to result in successful prosecutions. If this were to occur, then other jurisdictions seeking to improve police investigative technique, both in terms of integrity and competence, would do well to enact similar legislation.

K Limitations beyond the Judicial Sphere

Another potential limitation on the effectiveness of the discretion lies in the often recognised ability of police to circumvent new rules imposed upon them. Although some scholars have found that judicial decisions can be effective in ensuring compliance with procedural rules,[85] there are numerous examples of police finding innovative ways of substantively ignoring them. The Wood Report illustrated this point with reference to the decision in Williams v The Queen[86] which declared the detention by police of a suspect for the purposes of investigation to be unlawful. Wood found that, subsequent to the decision, there had been little appreciable change in NSW police practice. Indeed, interviews of suspects continued between arrest and appearance before a judicial officer:

Should the police find ways around new rules that make their actions technically legal, the discretion to exclude the evidence garnered thereby cannot be wielded effectively by courts.

VI CONCLUSION

The developments contained in Swaffield and the uniform evidence legislation appear to have led to a slight increase in the use of the judicial discretion to exclude improperly or illegally obtained evidence, however it is too early to discern a definite trend across the board. A notable increase in the exclusion of such evidence can nevertheless be seen in the ACT cases (other than those that are drug-related) since the Evidence Act 1995 (Cth) was enacted. Yet the findings in this study cannot go so far as to say that the discretion is effective as a police accountability mechanism, even in that Territory. Further study would be required to gauge the effect of exclusions over time, particularly with regard to internal policy, discipline and cultural change.[88] However, it can be said that, unless judges throughout Australia become more willing to invoke the discretion when evidence has been improperly or illegally obtained, police will have no incentive to change their ways.

The change in onus contained in the uniform evidence legislation appears to be a legislative ‘helping hand’ in this regard, and it can be seen that judges in the ACT have seized the opportunity to utilise it. Unfortunately, the same cannot be said of their colleagues in NSW. Nevertheless, legislatures still searching for an effective way to ensure integrity and competence in their police services would do well to enact similar legislation. By doing so, they will provide judges with a better opportunity to fulfil their prescribed role as the guardians’ guardians.


[*] BA (Hons) (Melb), PhD Candidate (Criminology), Student of Law, The University of Melbourne. Special thanks to Associate Professor David Wood, Professor Arie Freiberg and Dr Steve James. An earlier version of this paper was submitted in partial fulfilment of the requirements of the LLB at the University of Melbourne.

[1] New South Wales, Royal Commission into the New South Wales Police Service, Final Report (1997) vol 1 (‘Wood Report’); James Morton, Bent Coppers: A Survey of Police Corruption (1993) 343; Malcolm Sparrow, Mark Moore and David Kennedy, Beyond 911: A New Era for Policing (1990) 133.

[2] Queensland, Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Report of a Commission of Inquiry Pursuant to Orders in Council (1989) (‘Fitzgerald Report’); Wood Report, above n 1.

[3] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991); Jenny Brockie (director), Cop It Sweet (Australian Broadcasting Corporation, 1992); Janet Chan, Changing Police Culture: Policing in a Multicultural Society (1997).

[4] Vicki Dalton, ‘Police Shootings 1990–97’ (Trends and Issues in Crime and Criminal Justice No 89, Australian Institute of Criminology, 1998); John Sylvester, Andrew Rule and Owen Davies, The Silent War: Behind the Police Killings that Shook Australia (1995).

[5] Peter Greenwood and Joan Petersilia, The Criminal Investigation Process: Summary and Policy Recommendations (1975) vol 1, reproduced in David Bayley (ed), What Works in Policing (1998) 75.

[6] Peter Sallman and John Willis, Criminal Justice in Australia (1984) 38.

[7] Wood Report, above n 1, 36.

[8] (1998) 192 CLR 159 (‘Swaffield’).

[9] [1970] HCA 21; (1970) 126 CLR 321 (‘Ireland’).

[10] See Jonathan Clough, ‘The Exclusion of Voluntary Confessions: A Question of Fairness’ [1997] UNSWLawJl 12; (1997) 20 University of New South Wales Law Journal 25, 26.

[11] Ibid (emphasis added). See, eg, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (‘Bunning’); Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1; Foster v The Queen [1993] HCA 80; (1993) 113 ALR 1.

[12] Clough, above n 10, 27. See, eg, McDermott v The King (1948) 76 CLR 501; Ireland [1970] HCA 21; (1970) 126 CLR 321.

[13] (1998) 192 CLR 159, 189 (Toohey, Gaudron and Gummow JJ); see also at 173 (Brennan CJ).

[14] Ibid 195 (Toohey, Gaudron and Gummow JJ).

[15] For an extensive list of situations that might amount to unreliability, see Andrew Palmer, Principles of Evidence (1998) 185.

[16] See, eg, Foster v The Queen [1993] HCA 80; (1993) 113 ALR 1, where the accused (an indigenous Australian) was denied a ‘prisoner’s friend’.

[17] [1978] HCA 22; (1978) 141 CLR 54.

[18] Ibid 74 (Stephen and Aickin JJ).

[19] Ibid. This was essentially a rewording of the decision of Holmes J in the celebrated case of Olmstead v United States, [1928] USSC 133; 277 US 438 (1928), where his Honour said at 470 that courts

[m]ust consider the two objects of desire both of which we cannot have and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It is also desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained ... We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.

[20] [1992] HCA 69; (1992) 176 CLR 177.

[21] Ibid 203.

[22] Bunning [1978] HCA 22; (1978) 141 CLR 54, 80.

[23] (1995) 184 CLR 19 (‘Ridgeway’).

[24] See Allan Leaver, Investigating Crime: A Guide to the Power of Agencies Involved in the Investigation of Crime (1997) 178.

[25] Ridgeway (1995) 184 CLR 19, 37 (Mason CJ, Deane and Dawson JJ).

[26] Andrew Ligertwood, Australian Evidence (3rd ed, 1998) 371. See, eg, Martelli v The Queen (1995) 83 A Crim R 550; Peters v The Queen (1996) 88 A Crim R 585; R v Giaccio [1997] SASC 6103; (1997) 68 SASR 484.

[27] Kenneth Gurney, ‘Covert Law Enforcement after Ridgeway[1995] DeakinLawRw 14; (1995) 2 Deakin Law Review 283.

[28] Swaffield (1998) 192 CLR 159, 180 (Brennan CJ), 190–1 (Toohey, Gaudron and Gummow JJ).

[29] Ibid 212–13 (citation omitted).

[30] The second factor is expressly included in s 138(3)(f) of the uniform evidence legislation.

[31] Stephen Odgers, Uniform Evidence Law (4th ed, 2000) xlvii.

[32] An example of this is Kirby J’s dissent in Swaffield (1998) 192 CLR 159, 211, where the discretion to exclude illegally obtained evidence is explicitly moulded around the legislation.

[33] Other common law exclusionary principles are codified in ss 84, 90, 1357 of the uniform evidence legislation.

[34] The Australian Law Reform Commission (‘ALRC’), when debating the proposed legislative discretion, noted that an ‘approach based on the existing discretionary approach is that which is preferred’: ALRC, Evidence, Report No 26 (1985) 534. Odgers, above n 31, 367–9 also notes the similarities between the legislative exclusion and the Bunning discretion.

[35] ALRC, above n 34, 367–9.

[36] See above n 33.

[37] The most significant residual problem is that corrupt practices may often lead to guilty pleas for a number of reasons (particularly perceived power imbalances between defendants and the police), such that the evidence is never contested. Although this ‘dark figure’ of police misconduct is unascertainable, it does not invalidate findings based on those cases in which the evidence is contested.

[38] For a comprehensive examination of the laws regulating police investigations, see Leaver, above n 24, 51–257.

[39] Where a case went on appeal, only the appellate judgment is cited.

[40] DPP v Nicholson (1997) 27 MVR 120; R v Williams (Unreported, Supreme Court of Tasmania, Court of Criminal Appeal, Neasy, Cox and Underwood JJ, 14 May 1985); R v Wright (1991) 60 A Crim R 215; R v Hinton (1995) 128 FLR 139; R v Taylor [1999] ACTSC 47 (Unreported, Higgins J, 26 May 1999); R v Malloy [1999] ACTSC 118 (Unreported, Crispin J, 9 November 1999).

[41] DPP v Nicholson (1997) 27 MVR 120.

[42] The exception was R v Williams (Unreported, Supreme Court of Tasmania, Court of Criminal Appeal, Neasy, Cox and Underwood JJ, 14 May 1985).

[43] R v Becker (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Bryan and Vincent JJ, 21 November 1985); R v Warrell [1993] VicRp 48; [1993] 1 VR 671; R v Williams (Unreported, Supreme Court of Tasmania, Court of Criminal Appeal, Neasy, Cox and Underwood JJ, 14 May 1985).

[44] R v Robinson [1989] VicRp 24; [1989] VR 289, 300 (Nathan J); R v Komljenovic (1994) 76 A Crim R 521, 541 (Southwell, Nathan and McDonald JJ); R v Tang [1997] VICSC 50; [1998] 3 VR 508, 517–18 (Tadgell and Batt JJA and Vincent AJA); R v Salem (1997) 96 A Crim R 421, 424 (Hidden J); R v Brown (Unreported, Supreme Court of Tasmania, Wright J, 20 June 1990); King v The Queen (1996) 16 WAR 540, 546–7 (Rowland J).

[45] R v Becker (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Bryan and Vincent JJ, 21 November 1985) (at trial); R v Clune [1989] VicRp 52; [1989] VR 567 (on appeal); R v Komljenovic (1994) 76 A Crim R 521; R v Hoxha (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Charles and Callaway JJA and Vincent AJA, 1 November 1995) (on appeal); R v Lancaster [1998] 4 VR 550; R v Reidy (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Sheller JA, Sully and James JJ, 31 May 1995); R v Kolalich (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Newman and Hidden JJ, 17 June 1996); R v Huang-Tung (Unreported, Supreme Court of New South Wales, Barr J, 25 February 1997); R v Rooke (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Newman, Levine and Barr JJ, 2 September 1997) (at trial); R v Coulstock (1998) 99 A Crim R 143; R v Gudgeon [1995] QCA 506; (1995) 133 ALR 379; Kelly v The Queen (1989) 23 FCR 463 (at trial); Salihos v The Queen (1987) 78 ALR 509 (at trial); King v The Queen (1996) 16 WAR 540 (at trial); Barker v The Queen [1994] FCA 1577; (1994) 54 FCR 451 (at trial).

[46] R v Kelcey [1985] VicRp 73; [1985] VR 765; R v Robinson [1989] VicRp 24; [1989] VR 289; R v McNamara [1995] VicRp 18; [1995] 1 VR 263; R v Hoxha (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Charles and Callaway JJA and Vincent AJA, 1 November 1995) (at trial); R v Tang [1997] VICSC 50; [1998] 3 VR 508; R v Rooke (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Newman, Levine and Barr JJ, 2 September 1997) (on appeal); R v Brown (Unreported, Supreme Court of Tasmania, Wright J, 20 June 1990); R v Sammuk (Unreported, Supreme Court of Tasmania, Underwood J, 10 August 1992); King v The Queen (1996) 16 WAR 540; Barker v The Queen [1994] FCA 1577; (1994) 54 FCR 451 (on appeal).

[47] [1997] VICSC 50; [1998] 3 VR 508.

[48] R v Reidy (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Sheller JA, Sully and James JJ, 31 May 1995); R v Kolalich (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Newman and Hidden JJ, 17 June 1996); R v Huang-Tung (Unreported, Supreme Court of New South Wales, Barr J, 25 February 1997); R v Rooke (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Newman, Levine and Barr JJ, 2 September 1997); R v Salem (1997) 96 A Crim R 421; R v Cummins (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Abadee BM, James and Barr JJ, 23 November 1998); R v Coulstock (1998) 99 A Crim R 143.

[49] See below Part V(J).

[50] (1995) 184 CLR 19.

[51] R v Reidy (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Sheller JA, Sully and James JJ, 31 May 1995); R v Kolalich (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Newman and Hidden JJ, 17 June 1996); R v Huang-Tung (Unreported, Supreme Court of New South Wales, Barr J, 25 February 1997); R v Coulstock (1998) 99 A Crim R 143; R v Gudgeon [1995] QCA 506; (1995) 133 ALR 379.

[52] R v McNamara [1995] VicRp 18; [1995] 1 VR 263; R v Tang [1997] VICSC 50; [1998] 3 VR 508; R v Salem (1997) 96 A Crim R 421; R v Cummins (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Abadee BM, James and Barr JJ, 23 November 1998); R v Haughbro [1997] ACTSC 343; (1997) 135 ACTR 15.

[53] R v Salem (1997) 96 A Crim R 421, 424 (Hidden J), citing Shadbolt DCJ at trial.

[54] (Unreported, Supreme Court of New South Wales, Barr J, 25 February 1997).

[55] Ibid.

[56] R v Percerep [1993] VicRp 62; [1993] 2 VR 109; Hawkins v The Queen (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Priestley JA, McInerney and Badgery-Parker JJ, 17 December 1992); R v Salem (1997) 96 A Crim R 421; R v Gudgeon [1995] QCA 506; (1995) 133 ALR 379; Kelly v The Queen (1989) 23 FCR 463.

[57] [1993] VicRp 62; [1993] 2 VR 109. Section 464C concerns the right of a person in custody to communicate with a friend or relative and with a legal practitioner.

[58] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Priestley JA, McInerney and Badgery-Parker JJ, 17 December 1992). McInerney J agreed with the reasons of Badgery-Parker J; Priestley JA dissented.

[59] R v Kelcey [1985] VicRp 73; [1985] VR 765; R v Robinson [1989] VicRp 24; [1989] VR 289; R v Clune [1989] VicRp 52; [1989] VR 567 (at trial); R v Warrell [1993] VR 567; R v Percerep [1993] VicRp 62; [1993] 2 VR 109; R v McNamara [1995] VicRp 18; [1995] 1 VR 263; R v Hoxha (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Charles and Callaway JJA and Vincent AJA, 1 November 1995) (at trial); DPP v Nicholson (1997) 27 MVR 120 (excluded); R v Tang [1997] VICSC 50; [1998] 3 VR 508; R v White (Unreported, Supreme Court of New South Wales, Studdert J, 28 February 1990); Hawkins v The Queen (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Priestley JA, McInerney and Badgery-Parker JJ, 17 December 1992); R v Rooke (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Newman, Levine and Barr JJ, 2 September 1997) (found illegal on appeal, but not excluded); R v Salem (1997) 96 A Crim R 421; R v McDonald (1985) 3 MVR 182; R v Williams (Unreported, Supreme Court of Tasmania, Court of Criminal Appeal, Neasy, Cox and Underwood JJ, 14 May 1985) (excluded at trial); R v Brown (Unreported, Supreme Court of Tasmania, Wright J, 20 June 1990); R v Wright (1991) 60 A Crim R 215 (excluded); R v Sammuk (Unreported, Supreme Court of Tasmania, Underwood J, 10 August 1992); R v Hinton (1995) 128 FLR 139 (excluded); R v Haughbro [1997] ACTSC 343; (1997) 135 ACTR 15; Barker v The Queen [1994] FCA 1577; (1994) 54 FCR 451 (found illegal on appeal, but not excluded).

[60] R v Becker (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Bryan and Vincent JJ, 21 November 1985); R v Warrell [1993] VicRp 48; [1993] 1 VR 671.

[61] DPP v Starr [1999] VSC 143 (Unreported, Eames J, 5 May 1999); R v Ince [1999] VSC 418 (Unreported, Teague J, 1 September 1999); R v Cummins (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Abadee BM, James and Barr JJ, 23 November 1998); R v Bryan [1998] TASSC 155 (Unreported, Slicer J, 9 December 1998); R v Taylor [1999] ACTSC 47 (Unreported, Higgins J, 26 May 1999) (excluded, on fairness grounds); R v Malloy [1999] ACTSC 118 (Unreported, Crispin J, 9 November 1999) (excluded).

[62] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Priestley JA, McInerney and Badgery-Parker JJ, 17 December 1992).

[63] (Unreported, Supreme Court of Tasmania, Wright J, 20 June 1990).

[64] [1994] FCA 1577; (1994) 54 FCR 451.

[65] [1998] TASSC 155 (Unreported, Slicer J, 9 December 1998).

[66] (Unreported, Supreme Court of Tasmania, Underwood J, 10 August 1992).

[67] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Newman, Levine and Barr JJ, 2 September 1997).

[68] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Bryan and Vincent JJ, 21 November 1985).

[69] [1993] VicRp 48; [1993] 1 VR 671.

[70] Ibid.

[71] [1999] ACTSC 47 (Unreported, Higgins J, 26 May 1999).

[72] For a more detailed analysis of the problems regarding judicial discretion, see Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (1988) vol 1,135–230.

[73] (Unreported, Supreme Court of Tasmania, Court of Criminal Appeal, Neasy, Cox and Underwood JJ, 14 May 1985).

[74] (Unreported, Supreme Court of Tasmania, Underwood J, 10 August 1992).

[75] See ALRC, above n 34, 530.

[76] Palmer, above n 15, 3 notes that ‘Victoria, Western Australia, Tasmania and the Northern Territory have all indicated an intention either to adopt the uniform evidence legislation or at least consider its adoption.’

[77] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Newman, Levine and Barr JJ, 2 September 1997).

[78] (1997) 96 A Crim R 421.

[79] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Abadee BM, James and Barr JJ, 23 November 1998).

[80] (1998) 99 A Crim R 143.

[81] [1997] ACTSC 343; (1997) 135 ACTR 15.

[82] [1999] ACTSC 47 (Unreported, Higgins J, 26 May 1999).

[83] [1999] ACTSC 118 (Unreported, Crispin J, 9 November 1999).

[84] R v Hinton (1995) 128 FLR 139; R v Taylor [1999] ACTSC 47 (Unreported, Higgins J, 26 May 1999); R v Malloy [1999] ACTSC 118 (Unreported, Crispin J, 9 November 1999).

[85] See Jerome Skolnick, Justice without Trial: Law Enforcement in Democratic Society (2nd ed, 1975) 213; Mark Finnane, Police and Government: Histories of Policing in Australia (1994) 157–8; John Kleinig, The Ethics of Policing (1996) 227.

[86] [1986] HCA 88; (1986) 161 CLR 278.

[87] Wood Report, above n 1, 36.

[88] For a detailed discussion about the ability to change police culture, see Chan, above n 3.


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