Public policy, police interest: a re-evaluation of the judicial discretion to exclude improperly or illegally obtained evidence.

• Jurisdiction: Australia
• Date: 01 December 2001
• Author: Presser, Bram

[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.]

I 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 &fence 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...