Abstract
The public policy discretion at common law in Australia was established in the High Court case of Bunning v Cross. The discretion has subsequently been interpreted and applied to permit courts to exclude evidence obtained by improper, unlawful or illegal conduct on the part of ‘the authorities’. The discretion has not been held to be enlivened for exercise in circumstances where the impugned conduct is on the part of private persons unconnected with law enforcement. This article argues that this fetter on the availability of the public policy discretion has been wrongly interpreted from the decision in Bunning and that, to the extent that the fetter now forms part of the common law discretion, it should be abandoned. The argument is made on the basis of the language, context, development and rationale of the public policy discretion as conceived in Bunning. The statutory Uniform Evidence Law, which applies in certain Australian jurisdictions, enacts a public policy discretion in s. 138 drawn from the common law public policy discretion. The Uniform Evidence Law is examined to indicate the absence of any fetter to the s. 138 discretion applying only to conduct by authorities as a basis for revising the understanding of the common law discretion. The comparable powers to exclude unlawfully obtained evidence in the United States and United Kingdom are examined to distinguish the rationale of the Australian discretion as requiring a broader scope of application. The internet is considered as a modern advent permitting previously unknown capacity for private persons to unlawfully police each other. Private criminal investigation through the internet is argued to be a further basis to mark the need for the extension of the Australian public policy discretion to all persons not only the authorities. The overarching thesis of this article is to demonstrate why the Australian common law public policy discretion should be enlivened by improper, unlawful or illegal conduct, regardless of the source of that conduct.
Introduction
Since Bunning v Cross, 1 Australian courts have had a specific discretion to exclude relevant and admissible evidence that has been obtained by improper or unlawful means. A limitation, or proviso, to this discretion as it was conceived of and developed by Australian common law was that, for the discretion to be enlivened, the relevant misconduct, be it unlawful or illegal, must be committed by a law enforcement authority or an agent of the same. 2 I will refer to this as the ‘authorities proviso’ and the authorities to whom I make reference will most commonly be police. At common law, unless the relevant misconduct is that of or attributable to law enforcement authorities, the public policy discretion does not arise—it is not enlivened—for consideration as to exercise by the court. This fetter on the availability of the public policy discretion has been read by intermediate courts of appeal from the language of Stephen and Aickin JJ in delivering the principal judgment defining the public policy discretion in Bunning v Cross.
The question has not been addressed by the High Court and was not addressed when the nature of discretionary exclusion of evidence arose in Swaffield & Pavic, 3 a decision of the High Court which Australian intermediate courts of appeal have interpreted as requiring a different approach to the discretionary exclusion of confessional evidence as opposed to real evidence. 4 At common law, Bunning continues to inform common law understanding of discretionary exclusion of real evidence which has been improperly, unlawfully or illegally obtained. In both Bunning, and Swaffield in the case of confessional evidence, the rationale underpinning the line of Australian High Court authority concerning the public policy in discretionarily excluding evidence impugned by impropriety or illegality is to protect judicial integrity so that a conviction is not ‘bought at too high a price’ and, ultimately, public confidence in the administration of justice is maintained. 5 To exercise the discretion, if enlivened, the court weighs various factors of public policy which effectively balance the public utility in the prosecuting of crime and the individual liberty in being policed according to law. 6
The proviso to the exercise of the public policy discretion has been strictly followed at common law, as will be discussed. This article explains the basis for that restriction and then argues against the restriction. The contention of this article is that the public policy discretion should be available to exclude unlawfully or improperly obtained evidence and therefore the discretion should be enlivened for such exercise, irrespective of who was responsible for the conduct—be they law enforcement, their agents or unconnected vigilantes.
The discontinuance of the authorities proviso is argued on two primary grounds. First, extending the availability of the public policy discretion to all improperly or illegally obtained evidence would reinforce, not undermine, its underlying rationale as developed and espoused in High Court jurisprudence. Secondly, the authorities proviso derives from a reading of Bunning by intermediate appeal courts which was not intended by Stephen and Aickin JJ. To evidence this, reference is made to the Uniform Laws of Evidence that apply in all Australian jurisdictions with the exception of South Australia, Western Australia and Queensland. 7 In uniform jurisdictions, the Bunning discretion is housed in s. 138 of the uniform evidence law and omits any distinction between the status of the person/s who may obtain evidence by improper or unlawful means on the basis of their connection or not to law enforcement. Consideration is also given to the approach of the UK and US to indicate the need for awareness of the different sources of the power to exclude improperly or illegally obtained evidence in Australia, the UK and US, notwithstanding their common legal roots. In accordance with the first argument, it is also argued that to limit the public policy discretion in Australian common law to law enforcement activity is not congruent with the mischief Stephen and Aickin JJ were seeking to make available for correction of a court in opining as they did in Bunning.
The second part of this article discusses the state of Australian jurisprudence regarding discretionary exclusion of evidence prior to Bunning to explain the background against which that case was decided. The next part examines the decision in Bunning in detail. This is followed by an examination of the intermediate appellate decisions following the delivery of Bunning, to explain the genesis and adoption of the authorities proviso from the language used in Bunning. It is argued that this interpretation elevates the relevant statement on which the authorities proviso is based to a fetter on the availability of the discretion that Stephen and Aickin JJ did not appear to intend and, moreover, that such a fetter is incongruent with the rationale on which the public policy discretion is purposively based. The maintenance of the authorities proviso in common law jurisdictions of Australia as against the absence of the proviso from the Uniform Evidence Law jurisdictions of Australia is considered. It is argued that the absence of any express consideration or direct removal of the proviso from the Uniform Evidence Law supports the argument that it was never intended that the Bunning discretion operate only with respect to the impugned conduct of law enforcement authorities. The next part considers the breadth of application to person/s beyond law enforcement of the equivalent US and UK provisions of law facilitating curial rejection of otherwise relevant and reliable evidence. The final part explains the modern phenomenon that commands the broad application of the common law public policy discretion to misconduct by any person/s in obtaining evidence, not just the authorities. That phenomenon is the internet, as both a vehicle for the commission of serious crime and the vehicle for vigilante investigation of serious crime. It is argued that the opportunity for vigilante justice created by the internet marks a similar watershed moment to that concerning increased State sophistication in policing that underlay the establishment of the public policy discretion in Bunning in 1978. It is argued that the result should be a recognition of the need for the public policy discretion to be enlivened by any impugned conduct in the collection and presentation of evidence before a court, in concert with the original and continuing rationale of the public policy discretion and common law which is to enable courts to protect their own processes against invocation through unlawful means.
Discretionary exclusion of evidence impugned for its collection prior to Bunning v Cross
Prior to Bunning, Australian common law was unclear as to whether police impropriety or unlawful conduct formed the basis of an independent discretion to exclude evidence for public policy, or whether, if such impugned conduct arose, it was a relevant factor to take into account as part of a broader discretion in the court to exclude evidence for prejudice or unfairness. Evidence may be discretionarily excluded as more prejudicial than probative. 8 The fairness discretion is now understood to be concerned with whether the reception of evidence would be unfair to the accused because it would result in an unfair trial. 9 The public policy discretion began as a particular consideration of the fairness discretion.
In McDermott v The King, 10 the High Court gave consideration to this question and the appropriate vehicle for a court to consider police misconduct. The appellant made a number of confessional statements whilst being questioned in police custody. 11 He had been cautioned but not formally charged by the police. At trial, the appellant sought to exclude his confessional statements. Latham CJ in his consideration of the unfairness discretion held that the actions of the accused and the subjective effect of any conduct on the accused were central to a discretion to exclude for unfairness. 12 The unfairness discretion would be enlivened by any irresponsibility on the part of the accused when the statement was made, ‘or failure…to understand and appreciate the effect of questions and answers’. 13
Dixon J (as he then was) had a different view. His Honour considered that the unfairness discretion would be enlivened whenever confessional statements were obtained or procured in an improper manner. His Honour focused on the power of law enforcement authorities to improperly procure confessions and the fact that confessions so obtained would necessarily be less reliable.
Dixon J recognised the development in England of a judicial discretion to exclude confessional statements made to police where they were obtained improperly. The English discretion required a trial judge to form an opinion on the ‘the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused’.
14
His Honour acknowledged that the English discretion had not been entirely accepted nor rejected in Australia,
15
but considered that the judicial discretion in Australia should be understood as follows: a judge at the trial should exclude confessional statement if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law, common law and statutory, require the rejection of the evidence.
16
Williams J placed importance on analysing the nature of the impropriety of the person/s asking questions, which in modern conditions were most likely to be the police. Both Williams and Dixon JJ gave early consideration and emphasis to scrutiny of the impropriety as the source and subject of the court’s power and investigation.
In McDermott, whilst a confessional evidence case considering discretionary exclusion for unfairness, the reasoning of the court is demonstrative of two opposing positions where police misconduct was involved. Latham CJ considered that the focus should be the subjective effect of the conduct on the accused. Dixon and Williams JJ placed greater significance on the court reviewing the improper conduct itself, as objectively undesirable.
Ireland v The Queen 17 shortly pre-dated Bunning and first considered the development of an independent public policy discretion against the receipt of evidence, the collection of which was impugned beyond and distinct from notions of unfairness, prejudice or subjective effect on the accused. This consideration was, however, in the context of the scope of the fairness discretion, being a discretion of breadth and idiosyncrasy as in McDermott.
In Ireland the court considered its discretion to exclude three items of evidence alleged to have been obtained unlawfully by police, one being questions and answers made at the end of a long interrogation by the police and after the accused had refused to answer further questions, the second being photographs of scratches on the accused’s hands and the third being a medical exam of the accused’s hand in breach of statutory provisions. Barwick CJ, in delivering the leading judgment, referred to the discretion to exclude evidence where there has been ‘unlawfulness or unfairness…[in] the manner of its discovery or creation’. 18
Two of the items of evidence under consideration, being the photographs of the accused’s hand and the testimony of a medical practitioner, had been obtained in breach of the Police Offences Act 1955–1960 (SA). This Act provided a regime for submitting suspects to medical examination which was designed to protect the suspect. The police in this case did not comply with the relevant statutory provision, thereby denying the accused of the opportunity to present evidence from a medical practitioner of his choosing. 19
Barwick CJ acknowledged that the evidence was not prima facie inadmissible merely because it had been obtained by unlawful or unfair means.
20
Evidence obtained in those circumstances would be subject to an inquiry. The focus of the inquiry, according to his Honour, showed support for the view of Dixon and Williams JJ in McDermott in that it was to be on the improper or unfair conduct used to secure the evidence, not its subjective effect on the accused. Barwick CJ said: Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
21
Ireland lent support and momentum to a discretion that was objectively focused on the conduct used to obtain evidence. But the effect of the judgment of Barwick CJ was unclear. Had the Chief Justice formulated a new discretion to exclude evidence on public policy grounds? Or was his Honour’s reasoning limited to the expansion of the scope of the unfairness discretion to include policy considerations, with such policy being an objective measure? The language employed by Barwick CJ married the terms ‘unlawfulness’ and ‘unfairness’ as informing the one discretion rather than separating them as distinct bases for judicial intervention via discretion. However, the term ‘unfairness’ was capable of being read in several ways: it could equally refer to improper conduct used to obtain evidence as it could acts that are unfair from the subjective vantage of the accused or that cause a trial to be unfair for an accused.
The reasons of Barwick CJ suggest that his Honour envisages any such discretion as principally applying to the police. His Honour reviewed a number of decisions which supported the existence of a discretion to refuse evidence obtained improperly or unlawfully and considered that they set out ‘a rule of practice for the conduct of police officers’. 22 Police will, of course, be the usual perpetrators of any wrongdoing in the policing of crime and obtainment of evidence, as that is their daily task. That is not to the point of whether the discretion is limited and exclusive to them. Barwick CJ stated only one express requirement that would trigger the discretion of which he spoke: ‘unlawfulness or unfairness’. His Honour said nothing explicit nor implicit to suggest that such conduct was the exclusive purview of police, nor that such conduct would only be the concern of a court if occasioned by law enforcement or their agents.
Before Bunning came before the High Court in the second half of the 1970s, the Australian Law Reform Commission published its Second Report in 1975. The report concerned criminal investigation (Australian Law Reform Commission, 1975). The Commission summarised what it understood to be the then current law in relation to the exclusion of illegally obtained evidence. The Report stated that in Australia ‘evidence is admissible even though it was obtained by illegal or improper means, but the court has a discretion to exclude if its admission would operate unfairly against the accused’ (ALRC, 1975: [288]). The Commission characterised the discretion in accordance with the common law authority that was emerging, namely that the exclusion of improperly obtained evidence was itself a relevant consideration but as a subset of the unfairness discretion and not as stand-alone discretion to be invoked for impropriety of unlawfulness.
The 1975 Report highlighted various weaknesses with the discretion described by Ireland. 23 The discretion was rarely exercised to exclude relevant evidence. Faced with improperly obtained evidence, courts would often limit any remarks to criticism of the police misconduct involved but would otherwise receive and admit the evidence (ALRC, 1975: [288]). As it was usually real evidence, the evidence spoke for itself and its character was not affected by the nature of police misconduct in the way that confessional evidence may be tainted in its reliability by virtue of how it was obtained or procured.
The Commission described the discretion as a ‘virtual non-exclusionary rule’ (ALRC, 1975: [296]). The Commission recognised that ‘unfairness’, which was central to the discretion, was susceptible to multiple meanings and therefore vague (ALRC, 1975: [290]). The Commission observed that there was an increasing concern amongst the judiciary with respect to the ‘incidence of evidence wrongfully obtained’ (ALRC, 1975: [298]).
In response to the weaknesses identified with the unfairness discretion, the Commission recommended the creation of a new discretion to exclude evidence. In its formulation of the discretion, the burden rested with the party seeking to have the improperly obtained evidence admitted. The Commission described the discretion as follows: …our proposal is that evidence obtained in contravention or in consequence of any contravention of any statutory or common law rule…should not be admissible in any criminal proceedings for any purpose unless the court decides, in the exercise of its discretion, that the admission of such evidence would specifically and substantially benefit the public interest without unduly derogating from the rights and liberties of any individual. (ALRC, 1975: [298])
It was clear that the focus of the discretion proposed by the Commission was that improper or unfair conduct, rather than its subjective effect on a suspect/accused, should enliven a discretion to exclude with the exercise of the said discretion to depend on a weighing of public policy considerations. What was unclear was whether the decision of Barwick CJ in Ireland had indeed formulated such a new independent discretion to exclude evidence or whether it had expanded the scope of the unfairness discretion. For present purposes, in neither Ireland nor the Report of the Commission was there any express limitation placed on the discretion that it only apply to police or law enforcement. Insofar as there was any limitation that the discretion apply to police misconduct in gathering evidence, it arose by equivocal implication. The question of any such limitation had never been directly addressed.
Bunning v Cross—did it intend the authorities proviso?
The discretion to exclude improperly or unlawfully obtained evidence on public policy grounds was first clearly articulated as a free-standing judicial discretion by Stephen and Aickin JJ in Bunning v Cross.
In Bunning, the appellant was stopped by a patrolman on suspicion of driving his car under the influence of alcohol. He was then requested to accompany the patrolman to the local police station to undergo a breathalyser test. Under the Road Traffic Act 1974 (WA) a police officer could only require a person to submit to a breathalyser test at a police station if they had either requested a preliminary test with a portable device or had reasonable grounds to believe that the person was driving under the influence of alcohol. In this instance neither of these preconditions had been satisfied so the patrolman was not authorised to require the appellant to undergo a test at the station. The evidence of the breathalyser was, as in most cases, the critical evidence for convicting the appellant. The High Court was asked to consider whether the unlawfulness of the test enlivened a discretion to exclude the evidence and in considering that question, the court considered the nature of the discretion that arose for exercise.
The joint judgment of Stephen and Aickin JJ commenced with a consideration of the unfairness discretion. Their Honours noted that, in England, where real evidence was obtained by unlawful means, it could be excluded under the general unfairness discretion. That was the position in the 1955 decision of Kuruma. 24 The state of the law in Australia, however, had departed from the English position and was represented by the principles discussed by Barwick CJ in Ireland. 25
Stephen and Aickin JJ considered that Barwick CJ had formulated a new discretion to exclude evidence obtained unlawfully or improperly on public policy grounds:
26
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of 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. …it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
Stephen and Aickin JJ considered that the following factors were relevant to deciding whether to exercise this public policy discretion: whether there is deliberate or reckless disregard of the law by those who enforce it: this was the ‘real evil’ to which the discretion is directed;
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the cogency of the evidence: this factor should not be given weight where the illegality was intentional or reckless;
29
the ease with which the law might have been complied with in procuring the evidence: a deliberate ‘cutting of corners’ militates against admission;
30
the nature or seriousness of the offence charged;
31
and the legislative intent of the relevant provision.
32
Their Honours found no deliberate or reckless disregard for the law by the patrolman, whose mistaken assessment of the appellant had been influenced by his staggering gait. The evidence of the breathalyser test was critical to supporting the charge and while the statutory procedure was not followed it had little significance as a preliminary test would have been positive. Their Honours acknowledged that the offence charged was serious but recognised that the intention of the provision was to protect against being compelled to attend a police station, not freely submitting to a breathalyser test. In those circumstances, the evidence of the test was held rightly admitted.
The authorities proviso has been construed by subsequent intermediate courts of appeal from the statement that the evidence be the ‘product of unfair or unlawful conduct on the part of the authorities’. 33 This statement was not clarified or supported by further remarks of their Honours. Stephen and Aickin JJ did not indicate any particular consideration as to why the discretion should be confined by the proviso that the conduct be on the part of the authorities. Some of the factors relevant to deciding whether to exercise the discretion lend themselves more readily to police conduct, however, no suggestions were advanced by their Honours against the availability of the discretion to persons outside law enforcement. Their Honours’ remark (on the part of the authorities) may be regarded, I submit, as indicative that it will usually be conduct on the part of the authorities, rather than this being a requirement.
Barwick CJ presided over the court in Bunning. In his Honour’s reasons for judgment, he only referred to ‘enforcement’ of the law but did not suggest that the discretion was limited to conduct by those charged with this responsibility. 34
Insofar as discussion in Bunning may be regarded as limiting the discretion to evidence obtained by law enforcement authorities, that is the inference from contextual obiter observations of the court, rather than any clearly stated or reasoned basis for such a limitation. Stephen and Aickin JJ made clear that public policy, not unfairness, was central to the existence and exercise of the discretion identified in their joint judgment. Their Honours recognised the importance of protecting individual liberty and privacy in modern society where both criminal activity and law enforcement had become increasingly sophisticated.
35
Their Honours stated: There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society’s right to insist that those who enforce the law themselves respect it, so that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. A discretion exercisable according to the principles in Ireland’s Case serves this end whereas one concerned with fairness may often have little relevance to the question.
36
Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregards of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
37
Barwick CJ agreed with the principles discussed and conclusion reached in the joint judgment.
38
The Chief Justice, who agreed that the breathalyser test should have been admitted, considered whether: the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which that evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected.
39
Jacobs J found that the evidence had been regularly and lawfully obtained on his reading of the relevant Act and therefore did not consider its discretionary exclusion. Murphy J excluded the evidence of the test on the grounds that the police had engaged in implied coercion and undermined the relevant legislative protections.
The issue left hanging by Ireland, as to whether there is a separate judicial discretion to exclude evidence on the basis of pubic policy, was answered affirmatively in Bunning. Bunning did not confirm Ireland but redirected the notions of the prior case. In Cleland v The Queen,
40
which followed Bunning, Gibbs CJ appeared to support this view. His Honour said: Whatever may have been the position before Bunning v Cross, that decision makes it clear, in my view, that the balancing of public interests which now forms the basis for the discretionary rejection of improperly or illegally obtained evidence, including evidence of confessional statements, is no longer a consideration in the exercise of the older discretion to exclude evidence of confessional statements. Such policy considerations as may have hitherto played a part in the exercise of that discretion have now been extracted to form part of the newer and wider discretion affirmed in Bunning v Cross.
41
The interpretation and establishment of the authorities proviso at common law
In cases following Bunning, intermediate appellate courts have interpreted and applied the authorities proviso as a condition precedent to the exercise of the public policy discretion. In cases following Bunning where improper or unlawful conduct has resulted in evidence being obtained, but that conduct was not engaged in by law enforcement or connected to them though their agents, the discretion to exclude the evidence on public policy grounds, as set out in Bunning, has been held not to be enlivened for exercise. As Presser has noted, at common law, ‘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’ (Presser, 2001: 761).
The application of the public policy discretion to persons whose responsibilities fell outside law enforcement was considered by the Supreme Court of South Australia in Police v Jervis; Police v Holland. 43 In Jervis and Holland, the two defendants each sought to exclude evidence of their breath analysis reading on public interest grounds. In both cases, the defendant alleged that they were denied, by unlawful or improper conduct, the opportunity to rebut a statutory presumption with a blood test, which was provided for under the relevant Act, being the Road Traffic Act 1961 (SA). 44 In the case of the first defendant, Jervis, a medical practitioner had failed to comply with the lawful regulations for having a sample of blood analysed. In the case of the second defendant, Holland, he had decided not to have a blood analysis after being advised by a nurse that the sample would record a higher concentration of alcohol than his initial breath analysis.
Doyle CJ delivered the opinion of the Court of Criminal Appeal of South Australia, with Bleby and Martin JJ agreeing. His Honour stated that he understood the public policy discretion operated to protect against a loss of rights caused by impropriety on the part of law enforcement authorities rather than by events that are not their responsibility. 45 Doyle CJ reasoned that as there had been no unlawful conduct or impropriety by the police or by law enforcement authorities (the medical practitioners having no connection to law enforcement), excluding the evidence would neither deter future unlawfulness or impropriety nor serve a public interest. 46 Indeed, in the case of the defendant, Jervis, the statutory regime for taking blood samples was entirely outside the control and responsibility of the authorities. 47 Doyle CJ therefore held that the public policy discretion was not available, not enlivened, to exclude the evidence, primarily on an interpretation of Bunning.
A contextual reading of Bunning permits of an interpretation that the public policy discretion there pronounced is concerned with law enforcement. Stephen and Aickin JJ set out the discretion following observations about the place of the citizen as against the power of the State. They observe: The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard.
48
Jervis overruled the earlier decision of Nyland J, sitting as the Supreme Court on appeal from the Magistrates Court, in Police v Erwin. 49 In Erwin, Nyland J gave a broad construction to who were ‘the authorities’ as described by Stephen and Aickin JJ.
In Police v Erwin, a nurse who took blood failed to provide the defendant with the container to which he was entitled under the relevant legislation (both containers were sent to the State Forensic Science Service for analysis). Nyland J upheld the magistrate’s exercise of discretion to exclude the blood alcohol evidence and found that the nurse had, innocently, acted in accordance with incorrect police advice. In so finding, Nyland J said: In those circumstances I consider that the failure to comply with such an important statutory requirement can be categorised as being unfair and therefore does give rise to the discretion to exclude on the grounds of unfairness. I also agree with the submission made by [counsel for the defendant] that whether one is considering the exercise of a ‘fairness’ discretion or a discretion more concerned with breach or non-performance of a statutory requirement, it is not necessary to establish that the police themselves were responsible for the breach or the non-performance. In Bunning v Cross, Stephen and Aickin JJ referred to conduct by ‘the authorities’ not just by the police. In some cases the unfairness may arise from the objective impact of the state of affairs of an accused person, quite apart from any causal behaviour or failure by the police…I do not accept [counsel for the Crown’s] submission that in this case the medical practitioner was an agent of the respondent as she had been at liberty to choose the medical practitioner who conducted the blood test. Parliament has prescribed that medical practitioners are to be entrusted with the obligation of carrying out certain duties under the Act and has imposed upon them strict duties of compliance in such matters as the manner in which the sample of blood is taken and how the sample should be dealt with.
50
Limiting the public policy discretion to law enforcement, or even categories of persons with legislative functions as inferable from the reasoning of Nyland J in Erwin, is not defensible if the rationale is judicial integrity, as judicial independence means that integrity is not interconnected with certain persons or bodies more so than others. Excluding categories of persons from the scope of the discretion means that a different rationale must inform the discretion. If it is only to apply to ‘authorities’, the rationale may protect integrity but it is also aimed at discouraging, correcting or punishing police action and behaviour.
The Bunning discretion is not aimed at punishing police, but at protecting the role of the courts as tribunals concerned with upholding the law. Stephen and Aickin JJ eschewed the reception of evidence that would ‘demean the court as a tribunal whose concern is in upholding the law’. 51 Subsequent cases have merely elucidated the rationale that has always underpinned the Bunning discretion, 52 namely, the preservation and protection of the integrity of the courts in administering the criminal justice system.
Curial integrity comprises ‘the need to protect the processes of the courts and to maintain public confidence in the administration of justice’ (Selway, 2002: 16). Given that the ‘processes of the court’ are protected by reference to ‘considerations that bear on public confidence’, 53 curial integrity has been described as ‘public attitude integrity’ (Mirfield, 1997: 24, 360) because the ‘public’s approval of and respect for the judiciary is what counts’. 54
The rationale of curial integrity informing the existence and exercise of the public policy discretion was recognised by Lander J in extending the discretion to civil proceedings. In Southern Equities, 55 Lander J, in reasoning why the Bunning discretion should apply to civil proceedings, stated: ‘the same public policy is relevant in civil proceedings as in criminal proceedings. The public policy being…the protection of the integrity of the courts and thereby the administration of justice’. 56 The weight of Australian authority supports, albeit in limited circumstances, 57 the availability of the Bunning discretion in civil cases. 58
Intermediate appellate courts have correctly discerned and confirmed the rationale of curial integrity informing the Bunning formulated public policy discretion. Another aspect of the Bunning discretion is that there be a causal connection between the impugned conduct and the obtainment of the evidence. The misconduct must result in obtaining the evidence. This causal connection was recognised in R v Lobban.
59
The South Australian Court of Criminal Appeal refused to exercise the public policy discretion to exclude evidence that had not been obtained by any unlawful, improper or unfair conduct.
60
Martin J held that to exclude such evidence would be akin to the courts assuming a broad supervisory role over the authorities. He said: The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct.
61
Some authorities have relaxed the requirement that there be a strict causal link between the alleged misconduct and the gathering of evidence. In Director of Public Prosecutions (Vic) v Moore, 63 Chernov JA held that in some circumstances the improper conduct ‘so closely relates to the value and effect of that evidence that there can be no meaningful separation between the two aspects of their seemingly continuous conduct’. 64 Moore concerned the exclusion of evidence of a lawfully administered breath analysis, following which improper advice was given to the effect that the respondent not pursue his right to a blood test. Chernov JA held that the subsequent advice so ‘closely’ related to the procurement of the breath analysis that it enlivened the public policy discretion. Improper conduct that occurs after the procurement of evidence may, therefore, enliven the public policy discretion if there is a ‘relevant connection’. 65 The point is that the consideration by Chernov JA in Moore, akin to that of Nyland J in Erwin, reflects application of the public policy discretion to circumstances justifying the court considering whether the evidence should be refused for reasons of policy in line with a rationale of curial integrity—a consideration stifled by fettering the availability of the discretion according to categories of wrongdoers.
In Pollard v The Queen,
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Deane J revisited the principles that formed the basis of the public policy discretion: The principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence…In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
67
The maintenance of the authorities proviso in common law evidence jurisdictions of Australia
In Queensland, South Australia and, with some modifications, Western Australia, these jurisdictions have not adopted the Uniform Evidence Law as in other Australian jurisdictions and thus the discretion to exclude evidence on public policy grounds continues to operate at common law, as limited by the authorities proviso.
In Western Australia, the introduction of the Criminal Investigation Act 2006 has limited the scope of the common law public policy discretion. The Act provides the Western Australian State police force with various powers in relation to, among other things, investigation and detention. If there is a breach of the Act in purported exercise of a statutory power, the evidence obtained will be deemed inadmissible pursuant to s. 154. Section 155 of the Act, however, provides the court with a discretion to admit the evidence if the desirability of admitting the evidence outweighs its undesirability. The discretion to admit in s. 155 is informed by the typical Bunning factors 70 and the reversed admissibility 71 (i.e. that the improperly obtained evidence is prima facie inadmissible subject to discretionary inclusion reverses the common law position of the evidence being prima facie admissible subject to its discretionary exclusion) is largely the same as that provided by s. 138 of the Uniform Evidence Acts, which will be discussed later. 72
In Western Australia, only where evidence is obtained illegally or improperly but not in purported exercise of a power under the Criminal Investigation Act will a court consider the common law public policy discretion. 73 As a corollary, evidence obtained in breach of the Criminal Investigation Act and considered under s. 155 will not be considered under the common law discretion despite their broad similarities. 74
The absence of any authorities proviso (and the absence of reasons for the absence) in the Uniform Evidence Law of Australia
Evidence law in the Commonwealth of Australia, New South Wales, Victoria, Tasmania, the Northern Territory and Australian Capital Territory is governed by the Uniform Evidence Law. This comprises discrete Acts for each of the uniform jurisdictions which are different in some respects but are largely modelled on the same base provisions and structure. The Uniform Evidence Acts were passed with the aim of bringing uniformity to the laws of evidence among Australia’s numerous jurisdictions and to replace the then existing law with a new, modern evidence law.
The public policy discretion is enacted in s. 138 of the Uniform Acts. The Commonwealth Evidence Act, Evidence Act 1995 (Cth), provides as follows: 1. Evidence that was obtained: improperly or in contravention of an Australian law; or in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 3. Without limiting the matters that the court may take into account under subsection (1), it is to take into account: the probative value of the evidence; and the importance of the evidence in the proceeding; and the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and the gravity of the impropriety or contravention; and whether the impropriety or contravention was deliberate or reckless; and whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
The statutory discretion in s. 138 has a number of similarities with the common law discretion. First, like its common law counterpart, s. 138 seeks to strike a balance between two competing public policies, prosecuting offenders and protecting individuals. This position was confirmed by the Australian Law Reform Commission in its Interim Report on Evidence in 1985. The Commission stated that the proposed discretion sought to address ‘the conflict between the public interest in admitting reliable evidence (and thereby convicting the guilty) and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the judicial system’.
76
This view was supported by McClellan CJ in R v Camilleri.
77
In discussing s. 138, his Honour said: …However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders.
78
The significant distinction between the statutory and common law forms of the public policy discretion is the absence of any language that restates or even implies the authorities proviso in s. 138.
Section 138 of the Uniform Evidence Acts is not limited to misconduct committed by law enforcement authorities. There are no words of limitation that prevent the statutory discretion from being exercised to exclude evidence procured by persons who are not law enforcement authorities such as investigators, nurses and doctors.
More strikingly, there is no consideration of the authorities proviso in the extrinsic material informing the architecture of the Uniform Evidence Acts. The proviso is not identified in common law, nor, obviously, is it expressly excluded from s. 138 in any of the Commonwealth materials enacting the Evidence Act 1995 (Cth). The Australian Law Reform Commission Reports which informed the Uniform Evidence Law do not identify or reason for the exclusion of the authorities proviso. The explanatory memorandum to the Northern Territory’s Evidence (National Uniform Legislation) Bill 2011 (NT) in its discussion of s. 138 acknowledged that the common law discretion had been modified and ‘extended to evidence gathered by anyone, not just police officers’. 80 However, the architects of the Uniform Evidence Law generally said little to identify or dispel the authorities proviso, indicating limited consideration for any fetter on the common law discretion from which s. 138 was derived.
The lack of any express authorities proviso in s. 138 of the Uniform Evidence Acts, that it only applies to police misconduct, has resulted in s. 138 being enlivened for consideration in a wider set of circumstances than at common law. In R v Camilleri, 81 a nurse requested a sample of blood from the respondent who complied. The respondent, who was at the hospital to be with his dying wife, was advised by the nurse that he was legally obligated to provide the sample. While the request was innocently made, there were no grounds to require the respondent’s submission to the sample. The primary judge determined that as the nurse was not authorised to request the sample, it had been improperly obtained within the meaning of s. 138 and it was excluded. On appeal, McClellan CJ (with whom Bell and Howie JJ agreed) acknowledged that the taking of the sample was improper and an invasion of privacy. His Honour, however, considered that the primary judge had fallen into error by finding the nurse’s actions had involved a ‘grave impropriety’ and in weighing the factors in s. 138(3). Accordingly, the primary judge’s order rejecting the evidence was quashed. However, it was the exercise not the enlivenment of the s. 138 discretion which was held to be erroneous, contrary to the common law position.
Section 138 reflects the majority Australian approach to improperly or unlawfully obtained evidence, namely, that it is prima facie inadmissible and secondly, that it is not limited by the perpetrator of the misconduct. Both tenets accord with a rationale of preserving integrity in the judiciary by virtue of the evidence presented to courts to sustain criminal convictions or other sanction of law.
The exclusion of evidence impugned for improper or unlawful conduct in its collection in the US and UK
Comparison to the United States and United Kingdom approaches to the exclusion of improperly or unlawfully obtained evidence demonstrate that the source of legal authority for the exclusion together with the rationale for the power to exclude are fundamental to the scope and application of any power to exclude evidence impugned for the manner of its collection. The United States excludes unlawfully obtained evidence pursuant to a Constitutional imperative and the United Kingdom pursuant to a statutory power. These are contrasted with the Australian common law position to evidence the ambit of the discretion and the rationales informing them in each jurisdiction.
The United States—constitutional exclusion
In the United States, objections to improperly or illegally obtained evidence are generally considered pursuant to the Fourth Amendment to the Constitution. There are also numerous other rules for excluding or otherwise dealing with improperly obtained evidence which may arise from contravention of State constitutional provisions analogous to the Fourth Amendment, 82 by use of a court’s ‘inherent power’ 83 to exclude or by statutory exclusionary power. 84
The Fourth Amendment provides for a constitutional protection against unreasonable searches and seizures. It states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Where evidence has been obtained during a search in breach of the Fourth Amendment the evidence may be excluded or, to use the American terminology, suppressed under the exclusionary rule. The Fourth Amendment exclusionary sanction also requires exclusion of derivative evidence obtained as an indirect result of the infringing conduct or evidence obtained as a factual result of that violation, 86 a principle known as the ‘Fruit of the Poisonous Tree’ doctrine. 87 Derivative leads obtained from an illegal search and seizure will therefore fall within the ambit of this rule and accordingly, be excluded. A search will typically be unreasonable and contravene the Fourth Amendment where police lack a warrant to search or execute a warrant inconsistently with its terms. An unconstitutional search will normally necessitate exclusion of the evidence.
In Mapp v Ohio, 88 police officers requested entry into the appellant’s home for the purposes of an investigation. The appellant refused entry to the officers after receiving advice from her lawyer that she was not obliged to comply unless a search warrant was produced, which was not. The officers later returned and forced their way into her residence. The officers seized a number of books and pictures after a search of the premises. During the search, the appellant’s lawyer arrived at the scene but was refused entry by the police. At the trial the seized materials were used to convict the appellant for possession of lewd and lascivious materials in violation of a State Code. Notably, no search warrant was produced to the court. The Supreme Court held in those circumstances, that the search was unconstitutional and the evidence was consequently inadmissible. The Court pronounced that ‘all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court’. 89
This ‘exclusionary rule’ 90 is not expressly provided for in the Fourth Amendment but is a judicially created rule ‘designed to safeguard Fourth Amendment rights generally’. 91 As such, the exclusionary rule does not confer a personal constitutional right nor is it aimed to redress injury. 92 The exclusionary rule is therefore independent of but inextricably linked to the Fourth Amendment. 93 The rule is exclusively 94 aimed at deterring misconduct by law enforcement authorities by excluding evidence obtained as a result of illegal searches by such authorities. The rationale underpinning the exclusionary rule is therefore markedly different from that underpinning the Australian public policy discretion. The United States exclusionary rule is based on deterring police from unlawful conduct in search and seizure in criminal investigation. The deterrent effect of any exclusion of evidence obtained in breach (or potential breach) of the Fourth Amendment is the guiding rationale of whether the exclusionary rule is to be exercised as the constitutional safeguard. This was confirmed by the Supreme Court of the United States in 2009.
In 2009, the Supreme Court of the US in Herring v United States indicated that the exclusionary sanction will only operate to exclude evidence obtained during the search where the benefits of deterring future contraventions outweigh the ‘substantial social costs’.
95
In a 5:4 split, the Supreme Court held that the exclusionary rule may not apply to a search which even if unconstitutional was the result of negligence or inadvertence by police.
96
Chief Justice Roberts, delivering the majority opinion, stated: [t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.
97
The majority opinion in Herring may be regarded as a relaxation of the strict application of the exclusionary rule to Fourth Amendment contraventions. Prior to Herring and since Mapp, which extended Wolf, the exercise of the exclusionary rule was considered to be absolute in the face of Fourth Amendment contravention. 103 The weighing exercise adopted by the Supreme Court represents a departure from the strict position in Mapp. Until recently, it appeared that evidence obtained in violation of the Fourth Amendment would be mandatorily excluded. 104 Trivial, technical and unintentional breaches of the Fourth Amendment could result in the exclusion of evidence. There were, and still are, however, limited exceptions to the rule that allowed certain evidence to be received. As an example, evidence obtained in an unconstitutional search could not be used to prove the guilt of a defendant, but could be used to prove collateral matters such as a witness’s credibility. 105 It is now clear that exclusion of evidence is ‘not an automatic consequence of a Fourth Amendment violation’. 106
The decision in Herring reinforces the rationale that guides the exclusionary rule to the Fourth Amendment. The rationale is solely concerned with deterrence of police misconduct. It is not, unlike the public policy discretion, a measure to preserve the judicial integrity of courts (although it may have that side effect). As Chief Justice Roberts in Herring summarised: Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.
107
The Fourth Amendment 108 to the United States Constitution 109 regulates the actions of federal 110 and state 111 government agents; 112 the framers did not intend to restrain the activities of private persons unconnected with law enforcement. In Burdeau v McDowell, Day J, in delivering the opinion of the court, said the Fourth Amendment’s ‘origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies’. 113 United States courts have consistently held that evidence secured by private searches, even if such searches were conducted by the private party illegally, is admissible in criminal trials. 114 Regardless of the merits of the exclusionary rule, 115 the unconditional reception of evidence obtained as a result of illegal actions by private persons is wholly consistent with the raison d’être for the exclusion of evidence in the United States, namely, the deterrence of police misconduct.
The principles underlying the Fourth Amendment exclusionary rule are distinct from those that support the Australian public policy discretion. Deterring future violations of the Fourth Amendment is the critical purpose of the exclusionary rule. Indeed, Herring makes clear that only when the benefits of deterrence outweigh the countervailing social costs will the court exercise its power to exclude evidence. Although the exclusionary sanction does serve other purposes including minimising the risk of undermining trust in the government and protecting judicial integrity, those appear to be of secondary importance. 116
Given that the driving force behind the Fourth Amendment exclusionary sanction is to ‘deter misconduct by law enforcement’ 117 it makes sense to limit its application exclusively to evidence unconstitutionally obtained by the police. 118 The United States Supreme Court has repeatedly rejected expanding the exclusionary rule beyond conduct by or at the behest of law enforcement. 119
The Australian public policy discretion is based on protecting judicial integrity not deterrence. Evidence obtained improperly or illegally can rationally taint judicial integrity whether or not it was the police who engaged in the misconduct. The Australian public policy discretion is also not tethered to the federal constitution. The public policy discretion is a creature of case law and is not restricted by constitutional doctrine, making it more amendable to evolution in accordance with reason (which, really, existed from the inception of the public policy discretion).
The Fourth Amendment exclusionary rule usefully demonstrates the different scope it should have from that of the public policy discretion by virtue of the rationale informing each provision within the legal context of the respective countries.
The United Kingdom—statutory exclusion
In the 1861 case of R v Leatham, 120 Crompton J took a marvellously liberal view of evidence admissibility. He said: ‘It matters not how you get it; if you steal it even, it would be admissible in evidence.’ 121
This dogma largely informed the English courts until the introduction of s. 78 of the PACE of the Police and Criminal Evidence Act 1984 (UK) 122 (‘PACE’). In the United Kingdom, evidence obtained by improper or unlawful means is not inadmissible per se, but may be excluded pursuant to the s. 78 statutory power enacted in PACE.
Section 78 relevantly provides: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
Section 78(1) will be enlivened where a defendant satisfies the required evidentiary burden to place the provision in issue. The court then considers all the circumstances, including how the evidence was obtained, in determining whether the admission of the evidence would have ‘such an adverse effect on the fairness of the proceedings’ that it ought to be excluded. While the word ‘may’ in s. 78(1) implies the conferral of a discretion, some courts have rejected this characterisation due to the unlikelihood that evidence prejudicial to the fairness of a trial would nevertheless be admitted. 123
The immediate point of comparison with the Australian position concerns the conflation of fairness with unlawfulness in evidence obtainment in England, as opposed to the separate consideration of fairness and unlawful evidence obtainment pursuant to two distinct discretions since Bunning in Australia. How an item of evidence affects the fairness of a proceeding is pivotal to s. 78(1) of PACE. The word ‘fairness’, as noted earlier, is susceptible to wide interpretation. In the context of s. 78(1) ‘fairness’ refers to the ‘fairness of [the] proceedings’. While that concept has not been exhaustively defined, it is clear that the reliability of evidence and a defendant’s ability to test its reliability fall within that meaning. 124 Any alleged misconduct must, therefore, affect the quality of the evidence before the statutory power will be exercised. 125 However, any alleged misconduct may be the relevant invocation affecting the fairness of the proceedings. Given that the rationale of s. 78 is concerned with fair trial process, s. 78, akin to s. 138 of the Uniform Evidence Law in Australia, is not fettered by express or implicit language to exclude particular or categories of person/s from its application.
Codes of Practice, which are issued under PACE, may also be relevant to determining whether the admission of evidence would be prejudicial to the fairness of a proceeding. A Code of Practice guides police conduct under PACE. While contravention of a Code would not for that reason alone result in the exclusion of evidence it is a consideration relevant to deciding that question. 126
The inquiry in s. 78(1) is also informed by rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by protocols Nos. 11 and 14. Section 3 of the Human Rights Act 1998 (UK) requires domestic legislation, such as PACE, to be read in a manner ‘compatible with…Convention rights’. Article 6 of the Convention relevantly provides for a right to a fair trial. While evidence obtained in circumstances that breach a Convention right will not automatically be excluded under s. 78, which strictly has not been modified by the Convention, 127 any non-compliance will be taken into account when determining whether the admission of evidence would adversely affect the fairness of a proceeding. 128
In R v Khan, 129 the police, without the knowledge or consent of the occupier, installed an electronic listening device on the outside of a house. The device recorded conversations between the defendant and others implicating him in the importation of heroin. The defendant sought to have the evidence of the admissions excluded pursuant to s. 78 of PACE. While the installation of the device followed relevant Home Office guidelines, the prosecution conceded that it had involved civil trespass and likely damage to property. The defendant submitted that the conduct of the police involved a breach of Article 8 of the Convention which provided for a right of privacy.
Lord Nolan, on whose reasons the other Law Lords relied, recognised that evidence improperly or unlawfully obtained was prima facie admissible subject to the s. 78 discretion to exclude it. 130 His Lordship recognised the relevance of the principles in the Convention 131 but rejected the proposition that breach of a Convention article would necessitate exclusion of the evidence consequently obtained. 132 The significance of any breach of the Convention or unlawfulness depended on ‘its effect, taken as a whole, upon the fairness or unfairness of the proceedings’. 133 Lord Nolan held that in the circumstances despite the breaches of English law, even assuming a breach of Article 8, admission of the evidence would not prejudice the fairness of the trial and exclusion was not required.
Prior to the introduction of s. 78, the discretion to exclude improperly and unlawfully obtained evidence was governed by the common law in England. In R v Sang, 134 the House of Lords stated that apart from admissions, confessions and generally evidence obtained from an accused after the commission of an offence, there was no discretion to exclude evidence on the basis that it was obtained by improper or unfair means. 135 Sang effectively overruled earlier authority which suggested the existence of a general discretion to exclude evidence where the strict rules of admissibility would operate unfairly against an accused. 136
Lord Diplock explained the differing treatment of admissions, confessions and evidence obtained from an accused after an offence from other kinds of evidence as based on the maxim nemo debet prodere se ipsum or ‘its popular English mistranslation “the right to silence”’. 137 While evidence tantamount to a self-incriminatory admission could be excluded to protect the fairness of a trial, evidence in the latter category could not as in those situations the court is not concerned with how it was obtained. 138 Lord Fraser stated that it was difficult to see how evidence in the latter category could lead to the denial of a fair trial. 139 At common law, English authority effectively held true to the 1861 edict of Crompton J that mischief or even illegality in the obtainment of real evidence was a separate matter, perhaps for civil suit, rather than a matter affecting admission of otherwise relevant and reliable evidence. This rationale accorded with a disinterest by the courts in the source of illegality, police or private citizen. The rationale, whilst permitting curial decision to be based on unlawfully obtained evidence, was true to a rationale that the means of collection of real evidence was not the concern of the court on a question of admissibility.
Whilst s. 78 is directed at excluding evidence prejudicial to the fairness of a proceeding, the public policy discretion in Australia serves a different purpose. The public policy discretion, which involves a weighing of policy considerations, protects the integrity of the judicial process by ensuring that convictions are not bought at too high a price. Evidence obtained by misconduct that is intentional or reckless is most likely excluded for this reason. Fairness may be a consideration when deciding whether to exclude evidence, however, it is by no means the most important. Section 78, in contrast, is concerned principally with the fairness of a trial for an accused. While protecting judicial integrity may be consistent with this aim, it is not the primary purpose. On both rationales, however, judicial integrity or trial fairness, there is no basis to distinguish groups of persons as potentially contravening that objective and not others. Section 78 is consistent with extending the scope of the discretion to the circumstances, whatever they may be and whoever may have acted, to guard against adversely affecting fairness of the proceedings. The public policy discretion, in contrast, is fettered by a restriction that does not accord with its rationale.
The modern imperative for the abolition of the authorities proviso
I have argued as to why the language, context, development and rationale of the public policy discretion as conceived in Bunning do not support the maintenance of the authorities proviso. There is also a practical element to removing this stricture and that is the increasing opportunity for both the commission and investigation of crime through the internet. Private person/s at their own behest without connection or support from police may increasingly investigate internet-based crime by themselves committing online crimes, such as crimes generically falling within a category of ‘hacking’ crimes. The purpose of these investigations by private, perhaps well-meaning, vigilantes is to later supply law enforcement with evidence their internet investigations may uncover in order that law enforcement may utilise that evidence to further police or directly prosecute. In such circumstances, one crime is being committed to investigate another (perhaps more serious) crime, such as hacking to uncover an online child pornography ring. In the United States, the rationale of the Fourth Amendment and exclusionary discretion, can properly justify no intervention by courts, concerned as it is with police deterrence. In the United Kingdom, the Sang position may continue to inform the exercise of s. 78 such that the matter is properly left as one between private persons, given that the use of the evidence at trial will not render the proceedings unfair. In Australia, however, the public policy discretion is concerned with the maintenance of judicial integrity. That objective and rationale, I submit, should empower courts to consider any unlawful or illegal conduct in the collection of evidence on which the court will rely and be asked to reason to criminal guilt. To do otherwise is to permit a crime that is prosecuted and convicted today to be a legitimate and ignored basis for criminal investigation by private citizens tomorrow.
The internet, 140 originally designed to support military operations (see, for example, McCarthy, 2002) and subsequently developed as a global information infrastructure revolutionising education, 141 business and communications (see, for example, Puopolo, 2001), has become widely susceptible to use by fraudsters, thieves (see, for example, Grabosky et al., 2001; Smith et al., 2004; Wall, 2001) and child pornographers (see, for example, Jenkins, 2001; Krone, 2005: 1; O’Connor, 2005; Ong, 2005; Taylor and Quayle, 2003) to purloin, exchange and disseminate illicit material. The result has been the advent of private citizens seeking to uncover and gather evidence, also through the internet, of such criminal activity. Common methods include use of ‘trojan horse’ programs. 142 These actions typically involve criminal conduct themselves, albeit of an almost unarguably less serious nature than that uncovered. In Australia, unauthorised access, modification or impairment of data held in computers protected by common access protocols such as firewalls, which is achieved by use of trojan horses, is criminal pursuant to various State and Federal laws. 143 In the United States, several reported cases demonstrate the extent of the private criminal investigation that may be undertaken through the internet. The early case of William Adderson Jarrett is particularly instructive.
The evidence of ‘Unknownuser’
The case of United States v William Adderson Jarrett 144 was an appeal by the US government against a suppression order made by the United States District Court for the Eastern District of Virginia. The District Court ordered that the evidence against Jarrett, who had been indicted for manufacturing and receiving child pornography, be suppressed on the basis that such evidence had been obtained by a private individual, acting as a government agent, in violation of the Fourth Amendment. The government appealed to the 4th Circuit Court of Appeal, on the ground that the District Court erred in finding that the private individual acted as an agent of the government. 145
There have been many judicial statements as to when the requisite relationship of agency will exist between a private individual and a government body. In Skinner v Railway Labor Executives’ Association
146
the US Supreme Court held that: [w]hether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government’s participation in the private party’s activities, a question that can only be resolved in light of all the circumstances.
147
On appeal, the government conceded that the private individual, who had conducted the searches in question, was motivated solely by his interest in assisting law enforcement authorities. As such, the only question before the 4th Circuit was whether the government knew of and acquiesced in the private individual’s search in a manner sufficient to transform the private individual into an agent of the government, and so render the search unconstitutional.
The private individual who conducted the impugned search was a computer hacker, whom the 4th Circuit referred to as ‘Unknownuser’, because the first time the computer hacker made contact with US law enforcement was on 16 July 2000, when Unknownuser sent an email to Captain Kevin Murphy of the Montgomery, Alabama Police Department, using the address I found a child molester on the net. I’m not sure if he is abusing his own child or a child he kidnapped. He is from Montgomery, Alabama. As you see he is torturing the kid. She is 5–6 y.o. His face is seen clearly on some of the pictures. I know his name, internet account, home address and I can see when he is online. What should I do? Can I send all the pics and info I have to these emails?
150
In the course of US law enforcement’s dealings with Unknownuser regarding the Steiger investigation, Unknownuser identified himself as being from Istanbul, Turkey, but steadfastly refused the FBI’s requests to reveal his full identity, meet with the FBI in person or serve as a witness in the Steiger trial. 152 The FBI responded, via email, to Unknownuser’s refusal by thanking him 153 for his assistance in relation to the Steiger investigation, asking him to check his email periodically for further FBI correspondence, requesting that he forward any more images from Steiger’s computer and concluded the email by telling Unknownuser that ‘if you want to bring other information forward the FBI is available’. 154
The FBI learnt that Unknownuser had accessed Steiger’s computer files using the Subseven trojan horse virus and informed Murphy, who was acting as ‘the go-between’ in the FBI’s correspondence with Unknownuser. 155 Murphy knew that such hacking was illegal under US federal and Alabama state law, yet at no time did Murphy advise Unknownuser that his searches were being conducted illegally (under US law at least) or request that Unknownuser cease his illegal searches. 156 On the contrary, in emails sent to Unknownuser by the FBI, agents repeatedly express their gratitude to Unknownuser for his assistance in the Steiger case, assure him that he will not be prosecuted in any way for his illicit searches and further encourage Unknownuser to undertake more searches to aid in the apprehension of other child pornographers. 157 On 7 August 2000, Murphy emailed Unknownuser, explicitly requesting that Unknownuser provide assistance to US law enforcement in breaking the password encryption on Steiger’s computer, the computer having been seized by US law enforcement following the execution of a search warrant which was granted largely on the basis of the evidence provided by Unknownuser. 158
The final email exchange between Unknownuser and US law enforcement arising out of the Steiger case was in May 2001. Between May 2001 and December 2001 there was no communication between Unknownuser and US law enforcement.
159
However, on 3 December 2001, approximately seven months after his last communication, Unknownuser sent the following email to Murphy: Dear Mr. Murphy I found another child molester. He is from Richmond, Va. I need an email of an FBI agent dealing with these kinds of crimes. The girl is in serious danger. If you inform them about me, it will be easier for me. They may think that I’m joking or know the guy before. I collected all the evidence and waiting for your reply.
160
Between 19 December 2001 and 8 February 2002, the period in which Jarrett was indicted before a grand jury and subsequently entered a conditional guilty plea to an information charging him with a single count of manufacturing child pornography, Unknownuser and Agent Faulkner of the FBI were engaged in a series of email exchanges. The main thrust of the emails sent by Agent Faulkner to Unknownuser is epitomised in the initial email, dated 19 December 2001, an email which the 4th Circuit described as Agent Faulkner engaging in the proverbial ‘wink and a nod’,
162
when she wrote: I can not ask you to search out cases such as the ones you have sent to us. That would make you an agent of the Federal Government and make how you obtain your information illegal and we could not use it against the men in the pictures you send. But if you should happen across such pictures as the ones you have sent to us and wish us to look into the matter, please feel free to send them to us. We may have lots of questions and have to email you with the questions. But as long as you are not ‘hacking’ at our request, we can take the pictures and identify the men and take them to court. We also have no desire to charge you with hacking. You are not a US citizen and are not bound by our laws.
163
The 4th Circuit, however, reversed the decision of the District Court on the basis that the government did not know of, or in any way participate in, Unknownuser’s search of Jarrett’s computer at the time of that search and hence Unknownuser did not act as a government agent. 165
The 4th Circuit acknowledged that the email correspondence between Agent Faulkner and Unknownuser probably does constitute the sort of active government participation sufficient to create an agency relationship. 166 However, the 4th Circuit reasoned that this email exchange could not have a bearing on whether a relationship of agency existed between Unknownuser and the US government because this correspondence took place after the search of Jarrett’s computer by Unknownuser and, indeed, after Jarrett’s arrest by US law enforcement and therefore such ex post facto correspondence could not transform the prior relationship between Unknownuser and the US government into an agency relationship. 167
The 4th Circuit’s reasoning in respect of the Faulkner email exchange is justified, given that the correspondence was engaged in ex post facto. It is, however, the 4th Circuit’s rulings in relation to the email exchanges between Unknownuser and US law enforcement (FBI and Murphy) during the time of the Steiger investigation that raise concerns. The 4th Circuit held that, without more, these exchanges do not suffice to create an agency relationship that would embrace the Jarrett search, 168 because all of these email exchanges were brief and took place seven to 12 months before the Jarrett search. 169 Moreover, the substance of these emails, in the words of the 4th Circuit, consisted of nothing more than: perfunctory expressions of gratitude for Unknownuser’s assistance in the Steiger investigation; assurances that Unknownuser would not be prosecuted should he decide to testify as a witness in the Steiger trial; and a vague offer of availability to receive more information in the future. 170
This assessment of the email exchange between Unknownuser and US law enforcement during the Steiger investigation trivialises the relationship US law enforcement endeavoured to establish with Unknownuser throughout the Steiger investigation.
First, US law enforcement’s repeated expressions of gratitude and assurances regarding Unknownuser’s safety from prosecution were made, not only to persuade Unknownuser to make personal contact with US law enforcement, but, given Unknownuser’s reluctance to meet with the FBI, to affirmatively encourage 171 Unknownuser to continue his internet searches (hacking) in the knowledge that he should be ‘proud of the lives he is helping to save’ and that the FBI would be ‘available to receive other information’. 172
Secondly, US law enforcement actively and explicitly requested Unknownuser’s assistance in relation to specific difficulties encountered during the Steiger investigation, namely breaking the password encryption on Steiger’s computer. Subsequent to this request, Unknownuser was no longer simply a private individual providing information to US law enforcement at his own behest; rather, his expertise were actively sought by US law enforcement to assist them in completing their investigation. Furthermore, US law enforcement devised questionnaires which they emailed to Unknownuser in order to learn from Unknownuser’s methods in pursuing internet child pornography rings. 173
Thirdly, the 4th Circuit’s assertion that the seven-month ‘gap’ between these email exchanges and the Jarrett search result in these communications simply being too remote in time to bring the Jarrett search within the scope of an agency relationship, 174 imposes a ‘time-constraint’ on the existence of the agency relationship which departs from precedent, namely the decision in United States v Walther, 175 in which an agency relationship was found to exist despite a two-year absence of communication between the private individual and the US government. In this way, the US government did not ‘simply acquiesce’ 176 in Unknownuser’s search of Jarrett’s computer. To adapt the words of the 9th Circuit Court of Appeal in Walther, while US law enforcement had no prior knowledge that this particular search, of Jarrett’s computer, would be conducted and had not directly encouraged Unknownuser to search Jarrett’s computer, US law enforcement had certainly encouraged Unknownuser to engage in this type of search. 177 Furthermore, US law enforcement had directly requested Unknownuser’s assistance in relation to the Steiger investigation and kept him informed of developments in the Steiger trial.
At no stage did US law enforcement discourage Unknownuser from engaging in his searches but rather, only sought to assure Unknownuser that his illegal behaviour would always go ‘unpunished’. US law enforcement had knowledge of a particular pattern of search activity, in which Unknownuser was engaged, in relation to specific, illicit material connected to the internet and US law enforcement acquiesced in such activity. 178
The consequence of the appeal for present purposes is to emphasise that the conduct engaged in by Unknownuser was sustained, unlawful and encouraged yet it was not regarded as conduct referable to the State and law enforcement. As such, it is beyond the purview of the Fourth Amendment exclusionary rule and it would be beyond the scope of the public policy discretion for the same reason. However, where the rationale of the Fourth Amendment supports that conclusion, if one accepts the findings of the 4th Circuit that no agency was created (however tenuous that might be), the rationale of the public policy discretion is incongruent with Australian common law courts being restricted from considering the conduct of persons like Unknownuser. The integrity of Australia courts could not be maintained if they maintained there was no discretion in the court to consider the conduct and manner of evidence collection by Unknownuser. That is not to say the discretion to exclude should be exercised, but the enlivenment of the discretion to at least consider that question is fundamental if the public is to be confident that courts secure their integrity by considering the integrity of the processes they permit for putting evidence before them.
In previous cases concerning private individuals who have conducted searches, yet not been characterised as agents of the US government in relation to the Fourth Amendment, the private individuals had been involved in ‘one-off’ searches. 179 In Jarrett, however, Unknownuser’s search of Jarrett’s computer was the second illicit search he had conducted and the second time he avoided characterisation as an agent of the government. 180 Unknownuser, as a private individual, conducted multiple illegal searches and yet was never characterised as an ‘agent or instrument’ of the US government, notwithstanding that the government was fully apprised of the private individual’s modus operandi in conducting such searches and encouraged (even if indirectly) the private individual to engage in such searches.
The internet has not spawned such vigilantism in the investigation of crime. In the 19th century, a multitude of civil cases in the United Kingdom received evidence obtained by unlawful means. 181 The English courts condoned the very theft of evidence in litigation. If a party had been ‘injured’ by the use of unlawfully obtained evidence, it was for that party to seek legal redress. 182 Apathetic acceptance of illegally obtained evidence was, likewise, the norm in criminal cases. 183 Since organised police forces were not established until the median decades of the 1800s, 184 criminal prosecutions were often conducted by private persons and hence the standpoint apropos unlawfully obtained evidence in civil matters was equally appropriate to criminal prosecutions. Scotland 185 and the United States 186 also report cases in which criminal prosecutions have proceeded on the basis of real evidence 187 unlawfully obtained by private persons.
But the internet represents a generational advance and progression of the ability of private persons to police each other. Increasingly our lives and activities are conducted online. Increasingly we each have individual capacity to invade that conduct through our online conduct, lawful or unlawful. The particular investigative power police forces statutorily have may render their search and seizures lawful. Bunning decided that the power the authorities possess, bestowed by governments, 188 to interfere in the daily affairs 189 of citizens, often secretively and unannounced, 190 demanded that courts refuse to allow such authorities to ignore the safeguards hedged 191 about their powers by adopting a standpoint that ‘those whose task it is to enforce the law’ need not themselves respect the law. 192 Modern technology marks another watershed. As everyday advances in computer and online technology are made available to the public, the police decreasingly have capacity, more than a computer literate-hacker, to actually engage in the conduct necessary to conduct criminal investigations online. The actions of Unknownuser demonstrate the invasiveness the internet permits one citizen to exercise into the lives of others. It demonstrates a need for courts to consider this modern intrusiveness by private persons against each other if the court is concerned to secure its integrity, not only deter police misconduct. 193
The reported instances of computers and the internet facilitating private persons conducting unlawful investigations of crime are not ‘transient notions’ emerging in reaction to particular events. 194 These cases represent actual incidents signifying the potential the internet affords private persons to illegally intrude into the daily affairs 195 of private life. 196
Conclusion
Enlarging the scope of the Australian common law public policy discretion to evidence improperly or illegally obtained by any person, not only the authorities or their agents, is consistent with the fundamental rationale underpinning the discretion since its conception. Improperly or unlawfully obtained evidence, if admitted, will always have the potential to taint the administration of justice. That taint arises from the impugned conduct not the impugned source. Should a court fetter itself to rely on evidence collected by impugned means, without power to at least consider the exercise of discretion, the court will be viewed as condoning or approving the improper or unlawful methods by which the evidence was obtained. This necessarily threatens the integrity of the judicial process. It can also result in double standards and hypocrisy as crimes sustaining convictions one day are legitimatised means of evidence collection the next. It is no answer to suggest that the decision in that regard rests with prosecution services; courts have duty and compunction to secure their processes if curial integrity is their purpose. What matters most for the purposes of the public policy discretion is how the evidence is obtained, not who obtained it.
Bunning itself does not demand the authorities proviso. The development of judicial discretion in Australia pursuant to the Uniform Evidence Law shows no adherence to the notion of an authorities proviso. The rationale underpinning the Bunning discretion is distinguishable from comparable provisions in the United States and United Kingdom, further reinforcing the need for a broad application of the public policy discretion in Australian common law. The increasing intrusion that the internet allows private persons to unlawfully make into the affairs of other private persons provides a practical basis to consider the extent of criminal investigations that may be conducted independent of the police and outside the privileges and restrictions that bind sworn officers and investigators. It is time to exercise the ‘genius of the common law system [which] consists in the ability of the Courts to mould the law to correspond with the contemporary values [and advances] of society’. 197
Footnotes
Author’s note
Foundation Director of the Litigation Law Unit of the University of Adelaide; Chief Executive Director of the China-Australia Partnership for Judicial Civilization; Senior Lecturer in the Adelaide Law School; Special Counsel to Fisher Jeffries Barristers and Solicitors; Director of the Law Council of Australia and President of the Law Society of South Australia.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.