3.2 The proposal: other support. Apart from those law reform agencies which have argued for something similar to the present proposal, there is some other support for it. In 1973 the Council of the New South Wales Bar Association made a like proposal to the Attorney General. The Australian Law Reform Commission states of its proposal:

"The Commission has been fortified in [its] conclusion by a universally favourable response to [the] suggestion from those lawyers, magistrates and judges with whom we have discussed the issue. It is proper to say that the Commission was told of an increasing concern by the Bench at the incidence of evidence wrongfully obtained."¹²⁵

(a) an illegal act under the law of the place where the act is done;

(b) a deception;

(c) a threat;

(d) an unfair advantage taken of some weakness or defect of mind or body bearing on the reason or will of a person;

(e) secret eavesdropping or other interference with privacy; and

(f) an act otherwise unfair or oppressive.

(i) the seriousness of any offence being investigated;

(ii) the extent to which an improper act was excusable by reason of the need to preserve life or property, or prevent injury to person or property, or prevent the commission of any offence;

(iii) the urgency and difficulty of detecting an offender;

(iv) the urgency of the need to preserve evidence;

(v) the nature, deliberateness and seriousness of the improper act;

(vi) the frequency of similar improper acts;

(vii) the extent to which the improperly obtained evidence might have been properly obtained;

(viii) the importance of the evidence;

(ix) the extent to which any improper act has been remedied or the person responsible for it punished; and

(x) the reliability of the improperly obtained evidence.

3.4 Section 200: improperly obtained evidence compared to illegally obtained evidence. Section 200 applies to testimony vitiated, and documents or things obtained, by an improper act, not merely an illegal act.¹²⁶ Though non-illegal but improper conduct is harder to define than illegal conduct, to maintain a distinction produces certain anomalies and seeming inconsistencies in the present law which s.200, if enacted, might resolve in part.

Why are involuntary confessions excluded automatically, but not illegally obtained evidence? Why is evidence discovered in consequence of an inadmissible confession admissible, while unfairly obtained evidence may not be? If the rules as to confessions (including the equivalent to the Judges' Rules) are intended to control the police, why does the Kuruma doctrine operate so weakly towards this end? These are difficult questions. No doubt if evidence is illegally obtained, a victim is more likely to have a civil remedy than if he is induced to confess, or if evidence is unfairly obtained from him; so that more care about admitting evidence must be taken in the latter cases than the former. No doubt too a crude distinction may be drawn between evidence which is confessional in character and real evidence: the former may be false, but real evidence which has intrinsic probative value cannot be false in the same sense. But these explanations and distinctions are not wholly satisfactory. Some of the anomalies may be overcome by the greater likelihood of exclusion of improperly obtained evidence under s.200. But in view of the greater imprecision of non-illegal but improper conduct, there is a strong argument for the view that if a practice is thought to be such as to justify the normal or prima facie exclusion of evidence obtained by it (for example, a practice of the police during interrogation, or entrapment, or the use of electronic devices which interfere with privacy), the proper course is for Parliament to make it illegal, so that s.200(5)(a) will thereafter apply. Thus, for example, the Australian Law Reform Commission has recommended a section making entrapment illegal (A.L.R.C. 2, draft Criminal Investigation Bill, s.67), to which the proposed section excluding illegally obtained evidence (s.71) would apply. Parliament may wish to go further and make particular kinds of evidence automatically inadmissible without reference to s.200. Thus the Listening Devices Act, 1969, s.7(1) provides:

"Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section four of this Act, evidence of that conversation may not be given by that person in any civil or criminal proceedings."

3.6 Section 200(5): improprieties for which persons other than police officers are responsible. Section 200(5) proceeds on the view, which is shared by bodies who have proposed the kind of rule being considered, that it should apply not only to illegalities for which police officers are responsible, but also to illegalities carried out by private inquiry agents and other persons.¹³¹ Indeed, there is more to be said for influencing the behaviour of the latter category than that of the former by an exclusionary rule; there are fewer safeguards of other kinds in respect of the latter.¹³²

3.7 Section 200(2) and (4): consequential discoveries. Section 200 proceeds on the view that the rules applicable to improperly obtained evidence should apply not only to material obtained directly by illegality, but also to any evidence discovered in consequence of such material. In this respect it is similar to American law.¹³³ Plainly the opposite view tends to reduce any discouraging effect which might be produced by the exclusion of evidence.

3.8 Section 200: all legal proceedings. Like the Law Reform Commission of Canada proposal,¹³⁴ but unlike that of the Australian Law Reform Commission,¹³⁵ s.200 applies the new kind of discretionary rule to civil proceedings as well as criminal. It may be that the discretion to exclude will be exercised more in favour of an accused than in favour of a civil party, and it may be that this is proper. This is a matter for decision in the particular case before the court, and in some civil cases exclusion will be proper.

3.9 Section 200(1): burden of proof. The effect of s.200(1) and (3) that the party tendering the evidence bears the burden of proving the existence of facts which would justify its admission. Once it appears to the court (whether on its own impression or after objection by a party) that testimony may be vitiated, or a document or thing may have been obtained, by an improper act, the evidence is not admissible except in two cases. One case is where it is shown that it is not so vitiated or was not so obtained; the other where a direction is given under s.200(1)(b) and (3)(b). The onus of so showing, or of demonstrating the rightness of such a discretion, rests on the party tendering the evidence. The draft Code of the Law Reform Commission of Canada appears to adopt the opposite onus.¹³⁶ It seems to us, however, that once suspicion is aroused, it should be for the party tendering the evidence to clear the air.¹³⁷

3.9A Section 200(5): illegal acts in relation to persons. The Australian Law Reform Commission's draft S.71(1) applies to "a failure to comply with a provision of this or any other Act, or any rule of the common law, in relation to a person". What do the emphasized words mean? They may mean that the illegality in question must have a victim. They may mean that the victim can only be a human being, rather than a corporation, a trade union or a partnership.^137A We consider either of these to be unnecessary limitations and we propose no equivalent.

3.9B Section 200(5)(a): illegal act outside New South Wales. "Improper act "is defined to include an act illegal under the law of the place where the act is done. If a thing tendered as evidence has been obtained by means of an act which is improper in that the act was done in a foreign place in breach of the law of that place, the thing must be excluded unless let in at discretion under subsection (3)(b). In such a case the public interest in upholding the law in force in New South Wales or in protecting people from treatment unlawful in New South Wales is not relevant, and it is not easy to see a public interest in New South Wales in upholding the law of the foreign place, or protecting people from treatment unlawful in the foreign place, especially if that place is outside Australia. Thus it is likely that the illegality of an act done outside New South Wales, or at all events outside Australia, will not attract any of the public interests specified in subsection (6)(a)(i)-(iv) and in favour of exclusion. If the act were not only illegal by the foreign law but also unfair, the question would arise whether there was a public interest in New South Wales in protecting people from that kind of unfairness in the foreign place. It is hard to foresee the view which a court might take. The draft section may therefore have little operation where the improper act is done in a foreign place. There is room for thinking that the section should be supplemented, as regards an act done in a foreign place, by a discretion to exclude as if the act had been done in New South Wales. Such a ground may not be easy to justify rationally, but would have support in the instinctive feeling expressed in such words as "We should not allow evidence obtained like that [by torture or whatever the act may be] to be used in our courts".

3.10 Section 200(6)(b)(i): the seriousness of any offence investigated. Among the factors to be considered by the court in deciding whether the evidence is admitted are the nature of any offence being investigated. Plainly if illegality can ever be excused, it tends in favour of excuse that a serious crime is being investigated.¹³⁸

3.11 Section 200(6)(b)(ii): excuses for improper act. Another relevant factor is the extent to which any improper act may be excusable by reason of any need to preserve life or property, or to prevent injury to life or property, or to prevent the commission of any offence. Conduct otherwise improper might be justifiable or even commendable in these circumstances, and the admissibility of evidence obtained as a result should not be threatened.

3.12 Section 200(6)(b)(iii): the urgency of identifying offenders. Much may be forgiven a police officer in pursuit of a homicidal maniac, or of a robber about to flee the jurisdiction, or of a sexual offender against children who is likely to repeat his crime.

3.13 Section 200(6)(b)(iii): difficulty of identifying offenders. The more secret the crime, and the fewer traces it leaves, the more may impropriety be excused if convictions are ever to be obtained without a confession or the evidence of an accomplice.¹³⁹

3.14 Section 200(6)(b)(iv): urgency of need to preserve evidence. It may be necessary to remove evidence improperly obtained in order to preserve it for use in later proceedings, whether they be criminal or civil.¹⁴⁰

3.15 Section 200(6)(b)(v) and (vi): nature, deliberateness and seriousness of improper act, and whether it is prevalent. Section 200(6)(b)(v)and(vi) draws distinctions between serious improprieties and minor improprieties, between wilful or negligent improprieties and accidental improprieties, between substantial breaches of the relevant law and trivial breaches, and between regular breaches and and occasional ones.¹⁴¹

In the words of Weintraub C.J., "there may be no purpose to flout the [law] but only a failure in good faith to stay within the complex rules relating to search and seizure. It is one thing to condemn the product of an arrogant defiance of the [law]: it is another to impose the sanction when the official intends to respect his oath of office but is found to be mistaken, let us say, by the margin of a single vote."¹⁴²

3.16 Section 200(6)(b)(vii): ease of compliance. If it would have been easy to comply with proper legal or other standards of behaviour, in some circumstances evidence obtained in breach of them is hard to justify and merits exclusion.¹⁴³

3.17 Section 200(6)(b)(viii): importance of the evidence. If the case made out by the improperly obtained evidence could not easily be made out in any other way, s.200(6)(b)(viii) assumes this to be a factor justifying its admission. But if it would be relatively easy to prove the case without recourse to the illegality, the evidence should be excluded.

3.18 Section 200(6)(b)(ix): prior punishment or remedying of wrong. One of the arguments for a more extensive rule of exclusion than that stated in Kuruma v. R.¹⁴⁴ is that civil remedies and internal police discipline are ineffective checks on wrongdoing.¹⁴⁵ Section 200(6)(b)(ix) assumes that improperly obtained evidence which is reliable may properly be admitted (if other circumstances do not militate against this course) when the superiors of the wrongdoer show that they dissociate themselves from his conduct and seek to discourage its repetition. They might do this by restoring wrongly seized property, offering to settle a claim, or disciplining the offender.

3.19 Section 200(6)(b)(x): reliability. Section 200(6)(b)(x) proceeds on the view that the reliability of the evidence must always tell in favour of its admission even if it must be balanced against other factors.¹⁴⁶

3.20 Section 200(6): other factors. The matters listed in paragraphs (i)-(x) of s.200(6)(b) are not exhaustive; matters relevant to the court's discretion include these but are not limited to them. It may be a question for consideration whether, in the words of the Ontario Law Reform Commission, "The civil litigant ought not to be limited in his search for truth because a servant of the State has acted illegally."¹⁴⁷ This may in some civil cases be an argument for admissibility. Other relevant factors may easily be imagined. Did the wrongdoer have good reason for believing that the search would produce evidence of a crime having been committed? How strongly did the victim of the illegality object? In this and the next paragraph two factors are discussed which may, in the particular circumstances, have importance, but which it seems unnecessary to make express provision for. One is whether those responsible for the illegality are state servants or private persons. For reasons given above, the latter may require closer control by the court.¹⁴⁸

3.21 Section 200(6): constitutional rules, statutory rules, common law rules. In the cases there is sometimes stated a preference for a distinction between ordinary illegalities and breaches of fundamental constitutional rights.¹⁴⁹ A distinction has also been drawn between common law and statutory rules, and from the point of view of the New South Wales public, which has no entrenched rights which are constitutional in the sense of the American Bill of Rights or the rights given by the Federal Constitution, this is a more important distinction to consider. It is one thing, it is said, for judges to admit evidence obtained in breach of common law rules; they made the rules and, subject to stare decisis considerations, they can mould the operation of the rules as they wish. But "[w]here a power to interfere with a man's civil rights and to obtain evidence thereby is specifically given by statute exercisable only on the performance of certain conditions precedent then to rule that that evidence may be obtained by methods other than those sanctioned by the statute and then successfully used in court is not simply to declare the law but to amend the law and this no judge has any right to do".¹⁵⁰ Barwick C.J. has adopted a more moderate position: "it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion".¹⁵¹ One justification for this view is that many statutes attempt to create particular standards of reliability or proper behaviour by forbidding conduct unless it is done by police officers of a certain rank, or with the consent of stated persons, or under a warrant, or before witnesses, or with reasonable cause for certain beliefs. Section 200(6) assumes that this distinction should continue, but not that any sharp distinction be made between common law, statutory and constitutional rules, nor that any strict exclusionary rule apply to breaches of constitutional rules or statutory rules. Many statutes and constitutional rules do no more than restate a common law rule. Any strict rule may cause injustice in the case of accidental or trivial breaches, or those committed in circumstances of urgency.

3.22 Section 200(6): balancing of relevant factors. Since the court may have regard to all the factors listed in s.200(6), it follows that they must be balanced against each other. No doubt this increases the difficulty of the judge's task, but it is a task performed with satisfactory results in Scotland and Eire, and is similar to that regarded by the High Court as one proper to lay down for judges.¹⁵²

3.23 Section 200(8): admissions and confessions. The proposal is that the rules under discussion should not affect the exclusion of an admission by reason of the circumstances in which it was made, for example, a threat by a person in authority.¹⁵³ The rules under discussion should however apply to evidence of material which may be used as an admission or confession, for example, an eavesdropper's evidence of what the accused has said, or a diary of the accused stolen from his house.

3.24 Section 200(9): the section as a code. The sub-section makes the earlier subsections the exclusive source of a power to exclude evidence on the grounds under discussion.

3.25 Section 200(10): other grounds of exclusion preserved. If for example a stolen cabinet minute is tendered, it may be excluded under this section because it is stolen, or it may be excluded on grounds of Crown privilege.¹⁵⁴

120. Second Report (1974), ch.7, para.3.3

121. Ch.7, para.3.2.2.

122. A.L.R.C. 2 (1975), paras 288-98 and draft s.71.

123. Draft Canadian Code (1975), s.15.

124. (1969), p.74. However, the Ontario Law Reform Commission recommended only a statutory restatement of the Kuruma doctrine: Ontario Report (1976), ch.4. The English Law Reform Committee had considered whether the rule that a privileged document may lose its privilege even if it is obtained wrongfully by the opponent of the party entitled to privilege should be altered. They recommended no change until the Criminal Law Revision Committee reported (16th Report (1967), para.32). That Committee mentioned the matter only in passing and recommended no change (11th Report (1972), para.68).

125. A.L.R.C. 2 (1975), para.298.

126. The draft Code (1975) of the Law Reform Commission of Canada adopts a standard of whether the "use [of the evidence] would tend to bring the administration of justice into disrepute": s.15(1). This appears to include unfairly obtained evidence.

127. 2nd Report (1974), para.3.3.

128. A.L.R.C. 2 (1975), s.71.

129. Draft Code (1975), s.1 5.

130. People v. Martin 290 P. 2d 855 (1955); cf. Alderman v. United States 394 U.S. 165 (1969).

131. South Australia, 2nd Report (1974), para.3.2.3; A.L.R.C. 2 (1975), s.71; draft Canada Code, s.15; see also Ontario Report (1976), p.71; cf. Burdeau v. McDowell 256 U.S. 465 (1921); Commercial Agents and Private Inquiry Agents Act, 1963.

132. Lawrie v. Muir 1950 S.L.T. 37, at p.40; cf. R. v. Senat (1968) 52 Cr.App.Rep. 282; R. v. Mattews [1972] V.R. 3.

133. Silverthorne Lumber Co. v. United States 251 U.S. 385 (1920).

134. Draft Code (1976), s.15(1); see also Ontario Report (1976), p.72.

135. A.L.R.C. 2 (1975), Draft Criminal Investigation Bill, s.71(1).

136. Section 15(1).

137. See also A.L.R.C. 2 (1975), para.298.

137A. Cf. the non-application of the privilege against self-incrimination, as sanctified by the Fifth Amendment, to such institutions: Hale v. Henkel 201 U.S. 43 (1906); Wigmore, para.2 259a.

138. See People v. O’Brien [1965] I.R. 142, at p.160; Bunning v. Cross (1978) 52 A.L.J.R. 561, at p.571.

139. Marsh v. Johnston 1959 S.L.T. 28; Hopes v. H.M. Advocate 1960 J.C. 104.

140. See H.M. Advocate v. Hepper 1958 J.C. 39; H.M. Advocate v. M'Kay 1961 J.C. 47; Bell v. Hogg 1967 S.L.T. 290; Hay v. H.M. Advocate 1968 S.L.T. 334; cf. McGovern v. H.M. Advocate 1950 S.L.T. 133.

141. See Lawrie v. Muir 1950 S.L.T. 37, at p.40; H.M Advocate v. Turnbull 1951 S.L.T. 409, at p.411; H.M. Advocate v. Hepper 1958 J.C. 39; People v. O’Brien [1965] I.R. 142; A.L.R.C. 2 (1975), para. 298.

142. Eleuteri v. Richman 141 A. 2d 46, at p. 51 (1 9 5 8). And see Bunning v. Cross (1978) 52 A.L.J.R. 561, at p.570.

143. McDonald v. United States 335 U.S. 451; McGovern v. H.M. Advocate 1950 S.L.T. 133; cf. Fairley v. Wardens of the City of London Fishmongers 1951 S.L.T.54; Bunning v. Cross (1978) 52 A.L.J.R. 561, at pp.570, 571.

144. [1955] A.C. 197.

145. Above, para.2.2.

146. Cf. Bunning v. Cross (1978) 52 A.L.J.R. 561, at p.570.

147. Ontario Report (1976), p.6 8.

148. Above, para.1.1 3.

149. People v. O’Brien [1965] I.R. 142, at p.170, per Walsh J. and O'Dalaigh C.J.

150. R. v. Ireland (No.1) [1970] S.A.S.R. 416, at pp.447-8, per Zelling J. See also Lawrie v. Muir 1950 S.L.T. 37, at p.40.

151. R. v Ireland (1970) 126 C.L.R. 321, at p.334. In the same place he pointed out that "the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms". Strictly speaking the latter situation is not an example of the Kuruma discretion, because the statute itself directs (albeit by implication) what should be done about admissibility: e.g. , Scott v. Baker [1969] 1 Q.B. 6 5 9. In Bunning v. Cross (1978) 52 A.L.J.R. 561, the joint judgment of Stephen and Aickin JJ. listed as a fifth factor for consideration in the exercise of the discretion in that case, the intention of the legislature appearing from the statute which was broken in the obtaining of the evidence.

152. Bunning v. Cross (1978) 52 A.L.J.R. 561.

153. Bunning v. Cross (1978) 52 A.L.J.R. 561, at p.569.