[1] Isaiah 59:14, King James Version of the Bible.
[2] Devine, F.E, "American Exclusion of Unlawfully Obtained Evidence with Australian Comparison", (1989) 13 Crim LJ 188.
[3] 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.
[4] Boyd v United States 116 UA 616 (1886).
[5] The subsequent decision in of Adams v New York 192 US 616 (1904) rejected an exclusionary rule based on a Fourth Amendment violation holding that evidence was admissible however it was acquired.
[6] Weeks v United States 232 US 383 (1914)
[7] Id, 398.
[8] Id at 394.
[9] Fleissner, J.P, "Glide Path to an Inclusionary Rule': How Expansion of the Good Faith Exception Threatens to Fundamentally Change the Exclusionary Rule" (1997) 48 Mercer LR 1023
[10] Wolf v Colarado 338 US 25 (1949) overruled by Mapp v Ohio 357 US 643 (1961).
[11] Mapp v Ohio, above n10.
[12] Id at 656.
[13] Ibid.
[14] Id at 660.
[15] US v Calandra 414 US 338 (1974).
[16] Id 347-48. The exclusive purpose of the rule is to deter police (or other officials') misconduct regarding search and seizure and compel respect for the Fourth Amendment by depriving police of the use of the products of illegal searches. Many academic writers have refused to accept this narrow basis for the rule. Terrence M Messonnier argues that the rule is justified under the theory of popular sovereignty or agency. See "Neo-Federalism, Popular Sovereignty and the Criminal Law" Akron Law Review. [http://www.uakron.edu/lawrev/messonn1.html] (17 December 1999).
[17] E.g. Stone v Powell, 428 US 465, 485, 486 (1976) explicitly limits the rationale for the exclusionary rule's application to the deterrence of unlawful police conduct while simultaneously rejecting any notion that the rule acted as a personal constitutional right of an aggrieved party. US v Janis, 428 US 433, 466 (1976) "Deterrence is the prime purpose of the rule if not the sole purpose;" Michigan v DeFillippo, 443 US 31, 38 n.3 (1979) "Thus, admission of the fruits of an unlawful search or seizure works no new Fourth amendment wrong, the wrong being fully accomplished by the unlawful search or seizure itself." See also US v Peltier, 422 US 531, 536-39 (1975); Rakas v Illinois, 439 US 128, 134 n.3, 137-38; Michigan v Tucker, 4
[17] US 433, 450 n.25 (1974).
[18] Nix v Williams 467 US 831 (1984)
[19] The Court reached its conclusion by weighing what it saw as the minimal deterrent value of excluding the evidence against the cost of letting obviously guilty people go free. Id at 444-47 (Burger CJ)
[20] US v Leon 468 US 897 (1984).
[21] Szymanski, Steven, M, "Exclusionary Rule - Good-Faith Exception: New Limitations on the Suppression of Illegally Obtained Evidence- Arizona v Evans, 116 s. CT. 1185 (1995)" (1996) 79 Marquette L R 1086, n28.
[22] U.S v Leon, above n20 at 9
[22] White J emphasized that the exclusionary rule is designed to deter police misconduct and not to punish the errors of judges and magistrates. Under circumstances where police officers act in good faith, the deterrent benefit of exclusion would be "marginal or nonexistent".
[23] US v Krull 480 US 300 (1987), 359-350. The Court extended the good faith exception of Leon to include evidence seized from a search conducted pursuant to a statute later found to be unconstitutional, provided the police had reasonably relied upon the statute. The Court reasoned that there would be little deterrent value in suppressing the evidence, as it was the legislature not the police officer who had committed the constitutional violation. The most recent good faith exception was adopted by the Court in Arizona v Evans 115 CT 1185 (1995),1194. In this case the Court held that the Exclusionary Rule did not apply to evidence gathered in circumstances where a police officer arrested a suspect in objectively reasonable reliance on a court generated computer record which later turned out to be erroneous.
[24] Pennsylvania Board of Probation and Parole v Scott, 5
[24] US 357 (1998).
[25] Pryor V US 98-7046 (1999).
[26] While Weeks only excluded evidence directly resulting from an illegal search, the rule was extended to include physical evidence directly or indirectly resulting from the illegal search in Silverthorn Lumber Co v US, 251 US 385 (1920). It was named 'Fruit of the Poisonous Tree' in Nardone v US, 308 US 338 (1939) and extended again to exclude verbal evidence resulting from an illegal search in Wong Sun v US, 371 US 471 at 485 (1963). The doctrine operates independently of the common law rule which prohibits the admission of involuntary confessions.
[27] Devine, above n2 at 193 and 195.
[28] Walker, C.T., 'A Critique of the Prima Facie Exclusionary Rule' (1996) 17(1) NZU LR 94.
[29] Wigmore, D.J, Evidence, (2nd ed, 1923).
[30] Ibid.
[31] People v Defore, 242 N.Y. 13, 21, 150 N.E. 585, 598 (1926).
[32] Dorning, Mike, "Judicial System Under Fire" The Chicago Tribune, 29 March 1996, 14 quoted in Maginnis, Robert L, "Modern Justice: Civil Liberties, Freed Criminals, Rogue Police", Family Research Council, Insight (April 1996) http://www.frc.org (1 September 1999).
[33] Robinson, Paul H, "Moral Credibility and Crime", The Atlantic Monthly, March 1995, 72-78 quoted by Dorning in Maginnis, above n32.
[34] Gangi, William, testimony before the Senate Judiciary Committee, Washington, D.C. Federal News Service, 7 March 1995, 12 quoted by Dorning in Maginnis, above n32.
[35] R v Wray (1970) 11 DLR (3d) 673.
[36] Id at 690-691.
[37] This test is similar to the general discretion given to Australian trial judges to exclude otherwise admissible evidence in any criminal trial on the grounds of disproportionate prejudice.
[38] The Canadian Charter of Rights and Freedoms was enacted by the Canada Act 1982 (Eng).
[39] R v Collins [1987] 1 S.C.R. 265.
[40] R v Jacoy [1988] 2 S.C.R. 548 at558.
[41] "The trial is a key part of the administration of justice, and the fairness of Canadian trials is a major source of the repute of the system and is now a right guaranteed by s. 11(d) of the Charter. If the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence generally should be excluded." R v Collins, above n39 at 284.
[42] The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, willful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence. Finally, if other investigatory techniques had been available or if the evidence could have been obtained in a manner which would not have infringed the Charter, the violation would tend to be construed as more serious. Id at 285.
[43] "The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding evidence despite the fact that it was obtained in a manner that infringed the Charter. The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other. In some cases the harm to the integrity of the judicial system resulting from excluding the evidence will be so great that exclusion and not admission will bring the administration of justice into disrepute. This would be the case if evidence necessary to substantiate a charge were excluded on the basis of a trivial Charter violation." Id at 285.
[44] R v Burlingham [1995] 2 S.C.R. 206 (Iacobucci J) [http://www.droit.umontreal.ca/doc/csc-scc/en/pub/1995/vol2/html/1995scr2_0206.html] par 25 (30 August 1999).
[45] As Lamer J. noted in R. v. Collins, the Charter enshrines a position with respect to evidence obtained in violation of Charter rights that falls between two extremes. Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States, and Mapp v. Ohio). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray,). Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute." R. v. Simmons, [1988] 2 S.C.R. 495 at 532 (Dickson CJ).
[46] In applying s24 (2), Collins requires that "the reasonable man, dispassionate and fully apprised of the circumstances of the case" is the judge of whether the admission of the evidence would bring the administration of justice into further disrepute. R v Collins, above n39 at 282 (Lamer J).
[47] R v Hebert [1990] 2 S.C.R. 151, 178. Even if the improperly obtained evidence were reliable, considerations of reliability are no longer determinative given that the Charter has made the rights of the individual and the fairness and integrity of the judicial system paramount
[48] R v Bartle [1994] 3 S.C.R. 173 208-9. See also R v Mellentin [1992] 3 S.C.R. 615; R v Acciavatti (1993) 80 C.C.C. (3d) 109.
[49] R v Burlingham, above n44 at par 51 quoting Lamer J in R v Collins, above n39 at 286.
[50] Bad faith has been found in situations where there has been a blatant disregard for the Charter rights of an accused or where more than one Charter right has been violated. R. v. Wise, [1992] 1 S.C.R. 527. Note also that "an absence of good faith does not necessarily mean that there was bad faith." R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.).
[51] R v Elshaw [1991] 3 S.C.R. 24.
[52] R v Burlingham, above n44 at par 48.
[53] Good faith is a concept which embraces a spectrum ranging from an absence of malicious or wilful intention to an objective, reasonable belief that the police conduct was legal. Note also that "good faith" as a factor under s.24(2) is not limited to an objectively reasonable belief that a search warrant is valid, which is necessary under the American jurisprudence to bring into operation the good faith exception to the exclusionary rule. To confine the factor of good faith under s.24(2) as an inflexible rule to an objectively reasonable belief in the validity of a search warrant, in cases such as this, would in effect amount to the adoption of the United States Exclusionary Rule with respect to searches or seizures under an invalid warrant, which clearly was not the intention of those who drafted the Charter. R. v. Harris (1987), 35 C.C.C. (3d) 1 (Ont. C.A.); leave to appeal refused (S.C.C., December 7, 1987); Jones v. R., (B.C.C.A., February 26, 1988); R. v. Makwaychuk (1993), 22 C.R. (4th) 103 (Man. C.A.). Department of Justice Canada, Canadian Charter of Rights Decisions Digest, Section 24(2) [http://canada.justice.gc.ca/en/dept/pub/ccrdd/section24ss2.htm#[3] Criteria for Exclusion] (23 January 2000).
[54] R v Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.).
[55] R v Broyles [1991} 3 S.C.R. 595; Hamill v R [1987] 1 S.C.R. 301; Sieben v R [1987] 1 S.C.R. 295.
[56] Where the warrant was not obtained by deceit or fraud on the part of the police. R v Harris (1987) 35 C.C.C. (3d) 1 (Ont. C.A.); leave to appeal refused (S.C.C. 7 December, 1987)
[57] Simmons v R [1988] 2 S.C.R. 495.
[58] R v Ross [1989] 1 S.C.R. 3, 16; R v Colarusso [1994] 1 S.C.R. 20, 74; R v Mellenthin [1992] 3 S.C.R, 615; Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 at 555.
[59] For example, R v Burlingham, above n44; R v Duguay [1989] 1 S.C.R. 93.
[60] R v Burlingham, above n 44 at par 72-74.
[61] Id at par 73-74.
[62] This 'proximate connection' test is similar to the 'real and substantial connection' test of the New Zealand exclusionary rule. See R v Te Kira [1993] NZLR 257at 272 (Richardson J) and 276 (Hardie Boys J).
[63] Section 24(2) does not confer a discretion on the judge but a duty to admit or exclude as a result of his finding. R v Collins, above n 39, 275 (Lamer J). Also quoted by Heureux-Dube` J in her dissenting opinion in R v Burlingham, above n44 at par 68.
[64] Note that the French version of the Charter says 'could' rather than 'would'.
[65] 'It is not the proper function of this Court, though it has jurisdiction to do so, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of the courts below under s. 24(2) of the Charter and substitute its opinion of the matter for that arrived at by the Court of Appeal.' R v Duguay, above n59 at 93 (Dickson C.J. and McIntyre, Lamer, Wilson, La Forest and Sopinka JJ).
[66] R v Leatham (1861) 8 Cox CC 498 at 501.
[67] "The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. It if is, it is admissible and the court is not concerned with how the evidence was obtained." Kumura v R [1955] AC 197 at 203 (Lord Goddard.); "There is no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained." R v Sang [1980] AC 402 at 437
[68] 'A judge always had a discretion to reject evidence on the ground that it would make the trial unfair' R v Sang, above n67 at 445 (Lord Salmon); "..judges should be left to exercise their discretion in accordance with their individual views of what is unfair or oppressive or morally reprehensible" R v Sang, above n67 at 456 (Lord Fraser). Note however that the discretion to exclude unfairly obtained evidence was confined to evidence obtained after the crime from the accused. R v Sang, above n67 at 437 (Lord Diplock) See also Kumura v R, above n 67, 204. Collis v Gunn [1964] 1 Q.B. 495 at 501; King v R [1969] AC 304 at 319; Jeffrey v Black [1978] Q.B. 490 at 498; R v Houghton (1978)
[68] Cr. App.R. 197; R v Smurthwaite; R v Gill [1994] 1 All ER 898 at 902.
[69] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[70] An exercise of power that is so unreasonable that no reasonable person could have so exercised the power. Associated Provincial Picture Houses Ltd v Wednesbury Corporation, above n69
[71] R v O' Leary (1988) 87 Cr. App. R. 387 at 391; R v Christou [1992] Q.B. 979 at 989.
[72] A judge in a civil trial has no discretion to exclude evidence of the ground that it was illegally obtained. See Helliwell v Piggott-Sims [1980] FSR 582.
[73] 'SECTION 78 does not more than to restate the power which judges had at common law before the 1984 Act was passed' R v Mason [1987] 3 All ER 481 at 484 (Watkins LJ).
[74] R v Samuel [1988] Q.B. 615; R v O'Leary, above n 71, 391. R v Khan [1994] 4 All ER 289. Note also that section 78 does not limit the exclusion to evidence against the accused obtained after the crime as per Lord Diplock in R v Sang, above n67.
[75] R v Samuel, above n74 at 630 (Hodgon J speaking for the court)
[76] R v Mason, above n73; R v Samuel; R v Hughes [1988] Crim L.R. 519 (C.A.); R v Alladice (1988) 87 Cr. Ap. R. 380 (C.A.); R v Absolam [1988] Crim L.R. 748 (C.A.); and R v Parris [1989] Crim L.R. 214 (C.A.).
[77] R v Apicella (1985) 82 Cr. App.R. 295; R v Cooke (1995) 1 Cr. App.R. 456.
[78] This mirrors the view taken by certain past and present members of the Canadian Supreme Court. In R v Wray (above n35) Martland J said (at 293) 'the allowance of admissible evidence relevant to the issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly.' This reasoning was followed by L'Heureux-Dub, J in dissent in R v Duguay, (above n59) where at 93 speaking of impugned confessional evidence she said 'admission of evidence of this latter sort detracts from the fairness of the trial process, real evidence does not.'
[79] Gelowitz, Mark O., "Section 78 of the Police and Criminal Evidence Act 1984 : Middle Ground or No Man's Land?" (1990) 106 LQR 327 at 333.
[80] For example see Matto v DPP [1987] Crim LR 641.
[81] R v Nathaniel [1995] 2 Cr. App. R. 565.
[82] 'To allow that blood sample to be used in evidence at a trial four years after the alleged offences when the sample had been retained in breach of statutory duty and in breach of the undertakings to the defendant must, in our view, have had an adverse effect on the fairness of the trial. It should not in our view have been admitted.' (Lord Taylor CJ speaking for the court). Ibid.
[83] Regina v Weir (unreported, 26 May 2000), Court of Appeal
[84] Attorney General's Reference No. 3 of 1999 [2000] UKHL 63 (14th December, 2000) (Lord Steyn at par 25)
[85] This was also the view of the Canadian Supreme Court in R v Collins where Lamer J said at 284-2
[85] 'Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.'
[86] It is difficult to reconcile the decision of the Nathaniel court if 'fairness' means preventing an unsafe verdict, which the writer contends is the real objective behind both the common law and section 78 fairness discretion. If a 'fair' trial is a trial which delivers a safe verdict concerning the guilt or innocence of the accused, then the Nathaniel court erred in its decision to exclude the evidence on the basis of unfairness.
[87] Compare with section 24(2) of the Canadian Charter of Rights and Freedoms which also requires the court to have regard to all of the circumstances but to exclude evidence only when its admission would bring the administration of justice into disrepute. Hence at least in their wording, the English discretion turns upon trial fairness while the Canadian discretion turns upon judicial integrity and repute.
[88] This paper asserts that English judges are far more likely to admit reliable illegally obtained real evidence on the grounds that its reliability and pre-existence to the illegality renders it fair, while Canadian judges are more likely to exclude the same evidence on the grounds that the method used to obtain it renders it unfair and so to admit it would bring the administration of justice into disrepute.
[89] Note that the writer contends in n86 above that the correct interpretation of 'fairness' in the English context is that which renders a safe verdict, consistent with the guilt or innocence of the accused.
[90] Stone, Richard "Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles" (1995) 3 Web JCL1. See also May, Richard, "Fair Play at Trial: An Interim Assessment of Section 78 of the Police and Criminal Evidence Act 1984" [1988] Crim L.R. 722 at 730.
[91] R v Maqsud Ali, R v Ashiq Hussain [1966] 1 Q.B. 688. Stephen and Aicken JJ in the Australian High Court decision of Bunning v Cross (1978) 141 CLR 54 at 75 also rejected a 'fair play' rationale saying ""Fair" or "unfair" is largely meaningless when considering fingerprint evidence obtained by force or a trick or even the evidence of possession of, say, explosives or weapons obtained by an unlawful search of body or baggage, aided by electronic scanners. 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".
[92] United States v Garsson, 291 F. 646, 649 (2nd Cir, 1923) (Learned Hand J)
[93] Choo, Andrew "Improperly Obtained Evidence: a Reconsideration" (1989) 9 Legal Studies at 261.
[94] Zuckerman, A.A, Principles of Criminal Evidence (Oxford: Clarendon, 1989) at 346.
[95] Ashworth, Andrew "Excluding Evidence a Protecting Rights" [1977] Crim LR at 723.
[96] Hunter, Mary, "Judicial Discretion: Section 78 in Practice" [1994] Crim LR at 558.
[97] It is interesting to note that when Mary Hunter interviewed four Crown Court judges and one High Court judge for her article, all but the High Court judge expressed disdain for or ignorance of the academics' proposed rationales. Only the High Court judge recognised the principles and said that the reliability rationale was the most important. The other four judges re-iterated that the only consideration was trial fairness.
[98] "It has been said more than once in this court that the object of a judge in considering the application of section 78 is not to discipline or punish police officers or customs officers for breaches of the code. There are other procedures for doing that." R v Hughes [1994] 1 WLR 876 at 879 (Lord Taylor). See also R v Mason; R v Delaney (1989) 88 Cr. App. R. 338, (C.A.); R v Sang).
[99] R v Quinn [1990] Crim L. R. 581 (Lord Lane CJ).
[100] However bad faith has been judicially narrowed to cover wilfully or knowingly exceeding powers (Matto v DPP) or failing to meet the requirements of PACE and its Codes (R v Alladice). See also R v Mason, above n76.
[101] R v Payne [1963] 1 W.L.R. 637.
[102] R v Sang, above n67 at 435.
[103] Hunter, above n96 at 558.
[104] Robertson, Bernard, "The Looking-Glass World of Section 78" (1989) 139:6423 New Law Journal 1223. In particular Robertson claims that in R v Samuel and R v Alladice, the court did not turn their minds to the question of the fairness of the proceedings at all.
[105] R v Smurthwaite [1994] 1 All ER 898 at 902-903. Compare with the Canadian decisions R v Wray, above n35 at 690-91 and also R v Burlingham, above n44 at par 68 where Heureux-Dube' J expresses a similar view in her dissenting opinion.
[106] Section 76 of PACE sets out requirements in relation to the admissibility of confessional evidence.
[107] R v Nathaniel, above n81.
[108] The Police Complaints Authority has power pursuant to sections 83-104 of PACE to investigate complaints against police officers and to impose sanctions including dismissal, reduction in rank or pay, a fine, reprimand or caution. Sections 90-104 also allows for the criminal prosecution of police officers. Aggrieved persons can also sue an officer (and the chief officer of the department) in tort with damages being paid out of the police fund. See Police Act 1996 c(16).
[109] Note that in R v Khan on appeal the accused argued that evidence obtained against him by police officers acting without authority, violated his right to privacy protected by Article 8 of the European Convention on Human Rights (ECHR). The House of Lords in denying the appeal conceded that although evidence obtained in circumstances involving an apparent breach of Article 8 may be relevant to the exercise of the section 78 power, its admission did not per se infringe the right to a fair trial under Article 6 of the ECHR as the accused had the right under national law to challenge its admissibility. In so ruling they followed the decision of the European Court in Schenk v Switzerland (1988) 13 EHRR 242 at paras 46 and 47. It remains to be seen whether the recent incorporation by Britain of the European Convention on Human Rights into domestic law will alter the position taken by the House of Lords. The Human Rights Act 1998 was enacted on 2 October 2000.
[110] R v Khan, above n74 at 301. Note that in R v Burlingham, above n44, the Canadian Supreme Court used almost identical language. See also Bronitt, Simon "Police Illegality and Impropriety" Australian National University law lecture, (18 December 1999).
[111] Bronitt, Ibid.
[112] H.C. Deb., 6th series, vol 65, col. 1012 (October 29, 1984) in Gelowitz, above n79 at 334.
[113] McKee, Adam J., "Protecting Civil Liberties in Police Interviews: A Comparative Analysis of the United States, England and Wales" http://ocean.otr.usm.edu/-ajmckee/police_interviews.html (2 January 2000)
[114] Above n108.
[115] Bronitt, above n110.
[116] Zuckerman, above n94.
[117] Robilliard J and McEwan J, Police Power and the Individual (1986) 247
[118] Hirschel, "What Can We Learn From the English Approach to the Problem of Illegally Seized Evidence?" (1984) 67 Judicature 424 at 432.
[119] Robilliard and McEwan, above n117. Complainants can sue in an action for trespass or other tortious acts under the Police Act 1996 and in some cases obtain punitive damages.
[120] Bunning v Cross (1978 141 CLR 54.
[121] See also Ridgeway v The Queen (1995) 184 CLR 19
[122] R v Ireland (1970) 126 CLR 321.
[123] Id at 335. It should be noted that this public policy discretion operates in addition to the discretion the trial judge has to exclude evidence whose probative value is outweighed by its prejudicial value as well as the discretion to exclude a confession obtained in circumstances which render it unfair to use it against the accused. McDermott v R (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133.
[124] Bunning v Cross, above n120 at 74 and 75.
[125] In the United States, the trial judge has no discretion whatsoever and must simply exclude the evidence unless it falls within one of the narrowly defined exceptions. In Canada, while the exclusion of illegally obtained evidence is subject to judicial discretion, post-Charter jurisprudence has severely curtailed the discretion so that in practice, it is more exclusionary that discretionary. In England, judges are not normally overruled on appeal unless they fail to exercise the discretion reasonably.
[126] The public interest discretion articulated in Bunning v Cross was extended to voluntary confessional evidence by the High Court in Cleland v The Queen (1982) 151 CLR 1,9 where the court said that a voluntary and fairly obtained confession which was made during unlawful detention should only be excluded in the most exceptional circumstances. (Gibbs CJ)
[127] Cwth and ACT - Cwth - Evidence Act 1995 s138; NSW - Evidence Act 1995 s138; VIC - Evidence Act 1958 s5.
[128] s138 Evidence Act 1995 (Cwth and NSW). Note also that Bronitt claims that the Cwth Act clearly imposes an obligation on judges and practitioners to acquaint themselves with the provisions and jurisprudence of international human rights law. Bronitt, above n110.
[129] Perrin, L. T et al, "If it's Broken, Fix it: Moving Beyond the Exclusionary Rule - A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule" (1998) 83 Iowa L Rev 669.
[130] Officers of varying rank came from the Sheriff's Department and five police departments.
[131] Estimates vary between studies. The American Bar Association Special Committee on Criminal Justice in a Free Society, "Criminal Justice in Crisis", 21,844 (1998) asserts that between .6 and 2.35 percent of all prosecutions are lost due to the exclusion of illegally obtained evidence. The National Institute of Justice study "The Effects of the Exclusionary Rule: A Study in California 2 (1982) put the figure at 4.8%.
[132] Perrin, above n129, 677 quoting Caldwell H.M. and Chase, Carol A., "The Unruly Exclusionary Rule: Heeding Justice Blackmun's Call to Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom". (1994) 78 Marq. L. Rev 45 at 53-54.
[133] This is as a result of the enormous number of suppression hearings (or voir dire in other jurisdictions) and the dramatic increase in the number of not guilty pleas since Mapp which in for example in the New York City Narcotics Bureau dropped from 86% to 29.5% in 1966. See Comment, "The Effect of Mapp v Ohio on Police Search-and Seizure Practices in Narcotics Cases" (1968) 4 Colum, J.L. & Soc, Probs, 98 at 102. See also Coons, Robert, University of Texas Department of Philosophy who claims that between 20-35% of court time is spent on motions to suppress evidence. "The Exclusionary Rule" [http:/www.utexas.edu/courses/pH2347/lectures/lec8.html] (31 August 1999)
[134] Police officers "have an incentive to commit perjury or ... to carefully tailor the description of their investigative activities in order to uphold the legality of their searches and seizures". Perrin, above n125 at 677 quoting Caldwell and Chase, above n132 at 52-53.
[135] The National Institute of Justice study found that 46% of individuals freed in California in 1976 and 1977 as a result of the exclusionary rule went on to commit additional crimes within 24 months of their release. (quoted in Perrin, above n129 at 676).
[136] 'The evidence reveals a significant impact on crime rates following the involuntary adoption of an exclusionary rule as the penalty for an unlawful search and seizure. This finding is dramatically at odds with current academic and judicial beliefs regarding the impact of the exclusionary rule". Atkins, Raymond, A. & Rubin, Paul H., "Effects of Criminal Procedure On Crime Rates: Mapping Out the Consequences of the Exclusionary Rule" Emory University Department of Economics, Working Papers November 1998 [http://moe.cc.emory.edu/~cozden/rubin_98_03_cover.html] (18 December 1999).
[137] US v Cusumano No. 94-8056 (10/4/95); US v Porco, No. 94-8057 (10/4/95)
[138] Dorning, above n32.
[139] Dershowtiz, Alan, Harvard law professor quoted in Dorning, above n32.
[140] Robinson, Paul H, "Moral Credibility and Crime" The Atlantic Monthly, March 1995 at 72-78.
[141] Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971), 416.
[142] American Civil Liberties Union, "Adoption of Legislation Gutting the Fourth Amendment" In Congress - American Civil Liberties Union Freedom Network, 10 February 1995 [http://www.aclu.org/congress/gut4th.html] (1 September 1999) compare with Prepared Remarks by Akhil Reed Amar, Southmayd Professor of Law, Yale Law School, on the Crime Bill and the Exclusionary Rule Reform Act 1995 before the Senate Judiciary Committee, Federal News Service, 7 March 1995 quoted in Dorning, above n32.
[143] US v Caloundra, above n15.
[144] Prepared Statement of Senator Orrin Hatch, Chairman, US Senate Committee on the Judiciary. Hearing on the Jury and the Search for Truth, Federal News Service, 7 March 1995 in Dorning, above n32. Also, as the effectiveness of the United States Exclusionary Rule is usually judged by its capacity to deter police misconduct alone, the arguably weightier question of its negative impact on the truth-seeking mission of the courts is left unanswered.
[145] Spiotto, James E., "Search and Seizure: An Empirical Study of the Exclusionary Rule and its Alternatives" (1973) 2:1 Journal of Legal Studies 243. Also Robert Coons of the University of Texas Department of Philosophy claims that between 20-35% of court time is spent on motions to suppress evidence. Coons, Robert, "The Exclusionary Rule" [http:/www.utexas.edu/courses/pH2347/lectures/lec8.html] (31 August 1999)
[146] "Surveys indicate that police knowledge about search and seizure law is quite poor, despite the exclusionary rule. One relatively recent study even found that the percentage of current answers by the police on a test about search and seizure law was barely above the chance level." See Slobogin, Chris & O'Connell, Stephen C., Police Interviewing, Confessions, Guilty Pleas (USA), paper presented to the Dublin Trial - Adversarial v Inquisitorial, Dublin 1999.
[147] Perrin, above n129 at 724-275.
[148] Id at 693.
[149] Ibid
[150] Osborne, Evan, "Is the Exclusionary Rule Worthwhile?" (1999) 17:3 Contemporary Economic Policy, 381.
[151] Ibid.
[152] Lynch, Timothy, "Unreasonable Searches: Reassessing the Exclusionary Rule", (1998) The Champion, (December 1998) [http://www.criminaljustice.org] (18 December 1999).
[153] For example R v Collins, above, n39, 284-85; R v Burlingham, above n 44, par 29; R v Samuel, above n74; R v Mason, above n73.
[154] "Unfairness in the manner certain evidence was obtained, or in the fact that certain evidence was obtained, does not necessarily render the trial unfair." L'Heureux-Dube' J in dissent in R v Burlingham quoting her own judgement in R v Dersch [1993] 3 S.C.R. 768 at 784. See also Mapp v Ohio, above n10 where dissenting judge Harlan J reasoned "I do not see how it can be said that a trial becomes unfair simply because a State determines that evidence may be considered by the trier of fact, regardless of how it was obtained, if it is relevant to the one issue with which the trial is concerned, the guilt or innocence of the accused. [The Exclusionary Rule is] an incidental means of pursuing other ends than the correct resolution of the controversies before it."
[155] R v Sang, above n68 at 276.
[156] State v Aime, 220 P.2d, 704, 707 (Utah 1923).
[157] State v Jurrell, 608 P.2d 218, 224 (Utah 1980).
[158] The author contends that the potential negative impact of admission on the reputation of the court is abrogated if appropriate disciplinary actions is taken against the offending officer.
[159] R v Burlingham, above n44 at par 74.
[160] For example there was a "overwhelming public reaction" to the Canadian decision of R v Feeney S.C.C. File no 24752 (22/5/97) where the court excluded evidence of a bloody shirt and shoes along with fingerprint evidence which conclusively confirm that the accused had committed a particularly gruesome murder. See article by Lex View, "Charter Violations and the Exclusion of Evidence: Bringing the Administration of Justice into Disrepute" http://www.centreforrenewal.ca/lex-8.html (23 August 1999). In the United States, a similar reaction followed the acquittal of an "obviously guilty" defendant in the case of United States v Bayless, 913 F. Supp 232 (S.D.M.Y.), vacated, 921 F Supp, 211 (S.D.N.Y. 1996) leading to the court reversing its ruling in the light of public outrage. See Perrin, above n 129. For a series of cases involving the release of murderers as a result of appeals on the grounds of illegal searches, see Rothwax, Harold J. "Why Criminals Go Free" USA Today, 20 March 1996, A-11.
[161] Ibid.
[162] Maginnis, above n32.
[163] "It might be added that, as an empirical matter, the rule probably does more damage to public respect for the courts than virtually any other single judicial mechanism, because it makes courts look oblivious to violations of the criminal law and involves prosecutors, defense attorneys and judges in charade trials in which they all know the defendant is guilty." Slobogin, Christopher, "Why Liberals Should Chuck the Exclusionary Rule" (1999) U. Ill. L. Rev. 363 at 437.
[164] Lee, Rex E., "The Supreme Court's 1983 Term: Individual Rights, Freedom, and the Statue of Liberty," (1984) 19:1 Georgia Law Review 6.
[165] Osborne, above n150 at 384; Slobogin, above n163 at 442.
[166] For example the Code of Winston-Salem provides for such a board. See also concurring opinion of Judge Kane in United Sates v Cusumo;United States v Porco where he says that the fact that such independent disciplinary review boards are consistently opposed by police organizations suggest their use should be more seriously considered.
[167] Robilliard and McEwan, above n117 at 247.
[168] For example, New South Wales (NSW) Crime Commission, NSW Independent Commission against Corruption (ICAC), NSW Police Integrity Commission, the Queensland Criminal Justice Commission (CJC) and the Queensland Crime Commission.
[169] Section 12(1) Anti-Corruption Commission Act 1988.
[170] For example in the United States, under 18 USC. 242 (1982).
[171] That section does not seem to create any remedies, but does acknowledge that all the traditional ones are available. MacDougall, Donald V., "The Exclusionary Rule and Its Alternatives -- Remedies for Constitutional Violations in Canada and the United States" (1985) 76 J. Crim. L. & Criminology 608 at 641.
[172] The Federal Tort Claims Act (28 USC.) 1291, 1346, 1402, 2401, 2402, 2411, 2412, and 2671 through 2680) prescribes a uniform procedure for handling of claims against the United States, for money only, on account of damage to or loss of property, or on account of personal injury or death, caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his or her office or employment, under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred.
[173] Compare with recent amendments to the Police Act 1892 (Western Australia) below n175.
[174] See Police Act 1996 c(16).
[175] S138 Police Act 1892 as amended by Acts Amendment (Police Immunity) Act 1999.
[176] Kamisar, Yale, "Remembering the "Old World" of Criminal Procedure: A Reply to Professor Grano" (1990) 23 University of Michigan Journal of Law 537 at 562.
[177] Even if a jury decides in favour of the innocent victim, damages may be so minimal as to discourage legal action by innocent persons. See Colb, Sherry F., "Innocence, Privacy and Targeting in Fourth Amendment Jurisprudence" (1996) 96 Colum. L. Rev. 1456.
[178] For example Bivens, 403 US, 420-24 (Burger, C.J., dissenting) (arguing for the creation of a monetary remedy against the government instead of exclusion); Amar, Akhil Reed, "Fourth Amendment First Principles" (1994) 107 Harv. L. Rev. 757, 797 (discussing a damages remedy); Barnett, Randy E. "Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice" (1983) 32 Emory L.J. 937, 942 (discussing a monetary system for restitution of damages); Rader, Randall R, "Legislating a Remedy for the Fourth Amendment" (1982) 23 S. Tex. L.J. 585, 613 (analyzing various damages alternatives to exclusion) all in Dalsass, Alan, "Options: An Alternative Perspective on Fourth Amendment Remedies" (1998) 50 Rutgers L. Rev. 2297, 2308; Colb, above n177, "One possible solution to the under enforcement problem would be to create a statutory entitlement to a non-trivial sum of money for any individual who can demonstrate that she has suffered undeserved privacy invasions or targeting harms".
[179] Dalsass, above n178 at 2310.
[180] Note that the Pepperdine study also recommends retaining the exclusionary rule for intentional or willful police misconduct, which in this author's opinion greatly undermines the study's conclusions and sits uncomfortably with its criticism of the rule's effectiveness to deter police misconduct.
[181] Colb, above n177.
[182] "abolition of the exclusionary rule may be desirable only for those categories of crimes where individual rights violations have unquestionably occurred, e.g., rape, robbery, murder, property offenses, preserving it in all other instances". Slobogin, Christopher, "Reform : The Police : Testilying : Police Perjury and What to Do About it" (1996) 67 U. Colo. L. Rev. 1037; "...the rule not apply in the most serious cases -- treason, espionage, murder, [*634] armed robbery, and kidnapping by organized groups." Kaplan, "The Limits of the Exclusionary Rule" (1974) 26 Stan. L. Rev. 1027. See also Kamisar, "Comparative Reprehensibility" and the Fourth Amendment Exclusionary Rule (1987) 86 Michigan Law Revue 1.
[183] Amar, above n178, 800-811; Bradley, Craig M., "Two Models of the Fourth Amendment" (1985) 83 Mich. L. Rev, 1468.
[184] Amar, above n178 at 817-818. Both authors suggest that a small sentence reduction could be seen as an equivalent to monetary compensation for victims of illegal searches who are subsequently convicted of their crime.
[185] United States v Cusumo;United States v Porco, above n137 "... as Congress has legislated schemes that license stevedores, interstate truck drivers and airplane pilots, it could establish an effective licensing system for those charged with law enforcement responsibilities."
[186] Note that guilty victims can still recover damages limited to the actual loss they have suffered. See discussion on page 51.
[187] See page 51 for instances where this may be extended.
[188] If the complaint originated with the prosecutor or judge, a copy would be served on the victim of the misconduct. If the claim is to be prosecuted, they should be asked to participate in the process. If they refuse to participate, the agency may still proceed to prosecute the officer (if a case can be made without the cooperation of the injured party) but any damages would be forfeited by that party.
[189] The board would be made up of public citizens who have been invited to sit on the board.
[190] Disciplinary action for trivial or innocent breaches may involve the officers being counselled or undertaking further education or training, while repeated or serious breaches are punished by demotion, transfer or ultimately dismissal.
[191] Although the alleged victim could still choose to sue the officer privately in tort.
[192] Perrin, above n129; Slobogin, above n163.
[193] Subject to them having cooperated throughout the court process and any appeal the Crown may wish to pursue.
[194] See a similar provision in the Western Australian legislation, above n175.
[195] It is worth also considering whether successful innocent plaintiffs should have a designated percentage of their damages award diverted to the agency legal aid fund as a contribution towards the action. This would also ensure that sufficient monies are available for future actions.
[196] Colb claims that the criminal uses his privacy to obstruct justice and so lacks a reasonable expectation of privacy in the place where she hides evidence of crime. See Colb above n177. This is also the situation in Germany. See Neumann who says "providing a civil remedy only to those persons ultimately proven to be non-culpable is progressive. It displays judicial concern for the victims of official misconduct where the victim's right to privacy is not overborne by any legitimate official investigatory purpose". Neumann, Criminal Procedure, in Foreign Office [of the United Kingdom] (1952) II Manual of German Law 141 at 147.
[197] damages to which the victim is entitled.
[198] subject to any appeal.
[199] Statements made by parties in the criminal proceedings can be used in later civil proceedings. However to use the conviction as conclusive evidence of guilt, the rule in Hollington v Hewthorn & Co Ltd [1943] 1 KB 587 will need to be overruled in some Australian jurisdictions. Note that the Full Court of Western Australia recently refused to follow Hollington in the case of Mickelberg v Director of Perth Mint [1986] WAR 365.
[200] This is because a higher standard of proof is required in a criminal case and the lower standard required in a civil case may still allow for a positive outcome. However this depends upon the factual findings of the criminal court. Note also Hunter v Chief Constable and Australian Federal Police v Hatfield (1992) 106 ALR 335 where in certain circumstances pursuing civil action following criminal acquittal could be an abuse of process.
[201]
Barnett, above, n178 at 975
[202] Jeremy Bentham