Public policy and private illegality in the pursuit of evidence
| Author | David R. A. Caruso |
| Published date | 01 January 2017 |
| Date | 01 January 2017 |
| DOI | http://doi.org/10.1177/1365712716674797 |
| Subject Matter | Articles |
Article
Public policy and private
illegality in the pursuit
of evidence
David R. A. Caruso
The University of Adelaide, Australia
Abstract
The public policy discretion at common law in Australia was established in the High Court
case of Bunning vCross. 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 throughtheinternetisarguedtobeafurtherbasistomarktheneed
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.
Corresponding author:
David R. A. Caruso, 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; President of the Law Society of South Australia.
E-mail: david.caruso@adelaide.edu.au
The International Journalof
Evidence & Proof
2017, Vol. 21(1-2) 87–118
ªThe Author(s) 2016
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DOI: 10.1177/1365712716674797
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Keywords
discretionary exclusion, evidence, public policy
Introduction
Since Bunning vCross,
1
Australiancourts have had a specific discretion to excluderelevant and admissible
evidence that hasbeen obtained by improper or unlawfulmeans. A limitation, or proviso, to thisdiscretion
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 referencewill most commonly be police. At commonlaw, unless the relevant misconductis
that of or attributable to law enforcement authorities, the public policy discretion does not arise—it is not
enlivened—forconsideration as to exercise by the court. Thisfetter 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 vCross.
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 dis-
cretionary 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 con-
fessional 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 policydiscretion has been strictly followedat common law, as
willbe discussed. This articleexplains thebasis for that restrictionand then argues againstthe restriction.The
contention of this article is that the public policy discretion should be available to exclude unlawfully or
improperlyobtained evidenceand thereforethe discretion shouldbe enlivened for suchexercise, irrespective
of who was responsiblefor 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 jurispru-
dence. Secondly, the authorities proviso derives from a reading of Bunning by intermediate appeal courts
1. Bunning vCross (1977–1978) 141 CLR 54.
2. See, e.g., Police vJervis;Police vHolland (1998) 70 SASR 429 at 445–449; RvLobban (2000) 77 SASR 24 at 34, 51; Barker v
R(1994) 54 FCR 451 at 478–479. See also Director of Public Prosecutions (NSW) vCoe [2003] NSWSC 363 (Unreported,
Adams J, 1 May 2003) [18]–[19]; Ridgeway vThe Queen (1994–1995) 184 CLR 19 at 30, 32 (Mason CJ, Deane and Dawson
JJ), 74 (Gaudron J), 84 (McHugh J); The Queen vSwaffield;Pavic vThe Queen (1998) 192 CLR 159 at 180–181 (Brennan CJ),
191 (Toohey, Gaudron and Gummow JJ).
3. The Queen vSwaffield;Pavic vThe Queen (1998) 192 CLR 159.
4. RvLobban (2000) 77 SASR 24 drew the distinction from Swaffield. Real evidence is evidence from ‘things’, see, e.g., Nokes,
1967: 443. For the history, meaning and usage of the term real evidence, see, Abbot of Stracella Mercella’s Case (1592) 9 Co
Rep 24a, 30b-31b; Bentham, 1827: 58; Best and Stephen, 1849: 178; Thayer, 1892: 713; Phipson and Howard, 2000: 1–07;
Nokes, 1967: 444–447; Wigmore, 1972: 1150; Nokes, 1949; Martin, 1988: 10.03.
5. The Queen vSwaffield;Pavic vThe Queen (1998) 192 CLR 159.
6. Bunning vCross (1977–1978) 141 CLR 54 at 77–80.
88 The International Journal of Evidence & Proof 21(1-2)
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 w ith the exception of South Austra lia,
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 enforce-
ment. 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 discre-
tionary 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 examina-
tion 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 purpo-
sively 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 Austra lia is
considered. It is argued that the absence of any express considerat ion 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 dis-
cretion 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
discretionandcommonlawwhichistoenablecourts to protect their own processes against invoca-
tion through unlawful means.
Discretionary exclusion of evidence impugned for its collection prior
to Bunning vCross
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,
7. Legislation which has been modelled on the Evidence Act 1995 (Cth) also governs evidential rules in courts in New South
Wales, Evidence Act 1995 (NSW), Tasmania, Evidence Act 2001 (Tas), Victoria, Evidence Act 2008 (Vic), Northern Territory,
Evidence (National Uniform Legislation) Act 2012 (NT) and the Australian Capital Territory, Evidence Act 2011 (ACT). They
are part of a wider plan, based on the work of the Australian Law Reform Commission (Reports No. 26 and 38 and, more
recently, No. 102), to create uniform evidential rules throughout Australian courts. The legislation based on this quest for
uniformity is interchangeably referred to as the Uniform Evidence Law or the Uniform Evidence Acts.
Caruso 89
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