In New South Wales, and all Uniform Evidence jurisdictions, s 138 of the Evidence Act 1995 provides for an exclusionary rule in respect of unlawfully or improperly obtained evidence. It applies in any proceedings covered by the Evidence Act. With increasing frequency, the provision is raised in connection with evidence obtained by private individuals in contravention of s 7 of the Surveillance Devices Act 2007 (SDA), which prohibits the use of a listening device to record private conversations.
Where evidence has been obtained unlawfully, the court has a discretion whether to admit the evidence. The exercise of discretion must take into account eight factors enumerated in s 138(3), including ‘the difficulty in obtaining the evidence without impropriety or contravention of Australian Law.’: s 138(h).
In Kadir v the Queen (2020) 267 CLR 109, the High Court considered video surveillance evidence obtained by animal rights activists which later became the basis for a search warrant obtained by the RSPCA. It was uncontroversial that the evidence had been obtained in contravention of the SDA.
At trial, and on appeal to the Court of Criminal Appeal, the high degree of difficulty in obtaining evidence without contravening the law was treated as a factor in favour of admitting the evidence. The Court of Criminal Appeal said that this factor ‘tip[ped] the balance’ in favour of admitting the surveillance evidence. The High Court held that this approach was wrong, and said at [20]:
Putting such a case to one side, where the impropriety or illegality involved in obtaining the evidence is deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission. By contrast, where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration. The assumption on which the parties and the Courts below proceeded, that proof that it would have been difficult to lawfully obtain the surveillance evidence was a factor which weighed in favour of admitting evidence obtained in deliberate defiance of the law, inverts the policy of the exclusion for which s 138 provides.
In other words, any difficulty in obtaining evidence should not be seen as justification for a deliberate or reckless contravention of the law. To the contrary, the deliberate ‘cutting of corners’, must favour the exclusion of any evidence obtained as a means of deterring beaches of the law.
