Unlawfully Obtained Evidence: What are the Circumstances it may be Excluded

It may come as a surprise to understand that whether or not evidence which the police have unlawfully obtained is not determinative of whether it may be used by the prosecution against you. The relevantly recent decision of R v Versac [2013] QSC 46 provides us with an example of where the relevant circumstances may overcome the discretionary factors a judicial officer may consider to exclude evidence that was unlawfully obtained.

The enactment of the Police Powers and Responsibilities Act 2000 (Qld) prescribes the conduct of police officers relating to their duties, powers of investigation and obligations which are expected of them through the community, by the legislature.

In the decision of Justice Applegarth, it was accepted by the DPP that the evidence was obtained unlawfully. Accordingly, the issue on appeal was solely focused as to whether there were discretionary considerations of public interest that would permit the evidence able to be relied upon.

Briefly, in the instant matter, the applicant was Mr Versac, was charged on indictment with the possession of heroin. The prosecution sought to rely of the discovery of the heroin in a parked vehicle of the applicant which Many states offer help to consumers with health affordable-health.info problems through Consumer Assistance Programs*. was searched by police without a warrant. It was argued by the Applicant that:

1. A warrant could have been prior to the “emergent” search of the vehicle;
2. There was no reasonable belief that it is was necessary to conduct the search in order to prevent loss of evidence;
3. The application for a postsearch approval order was not timely and in accordance with proper procedure;
4. The order for a post-search approval was not able to rectify a search which was at law unlawful.

However, whether the DPP was able to rely upon the evidence unlawfully obtained involved a consideration of balancing public interest factors. That is, the desirability of prosecuting wrongdoers with the undesirable effect of curial approval of unlawful conduct by those whose task it is to enforce the law: Bunning v Cross (1978) 141 CLR 54 at 74. Courts have previously considered that a number of relevant factors to public policy discretion to exclude evidence, and Justice Applegarth summarised them to include:

1. Whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
2. The cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
3. The nature and seriousness of the offence;
4. The nature of the unlawful conduct
5. Whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
6. How easy it would have been to comply with the law.

Fairness to the individual, while relevant is not the focus of the consideration. It is a balancing exercise which may place varying emphasis on differing matters dependent on the circumstances of the case: Ridgeway v The Queen (1995) 184 CLR 19.

However, it has been said that “[c]onvictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price” (The Queen v Ireland (1970) 126 CLR 321 at 335 per Barwick CJ). Ultimately, it was considered by Justice Applegarth that the manner of the search, particularly that a warrant could have been easily obtained without delay and without jeopardising evidence prior to the search were relevant to the exercise of the discretion to exclude the evidence obtained by the unlawful search. Emphasis was further placed on the mistaken belief that the officers of the search did not require a postsearch approval and they had not received any counselling or education to remedy their understanding. His Honour considered that the officers exhibited a “reckless disregard…of the extent of their powers” (at para [84]).