Background
In this case the accused had been charged with trafficking heroin and applied to have certain evidence excluded from his trial under s 138 of the Evidence Act 1995 (Cth). The evidence related to a photograph of the accused which had been obtained as a result of a defective search warrant; and police identification at a subsequent surveillance operation which had relied on that photograph.
Section 138 of the Evidence Act provides for evidence obtained improperly or in contravention of an Australian law (whether directly or indirectly) to be excluded unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way the evidence was obtained.
Decision
Justice Penfold ordered that the evidence be excluded.
Reasoning
Her Honour found that the photograph in question was obtained as a result of an impropriety (namely, reliance on a defective search warrant), and that its retention was also an impropriety which may have involved a contravention of s 230 or s 231 of the Crimes Act 1900 (ACT); these provisions govern the circumstances for taking and retaining identification material.
Justice Penfold then considered whether the evidence should nonetheless be admitted despite the impropriety. A relevant matter to be taken into account was whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights (s 138(3)(f) of the Evidence Act (Cth)).
Her Honour noted that Article 9(1) of the ICCPR, relating to the prohibition against arbitrary detention, was reflected in s 18 HRA. She considered that the accused’s right to be free from arbitrary detention was likely to have been infringed (at 62):
[The accused]’s detention pursuant to a defective warrant appears likely to have been inconsistent with his right not to be subject to arbitrary detention. The impropriety constituted by the operation conducted in reliance on the defective search warrant…seems to have involved a possible contravention of or inconsistency with Article 9.1.
Her Honour also noted that Article 17 of the ICCPR, relating to the right to privacy, was reflected in s 12 HRA. She considered that the right to privacy (at 63)
may be relevant to requiring a person to submit to having his photograph taken where there is no lawful basis for that requirement. However, in the absence of any argument about the right to privacy, I refrain from reaching any conclusions about whether that right includes the right not to be forced to submit to being photographed in some circumstances.
Without further reference to the ICCPR or the HRA, Justice Penfold went on to conclude that the evidence should not be admitted based on (at 69):
(1) the community interest in ensuring that police recognise and respect the limits on their investigative powers as the trade-off for the fairly broad powers they are given;
(2) the limited probative value of the evidence concerned (R v Peter Blundell [2007] ACTSC 94 (15 November 2007)[also s 138(a) Evidence Act (Cth)]); and
(3) the lack of any explanation for why the surveillance operation was so dependent on an improperly obtained photograph. |
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