18 Returning to Robinett, Bleby J cited Lobban (2000) 112 A Crim R 357, per Martin J (with whom Doyle CJ and he agreed) at 367, where his Honour said -
"In my opinion, however, the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being 'demeaned' by the use of the ''fruits of illegality' or being used 'to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf'. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct."
19 If I may say so with respect, this statement of the position is plainly correct. But I would not interpret this passage as doing anything more than restating the principle that the Courts will not allow themselves to be manipulated into condoning crimes or serious improprieties by law enforcement officers or their agents, as is made clear by the concluding sentence. In Lobban, the appellant was charged with offences involving the possession and production of cannabis which was mistakenly destroyed after samples had been analysed by the Forensic Science Centre at the behest of the police, thus preventing the accused from undertaking his own analysis. He sought a stay of the prosecution or exclusion of the certificates of analysis.
20 In the end, Belby J in Robinett was persuaded by the close link between the way in which the defendant had been treated over time and his increasing abuse of the police officers and the relative lack of seriousness of the offences charged that "the public interest in securing a conviction for that type of offence, committed in those circumstances, outweighs what would otherwise be condonation of the impropriety and unfairness, if the evidence were to be admitted" (116 A Crim R at 508). Once it is accepted that the officers had not behaved as they did in order to provoke the commission of the offences charged, it is (with respect) difficult to see how hearing and determining the charges amounted to permitting an "attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct". Furthermore, the behaviour of the police may have provided the defendant with a defence.
21 After this perhaps over-lengthy detour into the common law, let me return to Carr. Smart AJ said of Robinett that it "provides a telling example of a factual situation which cannot be overlooked [and which any] formulation of principle cannot…leave out of account" (127 A Crim R 165) concluding that there is no significant difference between the position under s138 of the Act and the common law. I do not think, with the greatest respect, that a useful principle of law can be elicited from the particular way in which Belby J applied the balancing test which I have set out at the beginning of the immediately preceding paragraph. It seems to me that the questions posed by Belby J (which are set out above in paragraph 11 above), on the assumption that they summarise the common law (and, with respect, I think they do so far as the collection of evidence is concerned but do not so far as the Ridgeway principle is concerned, for reasons that will be clear shortly) are clearly not the questions, in substance or in form, posed by s138 of the Act.
22 The discussion by the Australian Law Reform Commission in its Interim Report on Evidence (No 26) of the issues sought to be addressed by s138 is less than comprehensive. Certainly there is no hint that the Commission was proposing any significant change in the law as it then stood by requiring, as a condition for the exercise of the s138 discretion, that the evidence be "obtained" by the impropriety. (I interpolate that in the present case, I do not think that there is any relevant difference between the meanings of paras 138(1)(a) and (b) by the use of then words "in consequence of…" in the latter paragraph.) Of course, the ALRC report was completed in 1985, well before Ridgeway and Robinett. It appears very likely that the word "obtained" was used because that fairly expressed the circumstances in Ireland and Bunning v Cross that gave rise to the discretionary ground for exclusion of evidence for reasons of public policy. It may be (if Robinett be right) that the common law has moved beyond s138 but I do not see how that can justify an approach that ignores the plain meaning of "obtained" by interpreting it as no more than "brought about by" let alone (as seems to be the case here) "triggered by". Having concluded that s138 and the common law did not differ, Smart AJ posed the following question (127 A Crim R at 165) -
"There is a distinction between the commission of further offences by a defendant as a result of improper police conduct which precipitated them and the evidence of them which becomes available to be adduced on the one hand, and evidence improperly obtained as to past offences and unconnected with further offences. Can s138(1) operate to render inadmissible evidence obtained of the commission of further offences following an improper act or omission by the police such as an ill-advised arrest as to an earlier offence and/or the withholding of medical treatment? A number of situations may arise. The person arrested may in a state of anger at his ill-advised arrest commit a serious crime, for example, attempted murder or maliciously inflict grievous bodily harm with intent to do so. In such a case, the evidence of those subsequent acts would be admitted. On the other hand he may commit a relatively minor crime such as a mild assault or resist arrest. Further, he may, if moderately intoxicated, utter threats never intended to be carried out. There is also the example of a reaction at the police omitting to summon necessary medical or other attention."
23 Smart AJ, having observed that, in Robinett, Bleby J "took a robust approach which was based on the realities of the situation in which the defendant found himself", proceeded to consider whether the evidence sought to be excluded in the case before him was a consequence of or caused by the arrest, held to be improper because, in the circumstances, a summons would have sufficed. His Honour concluded that the magistrate was entitled to find that the offences charged "stemmed from the ill-advised and unnecessary arrest", pointing out that his Worship "was dealing with the well-known trilogy of an ill-advised arrest where a summons should have been employed, resist arrest and assault police and, as so often happens, the utterance of coarse threats by a moderately intoxicated man". His Honour considered that the sequence of events was not unusual and were "closely related and interconnected". It is, I think important to note (as a matter very relevant in the present case) that his Honour was of the view that "if the offences were moderately serious to serious and disproportionate to an ill-advised arrest, it would not be possible to contend that the evidence of such offences was obtained in consequence of an impropriety" (my emphasis). This was a reference, not to the balancing process prescribed by the concluding words of subs138(1) but to the necessity of establishing a causal link between the impropriety and the offences committed by the defendant. A disproportionate reaction meant that, although the impropriety was the occasion for the offences, it was not the cause, which must then be found in the voluntary acts of the defendant. Applying this reasoning to the present case, the mere fact that the unlawful arrest or attempted unlawful arrest "triggered" what followed, did not dispose of the problem of causation and the failure of the learned magistrate to consider this matter amounted to a fundamental error of law. It is obvious from the facts here that the alleged response of the defendant to the constable's conduct was so disproportionate and so serious an offence that, even if it was "obtained" by that conduct, was not caused by it. Accordingly, even if at common law the evidence of the offences may be excluded on proof of improper conduct that caused or gave rise to them, the defendant must also fail.
24 It will be seen from the above discussion that Smart AJ considered that "obtained" was the practical equivalent of "caused" or "stemmed from". For the reasons that I have given, I am, with the greatest respect, unable to agree with this interpretation. The word "obtained" is in ordinary parlance and should not be unduly or artificially restricted: Haddad & Treglia (2000) A Crim R 312 per Spigelman CJ at [73] but it cannot apply more widely than circumstances which fairly fall within its ambit. Where "real evidence" is indeed obtained as a result of impugned conduct, then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring the evidence. Where, however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been "obtained" unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of "obtained", almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences. In some cases, of which Robinett and Carr may be examples, there could be such an expectation that offences will result from the impugned conduct that it will be reasonable to say, as an objective matter, that they were "obtained" by that conduct but these situations will be rare.
25 It follows that I consider that the learned magistrate erred in law in concluding that the offences - or the evidence of them - had been obtained by the improper or unlawful conduct of Constable Baker. However, I should say something about the evaluation prescribed by the resuming words of subs138(1), as informed by the matters specified in subs138(3). This subsection is as follows -
"(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) 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 , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
26 The reasons given by the learned magistrate for rejecting the evidence, once there was a determination that the constable's conduct was unlawful, are set out in the passage quoted above in paragraph 11. It will be seen that her Worship did not articulate any evaluation of the matters specified in either subss183(1) or (3). She referred to the touching by Constable Baker of Mr Munro's arm as appearing "to trigger a violent confrontation between the parties". (Of course, there was no violence at all between the parties except in the sense that Constable Baker was brutally assaulted from behind and kicked in the head when he was on the ground.) Her Worship then added -
"That evidence as to the incident that followed then is not admitted, I think on all the grounds set out in subs(3) and, indeed, having regard to the context, as the officer was at pains to emphasise, of the circumstances in which he behaved as he did."
27 It is submitted that the learned magistrate's exercise of the discretion reposed in her miscarried, in a way that cannot be precisely demonstrated because of the opacity of her Worship's reasons, since no proper exercise of that discretion could have resulted in the exclusion of the evidence. It is worth restating, I think, the words of Starke J in House v The King (1936) 55 CLR 499 at 503: "a discretion…[may be] very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion". Let me take in order each of the matters referred to in subs183(3). There can be no doubt that the probative value of the evidence was very high. Indeed, despite suggestions put in cross-examination about whether the laceration could have been caused by Mr Munro as distinct from the defendant, which were emphatically rejected by the constable, no attempt was made to contradict the essential accuracy of his account. Nor can there be any doubt that that the evidence was important. Indeed, as its absence led to dismissal of the information demonstrated, the evidence was vital. The relevant offence was very serious, as was the nature of the subject matter of the proceeding. Violent assaults on police officers who are attempting to perform their duty cannot but be regarded as serious, even if no actual injury is caused. A substantial injury was inflicted on Constable Baker. The impropriety or contravention found against him was slight, it involved no assault, no actual physical restraint and none was threatened: if there was an attempted unlawful arrest, this was true only in the most technical sense. The most that could be said was that the Constable misused his position as a police officer in attempting to obtain information from an injured victim about whether he wanted medical attention and how his injury was caused, where there was every reason to suspect that he had been assaulted, possibly seriously. The situation was difficult and fraught and the constable committed no more than a slight error of judgment. There was no suggestion put to the constable from which it could be inferred that he had intentionally or recklessly flouted the law and the learned magistrate did not (and, in my view, could not) so find. The International Covenant on Civil and Political Rights does not appear to be relevant - certainly it was not put either to the magistrate or to me that it was material. There was no evidence that any proceeding was likely to have been taken against Constable Baker but, on the evidence, no such proceeding could be justified. Paragraph 183(3)(h) is irrelevant. The considerations relevant to the evaluation that is required by the resuming words of subs183(1) are sufficiently set out in the authorities to which I have already made reference above. In House v The King (supra at 505), Dixon, Evatt and McTiernan JJ said -
"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
28 Taking into account the matters specified in subs183(3) and the evaluation required by subs183(1), I consider that the determination of the learned magistrate to the effect that "the desirability of admitting the evidence" does not outweigh "the undesirability of admitting the evidence that…[was] obtained in the way in which the evidence was obtained" is, in the present case, so unreasonable that it bespeaks a significant error of law.
29 Accordingly, the order dismissing the information is quashed. A new hearing will be necessary. In the circumstances, I think that the proceedings should be heard afresh by another magistrate.