Section 138 Evidence Act 1995
104The third Ground in the summons contends that the Magistrate failed to exercise his discretion under s 138 Evidence Act to determine whether the desirability of admitting the impugned items into evidence outweighed by the undesirability of so doing.
105The fifth ground deals with a question, essentially of procedural fairness, but which nevertheless touches upon the provisions of s 138 of the Evidence Act. Accordingly, an understanding of the terms of s 138 is an appropriate starting point.
106Section 138 of the Evidence Act is in the following terms:
"Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(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."
107The proper application of s 138 of the Evidence Act was considered by the High Court of Australia in Parker v Comptroller General of Customs [2009] HCA 7; (2009) ALJR 494. French CJ traced the history of s 138, and said at [28] this:
"The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two-stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained."
108The description of a two-stage approach was earlier to be found in a judgment of Branson J in the Federal Court of Australia in Employment Advocate v Williams [2001] FCA 1164; (2011) 111 FCR 20 at [78], where she said:
"Subsection 138(1), the terms of which are set out in [53] above, imposes on a court a two staged task. At the first stage, the court is to determine whether the evidence was obtained in one of the ways identified in par (a) or (b) of the subsection. If the court concludes that the evidence was so obtained, then the court is not to admit the evidence "unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". The balancing exercise which constitutes the second stage of the task imposed on the court by subs 138(1) is, as the heading to the section recognises, commonly regarded as the exercise by the court of a discretion ... Under s 138(1), evidence which was obtained in one of the ways identified in pars (a) or (b) is not to be admitted unless the balancing exercise referred to in the subsection produces the result there specified. If the balancing exercise produces that result, s 56 of the Evidence Act dictates that the evidence must be admitted. That is, the balancing exercise which subs 138(1) requires the court to undertake involves the court in an exercise of judgment (ie the reaching of a conclusion based on the application of very general standards such that different minds might reasonably reach different conclusions on the same material) rather than in an exercise of simply identifying the preferable of two or more available options."
109These decisions make it plain that there are two separate issues to be considered: first, impropriety or illegality, and secondly, whether the evidence ought nonetheless be admitted. The facts relating to each step are usually the same, and turn on the nature of the proceedings, the prosecution case, and the factual circumstances of the impropriety or illegality. But these are all matters, if s 138(1) is to be relied upon, that must be proved by the person tendering the impugned evidence, in order that it might be admitted.
110Whilst there are two separate issues to be determined, the decisions to which I have referred and as well the judgment of Basten JA in the Court of Appeal in Parker v Comptroller General of Customs [2007] NSWCA 348; (2007) 243 ALR 574, do not mandate a two-step procedure for a court considering this question. It is not necessary, and ordinarily would not be the position, that a court would proceed first to hear evidence and argument on the first step, that is, a determination of illegality or impropriety, then deliver a decision which is followed by a second and separate hearing including separate submissions on whether the evidence ought nonetheless be admitted. Whilst, in exceptional cases, such an approach may happen, it is not the norm. Ordinarily, it would be expected that there would be one occasion for the adducing of all the necessary evidence, and one occasion for submissions by counsel to the Court. The submissions would ordinarily be expected to cover the alternative results, of whether the evidence is, or is not, found to be illegally or improperly obtained.
111In the circumstances of this matter, where there had been no agreement between the parties about any special procedure being followed, and no indication from the bench that anything other than the ordinary course was to be followed, then it was incumbent on the prosecution to make clear in its oral submissions that it was seeking, in the event that the appropriate finding of illegality or impropriety was made, to rely on s 138(1) of the Evidence Act as a basis for the evidence to be admitted.
112This the prosecutor did not do. It is not possible to identify from the transcript of oral submissions that the prosecutor actually made an application for a ruling that, although the search and seizure had been found to be unlawful, nevertheless the Court should exercise its discretion under s 138 of the Evidence Act to admit the items.
113As can be seen from its terms, section 138 of the Evidence Act calls attention to the following - the probative value of the evidence; the importance of the evidence in the proceedings; the nature of the relevant offence; the gravity of the impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; and the difficulty, if any, of obtaining the evidence without impropriety or contravention of Australian law.
114Nowhere in the transcript did the prosecutor articulate a submission which addressed any of these items. Nowhere did the prosecutor take the learned Magistrate to the probative value of the evidence of the impugned items although that may have been obvious. Nowhere did he make a submission about the importance of the evidence in the proceedings, although that, too, may have been obvious. Nowhere did he deal with the gravity of the impropriety or contravention. He did not seek in any way to suggest that the evidence could not properly have been obtained without impropriety or address any of the matters which required submission. He did not contend, for example, that a search warrant could not have been obtained in a sufficiently timely fashion, nor that there was any urgency about the deal to seize the items.
115All that the prosecutor did, once the Magistrate had delivered his decision about the unlawfulness of the seizure, was to ask a question, in an inappropriately interrogative manner, of the Court as to whether the Court "was saying that it would not entertain a 138 application".
116With due respect to the prosecutor, this was an inappropriate, and improper question. This was so for a number of reasons:
(a)The terms of the question as to what the Court "... was saying" suggest that the prosecutor was seeking an interpretation of the reasons for the decision which the Magistrate had delivered;
(b)the prosecutor had never made a submission, during the course of his oral submissions on that day, indicating that he proposed to rely on s 138 of the Evidence Act as a basis for the admission of the evidence of the seizure of the impugned items;
(c)his foreshadowing of such a submission prior to an adjournment on a previous day was neither an application seeking the admission of the evidence on such a basis; nor was it sufficient to bring the Magistrate's attention to the fact that such an application was being made, or was to be made, on the final day;
(d)his question did not suggest that he was making or else wanted to make, a submission that, having regard to the fact that the Magistrate had now determined that there was an impropriety in the seizure of the impugned items, nevertheless s 138 of the Evidence Act would apply and the evidence ought be admitted as a matter of discretion; and
(e)he made no reference to any of the matters necessary or appropriate for the magistrate to give full and complete consideration to the matter.
117It is not axiomatic that, if evidence is ruled to be illegally or improperly obtained, a prosecutor, or the party tendering the evidence, will seek to enliven the Court's discretion under s 138 of the Evidence Act. A court does not automatically proceed to consider that discretion. It needs to be invited so to do, by submissions clearly put which address the relevant matters to the balancing exercise which the section requires.
118Here the prosecutor did not do so and, accordingly, no denial of procedural fairness which could amount to an error of law can be discerned.
119But even accepting, contrary to this finding, that there was a sufficient indication to the court that it should exercise its discretion under s 138 of the Evidence Act, then it is clear that the prosecutor had the opportunity to make such submissions as he wished. First, he had that opportunity prior to the decision being delivered, as one would ordinarily do. There was no suggestion that his submissions at that time were cut short, stopped or in any way interrupted by the Magistrate. Secondly, even after the Magistrate announced his decision, and the prosecutor raised, in the inappropriate interrogatory style, a question about s 138 of the Evidence Act, he was not precluded then from indicating that he wished to make further submissions, and then making them.
120In those circumstances, even if one took the half-hearted hint or suggestion of the prosecutor, from the statement at the conclusion of the previous day's hearing, or else from the question he raised, that he was making an application in accordance with s 138 of the Evidence Act, that, notwithstanding the ruling of the Magistrate, that the evidence was inadmissible, it should nevertheless be admitted as a matter of the Court's discretion, then in the absence of any further detail being provided, the Magistrate's firm decision to exclude the evidence was more than a sufficient disposition of the matter. The decision itself, that is, to reject the evidence, does not bespeak an error in the exercise of discretion of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499.
121There is no suggestion that the Magistrate did not consider all of the relevant matters. In the course of his decision, in particular, the Magistrate had commented that there was no reason why a search warrant could not have been sought by the police officers when they saw the impugned items in the apartment. Neither of the grounds raise, or suggest, an inadequacy of reasons.
122Of itself, having regard to the terms of s 138(3)(h), the fact that there was no urgency about seizing the goods, the goods were not about to disappear, Mr Tamcelik was not in the apartment, and there were facilities for obtaining a search warrant over the telephone which would have enabled the searching of the bedroom and the seizure of the items, a refusal by the Court to exercise any discretion which existed under s 138 of the Evidence Act was abundantly justified. Accordingly, both of these grounds of appeal fail.