The Crown Argument
74 The Crown submitted that the magistrate had placed the onus on it under s 138 and that this was incorrect. The Crown relied on this passage in the judgment of Hunt CJ at CL in Coulstock (1998) 99 A Crim R 143 at 146-147:
"The High Court has recently discussed the close relationship between s 138 and the common law in Swaffield and Pavic (1997) 96 A Crim R 96. It is clear that the onus still lies on the accused to establish the impropriety or illegality before any onus is place upon the Crown to persuade the trial judge that the evidence should nevertheless be admitted: ALRC 26 Vol 1, para 964; C (1997) 93 A Crim R 81 at 95; Salem (1997) 96 A Crim R 421 at 429-430. The discretion is therefore to admit the evidence notwithstanding the impropriety or illegality."
75 Thus the onus lies on the accused to establish the impropriety or illegality but once established the onus is on the Crown to satisfy the court that it should exercise its discretion to admit the evidence. In view of the authorities Mrs Farr did not argue to the contrary.
76 The magistrate was under the mistaken impression that the prosecution had to prove that the search was legal. As earlier noted he said, "It is up to the prosecution to prove that the search was legal." He also said, "the onus cast on the prosecution has not been discharged by the prosecution and consequently I'm satisfied that the search was one which attracts the terminology in section 138 of the Evidence Act."
77 In his submissions (which could have been clearer) counsel for Mrs Farr addressed the Local Court on the basis that there was in effect, a two stage process. Firstly, it had to be established that there was an unlawfulness or impropriety. Secondly, the prosecution must then show that the desirability of admitting the evidence outweighs the undesirability of admitting the impugned evidence. The magistrate appears to have elided the distinction between the two stages and treated the Crown as bearing an overall onus.
78 The Crown next submitted that the magistrate before considering and acting under s 138 of the Act, should have made a determination under s 90. That reads:
"In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
79 The Crown submitted that the magistrate should not have gone to s 138 which raises a public policy issue before making a ruling under s 90 which raises an individual unfairness issue. This was because a determination favourable to the prosecution under s 90 to the effect that the admissions were given freely and voluntarily under s 90 would be a relevant factor in the exercise of the discretion under s138. The Crown relied on Nabalarua, CCA, unreported, 19 December 1997. McInerney J, with whom Sully and Abadee JJ agreed held that s 90 had not affected the common law principle that the burden of establishing that it would be unfair to admit the admissions made to the police during an interview was on the accused: McPherson (1981) 147 CLR 512 at 519-520.
80 In Van den Meer (1987) 35 A Crim R 232 at 248 Wilson, Dawson and Toohey JJ said:
"In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him. Unfairness, in this sense is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."
81 In Pollard v The Queen (1993) 67 ALJR 193 at 206 Deane J said:
" Cleland v The Queen established that, in a case where a voluntary incriminating statement has been procured by unlawful conduct on the part of the police, a trial judge should, if objection to its reception it taken on behalf of the accused consider whether evidence of the statement should be excluded on either of two discretionary grounds. The first of those grounds is that reception of the evidence would be unfair to the accused. The second is that considerations of public policy require that it be excluded. The considerations relevant to the exercise of the two discretions overlap: the unlawfulness of the police conduct will be relevant to the question of unfairness to the accused and, since it is the policy of the law that a criminal trial be fair, considerations of actual or possible unfairness to the accused are likely to be relevant to the question of public policy. Ordinarily, it will be convenient for the question whether the evidence should be excluded on either ground to be dealt with on a single voire dire hearing since any evidentiary material will commonly be relevant to both grounds. Nonetheless, the two discretions are distinct and independent."
82 At 207 Deane J quoted this passage from the judgment of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 69:
"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."
83 Later at 207-208 Deane J continued:
"Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process. In that balancing of policy considerations, the relevance and importance of fairness or unfairness to the particular accused will depend upon the circumstances of the particular case."
84 At 208 he observed:
"The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" with the law or some applicable judicially recognised standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it." In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence."
85 In s 138(3)(e) with the reference to whether the impropriety was deliberate or reckless there is almost an echo of the considerations discussed by Deane J in Pollard.
86 Sections 90 and 138 cover the two discretions which existed at common law to reject evidence on the unfairness and public policy grounds, although s 138 would seem to go further than the common law. Although unfairness to the accused is not listed in s 138(3) as one of the factors to be taken into account that does not mean it should not be taken into account. The introductory words of s 138(3) make it clear that the list in that sub-section is not exhaustive. In Pollard, Deane J indicated the approach which should usually be taken to the exercise of the public policy discretion.
87 In the present case the police did not submit to the magistrate that a determination under s 90 should be made before exercising the discretion under s 138. At no stage did the appellant contest that the bag in the front passenger seat area of the car belonged to her. She conceded it. Nor did she dispute that drugs, and a substantial sum of money belonged to her. Questions of the unreliability of the evidence and unfairness did not arise. The defence case was simply that the court should prefer her evidence to that of the police as to what occurred and hold that the search was illegal. On the defence case Const Anderson had no reasonable grounds to form the suspicion which he alleged he had. He acted on a hunch and not on a suspicion formed on reasonable grounds. The Local Court focussed on whether the impropriety in going ahead and making the search was deliberate or reckless. In the circumstances of the present cast the magistrate did not err in confining his attention to s 138 which was the issue which the parties chose to litigate. If the magistrate preferred the evidence of Mrs Farr, it was open to him to hold that the search was illegal, that the impropriety which occurred was reckless and that the desirability of admitting the evidence did not outweigh the undesirability of admitting the evidence.
88 The Crown submitted that the magistrate erred in holding that there was no evidence that smoked cannabis smells and that it causes enlargement of the pupils of the eyes and the eyes becoming bloodshot and glazed. Const Anderson gave evidence that smoked cannabis had a distinctive smell and that this smell came from the breath and clothes of Mrs Farr. He also relied on the condition of her eyes. Const Anderson relied on his experience.
89 I am a little surprised by the magistrate holding that there was no evidence of these matters as he had earlier in his reasons (p2, lines 15-24) summarised Const's Anderson's evidence including that he had leant forward and smelt the distinct odour of cannabis smoke. From the tenor of his reasons, it seems likely that the magistrate did not accept the evidence of Const Anderson and preferred that of Mrs Farr. However, he did hold that there was no evidence of the matters in question and that was incorrect.