R v LOBBAN No. SCCRM-99-287 [2000] SASC 48 - SASC 2000 case summary — Zoe

[10]

"The nature and scope of the [public policy] discretion has been considered in some detail by the High Court in recent times. I refer to Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, R v Swaffield (1998) 72 ALJR 339 and Nicholas v The Queen [1998] HCA 9; (1998) 72 ALJR 456. There is no doubt that, in the exercise of that discretion, a court can exclude evidence other than confessional evidence. It is equally clear, in my opinion, that the discretion permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct. The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining "curial advantage" by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case. When the court exercises the discretion, it declines to allow the prosecution to make use of evidence obtained through illegality or impropriety, because to do so would be to allow it to benefit by its own wrongdoing, and would give the appearance of approving of the relevant illegality or impropriety. Of course, as the cases make quite clear, the court has to put into the scales as well the importance of securing the conviction of those who commit criminal offences. Authority for what I have said is to be found in the manner in which the discretion is described, and the explanation given for its existence and exercise. I refer in particular to Bunning v Cross (at 74-75, 77-78) per Stephen and Aickin JJ; Ridgeway v The Queen (at 30-32) per Mason CJ, Deane and Dawson JJ, (at 48-49) Brennan J, (at 56) Toohey J, (at 74) per Gaudron J and (at 82-83) per McHugh J; Nicholas v The Queen (at 32-35) per Brennan CJ. If the evidence in question was not obtained by unlawful or improper means, this discretion does not arise. It does not arise simply because the discretion is directed to preventing the curial advantage that would be gained from the use of the evidence, and from avoiding the appearance of approval by allowing the use of the evidence. The discretion is a broad one. It is founded upon the need to preserve the integrity of the administration of justice and the need to protect the processes of the courts of justice: see Ridgeway (at 30-32) per Mason CJ, Deane and Dawson JJ. An object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities: see Ridgeway (at 32); R v Swaffield (at 22) per Brennan CJ. But the foundation of the discretion, and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law. The discretion does not give a power to exclude evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct. To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for the enforcement of the law. That is not the responsibility of the courts. Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts. As the majority said in Ridgeway (at 37) with reference to improper conduct by law enforcement officers in the course of investigating criminal activity:

[60]

"...Speaking generally, the notion of "fairness" is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury. In other cases, the procedures may be modified, for example, to allow evidence to be given through an interpreter, or to allow for special directions to counteract the effect of pre-trial publicity or even something said or done in the trial itself. Sometimes the venue may be changed to counteract some perceived difficulty in obtaining a fair trial in the area in which the offence was committed; in other cases proceedings may be adjourned, for example, to enable evidence to be checked or to allow for pre-trial publicity to abate. The examples are not exhaustive. They are, however, sufficient to show that the requirement of fairness is, and, in various different contexts, has been recognized as, independent from and additional to the requirement that a trial be conducted in accordance with the law. The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court. The notion of a fair trial and the inherent powers which exist to serve that end do not permit of "idiosyncratic notions of what is fair and just" any more than do other general concepts which carry broad powers or remedies in their train. But what is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values. It is because of these matters that the inherent powers of a court to prevent injustice are not confined within closed categories. And it is because of those same matters that, save where clear categories have emerged, the inquiry as to what is fair must be particular and individual. And, just as what might be fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another." (footnotes omitted) (my emphasis)

[65]

"In dealing with the first question, the starting point must necessarily be the fundamental principle that the judge presiding at a criminal trial always has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused (Driscoll v. The Queen [1977] HCA 43; (1977) 137 C.L.R. 517, 541; Stephens v. The Queen [1985] HCA 30; (1985) 156 C.L.R. 664, 669; Bunning v. Cross [1978] HCA 22; (1978) 141 C.L.R. 54, 73-74). The principle is stated in slightly different terms in R. v. Sang [1979] UKHL 3; [1980] A.C. 402 although the effect is the same. Lord Salmon, at 444-445, expressed it thus: "I consider that it is a clear principle of the law that a trial judge has the power and the duty to ensure that the accused has a fair trial. Accordingly, amongst other things, he has a discretion to exclude legally admissible evidence if justice so requires: see Lord Reid's speech in Myers v. Director of Public Prosecutions [1965] A.C. 1001, 1024." Lord Salmon had, at 444, expressed the view that the decision as to whether evidence may be excluded depends entirely upon the particular facts of each case and the circumstances surrounding it, which are infinitely variable and, at 445, he also gave it as his opinion that the category of cases in which technically admissible evidence may be rejected on the ground that it would make the trial unfair is not and can never be closed except by statute. Lord Fraser of Tullybelton, at 447, after referring to some categories of cases where legally admissible evidence has been excluded in the exercise of a discretion, went on to say: "These cases are in my opinion examples of the exercise of a single discretion founded upon the duty of the judge to ensure that every accused person has a fair trial." Specifically Lord Fraser went on to express the opinion, also at 447, that the discretion is not limited to excluding evidence which is likely to have prejudicial effects out of proportion to its evidential value. In Australia this particular exclusion is expressed in a more limited way as "where the evidence has little or no weight but may be gravely prejudicial to the accused" (Driscoll at 541) and as "where a comparison of the smallness of the probative value of the evidence with its considerable prejudice to the fair trial of the matter justifies its exclusion" (Bunning v. Cross at 64-65) and also as "where the evidence in question is of relatively slight probative value but is highly prejudicial to the accused" (idem at 74). In the lastmentioned passage Stephen and Aickin JJ. referred to this as perhaps the most common instance of the general discretion to exclude admissible evidence when to admit it will be unfair to the accused. To return to R. v Sang, in dealing with the general discretion Lord Scarman, at 453, said: "Notwithstanding its development case by case, I have no doubt that the discretion is now a general one in the sense that it is to be exercised whenever a judge considers it necessary in order to ensure the accused a fair trial.""

[81]

"As we have said, we do not think that one can dispute the proposition that, quite apart from the other circumstances which have been authoritatively accepted as giving rise to the discretion to exclude admissible evidence in a criminal trial, the discretion arises whenever it is shown that the reception of certain evidence will be unfair to the accused. But, as we have said, once it is accepted that this proposition does not commit to the judge a broad and undefined discretion to determine what is in all the circumstances fair, but requires the judge to consider whether reception of the evidence will make the trial unfair, it becomes difficult to think of a set of circumstances which might give rise to the discretion in cases where it is not suggested that there is a disproportion between the probative value of the evidence and its prejudicial effect. In particular, as Carter J. observed at 255 in McLean and Funk, it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury. His Honour went on to conclude at 260 that there was no discretion to exclude evidence which was based wholly or primarily upon the trial judge's conclusion that the evidence was unreliable: the exercise of such a discretion interfered with one of the most integral of the jury's functions, a function which there was no reason to believe any properly instructed jury to be incapable of properly performing. We are, with respect, in general agreement with the view of Carter J. on these questions. As Dixon J. once said: "...At bottom the choice is between the course of placing before the jury material which bears upon the case, leaving them to judge of its reliability and probative value, and the course of withholding it from them on the ground that there is too much danger in their taking into consideration matter which by reason of its source or provenance is prima facie dubious and untrustworthy." (Sinclair v R [1946] HCA 55; (1946) 73 CLR 316 at 333). The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge's directions concerning the considerations, both general and particular, affecting its reliability, including of course in an appropriate case the matter of corroboration. Trial judges must be at pains to ensure that the discretion to exclude admissible evidence on the ground of unfairness is not used (contrary to Doney) to withdraw a case from the jury on the footing that any conviction would be unsafe or unsatisfactory. The judge in the present case has really exercised the discretion to reject admissible evidence on the ground of unfairness on the basis that a conviction based on the apprehended Crown case would be unsafe or unsatisfactory, and has, so to speak, given in favour of the defence an anticipatory ruling (in the light of the apprehended or hypothetical Crown case) which Doney would show to be erroneous had it been given at the close of the Crown case."

[84]

The warning in Rozenes v Beljajev concerning the need to avoid usurping the function of the jury should be heeded. In addition, as Gaudron J observed in Dietrich in the passage to which I have referred, the inherent powers used to serve the purpose of achieving a fair trial "do not permit of idiosyncratic notions of what is fair and just." Nevertheless, for these purposes the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of "the rights and privileges of the accused", which rights "include procedural rights" (pp 189 and 197). Both discretions look "to the risk that an accused may be improperly convicted" (p 189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded. This approach is consistent with the view taken by the Court of Appeal in Callis v Gunn [1964] 1 QB 495. In a judgment with which the other members of the Court agreed, Lord Parker CJ said (p 501):

[96]

(i) a court has a discretion to exclude confessional evidence in the exercise of the overall discretion enunciated in the majority judgment and by Kirby J in Swaffield; (ii) until the High Court determines otherwise, the overall discretion should be regarded as limited to confessional evidence; (iii) prior to Swaffield, discretionary exclusion of confessional evidence was based upon two independent but overlapping discretions, namely, the public policy discretion and a discretion which had as its focus unfairness to an accused; (iv) the public policy discretion also extends to non-confessional evidence; (v) the public policy discretion, whether in the context of confessional or non-confessional evidence, is enlivened only if the evidence was obtained by unlawful or improper conduct or if the criminal offence was induced by unlawful or improper conduct on the part of law enforcement authorities; (vi) the authorities are not consistent as to whether the unfairness discretion formerly applicable to confessional evidence was enlivened only if some unlawful or improper conduct on the part of law enforcement authorities resulted in the making of the confession; (vii) a discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair: * the purpose of this discretion is to ensure that an accused person receives a fair trial and is not improperly convicted. * the operation of this discretion is not dependent upon the conduct of law enforcement authorities; * in principle, this discretion applies to any evidence, but in those areas where special bodies of law exist with respect to the admissibility and discretionary exclusion of particular types of evidence, this discretion may be subsumed by or overlap with well established principles; (viii) I agree with the observations of Doyle CJ concerning the application of and scope for the exercise of the general unfairness discretion. (ix) The Christie discretion based upon a comparison of probative and prejudicial values should be seen as an example of the application of the general unfairness discretion.

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

LOBBAN No. SCCRM-99-287 \[2000\] SASC 48

Legislation Cited (2)

Controlled Substances Act 1984

Cases Cited (30)

R v LOBBAN No. SCCRM-99-287 [2000] SASC 48 (2 June 2000)

Controlled Substances Act 1984 s32(1)(a), s32(1)(e), s52A, referred to.
Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75;
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23;
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517;
Stephens v The Queen [1985] HCA 30; (1985) 156 CLR 664;
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19;
McLean and Funk, ex parte Attorney-General [1991] 1 Qd R 231;
Rozenes and Anor v Beljajev and Ors [1995] VicRp 34; [1995] 1 VR 533, applied.
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54;
Question of Law Reserved (No.1 of [1998] SASC 6634; 1998) 70 SASR 281;
The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321;
Foster v The Queen (1993) 67 ALJR 550;
The Queen v Swaffield (1998) 192 CLR 159;
French v Scarman (1979) 20 SASR 333;
Police v Jervis (1998) 70 SASR 429;
Harriman [1989] HCA 50; (1989) 167 CLR 590;
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292;
R v Tillott (1995) 38 NSWLR 1;
Police v Fountaine [1999] SASC 227; (1999) 74 SASR 26;
Police v Erwin (Unreported SASC S6375, 2 October 1975), discussed.
Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508;
Nicholas v The Queen [1998] HCA 9; [1998] 193 CLR 173;
R v Edelsten (1990) 21 NSWLR 542;
R v Pfitzner [1996] SASC 5462; (1996) 66 SASR 161;
Seymour v Attorney-General (Cth) & Ors [1947] ArgusLawRp 87; (1984) 53 ALR 513, considered.

As to the relevant principles, relying upon the judgment of the South Australian Full Court in Question of Law Reserved (No.1 of 1998) [1998] SASC 6634; 70 SASR 281, the learned trial judge concluded that the discretion enunciated in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 did not apply because that discretion is limited to the exclusion of evidence obtained by unlawful or improper conduct. His Honour was satisfied that the cannabis was lawfully obtained and that no improper conduct was involved in the obtaining of the evidence. He added that if he was wrong and the Bunning v Cross discretion was applicable, he would have declined to exercise that discretion.

(1980) 147 CLR 75

(1989) 168 CLR 23

(1977) 137 CLR 517

(1985) 156 CLR 664

(1995) 184 CLR 19

(1978) 141 CLR 54

(1970) 126 CLR 321

(1993) 67 ALJR 550

(1998) 192 CLR 159

(1979) 20 SASR 333

(1998) 70 SASR 429

(1989) 167 CLR 590

(1992) 177 CLR 292

(1995) 38 NSWLR 1

(1999) 74 SASR 26

(1989) 180 CLR 508

(1990) 21 NSWLR 542

(1996) 66 SASR 161

(1984) 53 ALR 513

(1992) 176 CLR 177

(1998) 72 ALJR 339

(1998) 72 ALJR 456

(1993) 67 ALJR 547

(1988) 62 ALJR 656

(1981) 145 CLR 395

(1975) 12 SASR 373

(1946) 73 CLR 316

R v LOBBAN No. SCCRM-99-287 [2000] SASC 48

At a glance

Court

Decision date

Source

Judgment (99 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (30)

R v LOBBAN No. SCCRM-99-287 [2000] SASC 48 (2 June 2000)