CTHHCA
R v Swaffield
[1998] HCA 1
High Court of Australia|1998-01-20|Before: Brennan CJ, Kirby JJ, Fitzgerald P, Helman J, Pincus JA
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Source factsCourt
High Court of Australia
Decision date
1998-01-20
Before
Brennan CJ, Kirby JJ, Fitzgerald P, Helman J, Pincus JA
Source
Original judgment source is linked above.
Judgment (65 paragraphs)
[1]
- Introduction: In some cases, evidence of covert surveillance will be excluded from a criminal trial on the basis that it does not satisfy the tests of voluntariness or reliability. More commonly, the issue will be whether it should be excluded in the exercise of the residual judicial discretion. In the present appeals, counsel for the accused did not advance their arguments in terms of the public policy discretion. They each argued that the trial judge should have exercised his discretion to exclude the confessional evidence on the basis that it was unfair to the accused to admit the evidence, in the sense that it interfered in the accused's right to a fair trial. Nevertheless, the foundation of the submission as to unfairness, in each case, is an allegation of unacceptable conduct on the part of the investigating police [178] . Obviously, that allegation raises questions of public policy which are broader than concerns confined to the fairness of the trial of the particular accused. At stake is the acceptability of the police practice in two States of the Commonwealth which these appeals illustrate.
[2]
- Swaffield v The Queen (1996) 88 A Crim R 98 at 111.
[3]