Fletcher (a pseudonym) v Knight (a pseudonym) (No 2)
[2025] ACTCA 8
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) |
Citation: | [2025] ACTCA 8 |
Hearing Dates: | 15 May 2024 |
Decision Date: | 28 February 2025 |
Before: | McCallum CJ, Mossop and Baker JJ |
Decision: | The appeal and the cross-appeal are dismissed. |
Catchwords: | CRIMINAL LAW – Appeal against ruling admitting unlawfully obtained evidence under s 138 of the Evidence Act 2011 (ACT) – seizure of items under a three-condition warrant – whether requisite belief required to be formed before seizure of property under three-condition warrant EVIDENCE – Cross-appeal against exclusion of evidence – attempted cover up of contravention of Australian law by police – whether attempted cover up relevant to consideration of the “undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained” in s 138 of the Evidence Act APPEALS – Appropriate standard of appellate review under s 138 of the Evidence Act – House v The King error not established – whether House v The King error required – whether Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 should be followed – no challenge to decision in Sidaros – correctness standard applied |
Legislation Cited: | Acts Interpretation Act 1901 (Cth), ss 13, 15AB, 36 Acts Interpretation Amendment Act 2011 (Cth) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 49 Crimes Act 1900 (ACT), s 61B Crimes Act 1914 (Cth), ss 3C, 3E, 3F, 3K, 3LA, 3Q, 10, pt IAA Criminal Code 2002 (ACT), s 45A Evidence Act 1995 (Cth), pt 13.11 Evidence Act 2008 (Vic), ss 97, 101, 137 Evidence Act 2011 (ACT), ss 137, 138 International Covenant on Civil and Political Rights art 17 Human Rights Act 2004 (ACT), s 12 Legislation Act 2001 (ACT), ss 138, 139, 140, 141 Supreme Court Act 1933 (ACT), s 37O |
Cases Cited: | Adler v Gardiner [2002] FCA 1141; 43 ACSR 24 Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Baker v Campbell [1983] HCA 39; 153 CLR 52 BC v The Queen [2019] NSWCCA 111 Bunning v Cross (1978) 141 CLR 54 Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; 257 FCR 166 Caratti v Commissioner of Australian Federal Police (No 2) [2016] FCA 1132 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355; 33 VR 440 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 Dunesky v Elder [1994] FCA 1020; 54 FCR 540 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 Em v The Queen [2007] HCA 46; 232 CLR 67 Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; 124 FLR 384 JW v R [2022] NSWCCA 206; 302 A Crim R 365 Kadir v The Queen [2020] HCA 1; 267 CLR 109 Mann v R [2023] NSWCCA 256 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 Moore (a pseudonym) v R [2024] HCA 30; 98 ALJR 1119 New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643 Parker v Churchill [1985] FCA 425; 9 FCR 316 Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 Puglisi v Australian Fisheries Management Authority [1997] FCA 846; 148 ALR 393 Question of Law Reserved [1998] 70 SASR 28 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Hunt [2014] NTSC 19 R v Lee (1950) 82 CLR 133 R v Riley [2020] NSWCCA 283 R v Siang Pin Foo (No 2) [1998] NTSC 50 Restricted Judgment (No 1) [2022] ACTMC 4 Restricted Judgment (No 2) [2022] ACTMC 5 Restricted Judgment [2023] ACTSC 238 Ridgeway v The Queen (1995) 184 CLR 19 Rogerson v R [2021] NSWCCA 160; 290 A Crim R 239 Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 Slater (a pseudonym) v R [2019] VSCA 213 State of Victoria v Brazel [2008] VSCA 37; 19 VR 553 Tasmania v Crane [2004] TASSC 80 Warren v Coombs [1979] HCA 9; 142 CLR 531 Whim Creek Consolidated NL v Colgan [1991] FCA 605; 103 ALR 204 Young v The King [2024] SASCA 47 |
Texts Cited: | Australian Law Reform Commission, Evidence (Report No 26, vol 1, 1985) Australian Law Reform Commission, Evidence (Report No 38, 1987) Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) Explanatory Memorandum, Evidence Bill 1994 (Cth) Revised Explanatory Statement, Evidence Bill 2011 (ACT) |
Parties: | Alex Fletcher (a pseudonym) & Dale Fletcher (a pseudonym) ( Appellants) Robert Knight (a pseudonym) ( Respondent) |
Representation: | Counsel J Pappas & S Howell ( Appellants) K McCann ( Respondent) |
| Solicitors Hugo Law Group ( Appellants) ACT Director of Public Prosecutions ( Respondent) | |
File Numbers: | AC 36 and 37 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 31 August 2023 Case Title: Restricted Judgment Citation: [2023] ACTSC 238 |
McCALLUM CJ:
1․This appeal raises important questions concerning the application of s 138 of the Evidence Act 2011 (ACT), which contemplates the mandatory exclusion of otherwise admissible evidence where the evidence was obtained improperly or unlawfully. Such evidence must be excluded unless a specified test is satisfied (“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․The appellants were accused of using hidden cameras in a house they owned to obtain intimate images of their female tenants. The evidence to prove those allegations consisted of electronic files obtained by police from three separate devices (two phones and an HP laptop computer) seized during the execution of search warrants. The warrants were not invalid but the process by which they were executed, and the evidence obtained subsequently processed, involved breaches of requirements under the Crimes Act 1914 (Cth). The fate of the prosecution case turned on the admissibility of the evidence seized.
3․The facts and the law are set out in the judgment of Baker J, which I have had the benefit of reading in draft. I am grateful for her Honour’s comprehensive and lucid analysis. Subject to what follows, I agree with her Honour’s reasons and conclusions.
4․I have also had the benefit of reading the draft judgment of Mossop J, who has written separately on two issues: the standard of review to be applied by this Court and the relevance of improper conduct engaged in by police after the evidence the subject of objection was “obtained”.
5․As to the first issue, notwithstanding his Honour’s compelling argument for the contrary conclusion, I agree with Baker J, for the reasons her Honour has stated, that the standard of appellate review this Court must apply to a decision whether to admit evidence the subject of an objection based on s 138 is the correctness standard. For my own part, whatever was intended historically, I have some doubt as to whether the text of s 138 can be construed as conferring a discretionary power. The test is not whether the court thinks the desirability of one matter outweighs the undesirability of another but whether it does. It is not an easy test to apply as it calls for an evaluative judgment to be made by reference to terms of indeterminate reference (“desirability” and “undesirability”), but it is framed as an objective test, not a judicial discretion. However, as Mossop J and Baker J have both noted, the point was not argued and it follows that, for the time being, this Court should follow its own decision in Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 at [38].
6․The second issue addressed by Mossop J is the relevance of a subsequent cover-up to the determination whether to admit the evidence. The HP laptop was found to contain numerous video files depicting three of the complainants, and the young child of one of them, naked. That evidence was held to have been unlawfully obtained because the laptop, having been lawfully seized, was “moved to another place for examination” for more than the 30 days allowed for that purpose under s 3K(3A) of the Crimes Act. The device was examined two days after the expiration of that period. The issue of timing was drawn to the attention of the detective in charge of the investigation by the computer forensics team, and steps could have been taken to examine it urgently or apply for an extension of the period allowed, but he approved its examination outside the statutory period.
7․While it followed that the evidence was obtained in consequence of a contravention of an Australian law, in my view that contravention would not, of itself, have warranted the exclusion of such important evidence, even taking into account the detective’s informed instruction to the forensics team to go ahead.
8․However, after the evidence had been obtained, the detective took steps to conceal the contravention. His police notes, as disclosed to the defence team, were redacted to obscure the timing issue. Then, in his evidence before the magistrate, the detective claimed that he was not aware of the problem and that he had been told by the forensics team that the device would be examined within time.
9․The magistrate admitted the evidence from the laptop and the appellants were convicted of the charges arising from that evidence. On appeal to the Supreme Court, the appeal judge took the view that the steps taken by the detective to cover up the illegality could not be condoned by the Court and that this conduct tipped the balance in favour of excluding the evidence.
10․I agree that the cover-up cannot be condoned by the Court. My concern is whether the detective’s conduct after the evidence had been obtained is a relevant consideration in determining whether unlawfully obtained evidence is to be admitted. Left to my own wits, I would construe s 138 to be concerned solely with the way in which the evidence was obtained, not any aftermath associated with that.
11․My principal reason for reaching that conclusion is that I see no textual path in s 138 for having regard to events after the evidence in question was obtained. Section 138(1) provides:
(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;
must not 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.
12․The “undesirability” to be weighed against the desirability of admitting the evidence is the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Section 138(3) contains a list of considerations that must be taken into account in that weighing exercise. While that list is non-exhaustive, the considerations specified may be seen to be directed to balancing, on the one hand, matters directed to the public interest in prosecuting allegations of criminal conduct and, on the other hand, an evaluation of the particular impropriety or contravention by or in consequence of which the evidence was obtained. To frame the issue in the familiar language of sentencing principles, the cover up does not inform the objective seriousness of the impropriety or contravention. It is plainly a separate impropriety, but not one that is addressed in s 138.
13․The matters listed in s 138(3) that the court must take into account under s 138(1) are:
(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.
14․None of those matters invokes the conduct of any person after the evidence was obtained as a consideration relevant to the assessment required to be made under s 138(1). The only forward-looking consideration is (g), which is concerned only with the existence of any other means of addressing the impropriety. The issue to be considered under s 138(1) is not the desirability of admitting the evidence in all the circumstances of the case; it is the desirability of admitting “evidence that has been obtained in the way in which the evidence was obtained”.
15․On that understanding, the Court does not condone the cover up by admitting the evidence; it is simply a question of the later conduct being irrelevant to the proceedings against an accused person because it is not part of the way in which the prosecution evidence was obtained.
16․However, the prosecution did not take this point in the appeal. On the contrary, it was expressly conceded that the balancing exercise under s 138(1) “may encapsulate other connected improprieties” including conduct in the nature of a cover-up. The concession was made in light of the three decisions considered in the judgments of Mossop J and Baker J in which police conduct involving a subsequent cover-up of their illegality or impropriety was taken into account in the application of s 138: Tasmania v Crane [2004] TASSC 80; R v Hunt [2014] NTSC 19; and Slater (a pseudonym) v R [2019] VSCA 213.
17․I agree with Mossop J’s observation that those cases do not articulate a uniform principle consistent with the language of s 138. The relevant passages are set out in his Honour’s judgment.
18․In Crane, the Supreme Court of Tasmania accepted that one of the improper acts relied upon (the making of misleading statutory declarations) occurred after the evidence was obtained but rejected the prosecutor’s submission that it was not relevant to the exercise of the “discretion” under s 138. The reason given was, with respect, rhetorical (“the attitude of those officers to the rule of law, as displayed during the relevant investigation and any associated prosecution, before, during and after the obtaining of the evidence, must be relevant to the exercise of the discretion conferred by s138”). For my part, it is not self-evident that a police officer’s attitude to the rule of law “must be relevant” to the admissibility of evidence in a criminal trial.
19․In Hunt, the Supreme Court of the Northern Territory considered that the evidence was relevant to “the public interest in ensuring that the facts and circumstances during and leading up to the relevant searches could be revealed and examined by others including a court at some later time”. While there is plainly a public interest in that matter, it is something that can be addressed by other processes. It is not clear to me why the consequences of police misconduct that is causally irrelevant to the obtaining of proof of the commission of a criminal offence should be visited on the public interest in the prosecution of criminal offences, particularly in a case in which there are alleged victims.
20․In Slater, the Victorian Court of Appeal considered that it was relevant to consider “the undesirability of the same thing being done in other cases”. In my respectful opinion, while the public interest in deterring police misconduct is manifest, that is not an issue with which s 138 is concerned. The text of the section specifies a test that is confined to “the way in which the evidence was obtained”.
21․In any event, as already noted, the point was not taken by the prosecution and it was not submitted that the cases that have held otherwise (including a decision of the Victorian Court of Appeal) are plainly wrong. Accordingly, it would not be appropriate to determine the appeal on this basis. Having regard to the issues on which the appeal was conducted, the appropriate course is for me to join in the orders of the majority, notwithstanding my different conclusion as to the proper construction of s 138.
MOSSOP J:
Introduction
22․I have had the benefit of reading the judgment of Baker J in draft. I agree with the orders that her Honour proposes and, subject to what follows, with her reasons. In these reasons, there are two issues which I wish to address:
(a)first, to explain why, notwithstanding my significant doubts about the correctness of the decision in Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 as to the approach to the review of decisions made under s 138, it is not appropriate to reconsider that decision in this case; and
(b)second, to explain why I agree with Baker J’s conclusion that, for the purposes of s 138, it was open to the magistrate to take into account the conduct of Detective Knight in covering‑up the breach of the law arising from the late examination of the HP laptop notwithstanding that, by the time the cover‑up occurred, the evidence had already been “obtained”.
The applicable standard of review
23․Baker J refers at [172] to the decision of the Court of Appeal in Sidaros which held that decisions as to the admissibility of evidence under s 138 are reviewable on the basis of correctness rather than by reference to the limitation in House v The King (1936) 55 CLR 499. In this part of my reasons, I:
(a)explain the reasons why I consider that there is a strong case for saying that appellate review of decisions under s 138 is limited in accordance with House v The King (at [24]-[83]); and
(b)explain why it is not appropriate to determine the issue in this case (from [84).
The standard of review is a question of statutory interpretation
24․Whether the standard of review is House v The King or correctness is not a question that is separate from determining the nature of the decision which is under review. It is not an exercise in deciding, separate from the underlying decision, what should be the applicable standard of review. It is the nature of the underlying decision which determines the standard of review. If the underlying decision is discretionary (in the true sense of accommodating different outcomes), then review is in accordance with House v The King. If the underlying decision is one in relation to which there is only one right answer, then review is on the basis of correctness. As a result, the determination of the standard of review does not arise from an abstract focus on the nature of the appeal but instead from a concrete focus upon the nature of the underlying decision. Where the underlying decision is a common law decision, then it involves the determination of the content of the common law. Where, as here, the decision derives from statute, it involves a determination of the meaning of the statute.
25․Where what is in question is a decision under a statutory provision, the statement that the statutory provision can give rise to only one correct answer is a conclusion which dictates that the correctness standard applies. To state the conclusion is to state the end of the analysis rather than the beginning. The statement of the conclusion does not provide any reason for that conclusion. Whether or not a statutory provision gives rise to only one correct answer involves a question of statutory interpretation. That exercise must be approached in the usual way.
26․Although, in what follows, a division has been drawn between text, context and legislative purpose, it must be remembered that such a division is somewhat artificial in that any conclusion as to text must involve weighing context and legislative purpose. It is not necessary to establish any ambiguity in the statutory text before regard can be had to the purpose of an Act. Section 139 of the Legislation Act 2001 (ACT) requires a court to prefer the “interpretation that would best achieve the purpose of the Act” over “any other interpretation”, and applies even in circumstances where giving effect to the legislative purpose involves “displacing the apparent meaning of the Act”: Legislation Act, s 138(b). Although, in what follows, text and statutory context are considered first before moving on to legislative purpose, each is part of a single process of interpretation.
The text of s 138 does not provide a clear answer
27․The text of s 138 contemplates a balancing exercise. Unlike other balancing exercises that exist in the Evidence Act, it is not framed by reference to matters immediately associated with the conduct of the trial such as “probative value” or “the danger of unfair prejudice”. Rather, it is framed by reference to a judicial assessment of “the desirability” of two alternative courses of conduct. The matters that may be taken into account in assessing “desirability” are not limited (as is made clear by the non-exclusive language of s 138(3)), but must include the matters set out in subs (3) and reflect the underlying purpose of the provision.
28․There are arguments that can be made both ways as to whether this exercise should be characterised as truly discretionary or instead involves an evaluative judgment.
29․The language of “desirability” tends towards a true discretion. Desirability is a concept which involves an inherently personal assessment. An alternative criterion that might have more clearly involved a single answer would have been a decision as to where, after undertaking the balancing exercise, “the public interest” lay. However, the more personal and individualised language of “desirability” is used. That usage is also consistent with the significant latitude given to the judge as to the matters to be taken into account. Although the matters to be taken into account cannot be described as unlimited because they will always be limited by the scope and purpose of the provision in the context of the Act as a whole, subs (3) makes it clear that it is not intended to be exclusive. The purpose of the provision includes reaching a balance between the public interests in crime control, deterring police illegality, protecting individual rights and maintaining judicial legitimacy. Given the non-exclusive nature of subs (3) and the incommensurable nature of the matters that are listed in the absence of any direction as to the weight to be given to any of those matters, the suggestion that the statute permits only one answer is unlikely.
30․On the other hand, it may be argued that — because of the identified matters that are being weighed and the specification of some of the considerations that must be taken into account — the balancing exercise is not a true discretion because it is simply a choice between two alternative outcomes which may involve an “evaluative judgment”. It can be argued that the balancing exercise contemplated by the text is one where an appeal court is in just as good a position as a trial judge to undertake the exercise. Looking more broadly at the statute, the language in s 138 may be contrasted with generally expressed requirements for grants of “leave” to which s 192 applies.
31․Given the public policy questions at stake, s 138 could be characterised as involving a similar balancing exercise to that involved in s 130 in relation to which appellate authority now appears to favour the correctness approach: State of Victoria v Brazel [2008] VSCA 37; 19 VR 553 at [38]; cf New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643 at [26].
32․It can be accepted for present purposes that the text of s 138 of the Evidence Act, in its statutory context, is not so obviously clear as to compel an interpretation that it involves the exercise of a discretion which accommodates different answers. Similarly, the text of the provision is not so obviously clear as to compel a conclusion that the question posed by s 138(1) can have only one correct answer in the circumstances of any particular case.
33․Neither other particular provisions in the Evidence Act, nor the Act as a whole, provide a clear answer as to the nature of the decision under s 138. In those circumstances, it is necessary to have regard to extrinsic materials in order to determine the purpose of the provision and hence its scope. In doing so, it must be borne in mind that one of the principal goals of the Evidence Act was to provide a uniform regime for the rules of evidence and, hence, it is unlikely that the Legislative Assembly intended a significant departure from the regime applicable in other uniform evidence law jurisdictions unless that was made clear.
Bunning v Cross involves a discretion
34․The foundation for the consideration by the Australian Law Reform Commission (ALRC) of what should be included in an Evidence Act was, relevantly, the decision in Bunning v Cross (1978) 141 CLR 54. The judgments in that case recognised the existence of a discretion to exclude otherwise admissible evidence. Notwithstanding the variety of ways in which the word “discretion” can be used, it is clear that the court was recognising a discretion to exclude evidence which involved a balancing exercise determined by the trial judge, in that case, a magistrate. It is clear that the court was not simply determining for itself the correct answer to the question that it faced, the admissibility of the breath testing results. Rather, the judgment of Stephen and Aickin JJ (at 71) referred to their conclusion that “a close examination of [the magistrate’s] reasons leads us to conclude that his Worship did not give proper effect to relevant criteria and that his exercise of discretion cannot be allowed to stand”. They referred to the fact that discretion involved “broader questions of high public policy” (at 74). They referred to the fact that the formulation of the “criteria upon which this discretion is to be exercised” could be done only by reference to the case at hand, “[o]therwise the exercise of judicial discretion may become fettered by rules, seemingly apt enough when first conceived but inappropriate to all the varied circumstances with which courts will be confronted in the future” (at 77). In reviewing the magistrate’s decision, they referred to the exercise having “miscarried” because of misconceptions about what should be taken into account. Having concluded that the magistrate’s exercise of discretion could not stand, the judgment then considered whether or not the matter should be remitted to the magistrate to re-exercise his discretion. Although the judgment ultimately determined that, in the circumstances, it was appropriate for the High Court to re-exercise the discretion, the need to consider the issue was indicative of the fact that the primary locus of the discretion was with the magistrate and not simply a matter for the judges of the High Court to determine the correct answer. That is consistent with the earlier observation about whether the magistrate gave “proper effect to relevant criteria”, within which the judgment explains two reasons for their Honours’ reluctance to interfere with the discretion of the magistrate (at 71):
First, because to do so is to interfere with the exercise of a discretionary judgment by the magistrate…; secondly, because of the advantages which the magistrate enjoyed over this Court in the exercise of discretion, advantages not confined to his encounter at first hand with the parties and witnesses but extending also to what must be his intimate acquaintance with local circumstances relating to law enforcement, a matter germane to the proper exercise of this discretion.
35․The reasons of Stephen and Aickin JJ in Bunning v Cross are indicative that the reference to discretion meant a discretion in relation to which there was no one correct answer, and which was only to be interfered with in accordance with principles consistent with House v The King. There can be no doubt, having regard to the terms of that judgment, that it contemplated the exercise of a discretion of the sort that would be subject to limited review rather than a more confined exercise involving only one answer.
36․Authorities subsequent to Bunning v Cross recognised that it involves an exercise of discretion which was the subject of review in accordance with House v The King. For example, in Ridgeway v The Queen (1995) 184 CLR 19 at 30, the plurality judgment endorsed the conclusion of Stephen and Aickin JJ in Bunning v Cross that it was “settled law” that a trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it had been obtained by unlawful conduct on the part of police and, at 41, only turned to reconsider whether the evidence should be excluded after being satisfied that the decision of the court below “was vitiated by error”. That recognition of the existence of a discretion has remained the case in jurisdictions where Bunning v Cross remains the governing principle: see, for example, Young v The King [2024] SASCA 47 at [122]-[123].
37․It would be possible for the High Court to develop the common law by articulating the nature of the Bunning v Cross discretion so as to change its content. As pointed out below, this appears to be a prospect contemplated by Doyle JA in Young v The King, but that has not yet happened, and even if it did, it would not alter the historical fact that the decision in Bunning v Cross involved a true discretion which informs the interpretation of s 138.
ALRC 26 proposed a discretion
38․In the Australian Law Reform Commission’s interim report on evidence (Evidence, Report No 26 (1985), hereafter ALRC 26), the Commission proposed in its Draft Evidence Bill three discretions to exclude evidence. Clause 114 was a general discretion to exclude evidence in similar terms to what is now s 135. It required the probative value of the evidence to be “substantially outweighed” by various matters. Clause 115 was a discretion to exclude evidence in criminal cases which did not require that the probative value of the evidence be “substantially outweighed”. It was therefore the equivalent of what is now s 137, except that it was expressed in clearly discretionary terms (“may refuse”) rather than the mandatory terms in s 137 (“must refuse”). The third provision was cl 116, which is the equivalent of s 138. It has the same basic structure as s 138. The only difference of significance is that cl 116 required the desirability of admitting the evidence to “substantially” outweigh the undesirability of admitting evidence that had been obtained in the manner in which the evidence was obtained rather than, as appears in s 138, that it simply outweigh that undesirability. The clause was accompanied by cross-references to the earlier discussion of policy issues in the report at [958]-[959] and to its commentary on the clause at [960]-[966] and [968]-[969]. Those cross-references are significant.
39․The portions of the body of the report which are referred to leave no doubt that the Commission intended that the decision as to whether or not to exclude improperly obtained evidence that it proposed in the Draft Evidence Bill would involve the exercise of a discretion by a trial judge which would only be subject to review in accordance with House v The King. That appears from a reading of Chapter 39 in ALRC 26 ([957]-[968]) as a whole, but also from the following particular matters.
40․The Commission commenced its consideration at [958] under the heading “Improperly Obtained Evidence”. At [958]-[959], it described in some detail the policy considerations that needed to be taken into account when considering the judicial response to unlawful or improper behaviour.
41․From [960], the Commission discusses a variety of approaches that might be adopted to deal with illegality or impropriety. They include disregarding it: [960]; imposing a strict rule of exclusion of evidence that was illegally obtained: [961]; automatic exclusion where the misconduct was deliberate: [962]; or admission where there are alternative remedies to deal with the misconduct: [963]. Having considered these alternatives, the Commission then turned to its desired approach and said (at [964]):
964. A discretionary approach seems the most appropriate one to take in dealing with illegally and improperly obtained evidence. This is the approach that has been developed by the High Court. Admittedly, any approach that is discretionary and subject only to limited appeal rights, relies heavily on the judgment of the individual judge. It also, by definition, lacks certainty of result, and therefore sacrifices predictability to flexibility. Nevertheless, it is suggested that the conflicting concerns in this area, and a wide variety of circumstances, necessitate such an approach. The Law Reform Commission of Canada has stated:
… there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities. It gives the courts the role of guardians of the public’s freedom.
An approach based on the existing discretionary approach is that which is preferred. The proposal, however, makes some changes to the law to meet some criticisms of it.
(Footnotes omitted.)
42․The Commission then described the departures that it proposed from the existing law by providing guidance as to the factors to be taken into account in the exercise of discretion and a change to the onus and standard of proof by recommending that the “burden should rest on the prosecution to persuade the court that the evidence should be admitted” and that the reasons for admission should “substantially” outweigh exclusionary considerations.
43․So far as providing guidance as to the factors to be taken into account was concerned, the Commission opened with the following (at [964]):
Guidance in the Exercise of the Discretion. One method of minimising the inherent difficulties in the exercise of discretionary power, and, to a certain extent, of avoiding the danger of too great a disparity between legal decisions, is to indicate precisely the nature of the conflicting interests which should be balanced and to articulate the factors which should be taken into account in the exercise of the discretion.
44․The Commission then turned to the application of its proposal to admissions, which was reflected in its cl 116(2) and ultimately reflected in s 138(2). At [967], the Commission explained its proposal to not retain a general fairness discretion as had existed in R v Lee (1950) 82 CLR 133.
45․The issue of appellate review was then expressly dealt with (at [968]):
Appellate Review
968. Scope. At present an appeal court has limited scope to vary a trial judge’s exercise of the Bunning v Cross discretion. This judicial restraint is understandable. It derives from a number of factors. Reasonable men may hold differing views on the exercise of a discretion. There is a danger of large numbers of appeals if full review of discretion is permitted. In addition the view is generally held that the trial judge is usually in a better position to decide how a discretion should be exercised because he sees and hears the witnesses and follows all aspects of the trial. An issue that needs to be considered is whether it is appropriate to retain the existing limited appellate control where a discretion involves consideration of matters of public interest. At this stage it is not proposed to change the existing law.
(Footnote omitted.)
46․This passage makes it clear that the Commission contemplated a provision involving only limited review in accordance with House v The King. It expressly contemplated that differing views may be reasonably held. It expressed a view that the decisions of trial judges should only be subject to a limited form of review because those judges will be in a better position to decide how it should be exercised and because there would otherwise be a danger of a large number of appeals. It made it clear that its view was that there should be no change to the existing law, which involved only limited review, but also made it clear that this was an issue to be considered.
47․These portions of the Commission’s report make it absolutely clear that the provision in the Draft Bill that it proposed contemplated the exercise of a discretion which was only subject to limited appellate control. Any possibility of departing from that limited appellate control was left as a matter to be considered in the future.
ALRC 38 maintained the discretion
48․In the Commission’s final report (Evidence, Report No 38 (1987), hereafter ALRC 38), the Commission considered the response to the proposals in ALRC 26. The proposal in relation to exclusion of evidence obtained illegally or improperly was significant, with different interest groups arguing that the proposal was either too favourable to the prosecution or to an accused. The Commission decided to retain the model that it had proposed in ALRC 26 except that it decided to remove the requirement that had been incorporated in the earlier draft that the desirability of admitting the evidence “substantially” outweigh the undesirability of doing so. It proposed, as is now reflected in s 138, that the desirability of admitting the evidence simply outweigh the undesirability of doing so: see [164]. Relevant for present purposes is the fact that the Commission continued to describe what was being proposed as a discretion (see [154], [161], [164]).
49․The Draft Evidence Bill at Appendix A of the report included s 119, the heading to which provided “Discretion to exclude improperly obtained evidence”. The report also included a draft explanatory memorandum which, in relation to the proposed cl 119, included the following:
Clause 119 – Discretion to exclude improperly obtained evidence
320. This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted.
50․The draft explanatory memorandum then goes on to describe in summary form each of the proposed subsections.
51․There can be no doubt that the ALRC was, in its final report, proposing what it understood to be a discretion consistent with the way in which the proposal had been described in ALRC 26, subject only to the amendment to remove the word “substantially”. There was nothing in the final report which indicated any intention to alter the limited nature of the reviewability of that discretion as described in ALRC 26. It is apparent from the absence of any reference to it in the final report that the limited reviewability arising from the discretionary nature of the exercise was, in contrast to other features of the proposal, not the subject of controversy in the submissions received by the Commission.
The Commonwealth Parliament intended a discretion
52․Between 1995 and 2011, prior to the enactment of the Evidence Act 2011, the Evidence Act 1995 (Cth) was the governing Act in ACT courts.
53․There can be no doubt that the Commonwealth Parliament was intending to implement the ALRC recommendation in relation to what became s 138. The Explanatory Memorandum for the Evidence Bill 1994 (Cth) was somewhat briefer than the draft explanatory memorandum in ALRC 38. The relevant part simply describes the various components of cl 138 which became s 138. It does not cast additional light on the nature of the exercise contemplated in s 138 as enacted.
54․However, the heading to Pt 3.11 of the Evidence Act 1995 as enacted was “Discretions to Exclude Evidence”. The heading to that Part formed part of the Act: Acts Interpretation Act 1901 (Cth), s 13. The heading to s 138 itself provided: “Discretion to exclude improperly or illegally obtained evidence”. At the time the Evidence Act 1995 was enacted, the heading did not form part of the Act, though it was a matter which could be taken into account if the provision was considered to be ambiguous, as it formed part of the Bill put before the Commonwealth Parliament and was within the scope of s 15AB(2)(a) of the Acts Interpretation Act. (Following the Acts Interpretation Amendment Act 2011 (Cth), the section heading became part of the Act.) That what was intended was a discretion is clear. There is nothing in the extrinsic material that would suggest that what was to be enacted involved some different form of “discretion” which was reviewable on a different basis to that contemplated by the ALRC.
ALRC 102 recommended no change to the discretion
55․When the ALRC revisited the Evidence Act in December 2005 (Uniform Evidence Law, Report 102 (2005), hereafter ALRC 102), it recommended no relevant change to s 138. The report referred (at [16.82]) to the earlier consideration given in ALRC 26 to “various options” and “various discretionary approaches”. There was nothing in the report which indicated any reconsideration of the nature of the discretion that had been referred to in ALRC 26 and maintained in ALRC 38.
The Legislative Assembly intended a discretion
56․When the Legislative Assembly came to enact its own Evidence Act in 2011, it changed the heading to Pt 3.11 to “Discretionary and mandatory exclusions” in substitution for “Discretions to Exclude Evidence”. This had the effect of making the heading consistent with the heading in the Evidence Acts of other States and the Northern Territory, which had been changed following a recommendation in ALRC 102 (at [16.50]) in order to recognise that s 137 is a mandatory exclusion.
57․The intention to enact a provision involving the exercise of a discretion was made clear by the terms of the Revised Explanatory Statement for the Evidence Bill 2011 (ACT), which described the provision and its “Human rights implications” in uncontroversial terms and concluded:
The clause is intended to reflect, with some modifications, the exclusionary discretion at common law that is known as the rule in Bunning v Cross (1978) 141 CLR 54.
(A similar reference to Bunning v Cross was included in the Explanatory Memorandum for the New South Wales Act: see the argument in Kadir v The Queen (2020) 267 CLR 109 at 117.)
58․The modifications referred to are those that were proposed by the ALRC, namely, the specification of a list of considerations and the change to the burden of proof as a result of the prima facie inadmissibility of the evidence. There can be no doubt that the Legislative Assembly intended to maintain the discretionary nature of the provision.
Section 139 commands regard to the legislative purpose
59․Section 139 of the Legislation Act requires that, in working out the meaning of an Act, “the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation”. Having regard to the legislative history of s 138 and the legislative and non‑legislative context that may be taken into account pursuant to ss 140 and 141, there can be no doubt that the legislature intended s 138 to involve a discretion akin to that which was available at common law as a result of the decision in Bunning v Cross with the limited form of reviewability contemplated by the ALRC. That intention exists in a context in which it is clear that the statute altered the burden of proof by providing, as a starting point, the exclusion of evidence, but then permitting, on a discretionary basis, its admission. Thus, although there was a change from the common law discretion to exclude to a statutory discretion to admit, the expressed intention of the ALRC and the legislature was to maintain it as a true discretion with the consequence of limited appellate review.
Perhaps they did not really mean a true discretion?
60․One means of avoiding the force of the extrinsic materials in determining the purpose of the legislative provision would be to contend that, notwithstanding that the exercise under the common law decision of Bunning v Cross and s 138 has always been uniformly described as involving the exercise of a “discretion”, the meaning of that term is sufficiently flexible to accommodate a decision-making process that falls outside the scope of House v The King.
61․The different meanings that can be accommodated in the concept of a discretion have been recognised in a number of decisions of the High Court: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19]; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [37]-[40]. The High Court has recognised in Dwyer at [37] that the expression “discretion” is “apt to create a legal category of indeterminate reference”.
62․It can be accepted, as a matter of legal theory, that the argument that the discretion is not a true discretion is one which is open. However, the flexibility of the concept as a matter of legal theory does not have the persuasive force that it might otherwise have when considering the intention of the legislature in relation to the current issue. There can be no doubt, having regard to the discussion in ALRC 26, that what was being contemplated was a discretionary exercise in the traditional sense, that is, an exercise in relation to which there was no single correct answer and which would be subject to only limited grounds of review. That is made most clear by the passage quoted at [51] above. There is nothing in the extrinsic materials which would indicate that the reference to discretion was to some lesser form of constrained evaluative judgment.
Which model of review is a question of public policy
63․The effect of determining, as a matter of statutory construction, that a provision such as s 138 involves a decision in relation to which there is only one right answer has the consequence that it is reviewable on appeal for its correctness rather than the more constrained review available under House v The King. That has the consequence that it is easier for courts of appeal to overturn the decision of trial judges. It would have the effect of centralising the standard-setting in a Court of Appeal or High Court and, hence, making those standards more uniform.
64․On the other hand, treating the provision, as the ALRC did, as giving rise to a true discretion where there is no single right answer means that review of the decision is constrained in the manner prescribed by House v The King. That would mean that the matters that are to be taken into account are, subject to the limits in s 138(3), the province of the trial judge, and questions of the weight to be given to the various considerations is also a matter for the trial judge. As the ALRC pointed out, that has the potential to preserve the decisions of trial judges most familiar with the case and would not tend towards an increase in the number of appeals.
65․Which of these alternative models for appellate review is better is a question of public policy. If the issue is raised in the context of the common law test, as it was in Young v The King, then there is greater potential for the common law to be judicially developed so as to alter the nature of the discretion being exercised. It would be open to recharacterise the Bunning v Cross discretion as in fact being an evaluative judgment in relation to which there was only one right answer. However, when dealing with a statutory provision such as s 138, the judicial function is more limited. In the Territory, s 139 of the Legislation Act is the most significant provision. Questions of public policy or the desirability of one model of reviewability over another cannot intrude into the interpretive exercise in a manner that is inconsistent with the command in s 139.
Sidaros is not determinative
66․Having regard to what has been said above, it is necessary to consider the decision in Sidaros.
67․The structure of the reasons of the relevant part of the unanimous judgment in Sidaros was to set out a summary of the submissions made by each party and then express the court’s reasons for its conclusion. In Sidaros, the submissions of the parties made no reference to the text or legislative history of s 138. The full extent of the reasons under the heading “Consideration” at [38] were as follows:
In our view, House v The King principles do not apply to the appellate review of the decision of the primary judge as the question admits of only one correct answer. This is to be contrasted with the question of an appropriate sentence for an offender where a range of different sentences might be regarded as legally available: Bauer [R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56] at [61], BC [BC v The Queen [2019] NSWCCA 111] at [60], Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [24]. The line is drawn between a unique outcome and the correctness standard on the one hand and on the other hand a range of legally available outcomes, where the House v The King standard applies: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713. The correctness standard, therefore, applies in this case because, as stated above, the question admits of only one correct answer.
68․Insofar as the reasons commence with a statement that the question admits only one correct answer, that statement dictates the conclusion that the decision does not involve a discretion. However, the statement of that conclusion merely raises, but does not determine the answer to, a question of statutory interpretation. Insofar as any reasons are given in the quoted passage, the court appears to have simply adopted the passages from Bauer, BC and RDT. In my opinion, none of those decisions determine the issue or are of significant weight in the determination of the issue.
(a)The passage from Bauer involved a holding that, for the purposes of s 97 of the Evidence Act 2008 (Vic), “[t]he question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer” and hence was subject to review on the correctness basis.
(b)The passage from BC simply recorded the agreement of the parties that the statement in Bauer about s 97 was equally applicable to “the question of whether the probative value of the evidence was substantially outweighed by any prejudicial effect” for the purposes of s 101(2).
(c)RDT concerned to an interlocutory appeal relating to the admission of tendency evidence. The passage relied upon in Sidaros was a conclusion as to the nature of the appellate function reached by Basten JA, which was not the subject of submissions and was expressly not joined by Johnson J and RA Hulme J: see [55], [59]. The reasons of Basten JA related to the admission of tendency evidence but could be understood as intended to be broader: see [4]. His Honour’s reasons were based largely upon the statement by the High Court in Bauer at [61] referred to earlier. His Honour did place some weight upon the fact that there was a difference between decisions involving a “binary choice” and decisions which involved a spectrum of outcomes: see [16]. The limited significance of the binary nature of the outcome was pointed to by Kirk JA in Mann v R [2023] NSWCCA 256 at [19].
69․The quoted passage from Sidaros appears to assume that the statements made in relation to other aspects of the Evidence Act are applicable to the provisions of s 138. However, that conclusion appears to have been reached without any consideration of the text, the legislative history or any permissible extrinsic materials to which regard may be had under the Legislation Act. There is clearly a difference between an exercise required by ss 97 or 101 of the Evidence Act and the balancing exercise required by s 138. Forensic questions such as the extent of the “probative value” or the extent of “the danger of unfair prejudice” are matters closely confined to the parameters of the case being run. They contrast with the much broader questions raised by the balancing exercise contemplated under s 138. It is certainly not clear that a decision as to the nature of review on the former issues is necessarily applicable to a decision on the latter.
70․The reference in Sidaros to the decision in SZVFW is a reference to the influential passage in the judgment of Gageler J explaining the two standards of appellate review, where his Honour said (at [49]):
The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.
71․Once again, the citation of that passage simply exposes the issue that has to be determined. It does not provide any reason why the specific statutory provision under consideration should be determined to fall on the correctness or House v The King side of the dim but workable line identified by Gageler J.
72․In my view, the fact that the text of the provision and its purpose were not considered in the reasons given in Sidaros, and the significance of the text of the provision and its purpose for the interpretation of its meaning, may provide a proper basis for departing from that decision.
Other decisions
73․Other decisions of the High Court and intermediate Courts of Appeal are not inconsistent with the conclusion that I have reached that s 138 should be interpreted as involving a discretion in the sense of a statutory decision in relation to which there is no single correct answer.
74․Kadir: In Kadir v The Queen, the question was the admissibility of unlawfully obtained evidence. Notices of contention raised the issue of whether the Court of Criminal Appeal had erred in holding that a House v The King error was necessary. The High Court was able to avoid determining the question because there had been acceptance in the Court of Criminal Appeal that it was necessary to demonstrate a House v The King error, the Court of Criminal Appeal had found such an error, and the High Court found the Court of Criminal Appeal was correct to have done so. It is notable that the summary of the arguments put includes (267 CLR 109 at 117) Nettle J asking a question about the significance of the explanatory memorandum for the Evidence Bill 1995 (NSW) indicating an intention to reflect, with some modifications, the exclusionary discretion at common law known as the rule in Bunning v Cross. However, having regard to the approach adopted by the court, that issue was not referred to or elaborated upon in the judgment.
75․Riley: R v Riley [2020] NSWCCA 283 was an appeal relating to the exclusion of evidence under s 138. The court held (at [114], [134], [140]) that it was not necessary to determine the nature of appellate review of a decision under s 138 of the Evidence Act. However, Bathurst CJ (with whom Wilson J agreed) reviewed authorities on other provisions as well as Kadir and expressed the opinion that, although minds might differ on the question of whether the desirability of admitting the evidence is or is not outweighed by the undesirability of doing so, “there can only be one correct answer” (at [111]). Ultimately, this conclusion appears to have been reached as a matter of impression. He noted, however, (at [113]-[114]) that the reasons of Gummow and Hayne JJ in Em v The Queen [2007] HCA 46; 232 CLR 67 at [95] pointed in the opposite direction and that the preponderance of authority on s 101 and s 137 is that appellate review is governed by the principle of judicial restraint in House v The King. He referred to his reluctance to say that earlier cases which had treated appellate review of decisions under s 138 as being on a basis analogous to House v The King were wrongly decided. Those cases were set out at [67] of the judgment. Wilson J agreed with the Chief Justice. Button J agreed that the nature of appellate review of decisions under s 138 did not need to be decided but indicated that the presence of the words “desirability” and “undesirability” may play a role in deciding whether there was only one right answer. Further, the non-exclusive nature of s 138(3) may also be relevant.
76․Rogerson: Rogerson v R [2021] NSWCCA 160; 290 A Crim R 239 involved a question as to whether a trial judge had correctly excluded evidence pursuant to s 135(a) of the Evidence Act. The court considered that the decision in Bauer in relation to s 97 “must apply equally” to the issue in relation to s 135. It treated the section as involving an “evaluative judgment” rather than “an exercise of judicial discretion”: at [544]. It therefore overturned or declined to follow a series of cases which treated the issue as being subject to House v The King: at [545]. No consideration was given to the legislative history of the provision, the heading to Pt 3.11 (“Discretionary and mandatory exclusions”), the heading to the relevant section (“General discretion to exclude evidence”), or the use of the word “may” in the opening words of the provision. All of these features were not present in the provision as considered in Bauer.
77․JW: In JW v R [2022] NSWCCA 206; 302 A Crim R 365, the court considered the standard of appellate review to be applied on an appeal from a decision made pursuant to s 138 of the Evidence Act. Reference was made to the decision in R v Riley and the decision in Rogerson at [542]-[548] in relation to the operation of s 135 of the Act. However, the court decided that it was not necessary to determine the issue because, whichever standard of review applied, there was no relevant error: [72].
78․Mann: Mann was an appeal against conviction, which was upheld. Kirk JA wrote the principal judgment. His Honour considered the standard of review on appeal of a decision under s 138 in the context of a challenge to the admission of an electronically recorded interview. Both parties submitted that the standard for appellate review of a decision under s 138 was the correctness standard: [13]. Having reviewed the reasons in Riley, his Honour pointed out that the assessment of significant probative value as required for the purposes of s 97 did “not involve weighing up multiple, incommensurable factors in the manner required by the third step of s 138”: [18]. His Honour pointed out that, while a decision involving a binary choice was more likely to be subject to the correctness standard, there are many binary choices to which a House v The King-type standard is applied: [19]. His Honour recognised that the issue was “complex, borderline and important” and did not need to determine it as the parties both contended for the correctness standard, and he was satisfied in any event that a House v The King error existed: [22]. N Adams J, in agreeing with Kirk JA, noted that the significant textual differences between ss 97 and 138 might limit the assistance provided by the decision in Bauer. RA Hulme AJ agreed with Kirk JA without comment.
79․Young: Young v The King was an application for leave to appeal against convictions. Doyle JA wrote the principal judgment. The case turned on the admissibility of certain evidence which was alleged to have been obtained unlawfully. The court was addressing the exclusion under the common law rather than the Evidence Act. Doyle JA referred to the decision in R v Ireland (1970) 126 CLR 321 and the decision in Bunning v Cross, and discussed the application of those principles not to evidence directly obtained through unlawful means, but to derivative evidence obtained as a result of some earlier misconduct or unlawfulness. He then turned to consider the standard of appellate review. The parties approached the appeal on the basis that House v The King applied. His Honour said that “[t]his was understandable given that the decision is routinely described as a discretion, and has generally been treated this way in the authorities”: at [122]. Despite this agreement, His Honour went on to consider the issue. He referred to more recent decisions under s 138, the decision of the High Court in Kadir, and the reasons of Bathurst CJ in Riley. He also referred to the reasons of Kirk JA in Mann.
80․When considering the common law public policy discretion, his Honour thought it was significant that there was a binary choice rather than a choice between a range of potential outcomes. He recognised (at [136]) that decisions involving a binary choice may involve discretions which are subject to the principles of appellate restraint, but pointed to some indications that the public policy discretion was not of that type. These were, first, that questions about the admissibility of evidence generally involve an issue of law that has only one correct answer. Second, although the considerations are “incommensurable”, they are to be weighed by reference to the competing public policies identified in Bunning v Cross and other High Court cases rather than considerations anchored in achieving fairness to the parties in a particular case. He characterised the decision as more analogous to a claim for public interest immunity, which attracts the standard of correctness. However, having regard to the absence of submissions and the fact that it would involve a departure from the approach that courts in South Australia had generally applied, he refrained from expressing a concluded view on the issue: at [141]. Kourakis CJ agreed with Doyle JA. David JA agreed with Doyle JA, but indicated that she would prefer not to express a concluded view on the issue of the standard of review without the benefit of full argument.
81․Given that this is a decision about the common law, it is more open for judges to develop, that is, change, the common law, than it is to change the effect of a statute. Given that the Bunning v Cross discretion is a judicially created common law principle, it would be legitimately open for courts to modify the nature of the exercise so that it does not involve a true discretion but should be considered to be an “evaluative judgment” and hence subject to review on a correctness basis. That contrasts with a statutory provision, the meaning of which changes with actions by the legislature rather than a change in the attitude of appellate judges.
82․Moore: The decision in Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119 related to s 137 of the Evidence Act 2008 (Vic). That section requires the exclusion of evidence presented by the prosecution if “its probative value is outweighed by the danger of unfair prejudice to the accused”. The court held that, upon appellate review of a decision made under s 137, the appeal court was obliged to apply the correctness standard. The High Court found that the same approach to review should be adopted in interlocutory appeals as in conviction appeals. Given the forensically focussed concepts of “probative value” and “unfair prejudice”, there is a basis for distinguishing the balancing exercise required by s 137 with the more public policy‑focussed balance of desirability under s 138.
83․None of these cases preclude the approach that I have indicated above. None of them have reached a conclusion contrary to the conclusion that s 138 involves a true discretion. Insofar as judges have reached tentative conclusions contrary to the conclusion that I have suggested above, that has been done without regard to the extrinsic materials to which I have referred which, in the Australian Capital Territory context (and, in my view, elsewhere), support the conclusion that I have indicated.
Conclusion
84․For these reasons, I do not consider that the decision in Sidaros should preclude further consideration by this court of the approach to appellate review in an appropriate case. However, in this case, neither party sought to directly challenge the adoption of the correctness standard. The respondent did file a cross appeal, which may have been understood as raising whether the primary judge should have overturned the magistrate’s decision in relation to the HP Laptop in circumstances where no House v The King error was identified. However, as that ground was put in written submissions, it was focussed on the asserted need within the framework of review for correctness to give appropriate deference to the decision of the magistrate, who had heard the voir dire over 11 days, and to articulate why the decision was erroneous. That position was maintained in oral submissions, where counsel for the respondent made it clear that she was advocating the need for “deference”, not the application of the House v The King standard of review. Given the absence of any direct challenge to the decision in Sidaros, it is not appropriate to determine in this case whether that decision should continue to be followed.
Can the “cover-up” be taken into account?
85․Justice Baker has identified three decisions in which police conduct involving a subsequent cover-up of their illegality or impropriety was taken into account in the exercise of discretion under s 138. Those cases were Tasmania v Crane [2004] TASSC 80; R v Hunt [2014] NTSC 19; Slater (a pseudonym) v The Queen [2019] VSCA 213.
86․The potential difficulty for an approach which permits a cover-up to be taken into account arises from the language of s 138. Section 138(1) refers to “the desirability of admitting the evidence” outweighing “the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. This second expression focuses on the “way in which the evidence was obtained”. That language is consistent with:
(a)the temporal endpoint of the required consideration being the point at which the evidence “was obtained”; and
(b)the relevant consideration for the purposes of the balancing exercise being the manner in which that obtaining occurred rather than subsequent conduct.
87․The cases referred to in Baker J’s reasons do not articulate a uniform principle consistent with the language of s 138:
(a)In Tasmania v Crane [2004] TASSC 80, police had trespassed on premises and found a cannabis crop. During the course of committal proceedings, two police officers had each made statutory declarations which contained a misleading or false statement: at [13]. The submission was made that the making of the misleading statutory declarations was not a factor relevant to the exercise of discretion under s 138 because it occurred after the evidence had been obtained. Blow J rejected that submission, saying (at [21]):
However, when evidence is improperly or illegally obtained by police officers, I consider that the attitude of those officers to the rule of law, as displayed during the relevant investigation and any associated prosecution, before, during and after the obtaining of the evidence, must be relevant to the exercise of the discretion conferred by s 138.
(b)In R v Hunt [2014] NTSC 19, Hiley J agreed with criticisms of some of the police witnesses’ evidence both at the committal and in the Supreme Court, although he did not consider that they deliberately lied. At [149], he said:
Conduct of this kind, namely conduct that has occurred well after the events the subject of the particular searches, is relevant to one of the two parts of the balancing process, namely the public interest in ensuring not only that evidence is obtained properly and lawfully, but also in ensuring that the facts and circumstances during and leading up to the relevant searches, can be revealed and examined by others including a court at some later time.
(c)In Slater (a pseudonym) v The Queen [2019] VSCA 213, after the relevant evidence had been obtained, a police officer made a statement about the relationship between two police investigations which was alleged to be calculated to mislead the court about the nature of the relationship between the two operations. The submission was made on behalf of the prosecution that, for the purposes of s 138, the evidence could not have been obtained in consequence of the statement because it occurred subsequently. The court said at [54]-[56]:
There is obvious force in the submission, to the extent that it contends that an impropriety taking place after evidence has been obtained cannot, of itself, engage the section. However, it is less clear that, once the section is attracted by an impropriety or contravention, a later impropriety is necessarily irrelevant to the balancing exercise. We will confine our attention to the kind of impropriety alleged here, which is an attempt to conceal the consequences of the original impropriety or contravention from the court.
The public policy which is advanced when evidence is excluded under s 138 is broadly described in s 138(1). It is not merely the public interest in excluding the specific evidence obtained by or in consequence of the relevant impropriety or contravention. It is the public interest in not admitting any evidence obtained in the relevant way. In other words, the section looks not only at what was done in the instant case, but at the undesirability of the same thing being done in other cases.
For that reason, if an attempt is made to conceal the impropriety or contravention, or its consequences, from a court seeking to apply s 138, one of the purposes of the provision is apt to be undermined. Accordingly, such an attempt is a matter that may potentially be relevant to the balancing exercise under s 138(3).
(Footnotes omitted)
The court then referred with approval to the decision of Blow J in Crane and Hiley J in Hunt before concluding that the conduct of the police officer was “potentially relevant to the balancing exercise under s 138”: at [59].
88․It is notable that, in each of those cases, there was clearly an antecedent illegality or impropriety involved in the obtaining of evidence sufficient to trigger the operation of s 138. Therefore, the situation is to be distinguished from one where an illegality or impropriety only occurs after the evidence is obtained. In such a circumstance, it has been held that the Bunning v Cross discretion had no application: Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281. Having regard to the terms of s 138, the section could not apply because the obtaining of the evidence was not “in consequence of” the illegality.
89․Where there is an impropriety or illegality involved in the obtaining of evidence, in my view, it is inevitable that a judge exercising the discretion will take into account, in assessing the undesirability of admitting the evidence in question, the judge’s other experience of police conduct, whether before or after the impropriety or illegality, in addition to the evidence of police conduct which constituted the impropriety or illegality in the particular case. That is because the assessment of the undesirability of admitting that evidence will be affected by the judge’s perception of the need to deter unlawful or improper conduct by police. Thus, even though the language of s 138 is focussed on “the way in which the evidence was obtained” in the circumstances of the particular case, the language of s 138 accommodates taking into account matters not connected with the obtaining of the evidence that exist both before and after the evidence was obtained through the requirement to consider the “undesirability” of its admission. It is by this means that circumstances involving a “cover‑up” can be fitted within the language of s 138(1). Of the authorities referred to above, the point is most clearly made by Blow J in Crane, who referred in the passage quoted above to the attitude of police to the rule of law.
90․Whether or not this interpretation of the scope of s 138 operates appropriately in the case of a cover-up is assisted by consideration of two alternative scenarios, one involving a cover-up and one not.
91․In the first scenario, akin to the present circumstances, the evidence is obtained in an unlawful manner. Material relevant to the unlawfulness is not disclosed by police in the prosecution brief. Redactions are made which hide evidence relevant to the existence of the unlawfulness in the obtaining of the evidence. The officer in question gives evidence on an application to exclude the evidence, but makes no admission of the unlawful conduct. The existence of the unlawful conduct is only disclosed by evidence obtained through subpoenas directed to the police and cross‑examination of the officer.
92․In the alternative scenario, evidence is obtained in precisely the same unlawful manner. Material relevant to the unlawfulness is disclosed by police in the prosecution brief of evidence and identified as such. The officer in question gives evidence fully disclosing the unlawful conduct.
93․It would be very surprising, having regard to the purpose of s 138, if the difference in those circumstances could not be considered in determining whether or not the unlawfully obtained evidence should be admitted. While a subsequent cover-up does not fall within the scope of “the way in which the evidence was obtained”, it is, on the approach that I have explained, a discretionary matter which can be taken into account for the purposes of considering the desirability of admitting evidence that has been obtained in that way. Although, in that expression, the concept of “desirability” is tied to the way in which the evidence was obtained, the significance of that relevant unlawfulness is to be judged by reference to the subsequent conduct of police. If the subsequent conduct of police is such as to indicate a respect for the rule of law and the rights of an accused person to challenge the admissibility of unlawfully obtained evidence, then there is a lesser need for deterrence through the refusal to admit the evidence. On the other hand, if the conduct of police in covering up what they had done was considered to be reflective of an inappropriate attitude to the rule of law and the rights of an accused, then there would be a greater need for deterrence of future unlawfulness of the kind involved in the case.
94․On this basis, I agree with the conclusion reached by Baker J at [241].
BAKER J:
Overview
95․On 30 March 2022, Magistrate Theakston (the magistrate) found Alex Fletcher (a pseudonym) and Dale Fletcher (a pseudonym) (the appellants)[1] guilty of several offences relating to the capturing of intimate images using hidden cameras installed at a house which they jointly owned: Restricted Judgment (No 2) [2022] ACTMC 5 (Restricted Judgment (No 2)). The intimate images were taken of female tenants who had leased rooms in the house from the appellants.
[1]Alex Fletcher and Dale Fletcher are referred to collectively in this judgment as “the appellants”. For clarity, their first names and surnames will be used when they are referred to individually.
96․The prosecution case included electronic files found on a Samsung mobile phone owned by, and found on, Alex Fletcher (the Samsung phone), electronic files found on a Huawei mobile phone, which was owned by, and found on, Dale Fletcher (the Huawei phone) and electronic files from an HP laptop computer, which was found in the appellants’ home. The appellants contended that the evidence found on each of these electronic devices was obtained unlawfully and that the evidence should be excluded under s 138 of the Evidence Act 2011 (ACT).
97․Where evidence is found to have been obtained illegally or improperly, s 138 of the Evidence Act requires that the evidence be excluded 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”.
98․The magistrate found that the evidence on the Huawei phone and the HP laptop computer were each obtained in breach of provisions of the Crimes Act 1914 (Cth). After conducting the balancing exercise required by s 138, the magistrate excluded the evidence from the Huawei phone, but admitted the evidence from the HP laptop computer under s 138: Restricted Judgment (No 1) [2022] ACTMC 4 (Restricted Judgment (No 1)). In Restricted Judgment (No 1), the magistrate rejected the appellant’s contention that evidence found on the Samsung phone was unlawfully seized. However, following a further challenge by the appellants, the magistrate found that as the investigating officers had breached s 3LA of the Crimes Act when obtaining the password for the Samsung phone, the evidence found on the Samsung phone was unlawfully obtained, but that that evidence should be admitted under s 138.
99․The appellants appealed against their convictions, contending that the magistrate had erred in failing to exclude the evidence obtained from the Samsung phone and the HP laptop computer.
100․On 31 August 2023, Loukas-Karlsson J (the primary judge) allowed the appellants’ appeals: Restricted Judgment [2023] ACTSC 238 (Restricted Judgment (SC)). Her Honour rejected the appellants’ contention that the evidence found on the Samsung phone should have been excluded. However, her Honour accepted the appellant’s contention that the evidence found on the HP laptop computer should have been excluded under s 138 of the Evidence Act. Critical to this latter conclusion was her Honour’s finding that the Officer in Charge of the Investigation (Detective Knight) (a pseudonym) had deliberately ‘covered up’ an illegality involved in the examination of the HP laptop computer. Her Honour ordered that the appellants’ convictions be set aside and remitted the proceedings to the magistrates Court to be determined according to law.
101․By way of Notices of Appeal filed 29 September 2023, the appellants challenge the correctness of the primary judge’s decision refusing to exclude evidence obtained from the Samsung phone. By way of a Notice of Cross-Appeal filed 27 October 2023, the Director of Public Prosecutions (the Director) challenges the correctness of the primary judge’s decision excluding the evidence obtained from the HP laptop computer. No challenge has been made to the magistrate’s decision to exclude the evidence obtained from the Huawei phone.
102․For the reasons outlined below, both appeals should be dismissed.
Background
The prosecution case
103․The appellants are identical twin brothers who jointly owned a house in Forde, in the Australian Capital Territory. At the relevant times, Alex Fletcher was an officer of the Australian Federal Police (AFP). Dale Fletcher was a registered electrician.
104․The appellants rented out various rooms of the house to three female tenants. The prosecution alleged that the appellants installed a number of hidden cameras in the bedrooms of the female tenants in order to capture intimate material, as well as another camera outside of the house for the purposes of capturing intimate material of a female neighbour.
A Ah, just got a phone.
Q29 Your phone. Which phone is that?
A My Samsung phone. None of them are mobile numbers on here though.
…
Q31 Okay. So do you mind just emptying your pockets so I can see your phone, thanks?
A Just the phone?
Q32 Ta. What model’s [sic] that one?
A An S – S nine.
…
182․It is clear from the above that Detective Knight required Alex Fletcher to hand over the Samsung phone. Alex Fletcher handed over the phone, after which time it was exclusively in the possession of police. In the context of Alex Fletcher having been cautioned and shown the person warrant, which authorised police to seize any mobile phone that was connected to him, it could not be said that Alex had provided the Samsung phone voluntarily. Further, as the primary judge observed, there was no suggestion that the phone was “moved” pursuant to the powers conferred by s 3K of the Crimes Act. The phone was therefore “seized” within the ordinary meaning of the word.
183․However, as the Full Federal Court made clear in Hart at [81], a seizure may be lawful, or it may be unlawful. In these circumstances, the real issue that arises for determination is whether the Samsung phone was lawfully seized pursuant to the power conferred by the person warrant.
184․In this respect, the appellant made two related submissions:
(i)Detective Knight could not seize the Samsung phone under the person warrant without turning his own mind to the question of whether there were reasonable grounds for suspecting that the phone was “evidential material” within the meaning of s 3C of the Crimes Act; and
(ii)Detective Knight did not turn his mind to the question of whether there were reasonable grounds for suspecting that the phone was evidential material under the person warrant.
“Evidential material” is defined in s 3C of the Crimes Act to mean “a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form”.
185․As to the first contention, a textual consideration of the relevant provisions of the Crimes Act does not immediately suggest that there is any statutory requirement on the executing officer (as opposed to the issuing officer) to independently conclude that there are reasonable grounds to suspect that an item to be seized will constitute “evidential material” within the meaning of s 3C of the Crimes Act. Rather, s 3F(2)(b)(i) of the Crimes Act authorises the executing officer to seize any items specified in the search warrant. Section 3F(2)(c) only requires an executing officer to consider whether there are reasonable grounds to believe that the item is evidential material when the executing officer wishes to seize items that are not named in the search warrant.
186․Such a construction might also be thought to accord with the policy of the provisions. The issuing of a search warrant constitutes a finding by the issuing magistrate that there are reasonable grounds to suspect that the items specified in the search warrant will be relevant to an indictable or summary offence. Those reasonable grounds having been established, it might be considered that the executing officer should not be required to re-embark upon this consideration again (in what will often be a highly charged environment, with limited time to consider competing considerations).
187․Nonetheless, there is support in the case-law for the appellant’s contention that an executing officer must turn his or her mind to the question of whether there are reasonable grounds to suspect that a particular item will constitute “evidential material” within the meaning of s 3C of the Crimes Act before the officer seizes the item.
188․For example, in Baker v Campbell [1983] HCA 39; 153 CLR 52 at 102, Brennan J (as his Honour then was), when commenting on the scope of s 10(b) of the Crimes Act 1914 (Cth)[2] held that:
[2]The relevant provisions of the Crimes Act have been amended since the decision in Baker v Campbell, however, not in a way which appears to impact upon his Honour’s obiter observations.
The provision refers to grounds for believing (and the belief must be held by both the issuing justice and the constable executing the warrant) that the thing to be seized will afford evidence, not that it does afford evidence. (emphasis in bold added, italics in original).
189․Similar observations have been made in authorities determined since Baker v Campbell. For example:
(a)In Parker v Churchill [1985] FCA 425; 9 FCR 316 at 326, Burchett J stated that “he [the executing officer] has to decide whether there are grounds for believing particular documents will afford evidence, which would be impossible without some knowledge of the issues likely to arise”;
(b)In Adler v Gardiner [2002] FCA 1141; 43 ACSR 24 at [21], Hely J held that “[t]he executing officer or constable assisting has to consider whether ‘there are reasonable grounds for suspecting’ that the document will afford evidence as to the commission of a warrant offence”. His Honour continued “[t]his is [a] judgment which the executing officer must make in relation to every ‘thing’ which is to be seized in reliance upon the warrant”;
(c)In Hart at [83], the Full Federal Court held that “[t]o be lawful, [a decision to seize material under a search warrant] must be based upon the requisite state of satisfaction that the things seized are evidential material of the kind specified in the warrant” (see also at [102] and [103]); and
(d)In Caratti v Commissioner of Australian Federal Police (No 2) [2016] FCA 1132 at [269], Wigney J held that “before seizing a document or other item, an executing officer had to consider, amongst other things, whether there were reasonable grounds for suspecting that the item would afford evidence as to the commission of the offences to which the warrant related (the offences in the third condition). That judgment must be made at the time of seizure. An executing officer is not authorised to seize a thing without forming that judgment, with a view to examining the thing subsequently to determine if it is in fact evidential material”.
190․It should be noted that in Hart, the Full Federal Court also held (at [103]) that,
… once a purported seizure has been made without proper consideration of whether there were reasonable grounds for suspecting that the things seized are or contain evidential material or relate to an offence, the legal invalidity of that seizure does not ipso facto change its character as a seizure. Nor does it reduce the seizure to a pre-examination removal under s 3K…
191․Further, where, as here, a three condition search warrant is broadly drafted to include a “shopping list” of “every conceivable type of thing that might be found” (Caratti [2017] at [66] – [67]), it may be that the validity of the search warrant depends upon the third condition as being read as to require that the executing officer to independently turn his or her mind to whether there are reasonable grounds for suspecting that an item will afford evidence as to the commission of the offence(s) specified in a search warrant before seizure of that item.
192․There is also some merit in the appellant’s second contention, namely that Detective Knight did not turn his mind to the question of whether there were reasonable prospects for suspecting that the Samsung phone would afford evidence of the offence specified in the person warrant at the time that he took that phone whilst at the Majura Police Complex.
193․Detective Knight gave evidence in cross-examination that he had “reasonable grounds to suspect that there would be – like given the information that there may be child exploitation material [on the Samsung phone]”. However, some caution must be taken before accepting this evidence.
194․As noted at [155] above, the magistrate found that Detective Knight deliberately attempted to cover up the breach of s 3K(3A) of the Crimes Act in connection with the examination of the HP laptop computer (which is addressed below). This finding was not challenged by the Director in the proceedings before the primary judge, and has not been challenged on the present appeal.
195․A trier of fact is not obliged to accept or reject the whole of a witness’ evidence, and may accept part of a witness’ evidence whilst rejecting other parts. However, where a witness has been shown to have deliberately lied in part of their evidence, the remainder of the witness’ evidence should be carefully scrutinised before other parts of the witness’ evidence are accepted.
196․Detective Knight was the applicant for the person warrant. The material that Detective Knight relied on to obtain the person warrant was not in evidence in these proceedings (the proceedings not being by way of an application for judicial review of the warrant). However, the Samsung phone fell squarely within the first two conditions of that warrant, being a mobile phone that was found on Alex Fletcher’s person. The warrant also stated that the offence suspected was possession of child exploitation material. In these circumstances, if Detective Knight had turned his mind to the issue, he may well have suspected that the phone would contain evidential material relating to an offence of possessing child exploitation material. In this respect, I agree with the primary judge that the Samsung phone was in a different category to the HP laptop computer and the Huawei phone, neither of which were found in Alex Fletcher’s possession: see similarly Restricted Judgment (SC) at [62].
197․However, a likelihood that Detective Knight would have had a particular state of mind if he had turned his mind to this issue does not necessarily address the question of whether he in fact turned his mind to the issue at the time of taking the Samsung phone.
198․In the present case, Detective Knight subsequent conduct was arguably inconsistent with him having positively concluded that there were reasonable prospects that the Samsung phone would afford evidence of the offence specified in the person warrant at the time of taking the phone. Specifically, if Detective Knight had turned his mind to this issue, and positively concluded that there were reasonable prospects that the Samsung phone would afford evidence of the offence specified in the person warrant at the time of taking the phone, one might have expected that Detective Knight would have taken action to record that the phone was being seized at that time pursuant to the person warrant and to ensure the integrity of that evidence. He did not do so.
199․Rather, as the appellant submitted, nothing was said by Detective Knight to indicate that the Samsung phone was being seized under the person warrant; no records (such as a property seizure record) were made to indicate that the phone was being seized under the person warrant at that time; the phone was not placed in an exhibit bag; and no receipt was issued to Alex Fletcher under s 3Q of the Crimes Act to record that any seizure had been made. Whilst the failure to issue such a receipt would not, of itself, constitute an illegality or impropriety that enlivened s 138 (R v Siang Pin Foo (No 2) [1998] NTSC 50), Detective Knight failure to issue a receipt tends to suggest that he gave no consideration to whether the Samsung phone should be seized at that time, and that he did not turn his mind to whether there were reasonable prospects that the Samsung phone would afford evidence of the offence specified in the person warrant at the time that he took the phone in the Majura Police Centre. Finally, Detective Knight said nothing about having seized the phone, or having turned his mind to the “requisite belief” in his written statement that was prepared for the proceedings. He first asserted that he had seized the phone at the Majura Police Centre in his answers in cross-examination.
200․In his judgment, the magistrate referred to Detective Knight evidence that he (Detective Knight) had “the requisite belief” at the time that he took the Samsung phone at the Majura Police Centre. However, the magistrate did not expressly state whether this evidence was accepted or rejected, nor did he provide any reasons for accepting part of the evidence of Detective Knight in circumstances where he had made significant findings against Detective Knight credibility in other parts of the judgment (see further at [201] – [208] below).
201․However, it is not necessary to resolve either of these legal or factual issues that were raised by the appellants on the appeal (neither of which appear to have been clearly argued in either of the proceedings below). Even if (i) it were concluded that Detective Knight was required to consider whether there are reasonable grounds for suspecting that the Samsung phone would afford evidence as to the commission of the offence specified in the search warrant before seizing the phone; and (ii) it were concluded that Detective Knight did not turn his mind to whether the Samsung phone would afford evidence as to the commission of the offence specified in the search warrant before he took the phone at the Majura Police Centre, for the reasons outlined below, I would nonetheless conclude that the Samsung phone should have been admitted under s 138.
202․As the magistrate and the primary judge concluded in respect of the s 3LA illegality, the probative value of the evidence obtained from the Samsung phone was high; it was important evidence; and the offences in question, whilst not the most grave in the criminal calendar, involved a serious breach of the privacy of the women whose images were recorded.
203․In contrast, the present illegality, if established, is comparatively minor. As observed at [196] above, it was well open to Detective Knight to have concluded that there were reasonable grounds for suspecting that a mobile phone found on Alex Fletcher would contain evidence relating to the offence specified in the person warrant, namely possession of child exploitation material. So much is clear from the decision of the magistrate to issue the person warrant in the first place (a decision which was not the subject of challenge). Detective Knight could have formed that opinion without first examining the phone. Alternatively, it was open to Detective Knight to move the Samsung phone for examination pursuant to the powers conferred by s 3K of the Crimes Act. As the mobile phone was otherwise susceptible to seizure under the person warrant, any breach of the ICCPR or the Human Rights Act would not have constituted a serious breach. This is not to downplay the significance of Detective Knight’s conduct. On any view Detective Knight’s approach to the execution of the person warrant was careless. It demonstrated either an ignorance, or a lack of appreciation, of the seriousness of police conduct in executing a search warrant.
204․The appellants also contended that, in considering whether to admit the evidence under s 138, this Court should take into account the other illegal and improper conduct that was found to have been engaged in by the executing officers, including the unlawful seizure of Dale Fletcher’s Huawei phone, the breaches of s 3K(3A) of the Crimes Act in respect of the HP laptop computer and the Huawei phone, Detective Knight’s deliberate attempt to cover up the s 3K breach (see at [234] below) and an alleged breach of s 49 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
205․I have given consideration to each of these matters, but do not consider that they should carry any significant weight. The breaches of the Crimes Act by law enforcement personnel concerning the Huawei phone and the HP laptop computer are properly considered in determining the admissibility of those items of evidence, rather than in determining the admissibility of the Samsung phone. The magistrate rejected the appellants’ contention that there had been a breach of s 49 of the Anti-Money Laundering and Counter-Terrorism Financing Act: Restricted Judgment (No 1) at [48] – [51]. The primary judge assumed, but did not determine whether a breach of that provision had occurred: Restricted Judgment (SC) at [103] – [104]. On the appeal, the appellants did not advance any submissions, orally or in writing, in support of their contention that the magistrate’s determination was wrong. Further, the appellants did not articulate a connection between any breach of s 49 of that Act and the evidence found on the Samsung phone.
206․In addition, the appellants contended that if Detective Knight’s evidence that he seized the Samsung phone at Majura Police Centre was not accepted, it would follow that Detective Knight had given false evidence on this issue also, and that this is a further matter that should be considered in assessing whether the evidence obtained from the Samsung phone should be admitted under s 138 of the Evidence Act. In considering whether the evidence obtained from the Samsung phone should be admitted under s 138, I have proceeded on the basis that Detective Knight’s evidence that he “formed the requisite belief” should not be accepted. However, such a finding does not carry the same weight as the unchallenged finding concerning his attempted deliberate cover up of the illegality concerning the HP laptop computer (as to which see [209] – [240] below).
207․Ultimately, s 138 requires the Court to determine whether “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 onus is on the Director to persuade the Court of this matter: Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] (French CJ). The evidence obtained from the Samsung phone was highly probative and of critical importance to the proceedings. The gravity of the contravention was comparatively minor. In my view, the desirability of admitting this evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
208․Accordingly, the appellants’ appeal against the primary judge’s decision affirming the admission of the Samsung phone should be dismissed.
The HP laptop computer
Introduction
209․Under s 3K(3A) of the Crimes Act, the police were authorised to examine the laptop for no longer than 30 days after it was moved. There was no challenge to the magistrate’s finding that the police examined the laptop two days after the 30 day period expired.
210․For this reason, the evidence from the HP laptop computer was obtained unlawfully, and the threshold condition in s 138(1) of the Evidence Act was met. Accordingly, the evidence obtained from the HP laptop computer was required to be excluded unless the prosecution demonstrated that the “desirability of admitting the evidence outweighed the undesirability of admitting the evidence that had been obtained in the way in which the evidence was obtained”.
211․Section 138(3) of the Evidence Act enumerates a number of matters which “must” be considered by a court when making this evaluative assessment. On the appeal to this Court, there was no challenge to the magistrate’s findings that:
(i) The exclusion of all of the evidence from the HP laptop computer would “drastically weaken the prosecution case against both defendants involving the first, second and fourth complainants” (the evidence from the Huawei phone also being excluded): Restricted Judgment (No 1) at [70] (considering s 138(3)(a) and (b) of the Evidence Act).
(ii) The possess child exploitation material and capturing of visual data offences carry maximum penalties of 7 years’ and 2 years’ imprisonment respectively. The latter, while a summary offence, is an offence that involves, in this case, “a gross breach of trust and an outrageous invasion of privacy”: see; Restricted Judgment (No 1) at [73] (considering s 138(3)(c) of the Evidence Act).
(iii) On 12 June 2019, Detective Knight was on notice that the s 3K time limit had, or was about to expire. He took no proactive action to address this, and did not seek an extension of time, or any advice about the action to be taken (considering the gravity of the contravention, s 138(3)(d) of the Evidence Act).
(iv) The contravention of s 3K was “at least reckless” (considering s 138(3)(e) of the Evidence Act).
(v) The unlawful retention and examination of the HP laptop computer contravened article 17 of the International Covenant on Civil and Political Rights and s 12(a) of the Human Rights Act 2004 (ACT), which protect individuals from unlawful or arbitrary interference with privacy and correspondence: Restricted Judgment (No 1) at [79] (considering s 138(3)(f) of the Evidence Act).
(vi) There is no evidence of other proceeding, disciplinary action or remedial training arising out of the illegality having occurred or being planned: Restricted Judgment (No 1) at [80] (considering s 138(g) of the Evidence Act). After the oral hearing on this appeal, this Court inquired of the parties whether any further evidence as to this issue was sought to be adduced on this appeal. The parties indicated that no such application was sought to be made.
(vii) It was open to Detective Knight to monitor the impending deadline, request a timely examination by the Digital Forensics Team and, if necessary, request an extension of time. If he had done so, he was likely to have been granted that extension: Restricted Judgment (No 1) at [82] (considering s 138(3)(h) of the Evidence Act).
212․In view of the probative value and importance of the evidence, and the relative unimportance of the breach (examination of the computer two days after the statutory time limit of 30 days), if Detective Knight had openly disclosed to the appellants that the HP laptop computer had not been examined within the 30 day time limit, and frankly informed the Court of that fact and the reasons for the failure to comply with the time limit, it may not have been difficult to conclude that the s 138 balance should be struck in favour of admitting the evidence.
213․The issue which is at the heart of this ground of appeal concerns the weight to be given to the magistrate’s unchallenged finding that Detective Knight had attempted to cover up that illegality. It is to this question that I now turn.
The relevance of the attempted cover-up
214․The Director accepted that it was open to the Court to consider the attempted cover up by Detective Knight when determining whether the HP laptop computer should be admitted under s 138 of the Evidence Act. In order to determine the weight to be given to this matter, it is necessary to briefly explain why an attempted cover up of illegal conduct should be taken into account under this provision.
215․My views on this issue have been refined by the draft judgments of McCallum CJ and Mossop J, for which I am grateful.
216․Section 138 is enlivened where evidence is obtained improperly or in contravention of an Australian law, or “in consequence of” an illegality or impropriety. For this reason, it has been held that the section is not engaged where the impropriety or illegality occurs after the impugned evidence is obtained: Slater (a Pseudonym) v The Queen [2019] VSCA 213 at [54]; see similarly Question of Law Reserved [1998] 70 SASR 28 (considering the issue at common law).
217․However, the position is different where a further illegality or impropriety occurs after established illegal or improper conduct, such as where there is an attempted cover up of an illegality or impropriety. In that case, s 138 has already been ‘triggered’ by the unlawful or improper conduct. The question then is whether the attempted cover up may be considered as part of the evaluative balance under s 138(3) of the Evidence Act.
218․The Victorian Court of Appeal, and single instance decisions of the Supreme Court in Tasmania and the Northern Territory have each answered this question in the affirmative: Slater at [55] – [56]; Tasmaniav Crane [2004] TASSC 80; 148 A Crim R 346 at [21]; R v Hunt [2014] NTSC 19; 286 FLR 59 at [23] and [140] and [149]. In my view, the conclusions reached in each of these decisions accord with the text, history and purpose of s 138.
219․As to text, I accept that s 138 is somewhat opaquely drafted. The court is required to weigh the desirability of admitting “the evidence” against the “undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. As Mossop J observes (at [86]), viewed in isolation, the language in s 138(1) is consistent with the provision containing a “temporal endpoint” which concludes at the time that the evidence “was obtained”, such that, as McCallum CJ suggests (at [11]), it would not be open to a court to have “regard to events after the evidence in question was obtained” in determining whether evidence should be admitted under s 138.
220․However, s 138 must be read as a whole. Section 138(3) sets out a non-exhaustive list of matters which “must” be considered by the court when determining whether to admit evidence under s 138(1). One of the matters which “must” be considered by a court when determining whether to admit the evidence is “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”: s 138(3)(g) of the Evidence Act. This is a strong textual indication that the matters to be taken into account in assessing the “undesirability” of admitting evidence in s 138(1) should not be temporally confined to the point at which the impugned evidence was “obtained”.
221․Further, as Mossop J notes (at [89]), another matter which will be relevant to the s 138 assessment is the prevalence of the illegality or impropriety in question: see Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355; 33 VR 440 at [65]. In its interim report, the ALRC envisaged that, in determining whether to admit the evidence, the court would consider whether the breach is an “example of a wider pattern of misconduct”: Australian Law Reform Commission, Evidence (Report No 26, vol 1, 1985) at [964]; see also Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) at [16.84]. As Mossop J observes (at [89]), any such “pattern of misconduct” will necessarily encompass instances of illegality or improper conduct which predate and/or postdate the contravention that resulted in the “obtaining” of the evidence. This too, points against a narrow temporal construction of s 138(1).
222․Indeed, recognition that s 138 was intended to permit consideration of the prevalence of the illegal or improper conduct potentially explains part of the curious phrasing of s 138. Specifically, as the Victorian Court of Appeal in Slater observed (at [55] – [56]):
The public policy which is advanced when evidence is excluded under s 138 is … not merely the public interest in excluding the specific evidence obtained by or in consequence of the relevant impropriety or contravention. It is the public interest in not admitting any evidence obtained in the relevant way. In other words, the section looks not only at what was done in the instant case, but at the undesirability of the same thing being done in other cases.
For that reason, if an attempt is made to conceal the impropriety or contravention, or its consequences, from a court seeking to apply s 138, one of the purposes of the provision is apt to be undermined. Accordingly, such an attempt is a matter that may potentially be relevant to the balancing exercise under s 138(3)…
223․In other words, the structure and phrasing of s 138(1) was not intended to constrain the matters which may be considered in determining the “undesirability” of admitting the evidence; rather, the structure and phrasing of s 138 was intended to enlarge the matters which may be considered in assessing “undesirability” to include the undesirability of not admitting any evidence that has been obtained (in the instant case or other cases) in the relevant way.
224․A wide construction of the “undesirability” considerations in s 138(1) accords with the purpose and history of the provision. Section 138 is derived from the Bunning v Cross discretion, which required the court to “balance the desirable goal of convicting wrongdoers against the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law”: Kadir v The Queen [2020] HCA 1; 267 CLR 109 at [12], citing Bunning v Cross (1978) 141 CLR 54. In some important respects, s 138 is broader than the Bunning v Cross discretion: Kadir at [12]. For example, unlike the Bunning v Cross discretion, s 138 applies to civil as well as criminal proceedings, and to illegal and improper conduct committed by civilians as well as law enforcement personnel: Kadir at [12] – [13]. There is, however, no indication in any of the Australian Law Reform Commission reports that the enactment of s 138 was intended to restrict the range of considerations that were open to be considered under the Bunning v Cross discretion. The introductory words to s 138(3) (“[w]ithout limiting the matters that the court may take into account under subsection (1)”) confirm this.
225․The two considerations referred to earlier, that is the prevalence of the illegality or impropriety, and whether action has been taken, or will be taken, in respect of the breach (s 138(3)(g)) also illustrate a mechanism by which an attempted cover up is rendered relevant to the s 138 balance.
226․Sections 138(3)(g) indicates that exclusion of evidence may not be required where other proceedings have been or are likely to be taken in respect of the contravention. This is because the other proceedings may meet the need for deterrence or denunciation of the breach, and thus satisfy (or largely satisfy) the purpose of exclusion. For similar reasons, the “undesirability” of admitting evidence may be reduced where there has been individual and/or institutional ownership of the breach, particularly where proactive changes have been made to ensure that such breaches are not repeated in the future.
227․An attempted cover up of a breach is the exact opposite of these scenarios. Where, as here, a law enforcement official endeavours to cover up their illegal or improper conduct, the contravention is not addressed, and the officer’s illegal or improper conduct is compounded by the attempt of police to cover up the wrongdoing. In these circumstances, the need to denounce and deter the illegal conduct may be considerably heightened. That is, just as a relatively minor contravention may require exclusion of evidence if the contravention is “widespread or entrenched” (Marijancevic at [65]), a relatively minor contravention may also require exclusion where the response to the contravention is not to own and address, but to attempt to obfuscate.
228․This mechanism remains focussed on the illegality or impropriety which ‘triggered’ the operation of s 138: here, the examination of the computer outside of the statutory time period. The cover up merely affects the weight to be given to that contravention.
229․Alternatively, it could also be said that an attempted cover up of illegality or impropriety is so intrinsically linked to the illegality or impropriety as to properly constitute part of the “way in which the evidence was obtained” in s 138(1).
230․There may be particular force in this argument in a case such as the present. In the present case, Detective Knight was made aware that the 30 day period had expired before the HP laptop computer was examined. He did not correct the technician’s erroneous belief that an extension had been obtained, and instead misled the technician into believing that the time limit did not apply (he directed the technician that he believed that seizure could occur “due to how the investigation had progressed”). In these circumstances, where the roots of the attempted cover up lay in the contravention itself, it may be said that the cover up is ‘part and parcel’ of the contravention, such that the attempted cover up cannot be excised from the illegality which triggered s 138(1).
231․The purpose of s 138 may also provide some support for this approach. Attempts by law enforcement officials to cover up illegal or improper conduct have the capacity to undermine the efficacy of s 138. Where a cover up is not discovered, illegality or improper conduct by law enforcement officials cannot be addressed by the procedure established under s 138. For this reason, there may be as strong an interest in deterring cover ups of illegal conduct, as there is in deterring the illegal conduct itself.
232․The difference between the approaches to s 138 outlined above (that, is an approach which focusses on the illegality or impropriety which triggers the provision; and one which has an expanded focus which includes a subsequent cover up of an illegality) is not merely of theoretical interest. Under the focussed approach, the interest in deterring and denouncing unlawful conduct is limited to the particular conduct that triggered the operation of s 138 (here, the examination of the HP laptop computer outside of the 30 day period). Under the expanded approach, it would be open to the court to also take into account any need to deter and/or denounce the attempted cover up in deciding whether to admit the evidence under s 138.
233․Nonetheless, I do not consider it necessary to resolve whether the expanded approach is permissible under s 138. For the reasons outlined below, it suffices for me to conclude that, at a minimum, evidence of an attempted cover up may be considered in the s 138 balance in the way permitted by the focussed approach. In circumstances where these issues of construction were not addressed by the parties on the appeal, I do not consider it appropriate to comment further on the availability of the expanded approach.
The weight to be given to the attempted cover up in the present case
234․Detective Knight gave evidence that he had been advised that the examination of the laptop had occurred within the time permitted under s 3K(3A) of the Crimes Act. This evidence was contradicted by contemporaneous emails sent by Senior Constable Smyth, which demonstrated that Detective Knight had been informed that the examination had not proceeded within the s 3K(3A) time limit. The brief of evidence that was prepared by Detective Knight made no reference to the contravention of s 3K(3A) of the Crimes Act. Detective Knight also redacted an entry in his notebook relating to the seizure of the HP laptop, in an apparent attempt to ensure that the appellants would not become aware of the contravention. As has already been noted, the Director did not challenge the magistrate’s finding that Detective Knight had attempted to engage in a deliberate cover up of the s 3K(3A) breach. Rather, in her written and oral submissions, counsel for the Director acknowledged that the magistrate was “(rightly) highly critical of the [Detective Knight’s] conduct towards the HP laptop”.
235․The Director contended that the primary judge had erred in concluding that the magistrate had failed to take into account the attempted cover up. I agree with this submission. As noted at [155] para above, the magistrate expressly referred to the attempted cover up in his decision. On a fair reading of the reasons, it is clear that his Honour took this matter into account, but determined that, in view of its probative value and importance, the evidence obtained from the HP laptop computer should be admitted. Accordingly, I do not consider that House v The King error was established.
236․However, as outlined above, this appeal is to be conducted on the correctness standard. Whilst it is true that this form of rehearing remains a “process for the correction of error” (Alexander v Bakes at [22]), such error will be shown where the appellate court reaches a different conclusion to that which has been reached by the first instance decision maker. So much is clear from the High Court’s decision in Warren v Coombs [1979] HCA 9; 142 CLR 531 at 552, in which their Honours held that where the correctness standard applies:
The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.
237․The magistrate did not have any real advantage over the primary judge, or this Court, in determining the admissibility of the HP laptop computer. There is, and was, no dispute that Detective Knight deliberately attempted to cover up the contravention of s 3K of the Crimes Act. This Court must determine for itself the weight to be given to this matter in determining where the s 138 balance lies.
238․The evidence obtained from the HP laptop computer was of high probative value and was important in the prosecution case. The offences charged concerned grave criminal conduct, which constituted a significant breach of the privacy of the complainants and, no doubt caused each of them significant emotional distress. The contravention which enlivened the operation of s 138(1), although “at least reckless”, involved the examination of the computer within days of the time limit imposed by law.
239․However, the attempt by Detective Knight to cover up the contravention must also be taken into account. To adopt Mossop J’s analysis (at [93]), Detective Knight’s attempted cover up is “reflective of an inappropriate attitude to the rule of law and the rights of an accused” which heightens the need deter future contraventions of s 3K(3A) of the Crimes Act. Taking this matter into account, I consider that the evidence obtained from the HP laptop computer must be excluded under s 138, even though that evidence may well have been admitted if Detective Knight had frankly disclosed the breach of s 3K(3A) of the Crimes Act to the appellants and to the Court in the proceedings at first instance.
240․Accordingly, the primary judge correctly concluded that the evidence obtained from the HP laptop computer should be excluded and that the magistrate erred in concluding otherwise. It follows that the Director’s cross-appeal should also be dismissed.
Orders
241․For the reasons outlined above, both the appeal and the cross-appeal should be dismissed.
| I certify that the preceding two hundred and forty one [241] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal Associate: Hayden Clift Date: 28 February 2025 |
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