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QUESTION of LAW RESERVED (NO.1 of 1998) No. SCCRM-98-17 Judgment No. S6634

QUESTION of LAW RESERVED (NO.1 of 1998) No. SCCRM-98-17 Judgment No. S6634

Case [1998] SASC 6634 24 April 1998

Admissibility of Evidence

Breach of Trust

Contempt of Court

Unconscionable Conduct

Unjust Enrichment

Unlawful Seizure

Criminal Law

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QUESTION OF LAW RESERVED (No.1 of 1998)

Court of Criminal Appeal: Doyle CJ, Cox and Matheson JJ

DOYLE CJ

The case stated

A judge of this Court has reserved two questions for consideration and determination by the Full Court.

The questions are reserved under s350(1) of the Criminal Law Consolidation Act ("the Act"). They are reserved pursuant to an order made by the Full Court, acting under s350(2)(a) of the Act.

The questions reserved relate to a decision made by the judge to exclude certain evidence that the prosecution proposed to tender upon the trial of four persons upon 64 counts alleging abuse of public office. Some of the counts allege offences at common law, some allege offences under s251 of the Act.

The judge dealt with the admissibility of the relevant evidence before a jury was empanelled. Power to do that is given by s285A of the Act.

The judge heard evidence, made findings of fact, and ruled that a large body of documentary evidence would be excluded from evidence at the trial. That ruling was made on 21 May 1997.

In a ruling delivered on 29 July 1997, the judge declined to state a case to the Full Court.

Since then, the Full Court has held that it has power to require the judge to state a case, the power being found in s350 of the Act: see Application for Reservation of Question of Law (unreported, Full Court, Judgment Number S6420). Subsequently, in another ruling, the Full Court held that the judge should be required to state a case: Application for Reservation of Questions of Law (No.2) (unreported, Full Court, Judgment Number S6496). It is that case that is now before the Court.

The questions reserved are as follows:

Is the Bunning v Cross discretion to exclude evidence on public policy grounds applicable to exclude evidence not on the basis that the evidence was improperly or unlawfully obtained, but on the basis of conduct by the police and/or civilian witnesses presenting a false story either in a declaration to the court or in giving evidence?

Can the seizure of documents pursuant to a search warrant, which documents are not the subject of legal professional privilege, be rendered unlawful because the police officer seizing the documents did not address the issue of whether legal professional privilege might exist?"

The facts and the judge’s findings

I propose to state the facts quite briefly. I draw upon the reasons published by the judge. The Court is not able to review the findings made by the judge. The findings provide the setting in which the questions are to be considered.

The police were investigating the possible commission of the offence of abuse of public office. The police suspected that three of the accused, who were police officers at the relevant time, had passed to the fourth accused, Mr Carbone, confidential information from police records. At the time Mr Carbone was a private investigator. The police suspected that Mr Carbone paid the other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: QUESTION of LAW RESERVED (NO.1 of 1998) No. SCCRM-98-17 Judgment No. S6634 [1998] SASC 6634
Case: [1998] SASC 6634
Decision Date: 24 April 1998

CaseChat Overview and Summary

The Court of Criminal Appeal was presented with two questions concerning the exclusion of evidence obtained by police during the investigation of allegations of abuse of public office. The questions arose from a decision by a trial judge to exclude certain documentary evidence on public policy grounds, based on the conduct of the police and civilian witnesses involved in the investigation. The first question asked whether the discretion to exclude evidence on public policy grounds, as established in Bunning v Cross, applied to exclude evidence obtained not through unlawful or improper conduct, but rather due to the deliberate presentation of false evidence by the police and witnesses. The second question concerned whether the seizure of documents pursuant to a search warrant could be rendered unlawful if the seizing officer did not consider the possibility of legal professional privilege.

The Court concluded that the discretion to exclude evidence on public policy grounds did not apply in the case at hand, as the evidence in question was obtained by lawful means and the false evidence was given after the evidence was obtained. The Court found that the exposure of the false evidence was sufficient and that allowing the use of the seized material did not condone the giving of false evidence, as the files were not obtained as a result of the false evidence. As for the second question, the Court disagreed with the proposition that a failure to allow a reasonable opportunity for a claim of legal professional privilege to be made would render a seizure unlawful, even if none of the documents seized were subject to legal professional privilege. The Court considered that such an approach would engage the courts in lengthy retrospective scrutiny of the conduct of searches and would unnecessarily complicate the exercise of powers of search and seizure. The Court held that the seizure of documents would only be unlawful if the officer obtained possession of documents that were subject to privilege at the time of seizure. If that occurred, the court should consider the adequacy of the procedures adopted by the police officer to allow a claim of privilege to be made when deciding whether to exclude the documents from evidence.

Orders