6.3 General power to limit use

Section 136 – General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a)    be unfairly prejudicial to a party; or
(b)    be misleading or confusing

6.4 Improperly Obtained Evidence

Section 138 – Discretion to exclude improperly or illegally obtained evidence
(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;
Is not to 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.

(2)    Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)    did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)    made a false statement in the course of questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)    Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(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 contravention or impropriety 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 ot 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.

•    First test is determine if there is illegally or improperly obtained evidence e.g. person may have been coerced or tricked into making false statements
•    Balance desirability of bringing a wrongdoer to justice against allowing improper and illegal obtaining of evidence

Ridgeway v The Queen (1995) 184 CLR 19
Facts: Australian Federal Police in a covert drug investigation facilitated the importation of
heroin into Australia in breach of the Customs Act 1901 (Cth). Their aim was to secure evidence of Ridgeway possessing a traffickable quantity of heroin. Ridgeway was convicted and charged but appealed to HCA.  

Held: The conduct by the police in obtaining the evidence was illegal. The illegality was ‘grave and calculated police criminality’. Without the police illegality R could not, and would not, have committed the crime charged. Consequently evidence of the importation should be excluded. Once this occurred the proceedings would inevitably fail so a permanent stay of proceedings was ordered.
The integrity of the justice system is at the focal point of the discretion. Consequently, evidence arising from arising from serious, deliberate or entrenched police illegality or impropriety requires exclusion.

Note: Needs to be causal link between the illegality and the obtaining of the evidence. Goes beyond merely obtaining evidence illegally or improperly. Can be obtained as a result/consequence of an illegal or improper act

Section 139 - Cautioning of persons
(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the person was under arrest for an offence at the time, and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during official questioning is taken to have been obtained improperly if:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or
(b) the official would not allow the person to leave if the person wished to do so, or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if:
(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or
(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

DPP v Carr (2002) A Crim R 151
Facts: Carr arrested for swearing at a policeman and subsequently charged with resisting arrest, assaulting police and intimidating police. The arrest, while lawful, was considered improper because such a minor offence should have been dealt with by way of a summons. S138 used to exclude evidence and findings of impropriety and the exercise of discretion were challenged by the DPP.

R v Swaffield; Pavic v R (1998) 192 CLR 159 - see also in Admissions
Facts: 2 appeals, heard together, re admissibility of covertly recorded conversations which involved confessions:
1.) Swaffield - tape-recorded conversation between accused and undercover policeman in which accused admitted his involvement with the arson in question
2.) Pavic - tape-recorded conversation between the accused and a bugged friend in which accused admitted involvement with disappearance of a man.

Held: Swaffield’s evidence inadmissible; Pavic’s evidence admissible
Where freedom to choose whether or not to talk to police has been impugned, court has discretion to reject the evidence as improperly obtained.

1.) Swaffield - evidence inadmissible because it was induced by a police officer against the accused’s right to silence  here the police officer had been ‘fishing’ for info ie very direct in conversation, and the admission was not voluntary

2.) Pavic - evidence admissible because, although friend was an agent of the police, the confession was sufficiently voluntary to be admissible  conversation was general in nature, friend was not ‘fishing’ for information.

Kirby J - 4 bases for rejecting a statement by the accused acknowledging guilt:
1.)    If confessional statement was involuntary
2.)    If it would be unfair to the accused to admit statement
3.)    If public policy considerations mean it would be unacceptable to admit the statement; or
4.)    If prejudicial impact is greater than the probative value.