Thursday, February 06, 2020

Differing desirability: admission of improperly obtained evidence in New South Wales

Illegal video surveillance of animal cruelty, producing a series of recordings, followed by application for a search warrant, and then the obtaining of admissions by a trick, led to challenges to the admissibility of evidence in Kadir v The Queen [2020] HCA 1 (5 February 2020).

The three groups of challenged evidence were the video recordings, the information obtained in the search, and the admissions made to a civilian informant.

At first instance, all the challenged evidence was held inadmissible, because it flowed from the illegal surveillance, and the weighing exercise required by the legislation led to that result.

On appeal, the Court of Criminal Appeal (NSW) held that all the evidence was admissible.

The High Court of Australia held that the video surveillance evidence was inadmissible, but the other evidence (search, admissions) was admissible.

This was not held to be a suitable occasion for clarifying the law on how appeals under this legislation should be approached (at [8]). For a review of issues that need attention, see Chris Edmonds, “Appeals from Discretions, Satisfactions, and Value Judgments: Reviewing the House Rules” (2017) 41(2) Melbourne University Law Review 647.

Decision criterion

The statutory decision process here as set out in s 138 of the Evidence Act 1995 (NSW) (reproduced at [10]) requires that the evidence to which it applies “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.”

That looks quite simple. It lacks the encumbrance of the New Zealand requirement (s 30 of the Evidence Act 2006): (2)(b) the judge shall “... determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.”

You don’t have to be Wittgenstein to know that the meaning of “the need for an effective and credible system of justice” can only be ascertained from the way it is applied in cases. It is what we might nowadays call a meta-level explanation of the shape of the boundary between cases where improperly obtained evidence is admissible, and those where it is inadmissible. Is it a useful part of the statutory criteria, or is the NSW provision an adequate alternative?

The NSW provision has been fleshed out by case law. The words desirability and undesirability refer to (at [13]) the public interest in all relevant evidence being before the fact-finding tribunal, and the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally.

No doubt, a scholar of Australian evidence law could sort out admissibility decisions under provisions like s 138 into those resulting in admission, and those resulting in exclusion, of improperly obtained evidence in criminal cases, and could claim that the shape of the boundary between those decisions reflects some abstraction such as the need for an effective and credible system of justice. The only useful point in doing that would be to provide a framework for predicting the correct result of undecided cases, or to identify cases that have been decided wrongly. Hardly a useless exercise.

To what extent is the decision in Kadir determined by precedents illustrating the seriousness of the illegality, the seriousness of the alleged offending, and the relative weighs of the matters that are to be taken into account pursuant to s 138(3)? Without reference to other cases the appeal outcomes could seem to be just differences in opinion, not really legal determinations.


The party seeking to adduce the evidence must satisfy the judge that the desirability of admitting the evidence outweighs the undesirability of admitting it: s 138(1). This is clearer as to onus than is the New Zealand provision, which has caused some confusion: see my note on Kearns here.

It’s not an all-or-none question

Kadir illustrates the need to address each category of challenged evidence in turn, rather than lump them all together as happened at first instance. This is because the weighing factors differ with context (at [42]).

The search warrant was obtained in reliance on the improper surveillance, but the agency seeking the warrant (the RSPCA) was unaware of the illegality (at [38], [41], [47]-[48]). That was a significant difference from the position of the informant who carried out the surveillance, who had trespassed to place the camera.

The trick involved in obtaining the admissions did not depend on the illegal surveillance (although the admissions were obtained by the person who had carried out the surveillance), and it was no more objectionable than tricks routinely used to collect evidence ([50]-[51]).

Relevant to the admissibility of the search and the admissions evidence was the absence of the element of criminality that had been involved in the obtaining of the surveillance evidence.

Furthermore, and this might cause the brow to wrinkle (but it’s just a consequence of the separate consideration of the categories of evidence), exclusion of the surveillance evidence increased the importance of the remaining evidence for the prosecution case. The public interest in excluding the surveillance evidence resulted in an enhanced public interest in admitting the other evidence (at [42], [47]).

The absence of lawful means of getting the evidence

The significance of the absence of any alternative lawful means of getting the surveillance evidence was a matter over which the courts differed in this case. At first instance the parties had apparently assumed that this factor weighed in favour of admitting the evidence, and the judge had found it difficult to gauge the weight to give this (at [3]-[4]). The Court of Criminal Appeal accepted that this factor weighed in favour of admitting the first of the series of video recordings in view of the likely inefficacy of an anonymous complaint (at [36]). The High Court’s determination is at [20], emphasising at [37] that here the difficulty of getting the evidence lawfully weighed against admitting the surveillance evidence.

The significance of absence of alternative lawful means of obtaining the evidence can vary with circumstances, but it may weigh in favour of admitting the evidence if there is urgency. It is likely to weigh against admission if there was deliberate or reckless illegality. It is likely to be neutral if the impropriety was neither deliberate nor reckless ([20]).

Did the illegality link to the obtaining of the evidence?

The admissions were made to the person who conducted the illegal surveillance. Although the surveillance was a step leading to the conversations, that was all: [51], endorsing the CCA decision on this point. No information obtained illegally was used by the informer in her conversation eliciting the admissions. Although there was a “bare connection”, admission of the evidence was unlikely to convey curial approval or encouragement of the contravention.

This gets around the “but for” objection: no conversation would have occurred but for the illegal surveillance. The judge at first instance had applied “but for” reasoning (at [34]-[35]).

The use of unlawfully obtained information in the application for the search warrant

Here the RSPCA was unaware of the illegality and it put forward the unlawfully obtained information in good faith in its application for the search warrant (at [41]). What if it had known? Would it have been sufficient to disclose the illegality to the official considering the application? What could that official be expected to do in the face of such disclosure? In any event, how should a court address the validity of a search warrant issued on improperly obtained information? For the New Zealand position, see R v Alsford [2017] NZSC 42, holding by a majority that improperly obtained evidence (here referring to evidence that a court has ruled inadmissible, but applicable pari passu) may be advanced in support of an application for a warrant if it is identified as such, and its impropriety will be a balancing factor in considering the admissibility of evidence obtained by the warrant (Alsford at [100]).