1.1 The rule. Relevant evidence is admissible even though it was obtained by illegal or other improper means. In a criminal legal proceeding the rule is subject in English law to a discretion on the part of the court to exclude it if its admission would operate unfairly against the accused. In Australian law it is also subject in such a proceeding to a discretion to exclude it, but it is a different discretion.¹ It is exercised by weighing against each other the competing public interests in the need to bring to conviction those who commit criminal offences and in the need to protect the individual from unlawful and unfair treatment.

1.2 Origins. The English rule is largely applied to such matters as illegal searches and seizures and eavesdropping, but its origins are more diverse. One group of old cases rejected the argument that the copy of the original indictment required to be produced in proceedings for malicious prosecution should be excluded where it was obtained without appropriate authority.^1A In the course of the nineteenth century some decisions in other areas were given. Evidence obtained by improper examination of a bankrupt before bankruptcy commissioners was held admissible in later civil proceedings.² An incriminating letter written by the accused which his jailer had promised to post but had handed to the prosecutor was held admissible.³ Documents improperly obtained in other ways were admitted.⁴ There is a group of civil cases where copies of privileged documents were admitted even though improperly obtained.⁵ The obtaining of evidence as the result of a mistake or trick was irrelevant to its admissibility. Thus Phillipps said it was no objection to a confession that "some deception was practised.... In [one] case, artifice was used to induce a prisoner to suppose that some of his accomplices were in custody, under which mistaken supposition he made a confession, and it was admitted in evidence."⁶ The nineteenth century view was crisply summarized by Crompton J.: "It matters not how you get it; if you steal it even, it would be admissible in evidence."⁷ Finally, in Elias v. Pasmore⁸ Horridge J. held that an action for damages for trespass would not lie against police who seized documents not covered by a search warrant where they were used in a later criminal trial. The inference drawn, a fortiori, was that use in this way was perfectly proper.

In Kuruma v. R.⁹ Lord Goddard, in giving the advice of the Privy Council, extracted from these scattered authorities the modern rule that improperly obtained evidence is admissible. He continued: "No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.... If, for instance,... some piece of evidence... had been obtained from a defendant by a trick, no doubt the judge might properly rule it out."10

In Australia the High Court for a time followed Kuruma v. R.^10A In R. v. Ireland^10B however the High Court laid down what it has recently explained was a new rule. The rule was stated quite briefly and it appears that it had not become clear to the legal profession generally that the court had intended to change the law, as distinct from merely again following Kuruma v. R.^10C In Bunning v. Cross^10D a majority of the court held that the law for Australia had been laid down in the following passage in R. v. Ireland.

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."^10E

1.4 The rule of admissibility. This has now been applied to evidence obtained by illegal searches of the accused's person¹¹ or property,¹² or by an illegal blood test,¹³ or breath test,¹⁴ or by an unwarranted medical examination,¹⁵ or during an unlawful arrest.¹⁶ or in consequence of unlawful removal from custody,¹⁷ or photographs illegally taken by telling the accused wrongly that this was compulsory,¹⁸ or by illegal telephone tapping,¹⁹ or by theft.²⁰ It has also been applied where the evidence has been obtained by means which, though in some sense improper and which are often the subject of harsh judicial comment, are not illegal. Examples include obtaining evidence of the accused's drunkenness from a medical examination which he was told was merely to see if he was ill,²¹ or would be advantageous to him;²² the use of agents provocateurs;²³ taking the accused's fingerprints without telling him he might refuse to give them;²⁴ eavesdropping.²⁵ The English and Canadian courts and the Privy Council draw no distinctions for the purposes of this rule between evidence obtained in breach of common law rules, statutory rules, or constitutional rules.²⁶

1.5 The English discretionary rule of exclusion. It is difficult to discern the true operation. In Kuruma v. R.²⁷ the discretion was said to be available if the strict rules of admissibility would operate unfairly against an accused; and, as we saw,²⁸ an example was given of a trick. In Callis v. Gunn.²⁹ Lord Parker C.J. said evidence would be excluded "if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, anything of that sort". In Murphy v. Attorney-General for Northern Ireland³⁰ Lord MacDermott C.J. commented on this as follows:

"We do not read this passage as doing more than listing a variety of classes of oppressive conduct which would justify exclusion. It certainly gives no ground for saying that any evidence obtained by any false representation or trick is to be regarded as oppressive and left out of consideration....

Unfairness in this context cannot be closely defined. It must be judged of in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation and the gravity or otherwise of the suspected offence, may all be relevant. That is not to say that the standard of fairness must bear some sort of inverse proportion to the extent to which the public interest may be involved, but different offences may pose different problems for the police and justify different methods...."

Apart from its weakness in practice, the doctrine of Kuruma v. R.⁴⁰ has certain other noteworthy features. It is vague: what is unfairness, or even oppressive unfairness? It is strange that evidence obtained by a trick without illegality is apparently more likely to be excluded than evidence obtained in breach of a positive rule of law. The Privy Council relied on Scots law to support its conclusion, but though the verbal formulation of the Scots rule is similar, in practice the Scots rule seems to be applied with much greater sophistication and even precision, and with a more exclusionary effect.⁴¹ The Privy Council also said that the United States rule could be explained as being necessitated by the United States Constitution. But the Fourth Amendment simply proscribes unreasonable searches and seizures; it says nothing of the exclusion or admission of evidence obtained in breach of it. In all jurisdictions there is the same question: is it desirable to admit evidence obtained in breach of a law which does not expressly provide for its exclusion? Further, Lord Goddard's advice did not discuss Wolf v. Colorado,⁴² holding that the States were bound by the Fourth Amendment; this was an important step towards Mapp v. Ohio⁴³ holding that evidence obtained in breach of the Fourth Amendment should be excluded in both federal and state courts. Lord Goddard also referred to Olmstead v. United States,⁴⁴ holding wiretap evidence admissible, but no t its statutory reversal.⁴⁵ Further, Lord Goddard relied on civil cases denying a party's claim of privilege when a copy of a privileged document comes into the hands of his opponent.⁴⁶ Such cases have been doubted.⁴⁷ But even if they are right, a denial of privilege in a civil case is different from admitting illegally obtained evidence in criminal cases; for in a civil case the wrong is more likely to be remedied by separate proceedings for the return of the document 48 than if the victim is in prison and the wrongdoer a policeman. Then the facts of Kuruma v. R. cast great doubt on the doctrine for which it is authority. The basis of the doctrine is that the court should not be deprived of reliable evidence; that whether or not it is illegally obtained, real evidence, unlike men, cannot lie. But proof that the accused was connected with the real evidence supposedly obtained depends on the testimony, sometimes questionable, of the men who obtained it. Kuruma was a Kenyan African convicted during the Mau Mau Emergency of possessing two rounds of ammunition, and those rounds were the evidence obtained by a search carried out by two non-European police officers illegally in that they were of less than the prescribed rank. There were strong reasons for doubting the evidence of possession. A pocket knife said to be found during the search together with the ammunition was not presented in evidence. The police claimed that they had taken the unusual and dangerous course of returning it to the accused while he was in custody; the accused denied that he ever had either the knife or the ammunition. Three persons other than the constables were said to have witnessed the search, but they were not called as witnesses. The magistrate, in convicting, ignored the unanimous advice of the three assessors. The accused, whose character was good, knew that the road on which he was travelling had on it a road block at which he would be liable to be stopped and searched, and he had an alternative route to his destination. The case was thus an unsatisfactory one in which to assert a doctrine of admissibility based on reliability. Indeed the Board called the attention of the Secretary of State to some of these facts.⁴⁹ Further, it seems that the reason for the Kenyan Emergency Regulations, reg.29, requiring that searches should only be carried out by police officers of or above the rank of assistant inspector, must have been that only such senior officers were sufficiently reliable to undertake searches properly and to be trusted not to plant evidence. So in accepting the evidence the Privy Council was substituting its standards of reliability for Parliament's, with questionable propriety. Similar points can be made of King v. R.⁵⁰ where the statutory requirement that searches of suspected drug offenders arrested without warrant be carried out in the presence of a magistrate was designed to avoid just the kind of allegations of police planting which formed the basis of the defence. Where the accused does not deny that the evidence in question existed but merely disputes its significance it is much less improper for it to be admitted.⁵¹ In the light of these considerations there is force in Sir Owen Dixon's statement that:⁵² "I do not think that in this or in any other jurisdiction the question has been put at rest by Kuruma v. R."⁵³ That statement was cited in the judgment of Stephen and Aickin JJ. in Bunning v. Cross^53A and that judgment made the following comment upon it.

"That it had not been put at rest is apparent from what is now the Australian law on the subject, founded upon the passage which we have cited from Barwick C.J. in Ireland’s Case.

As we understand it, the law in Australia now differs somewhat from that in England. What Lord Goddard C.J., speaking for their Lordships, said in Kuruma's Case reflects the latter. Whatever may initially have been the authority of Ireland’s Case in the light of the earlier decision of their Lordships in Kuruma (see the observations of J.D. Heydon 'Illegally Obtained Evidence', 1973 Crim.L.R. 602, at p. 607) we have no hesitation in following the principles established in Ireland’s Case..."

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

Of the other judges in Bunning v. Cross,^53C Jacobs J. did not find it necessary to deal with the matter, and Murphy J. did not deal with the principles generally applicable in cases of unlawfully obtained evidence. Although Barwick C.J. spoke of "the competition of the public interest in conviction with the unfairness to the applicant", he went on to say that he had read the joint judgment of Stephen and Aickin JJ. and agreed "entirely with their observations on the proper principles to be followed in exercising a discretion to exclude admissible evidence because of the circumstances or manner in which it was obtained or came into existence".^53D It is on this basis that the view taken in this paper is that the majority of the Court in Bunning v. Cross^53E held that a new rule had been laid down for Australia in Ireland’s Case.

Of that rule Stephen and Aickin JJ. also said:

"The statement of principle in Ireland’s Case differs from some statements of principle overseas but reflects much of what was said by Zelling J. when Ireland's appeal was before the Full Court of the Supreme Court of South Australia (Reg. v. Ireland (1970), S.A.S.R. 416, at pp.444-448).That judgment of Zelling J. in turn cites extensively from the judgment of Kingsmill Moore J. in The People v. O’Brien, [1965] I.R. 142, where a far-reaching survey of authority is undertaken.

There exists a marked contrast between, on the one hand, the approach manifest in Ireland’s Case and also in cases decided in the Irish and Scottish courts, of which the judgment of the Lord Justice-General, speaking for seven members of the High Court of Justiciary, in Lawrie v. Muir, [1950] S.L.T. 37 is among the most explicit as to the principles involved, and on the other hand that of English and Canadian courts and of their Lordships in the Judicial Committee."

"The contrast between these statements of principle under [Kuruma's Case] and that enunciated in Ireland’s Case becomes apparent as soon as the objects sought to be attained by the exercise of the discretion, as stated in the judgment of Barwick C.J. in Ireland’s Case, are examined. What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.

Since it is with these matters of public policy that the discretionary process called for in Ireland is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers, which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon C.J. put it in Wendo's Case, unlawful or improper conduct). Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called 'real evidence', such as articles found by search, recordings of conversations, the result of breathalyser tests, fingerprint evidence and so on."

The judgment then went on to consider the criteria upon which the discretion was to be exercised. It said that this was not to be done in the abstract but only by reference to the case in hand, to avoid the fettering of the discretion. It then set out five points for consideration in that case.

(1) The unlawfulness in the case was the result of a mistaken belief on the part of police officers that they were entitled to do what they did. They did not realise they were acting unlawfully. Although such an error was not to be encouraged, it was relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it was to enforce it.

(2) The nature of the illegality did not in that case affect the cogency of the evidence so obtained. Cogency should generally play no part in the exercise of the discretion where the illegality was intentional or reckless. An exception to that general principle might be where the evidence was vital and of a perishable nature, so that if there were a delay in securing it, it might have ceased to exist.

(3) The police could have easily required the accused to do lawfully, what they unlawfully required him to do. A deliberate "cutting of corners" would tend against admissibility. Where, as in the present case, there was no deliberate breach of the law, ease of compliance with the law was an equivocal factor.

(4) An examination of the comparative seriousness of the offence charged and of the unlawful conduct of the law enforcement authority was a relevant consideration.

(5) An examination of the legislation in question suggested that Parliament deliberately intended narrowly to restrict the police in exercise of the powers given them under the legislation and this factor favoured rejection of the evidence, if those restrictions were not complied with.

1.7 Canada. In R. v. Wray^53F a majority of the Supreme Court of Canada doubted whether a discretion to exclude illegally obtained evidence operating unfairly existed. They pointed out that in Kuruma v. R.⁵⁴ Lord Goddard cited as his main authorities for the existence of the discretion Noor Mohamed v. R.⁵⁵ and Harris v. Director of Public Prosecutions;⁵⁶ but that these were cases, not on illegally obtained evidence, but on similar fact evidence, and that the discretion there considered was a discretion to exclude evidence the admission of which would be unfair in the sense that its prejudicial effect exceeded its probative value. They further said that even if the discretion stated by Lord Goddard existed, the meaning of unfairness had to be limited. "The allowance of admissible evidence relevant to the issue before the Court and of substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the Court is trifling, which can be said to operate unfairly."⁵⁷ The majority considered that any wider test would lead to a lack of uniformity in judicial administration.

The majority reasoning in Wray has the merit of tidying up some of the sloppiness of language characteristic of this subject. But it reduces the discretion to exclude to vanishing point; for Kuruma v. R.⁵⁸ was approved in R. v. Wray, and we have examined the unreliability of the evidence admitted there.59 If the evidence in Kuruma v. R. was not unfairly admitted, when will it be unfair to admit evidence? Indeed, if R. v. Wray is right those cases which have excluded evidence since Kuruma v. R. are wrongly decided. This narrow view of Kuruma taken in Wray seems unsatisfactory if for no other reason than that illegally obtained evidence may be unreliable in ways that the courts have not always realized.

1.8 United States. Before 1914 illegally obtained evidence was always admissible in United States courts.⁶⁰ The law has changed since then through judicial construction of the Fourth, Fifth and Fourteenth Amendments to the Constitution. The American courts have held that the Fourth Amendment right to be secure from unreasonable searches and seizures can only be enforced by the sanction of excluding evidence obtained in breach of it both in state and federal courts.⁶¹ The rule extends to the "fruit of the poisonous tree", i.e., evidence obtained by using the information gained from the illegal search and seizure.⁶² It extends to oral evidence as well as real, e.g., statements overheard through a microphone driven into the wall of a house,⁶³ or statements made to police during an unlawful search.⁶⁴ A more spectacular recent extension is the holding that wiretapping and eavesdropping fall within "searches and seizures".⁶⁵ But the American rule has limits, some quite old, others more recent. An accused person cannot invoke the rule if the evidence was obtained in breach of another's rights.⁶⁶ The rule does not apply to breaches by a private individual rather than a state official.⁶⁷ It does not apply to evidence put to a federal grand jury.⁶⁸ It does not apply to evidence admitted only on some issue collateral to guilt such as the accused's credibility as a witness.⁶⁹ The requirements of the Fifth and Fourteenth Amendments that the federal or a state government shall not "deprive any person of life, liberty or property, without due process of law" may lead to the exclusion of evidence obtained by methods which "do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically", that is, methods which "shock the conscience", e.g., the forcible stomach pumping of the accused to reveal his having swallowed drugs.⁷⁰ Normally evidence obtained through breaches of the law which do not infringe constitutional rights is admissible.⁷¹

1.9 Scots and Irish law. The verbal formulation of the Scots and Irish rule⁷² sometimes seems similar to that of the English;⁷³ but its practical operation is very different. The bulk of early Scots authority favoured a strict rule of admissibility similar to the nineteenth century English rule;⁷⁴ but in H.M. Advocate v. McGuigan⁷⁵ Lord Justice-Clerk Aitchison said :"An irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible." This dictum was taken to imply that sometimes an irregularity might make the evidence inadmissible, and from 1950, when Lord Cooper delivered an influential judgment in Lawrie v. Muir, the modern law began to develop. Lord Cooper said that the problem was to reconcile the citizen's interest in protection from improper invasion of his liberties and the State's interest in securing evidence relevant to the commission of crime; "the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods."⁷⁶ The tests adopted accordingly depend not solely on reliability or "fairness" but on the extent of police impropriety and on whether admission of the evidence would increase it. A number of different factors relied on by the Scots and Irish courts to determine whether improperly obtained evidence should be excluded may be isolated.

1.10 Relevant factors in Scotland and Eire; (i) Accident or not? Did the irregularity occur as a vital part of a deliberate attempt to get the evidence, or did it happen accidentally? Thus evidence was admitted where the search which discovered it was trespassory only because of a trivial and accidental misaddressing of the warrant.⁷⁷ But in H.M. Advocate v. Turnbull the retention of documents by the police for six months where it could be seen at once that they were not covered by the search warrant was held to be sufficiently deliberate to exclude the documents. One question is whether the police "accidentally stumble upon evidence of a plainly incriminating character in the course of a search for a different purpose".⁷⁸ if so the evidence is admissible, as in H.M. Advocate v. Hepper, where a stolen attache case was found in the accused's house while police were, with his permission, searching for other things.⁷⁹

1.11 Relevant factors in Scotland and Eire: (ii) Seriousness of illegality. Kingsmill Moore J. said in People v. O’Brien that the question was: "Was this illegality one of a trivial or technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms?"⁸⁰ A related question is whether there is a deliberate policy of consistent breach of the law and whether admission of the evidence would encourage it. For example, had the evidence in H.M. Advocate v. Turnbull⁸¹ been admitted, it would have offered "a positive inducement to the authorities to proceed by irregular methods".⁸²

1.12 Relevant factors in Scotland and Eire: (iii) Urgency. Were there circumstances of urgency or emergency? Was it necessary to break the law in order to preserve the evidence? The removal and admission of the stolen attache case in H.M. Advocate v. Hepper was justified on this ground.⁸³

In Hay v. H.M. Advocate evidence of the accused's teeth obtained to see if they corresponded with the marks on the body of a deceased girl was admitted even though obtained illegally: "a visit to the dentist or an injury to the accused's teeth could have destroyed the evidence".⁸⁴ In Bell v. Hogg the police obtained verdigris rubbings from the hands of the accused persons without telling them of their right to refuse. The rubbings were found to have the same consistency as that of some stolen copper wire. The evidence was admitted; the accused persons could have destroyed the evidence quickly by washing their hands.⁸⁵ This may be compared with McGovern v. H.M. Advocate, where nitro-glycerine scrapings taken from the accused person's fingernails before his arrest were excluded: the evidence was more permanent and it was possible to avoid the illegality either by obtaining a warrant or arresting the accused.⁸⁶

1.13 Relevant factors in Scotland and Eire: (iv) Public and private persons. Were those responsible for the illegal conduct public officials or private individuals? In Lawrie v. Muir the court excluded evidence obtained by private individuals whose right to search derived only from contracts frequently made by their employers with milk producers but to which the accused was not a party. Lord Cooper said that "persons in the special position of these inspectors ought to know the precise limits of their authority and should be held to exceed those limits at their peril".⁸⁷ The point is that the police and other public officials are subject to various forms of control by their superiors, by elected politicians, by public opinion, and by their own codes and traditions; private investigating agents and other private persons are not necessarily or generally so controlled. Hence evidence illegally obtained by them must be more carefully scrutinized; there may be no other way of deterring them from misconduct than by excluding the evidence.

1.14 Relevant factors in Scotland and Eire: (v) Special statutory policies. In Lawrie v. Muir Lord Cooper said: "there are many statutory offences in relation to which Parliament has prescribed in detail in the interests of fairness a special procedure to be followed in obtaining evidence; and in such cases.. it is very easy to see why a departure from the strict rules has often been held to be fatal to the prosecution's case".⁸⁸ For this reason, as explained above, Kuruma v. R.⁸⁹ and King v. R.⁹⁰ seem to be unsatisfactory decisions.

1.15 Relevant factors in Scotland and Eire: (vi) Ease of compliance. How easy would it have been to obey the law? The significance of this factor depends very much on a balance to be struck with other relevant factors. In McGovern v. H.M. Advocate, a case involving the fairly serious illegality of assault, the evidence was excluded because "the proper procedure for search of the appellant's house by obtaining a search warrant was duly followed out, and it would have been very simple for the police to have adopted the appropriate procedure in relation to a search of his person".⁹¹ On the other hand, non-compliance with a rule where compliance would have been easy may suggest that the non-compliance is not a fundamental breach of the accused's rights and ought to be waived. Thus in Fairley v. Wardens of the City of London Fishmongers,⁹² though an inspector could easily have got a search warrant, the evidence was admitted since he acted in good faith in a mistaken belief as to his powers.

1.16 Relevant factors in Scotland and Eire: (vii) Seriousness of the crime. The seriousness of the offence being inquired into can be an important factor in some cases.⁹³

1.17 Relevant factors in Scotland and Eire: (viii) The necessity of illegality. How important are the particular means used in the detection of the type of crime committed? In Hopes v. H.M. Advocate, where a conversation between blackmailers and their victim was overheard and recorded by the police, Lord Justice-General Clyde said: "if this kind of crime is to be stopped, methods such as the present one are necessary to detect and prove a particularly despicable type of crime, which is practised in secret and away from observation".⁹⁴

1. Bunning v. Cross (1978) 52 A.L.J.R. 561.

1A. Jordan v. Lewis (1728) 14 East 306n: 104 E.R. 618; Legatt v. Tollervey (1811) 14 East 302, at p.307: 104 E.R. 617 , at p.619; Caddy v. Barlow (1827) 1 Man. & Ry. 275.

2. Stockfleth v. De Tastet (1814) 4 Camp. 10: 171 E.R. 4; Robson v. Alexander (1828) 1 Moo. & P. 448.

3. R. v. Derrington (1826) 2 C.&P. 418: 172 E.R. 188, following a decision of Gould J.; cf. R. v. Pamenter (1872) 12 Cox C.C. 177, which is inconsistent with Rumping v. Director of Public Prosecutions [1964] A.C. 814.

4. Doe d. Earl of Egremont v. Date (1842) 3 Q.B. 609: 114 E.R. 641 ;R. v. Granatelli (1849) 7 St.Tr. (N.S.) 979, at p.987; Phelps v. Prew (1854) 3 E. & B. 430, at p.441: 118 E.R. 1203, at pp.1207-8, per Crompton J.

5. Lloyd v. Mostyn (1842) 10 M. & W. 478: 152 E.R. 558 (overruling Fisher v. Heming (1809), Phillipps on Evidence, 9th ed., I, p.170); Calcraft v. Guest [1898] 1 Q.B. 759; Ashburton v. Pape [1915] 2 Ch. 469, at p.473.

6. Evidence, 9th ed., I, pp.405-6, citing R. v. Burley (1818), unrep.

7. R. v. Leatham (1861) 8 Cox C.C. 498, at p.501.

8. [1934] 2 K.B. 164.

9. [1955] A.C. 197, at pp.203-204. The existence of the discretion has been approved by the Privy Council since in King v. R. [1969] 1 A.C. 304. There are occasional signs of a more exclusionary rule. See R. v. Barker [1941] 2 K.B. 381; R. v. Mitten [1966] 1 Q.B. 10, at p.19 ("a breach of section 2(5) [of the Road Traffic Act 1902 (U.K.)] does not make evidence relating to the request [for a urine specimen], or to the specimen, inadmissible as a matter of law but requires the trial judge to exclude such evidence in the exercise of his discretion unless he is satisfied that no prejudice to the defendant is likely to result from the breach"). It was accepted as the law of England in Jeffrey v. Black (1978) 1 All E.R. 555, but said to be applied only in exceptional cases.

10. The rule must be read subject to one major qualification: evidence is inadmissible if obtained in breach of a statute which stipulates that as a consequence it should be inadmissible, e.g., the Listening Devices Act, 1969 (N.S.W.), s. 7(1): see In the Marriage of Miller (1976) 25 F.L.R. 328. (Reversed on other grounds: Miller v. Miller [1978] 53 A.L.J.R. 59.)

10A. Wendo v. R. (1963) 109 C.L.R. 559.

10B. (1970) 126 C.L.R. 321.

10C. See the judgments appealed from as referred to in Bunning v. Cross (1978) 52 A.L.J.R. 561; see also R. v. Demicoli (1971) Qd.R. 358; R. v. Hass (1972) 1 N.S.W.L.R. 589; Reg. v. Barnsley (1972) 2 N.S.W.L.R. 220.

10D. (1978) 52 A.L.J.R. 561.

10E. 126 C.L.R. 335.

11. Jones, v. Owen (1870) 34 J.P. 759; Kuruma v. R. [1955] A.C.1 9 7; King v. R. [1969] 1 A.C. 304.

12. R. v. Honan (1912) 26 D.L.R. 484; see also the South African cases R. v. Mabuya 1927 C.P.D. 181; R. v. Uys 1940 T.P.D 405; and the New Zealand cases Mathewson v. Police [1969] N.Z.L.R. 218 and McFarlane v. Sharp [1972] N.Z.L.R. 64.

13. See the Canadian Supreme Court's decision Attorney-General of Quebec v. Begin 1955 5 D.L.R. 394; and Daily v. Police [1966] N.Z.L.R. 1048.

14. Merchant v. R. (1971) 45 A.L.J.R. 310; R. v. Alexander [1973] Qd.R. 494.

15. See R. v. Ireland (N o.l) [1 9 7 0] S.A.S.R. 416: 126 C.L.R. 321; cf. R. v. Malaleke 1926 T.P.D. 491, reversed by Ex. p. Minister of Justice, re R. v. Matemba 1941 A.D. 75.

16. King v. McLellan [1974] V.R. 773.

17. R. v. Bruce [1965] Q.W.N. 48.

18. R. v Ireland (No.l) [1970] S.A.S.R. 416: 126 C.L.R. 321; see also R. v. Hass [1972] 1 N.S.W.L.R. 589.

19. R. v. Matthews [1972] V.R. 3.

20. Lightheart v. Lightheart (No. 2) [1927] 1 W.W.R. 393; Police v. Machirus [1977] 1 N.Z.L.R. 288.

21. R. v. Court [1962] Crim.L.R. 697; R. v. Payne [1963] 1 All E.R. 848.

22. R. v. Nowell [1948] 1 All E.R. 794.

23. Murphy v. Attorney-General for Northern Ireland [1965] N.I. 138; R. v. Veneman [1970] S.A.S.R. 506.

24. Callis v. Gunn [1964] 1 Q.B. 495. See also Mclean v. Cahill [1932] S.A.S.R. 359; R. v. McNamara [1963] V.R. 402; R. v. Carr [1972] 1 N.S.W.L.R. 608.

25. R. v. Buchan [1964] 1 W.L.R. 365; R. v. Maqsud Ali [1965] 2 All E.R. 464; R. v. Senat (1968) 52 Cr. App.Rep. 282; R. v. Keeton (1970) 54 Cr.App.Rep. 267; R. v. Stewart [1970] 1 W.L.R. 907; see also R. v. Steinburg [1967] 1 O.R. 733.

26. King v. R. [1969] 1 A.C. 304; Hogan v. R. (1974) 427.

27. [1955] A.C. 197, at p.204.

28. Above, para.1.2.

29. [1964] 1 Q.B. 495, at p.502.

30. [1965] N.I. 138, at pp.147-9. At p.144 Lord MacDermott said that the trial court could alter its decision as to discretion, e.g., from non-exclusion, in the light of evidence appearing later in the trial.

31-32. R. v. Court [1962] Crim.L.R. 697; R. v. Payne [1963] 1 All E.R. 848.

33. R. v. Carmichael [1974] Q.L. 362.

34. R. v. Demicoli [1971] Qd.R. 358; cf. R. v. Barnsley [1972] 2 N.S.W.L.R. 220.

35. R. v. Pettipiece (1972) 7 C.C.C. (2d) 133.

36. [1977] Crim.L.R. 163.

37. R. v. Foulder [1973] Crim.L.R. 45; R. v. Bennett [1973] Crim.L.R. 748; R. v. O'Shannessy (1973) N.Z.C.A. unrep.: see [1975] N.Z.L.R. at p.414, and Barlow (1976), pp.305, 309 and 328; R. v. Capner [1975] 1 N.Z.L.R. 411; R. v. Pethig [1977] 1 N.Z.L.R. 448; cf. R. v. McEvilly (1973) 60 Cr.App.Rep. 150; R. v. Mealey (1974) 60 Cr.App.Rep. 59; R. v. Willis [1976] Crim.L.R. 127. In R. v. Ameer [1977] Crim.L.R. 104, at p.105, Judge Gibbs Q.C., in excluding the evidence of an agent provocateur, listed seven factors as relevant:

"(1) Was a crime of the same kind as that charged already afoot at the time of the intervention of the police agent?

(2) Had the defendant committed an offence of a class which he would not have committed but for the encouragement of the police agent?

(3) Had the defendants a propensity to engage in the crime charged?...

(4) Did the police agent play a major part in the criminal activity?

(5) Is the court certain, in retrospect, of the [informer's] reliability?

(6) Was the informer's participation approved at senior police level...?

(7) Is the offence so grave that the public interest could justify the use of entrapment techniques?"

39. R. v. Mabuya 1927 C.P.D. 181, at p.182, per Gardiner J.P.

39A. (1978) 1 All E.R. 555.

40. [1955] A.C. 197.

41. See below, paras 1.9-1.1 7.

42. 338 U.S. 25 (1949).

43. 367 U.S. 643 (1961).

44. 277 U.S. 438 (1928).

45. Federal Communications Act, 1934, s.605; Nordone v. United States (No.1) 302 U.S. 379 (1937).

46. E.g., Calcraft v. Guest [1898] 1 Q.B. 759.

47. Ashburton v. Pape [1913] 2 Ch. 469; Tapper (1972).

48. Ashburton v. Pape [1913] 2 Ch. 469.

49. [1955] A.C. 197, at p.205.

50. [1969] 1 A.C. 304.

51. R. v. Hass [1972] 1 N.S.W.L.R. 589, at p.494.

52. Wendo v. R (1963) 109 C.L.R. 559, at p.562.

53. [1955] A.C. 197.

53A. (1978) 52 A.L.J.R. 561.

53B. Above para.1.2.

53C. (1978) 52 A.L.J.R. 561.

53D. See the note in (1978) 52 A.L.J.R. 638.

53E. (1978) 52 A.L.J.R. 561, at p.568.

53F. (1970) 11 D.L.R. (3d) 673.

54. [1955] A.C. 197.

55. [1949] A.C. 182.

56. [1952] A.C. 694.

57. (1970) 11 D.L.R. (3d) 673, at pp.689-90, per Martland J.; see also Hogan v. R. (1974) 48 D.L.R. (3d) 427; People v. McGrath (1960) 99 I.L.T.R. 59, at p.74.

58. [1955] A.C. 197.

59. Above, para.1.5.

60. Boyd v. United States 116 U.S. 616 (1886); Adams v. New York 192 U.S. 585 (1904).

61. Weeks v. United States 232 U.S. 383 (1914); Wolf v. Colorado 558 U.S. 25 (1949); Mapp v. Ohio 367 U.S. 643 (1961).

62. Silverthorne Lumber Co. v. United States 251 U.S. 385 (1920).

63. Silverman v. United States 365 U.S. 505 (1961).

64. Wong Sun v. United States 371 U.S. 471 (1963).

65. Katz v. United States 389 U.S. 347 (1967); United States v. White 401 U.S. 745 (1971).

66. Alderman v. United States 394 U.S. 165 (1969); cf. People v. Martin 290 P. 2d 855 (1955).

67. Burdeau v. McDowell 256 U.S. 465 (1921). This seems to be an anomalous survival for private persons of the "silver platter" doctrine rejected in Elkins v. United States 364 U.S. 206 (1960), by which evidence illegally obtained by state officials could be used in federal courts.

68. United States v. Calandra 414 U.S. 338 (1974).

69. Walder v. United States 347 U.S. 62 (1954); Harris v. New York 401 U.S. 222 (1971).

70. Rochin v. California 342 U.S. 165, at p.172 (1952) per Frankfurter J.

71. Cf. Miller v. United States 357 U.S. 301 (1958).

72. See Walker and Walker (1964), pp.2-4.

73. For example, it is very similar to Lord MacDermott's statement in Murphy v. Attorney-General for Northern Ireland [1965] N.I. 138, at p.149.

74. Rattray v. Rattray (1897) 25 R. 315 (cf. Lord Young dissenting); Crook v. Duncan (1899) 1 F. 50; Hodgson v. Macpherson 1913 S.C.(J.) 68; Adair v. M'Garry 1933 J.C. 72 (Lord Hunter dissenting); Maccoll v. Maccoll 1946 S.L.T. 312 (though the judge, Lord Moncrieff, took this view only for reasons of authority and not from choice).

75. 1936 J.C. 16, at p.18.

76. 1950 S.L.T. 37, at p.40.

77. People v. O’Brien [1965] I.R. 142.

78. 1951 S.L.T. 409, at p.411, per Lord Guthrie.

79. H.M. Advocate v. Hepper 1958 J.C. 39.

80. [1965] I.R. 142, at p.160.

81. 1951 S.L.T. 409; above, para.1.10.

82. Lawrie v. Muir 1950 S.L.T. 37, at p.4 1. See also R. v. Bruce [1965] Q.W.N. 48.

83. 1958 J.C. 39, above, para.1.10; see also H.M. Advocate v. M'Kay 1961 J.C. 47.

84. 1968 S.L.T. 334, at p.337.

85. 1967 S.L.T. 290. See also McPherson v. H.M. Advocate 1972 S.L.T. (Notes) 71.

86. 1950 S.L.T. 133.

87. 1950 S.L.T. 37, at p.40. Cf.. R. v. Matthews [1972] V.R. 3, where it was held that the fact that evidence was obtained by telephones being illegally tapped by a private person was irrelevant. See also R. v. Senat (1968) 52 Cr.App.Rep. 282.

88. 1950 S.L.T. 37, at p.40.

89. [1955] A.C. 197.

90. [1969] 1 A.C. 304; see above, text at n.3 4.

91. 1950 S.L.T. 133, at p.135. Similarly in McDonald v. United States 335 U.S. 451, at pp.454-6 (1948) it was said that where a warrant was easily obtainable failure to follow the correct procedure was far more serious than where the circumstances were such that a choice had to be made between adhering to the rules and obtaining the evidence.

92. 1951 S.L.T. 54.

93. People v. O’Brien [1965] I.R. 142, at p.1 6 0.