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Where am I now? Lawlink > Law Reform Commission > Publications > B. Issues of principle
Working Paper 21 (1979) - Illegally and improperly obtained evidence
B. Issues of principle
2.1 Questions of principle: arguments in favour of the Kuruma doctrine. The standard arguments for the Kuruma doctrine and against any strict exclusionary rule of the American kind may be put thus.95-103 It is wrong to sacrifice reliable, albeit illegally obtained, evidence merely for the sake of deterring or punishing police misconduct. This favours guilty persons unduly. In Wigmore's words, "Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else."104 It causes two wrongs to occur instead of only one. Thus Cardozo J., speaking for the New York Court of Appeals when it rejected an exclusionary rule, said that such a rule would have disastrous consequences.105
"The criminal is to go free because the constable has blundered.... The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free. Another search, once more against the law, discloses counterfeit money or the implements of forgery. The absence of a warrant means the freedom of the forger."
The application of an exclusionary rule involves a collateral inquiry which delays the accused's trial and may distract the court. Exclusion of illegally obtained evidence injures the public at large, not the policeman who broke the law. He should be dealt with by other means. A private prosecution might be available against him, or an action in tort for false imprisonment, wrongful arrest, assault, trespass to land, or trespass to goods. The policeman's superiors may criticize him, discipline him, prevent his promotion, or prosecute him, particularly if public opinion, influenced by well-publicized judicial criticism of police misconduct, makes its displeasure felt. If these remedies are ineffective, there is probably too much wrong with the police to be cured by a rule of evidence. The exclusion of illegally obtained evidence may not in fact be an effective deterrent. The law which makes police conduct illegal is often obscure - expounded in technically worded, often unreserved, unreasoned or unreported decisions which may conflict with each other and may change unexpectedly. Further, there is American evidence that much police misbehaviour is not motivated by a desire to discover evidence, but to control crime by various forms of harassment. It is easier to carry out illegal arrests, to maltreat suspects physically, and to destroy property thought to be used in criminal activity, than to prove suspects guilty in court.106 The exclusionary rule in America is said to burden police unfairly in that some crimes cannot easily be prosecuted otherwise than by relying on illegally obtained evidence. It tends to induce the police to take the law into their own hands and victimize those who are thought to be guilty but whose guilt cannot be proved. It is said to lower police morale. It causes them to perjure themselves as to whether requirements for lawful arrest, search and so on were satisfied. Indeed, it may tempt courts to reduce the protection of the substantive rules by holding that no illegality has occurred in order to resist evidence being excluded.107 If a trivial illegality leads to exclusion automatically, the temptation to the police must be to commmit a serious illegality in the search for evidence, since the consequence is the same.
2.2 Questions of principle: arguments against the Kuruma doctrine. The reasoning summarized in the previous paragraph has often been attacked. First, the view that illegally obtained evidence is always reliable is, as we have seen, open to doubt.108 Though the exclusionary rule enables guilty persons to be acquitted, it does protect innocent persons as well as guilty from breaches of the law. And the acquittal of guilty persons in consequence of an exclusionary rule, though it may lessen public respect for the law, cannot significantly diminish the deterrent effect of criminal punishment.
"The person does not exist who would contemplate committing a crime, desist out of fear of apprehension, trial and punishment, but be enticed onward by the prospect that the police would, in effect, immunise him from conviction by using illegal means to secure proof. A criminally inclined person might gamble on the known inefficiency of the police in detection and might take comfort in the whole historic array of protections afforded to accused - guarantees against undesirable search, jury trial, unanimous verdict, counsel, privilege against self-incrimination, the hearsay rule, proof 'beyond reasonable doubt', etc. - but he could hardly count on the exclusionary rule in calculating his risks."109
Though the rule entails a collateral inquiry in a criminal trial, it does vindicate the accused's rights immediately, without the need for him to start expensive new proceedings. And such proceedings may not reasonably be open. Even if criminal proceedings against a wrongdoing police officer overcome such obstacles as the burden of proof and the possible sympathy of court or jury for the policeman, the victim of the illegality is unlikely to know how to initiate proceedings or to be able to do so, particularly if he is poor, uneducated, or in prison because of the admission against him of the illegally obtained evidence. The state may be unlikely to undertake proceedings against police offenders. In the words of an American judge, "Self-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well-meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered."110 Police authorities may well be sympathetic to the sensible but illegal conduct of their inferiors so long as the norms of the force, as opposed to the law of the land, are not infringed. There is at present no independent civilian body to prosecute or investigate the police. Then there are defects in civil actions for trespass, assault, false arrest, and damage to property. The individual policeman may not be worth powder and shot. Even if he is, he may not be deterred by the fear of an action, because in practice the state indemnifies him if it is thought proper. It may not be possible to identify him; and identification may often be difficult, as where a house is broken into in the absence of its owner, or a man is searched in poor light by several uniformed figures. If the individual cannot be usefully sued, there may be no remedy. This is because a policeman is only an employee of the state in certain respects, and the state is not vicariously liable for a tort committed in the exercise by him of "a discretion and responsibility in the execution of an independent legal duty".111 Further, the victim of an illegality may not sue because he dislikes the publicity of a suit, or perhaps may fear police reprisals. The damages will not be substantial unless actual loss or malice is proved; and though aggravated damages may be awarded in respect of "oppressive, arbitrary or unconstitutional actions by servants of the government",112 are juries likely to award them against a police officer who successfully brought home guilt to a criminal? Further, there is some doubt as to the true scope of tort actions. In the controversial case of Elias v. Pasmore113 Horridge J. held that no action lay if the evidence seized during an illegal search were subsequently used in a criminal prosecution. The English Court of Appeal cut this doctrine down in Ghani v. Jones114 so as to make seizure immune from tort proceedings only where the police have reasonable grounds for believing that a serious offence has been committed, that the evidence is material, and that the person in possession of it is party to the crime. There remains, however, despite this restriction, a substantial and vague area of immunity which will tempt the police to act even if on a strict view their action would be unlawful. There may also be no remedy because the police conduct takes the form of a non-trespassory infringement of privacy, or a breach of a criminal statute for which no civil action lies.115 To meet the view that judicial criticism of the police is more effective than our exclusionary rule, Holmes J. is often cited:116
"I can attach no importance to protestations of disapproval [i.e., by the Government, including the courts]if it knowingly accepts and pays and announces that in future it will pay for the fruits. We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should pay an ignoble part."
There is a little, albeit inconclusive, American evidence that the exclusionary rule there does improve police training and compliance with the law.117 And so far as an exclusionary rule is said to create difficulties for the police, the true difficulty comes from the substantive rules of arrest and search. Thus in America, for example, "there is no doubt that many more guilty people escape as a result of the presumably normal compliance of the police with the laws that restrain their operations than escape as a result of discovered non-compliance".118 Any modification of the substantive rules should only be made directly; they should not become a dead letter simply by permitting the admission of evidence obtained in breach of them. Indeed, an exclusionary rule tends towards the clarification of this body of law by greatly expanding the occasions when the courts must consider it. The temptation of relying on illegally obtained evidence at the expense of other kinds must be removed from the police. The State should not profit from its own wrongs, and nor should other lawbreakers. The administration of justice is brought into disrepute if the courts admit evidence obtained by disobedience of the law. There is a "social need that law shall not be flouted by the insolence of office".119
2.3 Questions of principle: is there a need to legislate in view of Bunning v. Cross? It could be argued that since the High Court has now set the Australian law as to illegally obtained evidence on the reasonable middle path of the Scottish and Irish courts, there is no need for legislation, but that further development can safely be left to the courts. We suggest that there are several good reasons why the matter should be covered by legislation.
First, the language used in the joint judgment of Stephen and Aickin JJ. appears clearly to limit the rule to criminal cases. We propose that the rule should also apply in civil cases.
Secondly, although in some places their judgment used the term "unfairly" or "improperly" as well as the term "unlawfully", it was not necessary for the judges to define the term "unfair". We propose to make it clear that the rule applies to a class of improper acts which includes but goes beyond illegal acts and to furnish a definition of the term.
Thirdly, the judgment indicates that the rule will apply mainly in the case of "real" evidence. In order to avoid doubt as to the application of the rule we propose that legislation should define the full field of application.
Fourthly, the judgment set out only those considerations for the exercise of the discretion that were applicable in the case before the court. Bearing in mind that the rule will have to be applied by many courts both high and low, we suggest it may assist to set out a number of the considerations relevant to the exercise of the discretion, whilst making it clear that the discretion is not fettered by them.
Fifthly, the judgment does not indicate whether any, or if so which, party bears any onus of establishing a case for the exercise of the discretion. If the courts should follow what was held in Australia to be the position in regard to the Kuruma discretion, the onus will be placed on the party complaining of the illegality or unfair treatment. We believe it would be useful to clarify the position and propose that the party tendering evidence which is tainted by illegality or other impropriety, should bear the burden of justifying its admission.
FOOTNOTES
95-103. There is a mass of writing on this subject. See the works listed in Evidence 10. The Exclusion of Illegally Obtained Evidence. (Law Reform Commission of Canada Study Paper, 1974), pp.31-6; see also Cowen & Carter (1956), C h.3; Andrews (1963); Wigmore, paras 2183-5; Maguire (1959), Ch.5; Hoffman (1970), pp.207-10.
104. Wigmore, para.2184.
105. People v. Defore 150 N.E. 585, at pp.587-8 (1926).
106. See La Fave (1965), pp.421-55.
107. Thus in Abel v. United States 362 U.S. 217 (1960), the famous Russian spy was convicted after the admission of evidence obtained during a search without warrant of his hotel room which was held lawful on the ground that he had "abandoned" it after being arrested.
108. Above, para.1.5.
109. Schwartz (1966), p.638.
110. Wolf v. Colorado 338 U.S. 25, at p.42 (1949), per Murphy J. dissenting.
111. Little v. The Commonwealth (1947) 75 C.L.R. 94, at p.114, per Dixon J. ; see generally Enever v. R. (1905) 3 C.L.R. 969 and our report on Proceedings By and Against the Crown, 1975, L.R.C. 24, Part 13.
112. Rookes v. Barnard [1964] A.C. 1129, at p.1226, per Lord Devlin.
113. [1934] 2 K.B. 164, at p. 173.
114. [1970] 1 Q.B. 6 9 3; followed in G.H. Photography Pty. Ltd. v. McGarrigle [1974] 2 N.S.W.L.R. 635; cf. McFarlane v. Sharp [1972] N.Z.L.R. 64.
115. The weakness of the remedies other than exclusion was the ground for the Californian Supreme Court's adoption of the exclusionary rule in an opinion of Traynor J.'s: People v. Cahan 282 P. 2d 905 (1955).
116. Olmstead v. United States 277 U.S. 438, at p.470 (1928).
117. See Oaks (1970).
118. Schwartz (1966), p.636.
119. People v. Defore 150 N.E. 585, at p.589 (1926), per Cardozo J.
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