The Gazette 1980

GAZETTE

SEPTEMBER 1980

Improperly obtained Evidence and the Constitution By Peter Charleton, B.L.

Evidence Obtained Illegally, But Not Unconstitutionally

"It is much better that a guilty individual should escape punishment than that a court of justice should put aside the vital fundamental principle of Law in order to secure his conviction. In the exercise of their great powers, courts have no higher duty to perform than those involving the protection of the citizen in the civil rights guaranteed to him by the Consti- tution, and if at any time the protection of those rights should delay or even defeat the end of Justice in a particular case, it is better for the public good that this should happen than that a great Constitu- tional mandate should be nullified." (Per Carroll C.J., in Youman v. Commonwealth, 189 Ky. 152 noted with approval by O'Higgins C.J., in People v. Madden, [19771 I.R. 336. There is no logical reason why the origin of evidence offered against an accused in a criminal trial should affect the admissibility of that evidence where the method of procuring it in no way affects the credibility or weight of the evidence. The rules which require that a confession be proven beyond reasonable doubt to be the voluntary statement of the accused before admission and which allow admissions and confessions to be tested, before the jury, to determine the weight to be afforded to them are logical in that to question may be to suggest an answer and that to bring pressure to bear on an accused is to compel him to produce the answer his captors desire to hear. Similarly the discretion given to a judge in disallow- ing evidence procured in breach of the judge's rules can be seen more to relate to the laws desire that all state- ments condemning a man from his own mouth should be procured in circumstances of scrupulous fairness and be accordingly credible. Further, the judge's discretion to exclude from the consideration of the jury evidence which is of probative value but which by its prejudicial nature may induce the jury to attach undue weight to it or use it for inadmissible purposes, has its genesis in a consideration of the quality rather than the course of the evidence. In this context the rule of Irish law, which allows a trial judge a discretion to exclude evidence which has been illegally obtained is extraordinary. In no way can the quality of the evidence have been affected by its theft or by the assault perpetrated on a citizen to secure its production and any prejudicial value which attaches to it would seem to weigh, in terms of a jury's sympathy, against the prosecution. The second category of improperly obtained evidence is evidence obtained in deliberate breach of the rights of the citizen under the 1937 Constitution; here an absolute rule of exclusion operates and no discretion rests with the trial judge. Thi.» is by far the more important category in that the application of the rules are increasingly far reach- ing and as it arises logically from the terms of Article 40.2 of the Constitution it is inflexible and may be removed only by referendum. I shall deal firstly with evidence which has been illegally, but not unconstitu- tionally, obtained.

It is a rule of law that the presiding judge in a criminal case has discretion to exclude evidence of facts obtained by illegal means where it appears to him that public policy, based on the balancing of public interests, requires such exclusion. The public interests to be balanced are the interests of citizens that criminals should be brought to justice and the interest that the law should be observed even in the detection of crime. This principle contem- plates that the law should be observed and if an illegality is committed in the detection of crime it may be that the public interest requires the investigators to be frustrated in their efforts to secure conviction by excluding the fruits of illegality. The binding authority is People v. Gerald and Patrick O'Brien [1965] I.R.142. The accused were both charged with house breaking and the first accused was also charged with stealing while his brother was charged with receiving. The stolen goods were the main evidence in the trial. They were identified by their owners and linked with the accused by being found by the Gardai in their dwellinghouse at No. 118 Captain's Road, Crumlin. The goods were found by the Gardai pursuant to a search warrant which described the address of the accused as " 1 18 Cashel Road, Crumlin". The Gardai were therefore not in possession of a valid search warrant and had accordingly been trespassers in the accuseds' house and had violated the dwelling of the accused by entering it otherwise than in accordancw with the law. The trial judge admitted the evidence and the accused appealed. In the Court of Criminal Appeal Maguire C.J. followed the English case of Kuruma v. The Queen [1955] A.C. 197 and the earlier Irish case of People & O'Brien v. McGrath 99 ILTR (1965), 40 in admitting the evidence. He accepted the view of Goddard L.J. in Kuruma that "the test to be applied in both civil and criminal cases in considering whether evidence is admissible is whether it is relevent to the matters in issue. If it s, it is admissible and the Court is not concerned with how it was obtained." In that case the accused, a Kenyan African, was stopped and searched illegally, in that the persons searching him were not of the rank of Assistant Inspector or above. The police found ammunition and a pocket knife. The accused was convicted of unlawful possession of ammunition and sentenced to death. Goddard L.J. in the course of his judgment did admit that a judge in a criminal case always had a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. Goddard L J . cited Noor Mohamed v. R. [1949] A.C. 182 and Harris v. D.P.P. [1952] A.C. 694 as authority. Both are cases of the well established duty of a trial judge to exclude evidence where its prejudicial effect outweighs its probative value, something, as explained above, which is inapplicable to improperly obtained evidence. His Lordship cited the example of obtaining an incriminating document from an A.C. by a trick and said - "in the cir- 169