The Gazette 1980

SEPTEMBER 1980

GAZETTE

but the court adopted the same principle for unconstitu- tionally obtained evidence. The third solution was a solution adopted by the court; a disrection vested in the trial judge. Kingsmill-Moore J. said: "A choice has to be made between two desirable ends which may be incompatible. It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its end by utilizing the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission of or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal action, and that the answer to the question depends on a consideration of all the circumstances. On the one hand the nature and extent of the illegality has to be taken into account. Was the illegal action inten tional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the 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? Were there circumstances of urgency or emergency which provides an excuse for the action? Lord Goddard in Kuruma's case mentions as a ground for excluding relevant evidence that it had been obtained by a trick and the Lord Justice General in Lawrie's Case refers to an unfair trick. Those seem to me to be more dubious grounds for exclusion. The police in the investigation of crime are not bound to show their hand too openly provided they act legally. I am disposed to lay emphasis not so much on the alleged fairness to the accused but on the public interest that the law should be observed even in the investigations of crimes. The nature of the crime being investigated may also have to be taken into account." The learned judge stressed this last point by referring to the Californian case of People v. Cahan, 248 P. 2d. 905, when in a prosecution for a gambling offence micro- phones had been concealed in private property and the evidence of the conversation thus obtained was excluded by the strict exclusionary rules for breaches of the Fourth Amendment. His Lordship stated that if a discretionary rule had been applicable he could conceive of the evidence being admitted if the conversation revealed crimes of a more serious nature such as conspiracy to murder or the activities of a narcotics organisation. The majority of the court was concerned that trivial illegalities should not hamper the prosecution of serious offences. In exercising its discretion in this case the court admitted the evidence: "The mistake was a pure oversight and it is not being shown that the oversight was noticed by anyone before the premises were searched. I can find no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest having crime detected and punished." Little further can be said on the subject of evidence

cumstances the judge would have a discretion to exclude it": As authority he cited Lord Guthrie in the Scottish case of H.M. Advocate v. Turnbull 1951 J.C. In the second case Maguire C J . relied upon People v. McGralh 99 I LTR, (1965), 40, fingerprints were taken without lawful authority. Davitt P. admitted the evidence, stating that the correct test where admissibility was relevance and further saying that it was no function of the Judiciary to enforce compliance with the Rule of Law by excluding relevant evidence. The Judge also refused to equate the taking of fingerprints with the giving of an incriminatory statement. The duty of the Judge not to admit confessions which were not proven to be free and voluntary was imposed as the inducement may colour the state of mind or will and affect the truth of what is said. Such statements were never rejected from a regard to public faith. In the Supreme Court, Kingsmill-Moore J. gave the judgment of the majority on the question of legally obtained evidence. Walsh J. dissented but the entire court was agreed on the subject of the inadmissibility against an accused of unconstitutionally obtained evidence. Kings- mill-Moore J. reviewed the English, Scottish and American authorities and rejected them all. Three answers were possible to the problem of admitting the evidence. Firstly, the strict rule of admissibility as laid down in Kuruma's case; this was rejected as to operate it always might involve the State in moral culpability. Secondly, the American Doctrine of the fruits of the poisoned tree excluding all evidence obtained by the State in breach of the accused's constitutional rights, even where these breaches were unintentional and trivial; common sense rejected this for illegally obtained evidence

THE INCORPORATED LAW SOCIETY OF IRELAND DINNER DANCE

in The Law Society Blackhall Place

FRIDAY, 21st NOVEMBER 1980

* Dinner: 8 . 30 p.m. * Buffet for Students: 10.00 p.m.-12.00 * Dancing: 10.00 p.m.-2.00 a.m.

Tickets and Table Reservations available from: The Law Society, Blackhall Place

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