The Gazette 1980

GAZETTE

SEPTEMBER 1980

the power of the trial judge to exclude illegally obtained evidence had the unanimous support of the Supreme Court in expanding the doctrine of the inadmissibility of unconstitutionally obtained evidence. He interpreted the article as follows: "That does not mean that the guarantee is against forcible entry only, in my view the reference to forcible entry is only an intimation that forcible entry may be prohibited by law but that in any event the dwelling of every citizen is inviolable save where entry is permitted by law and that, if necessary, such law may permit forcible entry." His Lordhip then went on to expound the principle on which unconstitutionally obtained evidence is excluded: "When the illegality amounts to infringement of constitutional right the matter assumes a far greater importance than is the case where the illegality does not amount to such an infringement. The vindication and the protection of constitutional rights is a funda- mental matter for all courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and vindication of the Constitution of the right of a citizen is a duty superior to that of trying such citizen for a criminal offence. The court in exercising the judicial power of Government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State, or its servants, or agents as a result of a deliberate or conscious violation of the constitutional rights of the accused person no extra- ordinary excusing circumstances exist, such as the imminent destruction of vital evidence of the need to rescue a victim in peril. A suspect has no constitu- tional rights to destroy or dispose of evidence or to imperil the victim. I would also place in the excusable category evidence obtained by a search incidental to and contemporaneous with the lawful arrest although made without a valid search warrant. "In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person should, save in the circumstances outlined above, be absolutely inadmissible. It follows therefore that evidence obtained without a deliberate and constitutional violation of the accused's constitutional rights is not excludable only by reason of a violation of his constitutional rights." Thus, it follows from Walsh J.'s judgment that evidence obtained as a result of a breach, by the servants or agents of the State, of the constitutional rights of an accused citizen is absolutely inadmissible against him as an accused for such breach is not proven, on the balance of probabilities to have been inadvertant. This rule is similar in many respects to the absolute rule of exclusion for evidence obtained as a result of breaches of the rights of citizens under the Fourth Amendment of the American Constitution, expounded by the Supreme Court in 1914 in Weeks v. U.S., 223, U.S. The rule is different to the one for illegally obtained evidence in that no discretion rests with the trial judge; once the rights of the accused have been infringed the evidence cannot be admitted (Continued on page 173) 171

which has been merely illegally obtained. Comparatively speaking the principles expounded by Kingsmill-Moore J. are unique. In Scotland a similar principle is held, save here the competing interests are the interests in the detection of crime and the interest of the citizen to be free from illegal searches and seizures; Lawrie v. Muir (1950) S.L.T. 37: and this is to be expected where no written Constitution protects those rights. In the United States it has been decided that, at common law, evidence merely illegally obtained cannot be excluded; People v. Olmstead, 227 U.S. 438. In England the discretion to exclude illegally obtained evidence is based on the discretion of a judge to exclude the prosecution from calling evidence where that would be unfair or oppressive to the accused; C. F. Wong Kamming v. the Queen [1979] 1 All E.R. 939. In R. v. Singh 11979] 2 W.L.R. 100, the House of Lords held that there was no discretion vested in a trial judge to exclude improperly obtained evidence. According to Lord Diplock, with whom all but one of the Lords agreed, Lord Goddard's dictum in Kuruma v. R., that a document obtained by trick could properly be excluded, had been misunderstood. Such an exclusion was analogous to the trial judge's discretion over admissions and confessions. The anagoly could properly be used and had been used in England ( R. v. Payne 119631 1 All E.R. 848) in cases which fell within the maxim nemo debet prodere se ipsum. Apart from that a discretion to exclude could only be used in cases governed by the judges rule or where the prejudicial affect of the evidence outweighs its probative value; Harris v. D.P.P. 119521 A.C.694 Decisions such as Jeffrey v. Black 11978] 1 All E.R. 559 which extended this discretion to circumstances where evidence was obtained by the police misleading, acting oppressively or behaving otherwise in a morally reprehensible manner, were considered to have been wrongly decided and accordingly overruled. One last point occurs in relation to a certain class of illegally obtained evidence which has not yet been argued here. This arises in relation to evidence obtained from such matters as medical inspections and fingerprinting, which need the express authorisation of a statute to be permissible. In the Australian case of R. v. Ireland [ 1970] ALR an accused was told that he had to be photo- graphed and undergo a medical examination for which there was no statutory warrant. Zelling J. said: "Where a power to interfere with a man's civil rights and obtain evidence thereby specifically given by statute exercisable only on the performance of certain conditions precedent and to rule that the evidence may be obtained by methods other than those sanctioned by statute and then successfully used in court is not simply to declare the law but to amend the law and this no judge has any right to do. In tradi- tional language it is ius dare and not ius dicere." Unconstitutionally Obtained Evidence In People v. O'Brien the presence of police officers without a valid search warrant in the house of the accused was not merely illegal but unconstitutional. Article 40.5 of the Constitution provides: "The dwelling of every citizen shall be inviolable and shall not be forcibly entered save in accordance with the law." Walsh J. who dissented from Kingsmill-Moore's view on