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GAZETTE
SEPTEMBER 1980
Improperly obtained Evidence and the
Constitution
By Peter Charleton, B.L.
"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.
Evidence Obtained Illegally, But Not Unconstitutionally
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-
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