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GAZETTE
SEPTEMBER 1980
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
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1980
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
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