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GAZETTE
SEPTEMBER 1980
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
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)
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