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Report No. 94

5.3. Discretion as formulated by the High Court of Australia.-

The High Court of Australia held that a judge at a criminal trial has, in addition to the discretion to exclude evidence which is more prejudicial than probative, a discretion to exclude admissible evidence obtained improperly. However, unlike Lord Diplock in R. v. Sang,1 the High Court did not base this discretion on unfairness to the accused or on the need to discipline the police. No doubt, concern was expressed that by admitting illegally obtained evidence, the courts may appear to condone, and even to encourage, such conduct. But the emphasis which the High Court put was on the need to protect the right of a citizen.2 In the words of Stephen and Aicken, B.:-

"It is not fair play that is called in question but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired."

1. R. v. Sang, (see Chapter 4, supra).

2. Compare Ashworth Excluding Evidence as Protecting Rights, (1977) Criminal Law Review 723.



Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back




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