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Report No. 94

5.5. Queensland Report.-

It may also be stated that in Queensland the Committee of Inquiry into the Enforcement of Law, has given a Report surveying the entire field of enforcement of criminal law and the fair and efficient administration of justice. The Report has particular reference to the preventing or inhibiting the fabrication of evidence by police officers or other persons, the protection of individuals from undue pressure with reference to investigation and interrogation by police officers and the question whether police powers of investigation, interrogation, search, seizure, and arrest are adequate to meet the needs of the community in present day circumstances. Besides recommendations for the tape recording of statements made to police officers which implicate the maker of the statement in the commission of an indictable offence and besides making certain other recommendations as to law enforcement, the Report of the Committee had made certain recommendations as to illegal evidence, which have been thus summarised1:

"That the law concerning the judicial discretion to exclude evidence obtained by unlawful and unfair means should be recast and every appellate court should itself have an unfettered discretion to consider afresh the admission of evidence said to have been unlawfully or unfairly obtained and, if necessary, to substitute its opinion on the subject for the opinion of the court of first instance. Also the burden of satisfying the court that any illegally or unfairly obtained evidence should be admitted should rest with the party seeking to have the evidence admitted. The factors relevant to the exercise of the discretion when the prosecution is seeking to tender evidence (obtained by unlawful or unfair means) include-

(a) the seriousness of any crime being investigated, the urgency or difficulty of detecting of it and the urgency of attempting to pre-serve real evidence of it,

(b) the accidental or trivial quality of the contravention, and,

(c) the extent to which the contested evidence could have been law fully or fairly obtained by means of an available common law or statutory procedure."

1. (1981 April), Vol. 7, No. 2, Commonwealth Legal Bulletin, pp. 623, 625.

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

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