Report No. 94
8.2. Unfairness to be judged from all the surrounding circumstances. -
The evidence in question had been obtained by an illegal search of the accused. The Privy Council discussed in this context the following statement of Lord Parker concerning judicial discretion to exclude illegally or improperly obtained evidence: "It would certainly be exercised by excluding the evidence if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, anything of that sort."1
The Privy Council, however, qualified this statement by concluding that unfairness to the accused in this context is not susceptible of close definition and must be judged in the light of all the material facts and findings and of the surrounding circumstances. This, with respect, is a very welcome exposition of the concept of unfairness, if that is to be taken as criterion for excluding evidence obtained illegally or improperly.
1. Callis v. Gunn, (1964) 1 QB 495 (502).