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Report No. 94


Some Illustrative Situations of Evidence Obtained Illegally or Improperly

In order to make the discussion concrete, there is given below an illustrative list of certain situations in which evidence can be said, prima facie, to have been obtained illegally or improperly. The listing of any situation here does not, of course, necessarily imply that in that particular situation the discretion should be exercised for excluding the evidence in question. The cases cited in the corresponding footnote against a listed situation are mentioned here for the facts involved. The court did not, in each such case, exclude the evidence.

1. Arrest

(a) unlawful arrest;

(b) unlawful removal from custody.

2. Physical examination

(a) illegal search of the person of the accused;1

(b) illegal blood tests;2

(c) illegal breath test;3

(d) unwarranted medical examination;4

(e) medical examination of the accused to obtain evidence of drunkenness, when all that the accused was told was that the examination was necessary to see if he was ill;5

(f) medical examination of the accused to obtain evidence of drunkenness, where it was undertaken merely after telling the accused that it would be advantageous to him;6

(g) taking the finger prints of the accused without telling him that he might refuse to give them;7

(f) compulsory breath test which is permitted by law only for using them on certain minor charges, where it is employed for more serious cases.

3. Search of property

Illegal search of property.8

4. Breach of privacy (including interception of communications)

(a) illegal telephone tapping;9

(b) photographs illegally taken by telling the accused wrongly that it was compulsory;10

(c) eavesdropping;11-13

(d) overhearing a conversation between blackmailers and the victim;14

(e) incriminating letter written by the accused in Jail, which the jailor promised to post, but which was handed over to the prosecutor.15

5. Denial of legal advice

Confession obtained after its maker had been refused the advice of a solicitor.16

6. Tricks played by the law enforcement agency

(a) evidence obtained by reason of a policeman describing himself as a magistrate;17

(b) evidence of drunkenness obtained from medical examination which, the accused was told, was just to see if he was ill.18

7. Entrapment

The use of agent provocateurs 19-20

1. Kuruma v. R., 1955 AC 197 (PC).

2. Attorney-General of Quebec v. Begin, (1955) 5 DLR 394 (Supreme Court of Canada).

3. Merchant v. R., (1971) 45 ALJR 310 (High Court of Australia).

4. R. v. Ireland (No. 1), (1970) 126 CLR 321 (High Court of Australia).

5. R. v. Payne, (1963) 1 All ER 848.

6. R, v. Nowell, (1948) 1 All ER 794.

7. Canis v. Gunn, (1964) 1 QB 495.

8. Mac Farlane v. Sharp, (1972) NZLR 64.

9. R. v. Mathews, 1972 VR 3 (Supreme Court of Victoria).

10. It v. Ireland (No. 1), (1970) 126 CLR 321.

11. R. v. Bucan, (1964) 1 WLR 365.

12. R. v. Magsud Ali, (1965) 2 All ER 464.

13. R. v. Stewart, (1970) 1 WLR 907.

14. Hopes v. H.M. Advocate, 1960 JC 104 (Scotland).

15. R. v. Derrington, (1826) 172 ER 188. See, however, Rumping v. D.P.P., 1964 AC 814.

16. R. v. Alien, 1977 Crim LR 163.

17. R. v. Pettipiece, (1972) 7 CCC (2d) 133 (Canada).

18. R. v. Payne, (1963) 1 All ER 848.

19. R. v. Ameer, 1977 Crim LR 104 (105).

20. For the position in U.S., see Note Entrapment as a due process defence: developments after Hempton v. United States, 96 S Ct 1646: (1982) Winter, 57 Indiana Law Journal 89 (130).

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

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