Report No. 87
Evidence illegally obtained.- According to English as well as Australian practice, while the fact that evidence was illegally obtained, does not make it inadmissible, it can be a ground for exercising the discretion of the court in favour of excluding the evidence. The matter has been dealt with at some length in an article published in the Australian Law Journal2 some time ago. In general, if the evidence has been obtained by 'oppressive conduct' or unfairly, the judge would exclude it in exercise of such a discretion. This proposition has been reiterated in a fairly recent judgment3 of the PriVy Council where, however, on the facts, the evidence was allowed. In Scotland, the position is more interesting, in as much as the evidence is not admitted unless the Judge in his discretion approves its admission4.
1. Queen v. Ireland, (1970) 44 Australian Law journal Reports 263 (268).
2. D.C. Pearce Judicial Review of Search Warrant, (1970) ALJ 467 (481).
3. King v. Reginam, 1969 AC 304 (PC).
4. King v. Reginam, 1969 AC 304: (1968) 2 All ER 610 (612, 617) (PC).