Section 138 of the Evidence Act 1995 (NSW) addresses the exclusion of evidence that has been improperly or illegally obtained. It specifies that such evidence should not be admitted unless the benefits of admitting it outweigh the undesirability of accepting evidence obtained in an improper manner.

Section 138(1) outlines that improperly or illegally obtained evidence should not be admitted unless the advantages of doing so outweigh the negative impact of accepting evidence obtained through improper means.

Section 138(2) clarifies situations where admissions are considered improperly obtained.

Section 138(3) further elaborates on a non-exhaustive list of factors the court can use in its decision-making process regarding the admission of evidence.

Section 138(1)

(1)  Evidence that was obtained—

(a)  improperly or in contravention of an Australian law, or

(b)  in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Section 138(2)

(2)  Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—

(a)  did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b)  made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

Section 138(3)

(3)  Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a)  the probative value of the evidence, and

(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)  the gravity of the impropriety or contravention, and

(e)  whether the impropriety or contravention was deliberate or reckless, and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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