Does it matter how the evidence is obtained?
Posted on Tuesday, November 13, 2012 by Esther Tan
The early common law position in relation to the admissibility of evidence highlighted the relevance of the evidence rather than how it was obtained. For example, in R v Leatham, we find the oft-quoted statement of Crompton J, "It matters not how you get it, if you steal it even, it would be admissible."
Garcia - the professional hacker in Criminal Minds
Consider these acts and think of it - whether the evidence obtained through these means are admissible:
Evidence obtained through trick or deception by the police, for example falsely telling the defendant that his DNA or fingerprint has been found at the scene of the crime, or that a co-defendant has confessed and implicated him; illegal detention, illegal search, or illegal surveillance; oppression or intimidation; and theft of the evidence from a third party. Also, consider using undercover agents, lying in wait for the robbers or burglars to appear, concealed CCTV cameras, presenting themselves to a drug dealer as ordinary customers, test purchases 'in mufti' in a shop selling illegal goods, hailing a hire car not entitled to trade as a taxi.
What about telephone tapping or bugging or illegally obtained tape recording or other electronic covert surveillance that will definitely breach our privacy?
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UNDERCOVER AGENT
PRIVATE INVESTIGATOR
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CONCEALED CCTV
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TELEPHONE TAPPING
ILLEGAL TAPE RECORDING
It's always good to bear in mind on the importance to balance the manner in obtaining the evidence and also right of the suspect/accused. After all, one is considered innocent until proven guilty. However, at times, the investigating police can be really impatient to get evidence to convict the suspect. Sometimes, lawyer may even be impatience - thus, hiring private investigators to investigate the matter. However, lawyers should take no part in advising on or participating in any unlawful manner in which their clients may wish to obtain evidence in order to win or defend cases.While on the journey of obtaining evidence by these means, they might even break laws like Human Rights and also Data Protection Act.
Nonetheless, it is not a surprising thing that evidence has been obtained improperly or illegally does not necessarily render it inadmissible in court.
Note this case:(153 NLJ 1824)
In XXX v YYY and ZZZ [2003] (IDS Brief 743), X worked as a nanny for Y and Z's son J. X claimed that she had been the victim of sex discrimination and that she had been constructively and unfairly dismissed. X complained that Y (J's father) had made unwelcome and improper sexual advances towards her. In support of her claim, X sought to rely on a videotape that she had secretly recorded in the kitchen of the family home of Y and Z. The video showed Y making sexual advances towards X, in the presence of J. An issue arose as to whether the video recording should be admitted in evidence.
There are conflicting views as to whether to admit the video as evidence or not. This is because if the video is admitted, it will infringe J's right to privacy. At the same time, X's right to a fair trial must also be considered. In this case, EAT remitted the case to the tribunal to be reheard in private (trial by ambush) to reconcile both conflicting rights.
EAT also referred to Court of Appeals judgment in Jones v University of Warwick (2003) 3 All ER 70060 - J claimed damages for personal injury. The defendant, U, admitted liability but contended that J had virtually recovered, and that she was not suffering from a continuing disability. U sought to rely on a video recording of J that filmed her in her home without her knowledge. J, relying on the court's discretion under Part 32 CPR and on the right to respect for private and family life under Art 8, argued that the video recording should not be admitted as evidence.
The district judge excluded the evidence, holding that the court should not give approval to the methods U's agent had used in misleading J and gaining improper entry to her home. On appeal, the High Court held that it should not be concerned with giving approval to the method whereby the evidence was obtained. If there is evidence to contradict J's claim, this should be admitted because U or the insurers should be able to prevent and uncover dishonest and fraudulent claims. J appealed.
The Court of Appeal considered two competing public interests:
a) first, the interest of truth being revealed in litigation;
b) second, that the courts should not acquiesce to reliance on unlawfully obtained evidence, let alone encourage a party to rely on such evidence.
The Court of Appeal acknowledged that after the coming into force of HRA 1998 and the CPR, the court had to reconcile competing public interests: the right to private life, and the discretion of the court to exclude evidence. The Court of Appeal concluded that the conduct of U's insurers was not so outrageous that the defence should be struck out. The defendant's covert evidence was deemed admissible, but the Court of Appeal reflected its disapproval of the conduct of U's insurers and ordered U to pay the costs of litigating on the admissibility of this evidence.
In Malaysia, we follow much of common law decisions. For example, in R v Sang, the House of Lords held that the relevant evidence is admissible even though the evidence is obtained illegally and by unfair means. Also, court in PP v Haji Kassim followed the test in Kuruma v The Queen where the Privy Council held that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, is it admissible and the court is not concerned with how the evidence was obtained.
However, in my opinion, court should follow the decision of the Court of Appeal in Jones v University of Warwick where court ought to consider whether the conduct in obtaining the evidence was so outrageous that the defence should be struck out. The right to private life and the right to a fair trial ought to reconciled with. Court must not admit all the evidence that is obtained illegally, instead court must decide based on facts and circumstances of the case as to balance both parties rights. For example, if evidence is obtained by illegal means always, then we are definitely not upholding the principle of "one is innocent until proven guilty" because we are so busy finding the proof of his guilt even through illegal means which conclude that we have judged that person GUILTY before any trial. If the way the evidence is obtained so outrageous, court must reflect its DISAPPROVAL by ordering the party who obtained the evidence to pay costs of litigating and also on the admissibility of the evidence. Nonetheless, this should be discretion of the court and should not be rigid.
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1 Response to "Does it matter how the evidence is obtained?"
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Nada Says....The court always look at the substance of the evidence rather than the form. Which means it doesn't matter how the evidence is obtained but the the admissibility is there. Although it's impeach the right of the accused but it is not fatal enough for the accused to be acquittal. But the argument of credibility will arise since a right for a fair trial is questionable in those circumstances.
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