If you are facing criminal charges in Australia and believe that evidence against you was obtained unlawfully, it is essential to understand your rights under Criminal Law. The law provides protections against improperly gathered evidence, ensuring fair trials and due process. This article will explore what constitutes unlawfully obtained evidence, the legal framework governing its admissibility, and what you can do if such evidence is used against you.

What is Unlawfully Obtained Evidence?

Unlawfully obtained evidence refers to any material collected by law enforcement in violation of legal procedures. This can include:
  • Evidence obtained through an illegal search and seizure.
  • Confessions made under duress or coercion.
  • Surveillance conducted without proper authorisation.
  • Improperly recorded phone calls or intercepted communications.
  • Evidence collected in violation of a suspect’s legal rights (e.g., denying access to legal representation).
 The Evidence Act 1995 (Cth) and its state equivalents set the legal standards for the admissibility of evidence in Australian courts.

The Legal Framework: The Evidence Act 1995

The Evidence Act 1995 is the primary legislation governing the admissibility of evidence in criminal proceedings. Under Section 138, a court may exclude evidence obtained improperly or in contravention of Australian law unless the desirability of admitting the evidence outweighs the undesirability of how it was obtained.

Factors Courts Consider Under Section 138When deciding whether to exclude unlawfully obtained evidence, courts consider:
  • The seriousness of the unlawful conduct.
  • Whether the law enforcement officers acted deliberately or recklessly.
  • The importance of the evidence to the prosecution’s case.
  • Whether the accused’s rights were significantly violated.
  • The public interest in maintaining integrity in the justice system.

Examples of Unlawfully Obtained Evidence

Illegal Search and SeizureUnder Section 3 of the Search Warrants Act 1985 (NSW), police require a valid search warrant before entering and searching private property. Evidence obtained without a proper warrant or in violation of a person's rights can be challenged in court.

Coerced ConfessionsIf a suspect confesses under pressure, threats, or intimidation, the confession may be inadmissible under Section 84 of the Evidence Act 1995.

Improperly Conducted SurveillanceSurveillance, including phone tapping or electronic eavesdropping, requires legal authorisation under the Telecommunications (Interception and Access) Act 1979 (Cth). Any evidence obtained without such authorisation may be excluded.

Challenging Unlawfully Obtained Evidence

If you suspect evidence against you was unlawfully obtained, you can challenge it by:
  • Filing a Pre-Trial Application – Your lawyer can argue that the evidence should be excluded under Section 138 of the Evidence Act.
  • Cross-Examining Police Officers – Your defence can question officers about how the evidence was gathered.
  • Presenting Expert Testimony – If necessary, forensic experts can challenge the authenticity or reliability of evidence.
  • Raising Charter and Human Rights Issues – Under the Human Rights Act 2019 (QLD) and similar state laws, evidence obtained in a manner violating fundamental rights may be deemed inadmissible.

What Happens if the Evidence is Excluded?

If the court excludes unlawfully obtained evidence:
  • The prosecution may weaken or collapse entirely.
  • The judge may dismiss the case if the excluded evidence was critical to proving guilt.
  • The accused may walk free if no admissible evidence remains to support a conviction.

Case Studies: When Courts Excluded Evidence

Case 1: Illegal Search and SeizureIn R v Swaffield (1998), the High Court ruled that evidence obtained through a covertly recorded conversation without proper authorisation was inadmissible. The accused’s right to silence was breached.

Case 2: Coerced ConfessionIn Em v The Queen (2007), the court excluded a confession where police used intimidation tactics, violating the suspect’s right against self-incrimination.

Case 3: Unlawful InterceptionIn Gedeon v Commissioner of the NSW Crime Commission (2008), the court found that evidence obtained through illegal phone tapping was inadmissible, as it violated privacy laws.

What Should You Do If Evidence Against You Was Unlawfully Obtained?

If you believe evidence in your case was obtained unlawfully:
  • Seek Legal Advice Immediately – Engage a criminal defence lawyer with experience in evidence law.
  • Do Not Speak to Police Without a Lawyer – Anything you say may be used against you.
  • Request Disclosure of Evidence – Obtain full details on how the prosecution gathered its evidence.
  • Prepare a Legal Challenge – Work with your lawyer to file motions to exclude tainted evidence.

Relevant External Links for Further Information

Unlawfully obtained evidence can significantly impact your case. The Australian Criminal Law system aims to uphold justice and prevent wrongful convictions based on improper police conduct. If you suspect the evidence against you was gathered unlawfully, act now to protect your legal rights.

Contact New South Lawyers today to understand your rights and build a strong case. Protect your legal interests—act now!

    Criminal Law