Victorian Consolidated Legislation

Evidence Act 2008 - SECT 138

Exclusion of improperly or illegally obtained evidence

138. Exclusion of improperly or illegally obtained evidence



(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.

(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.

(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.

Note The International Covenant on Civil and Political Rights is set out in
Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of
the Commonwealth.