Kadir v The Queen

High Court of Australia · 2020

Kadir v The Queen (2020) 267 CLR 109

Activists broke the law to film the evidence, and a regulator then used the footage to get a warrant. Does the illegality at the start of the chain taint everything that follows?

What happened?

An anonymous complaint said greyhounds were being trained with live rabbits at Mr Kadir's property at Londonderry. Animals Australia, an animal-protection company, engaged a documentary photographer, Ms Lynch, who trespassed and installed a camera outside the fence of the training area, making seven recordings between December 2014 and January 2015. She and the organisation's Chief Investigator knew that doing so contravened s 8(1) of the Surveillance Devices Act 2007 (NSW) ([21]-[23]). The Chief Investigator made no attempt to refer the complaint to the police or the RSPCA first ([24]).

Animals Australia then gave the footage to the RSPCA, whose inspector obtained a search warrant and found dead and distressed rabbits ([27]-[29]). Separately, at Animals Australia's request Ms Lynch posed as a greyhound owner, spoke with Mr Kadir twice and recorded alleged admissions ([30]). Mr Kadir and Ms Grech were charged with serious animal cruelty ([1]). At trial they applied to exclude the recordings, the search warrant evidence and the admissions under s 138.

What did the Court decide?

The Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ, in a single joint judgment) allowed each appeal in part. It held that the trial judge was correct to exclude all of the surveillance evidence ([37]). It also held that the Court of Criminal Appeal was right to find the trial judge's reasoning on the search warrant evidence and the admissions flawed, and that its conclusion that those two categories were admissible was correct ([9]). The Court set aside order 1 of the Court of Criminal Appeal and in its place dismissed the Director's appeal against the trial judge's ruling on the surveillance evidence ([52]). The Court determined those two questions itself rather than remitting them ([45]).

Proposition

What is the principle?

Section 138 is wider than Bunning, and the tendering party carries the onus. The Court explained that s 138 "enacts a 'discretion' which is wider than the modified Bunning v Cross discretion discussed by the ALRC" ([12]). Bunning is confined to criminal proceedings and to the balance between convicting wrongdoers and giving curial approval to unlawful law enforcement; s 138 provides for conditional exclusion in any proceeding to which the Act applies, and "is not confined to evidence that is improperly or illegally obtained by police or other law enforcement agencies" ([12]). The Court said that "the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion", while "in a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained by the police (or another law enforcement agency), the more focussed public interests identified in Bunning v Cross remain apt" ([13]). On the onus, the Court applied it to the prosecution: "The onus is upon the respondent to establish that the desirability of admitting the search warrant evidence outweighs the undesirability of admitting evidence obtained in the way it was obtained" ([47]).

Difficulty of lawful obtaining (factor (h)). Where the illegality is "deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission" ([20]); where it was neither, the difficulty "is likely to be a neutral consideration" ([20]). The Court held that the assumption of the parties and the courts below, that such difficulty favoured admitting evidence obtained in deliberate defiance of the law, was misconceived ([9]). It left open that urgent action to preserve evidence from loss or destruction might point the other way ([20]).

Each item is weighed in the way it was obtained. Section 138 does not enact the United States doctrine excluding the fruit of official illegality ([40]). "The causal link engages s 138, but the weighing of the competing public interests under s 138(1) involved considerations which are not the same as those applying to the admissibility of the surveillance evidence" ([40]). The Court added that "None of the s 138(3) factors can be considered in isolation" ([42]). The search warrant evidence was admitted because the RSPCA was not complicit and the remaining factors, including the high probative value and importance of the evidence once the recordings were out, favoured admission ([47]-[48]). The admissions were admitted because the causal link was tenuous ([41], [51]).

The Court did not decide whether the s 138(1) balance admits of a single correct outcome so that House v The King error need not be shown ([9]), or the standard by which a private individual's impropriety is judged ([14]).

Why does this case matter?

Kadir is the High Court's own reading of s 138 in a case where the wrongdoer was a private body rather than the police, and it is where a student meets the section's text and its common-law ancestor side by side. A problem question that turns on illegally obtained evidence usually reaches for Bunning v Cross by habit, and Kadir is the authority that tells you which provision does the work today. It is also a worked example of a trial judge's reasoning being corrected even though the trial judge's result on the main evidence was right, which is a useful reminder that an appeal court can approve an outcome while disapproving the route.

Exam and application relevance

Start from s 138(1): identify which items were obtained improperly or in contravention of an Australian law under para (a), and which only in consequence of one under para (b). Then weigh the s 138(3) factors item by item, noting who bears the onus. Use Kadir for the idea that a factor's weight depends on who the wrongdoer was and why: say whether the contravention was deliberate or reckless before treating any difficulty of lawful collection as relevant, and treat a regulator that had no knowledge of the original illegality differently from the person who committed it. Cite Bunning v Cross for the origin of the factors, and do not claim that Kadir fixed the weight each factor must carry: the Court said that the Act gives no guidance on relative weighting ([15]). Kadir concerned the Evidence Act 1995 (NSW); in a jurisdiction that has not adopted the uniform Evidence Acts the question is a different one.

Check your understanding

1. In a criminal trial, a private investigator trespasses to photograph an offence and hands the photographs to the police. Which paragraph of s 138(1) applies to the photographs, and which to evidence the police obtain by a warrant based on them? 2. Why can the findings made about the primary evidence not simply be carried over to the derivative evidence? 3. Does proof that lawful collection would have been difficult help a party tendering evidence obtained by a deliberate contravention? 4. What did the Court decline to decide about the standard of impropriety for private individuals?