Illegally Obtained Evidence Ruled Admissible in Drug Trial

A person’s home may be their castle, but this doesn’t always mean it’s safe from the prying eyes of the law. While courts will often exclude improperly or illegally obtained evidence, this is not always the case.

Police Officer Finds Drugs after Wandering Outside Search Area

Mark Gallagher and Lynne Maree Burridge lived in neighbouring rural properties in NSW. In March 2012, police obtained a warrant to conduct a firearms audit at Gallagher’s house.

The warrant was in relation to a man named Paul Thompson, who was in the process of selling the house to Gallagher.

But when a police officer arrived, he couldn’t see anyone around the house. He thought he saw movement near a dam, which was about 50 metres away, so he began walking in that direction but in doing so trespassed onto Burridge’s neighbouring property.

When the officer got to the dam, he didn’t see or hear anyone. He then started walking back to the car via a pathway running alongside the dam, when he caught sight of a plastic irrigation pipe and went to investigate. He then came across a caged area on Burridge’s property containing over 150 cannabis plants, along with bags of cannabis leaf and seed.

The officer then returned to his car – but he had already overstepped his lawful authority by trespassing onto Burridge’s property.

As you can imagine, an investigation and drug charges quickly followed. The cannabis plants were on the property of Burridge but Gallagher had allegedly established and maintained the cultivation, so both were facing drug cultivation charges.

The central issue was whether the fact that the police officer trespassed onto Burridge’s property – where the drugs were found – was enough for the evidence of drugs to be excluded from court.

This was vital to the defence of Gallagher and Burridge, because courts can refuse illegally or improperly obtained evidence from the courtroom.

At trial, the Judge excluded the evidence on the basis that the search was unlawful, as the police officer was trespassing when he discovered the cannabis plants.

Without this crucial evidence, it was all over for the prosecution, so they appealed to the NSW Court of Criminal Appeal (NSWCCA).

Unfortunately for Gallagher and Burridge, the NSWCCA did not come to the same conclusion as the trial Judge. The three Justices agreed that the search was illegal, but found that the evidence should have been allowed before the jury anyway.

Admissibility of Improperly Obtained Evidence

Under section 138 of the Evidence Act, illegally or improperly obtained evidence cannot be used in court 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.”

In deciding whether or not to admit evidence, the court must take into account:

• The probative value of the evidence;
• The importance of the evidence;
• The nature of the relevant offence;
• The gravity of the impropriety or contravention;
• Whether the impropriety was deliberate or reckless;
• Whether the impropriety or contravention was deliberate or reckless;
• Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention (such as internal discipline against a police officer); and
• The difficulty of obtaining the evidence without impropriety or contravention of an Australian law.

The NSWCCA found that the contravention of the police officer was accidental and careless rather than intentional, and that the desirability of admitting the evidence outweighed the undesirability of allowing evidence obtained in that way.

The prosecution’s appeal was allowed on that basis, and Gallagher and Burridge must once again face trial – but, this time, the evidence of the cannabis will be admitted before the jury.

When Will Courts Exclude Illegal Evidence?

The best chance of excluding evidence is if the offence is relatively trivial – for example, drug possession or small drug supply – and the illegality is substantial or deliberate. Part of the rationale of excluding illegally or improperly obtained evidence is to take away any incentive for police to act out of line. Ensuring that this kind of evidence cannot be used is therefore intended to deter police from collecting it improperly or illegally in the first place.

If you are facing drug charges, getting help from experienced lawyers who specialises in drug cases will give you the highest chance of having the charges against you dropped or thrown out of court if you wish to plead not guilty, or achieving the most lenient outcome if you wish to plead guilty.