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Vol 21 No 9 Sept/Oct 2016

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Fruit of the Poisonous Tree: Evidence Derived from Illegally or Improperly Obtained Evidence

ISBN13: 9781862877337
Published: June 2010
Publisher: The Federation Press
Country of Publication: Australia
Format: Paperback
Price: £50.00

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The fate of a criminal trial can be determined by a decision by the trial judge to exclude evidence which has come about by illegal or improper investigative means. An exclusion of a confession obtained involuntarily, or drugs located in an illegal search, can result in the collapse of a case against an accused.

Although much has been written in Australia on the rule and discretions to exclude such evidence, little has been written on a particular species of such evidence, that is, evidence which is derived from evidence which has been obtained by illegal or improper investigative means. This is so even though a criminal law practitioner is not infrequently faced with a brief of evidence which contains evidence which has been derived from other evidence which itself was illegally or improperly obtained.

Described variously in overseas literature as “derivative evidence” or “fruit of the poisonous tree”, this species of evidence gives rise to considerations which are peculiar to it when applying the exclusionary rule and discretions. Thus, the second or subsequent confession obtained after in consequence of an improperly obtained confession may require the judge to think differently on the question of exclusion. Similarly, the bank records located in consequence of scraps of paper found during an illegal search of an accused person’s residence may call into play additional factors to weigh in the balance required by the public policy discretion.

This text provides practitioners with a readily comprehensible analysis of the operation of the exclusionary rule and discretions in Australia, including the factors which come in to play generally with respect to all evidence illegally and improperly obtained, and more specifically with respect to derivative evidence.

Evidence, Other Jurisdictions , Australia
Problems presented to the trial court by illegally or improperly obtained evidence: A clash of principles
The Australian approach to illegally or improperly obtained evidence
The Theoretical Underpinnings of Exclusionary Powers and their Application to Derivative Evidence
The purpose of the criminal trial: The search for truth
Relevance, reliability and the criminal trial
Compromise of the search for truth
The judicial integrity principle
The deterrance principle
Protective principle
Factors of most weight in respect of the underlying principles
Derivative evidence: consistent application of the principles
The United Kingdom Approach: Reliability and Derivative Evidence
England: From common law to PACE
PACE: general
Confessions: s 76(2) PACE
The general discretion for exclusion: s 78 PACE
Conclusions: lessons from the English experience
The United States of America Approach: The Pendulum Swings From Rights And Judicial Integrity To Deterrence
What is the Bill of Rights and why is it important to a discussion of exclusion of primary and derivative evidence?
The Fourth Amendment: Protection against unreasonable search and seizure
The Sixth Amendment: Right to counsel
The Fifth Amendment: Privilege against self-incrimination
Exceptions to the exclusionary rules
Conclusions: Lessons from the American experience
The Australian Approach to the Exclusion of Primary and Derivative Evidence
Introduction: the journey until now
The discussion on Australian law: methodology and purpose
Exclusionary powers specific to confessional evidence
Confessions under the common law
Confessions - uniform evidence legislation
The public policy discretion to exclude illegally or improperly obtained evidence at common law and under statutory based evidence regimes
Factors relevant to public policy discretions
Derivative evidence with respect to confessions excluded under the confession specific exclusionary powers;
Derivative evidence in Australia: how have Australian courts approached such evidence
The problem: Tensions in the criminal trial process
Consistency: A goal worth striving for
Achieving consistency in Australian exclusionary regimes
Real evidence deriving from confession - specific exclusionary powers
Confessions deriving from primary confessions
Derivate evidence and the public policy discretion
Factors specific to derivative evidence and the public policy discretion
Bibliography ;