Area of Law – Evidence
An Article about Unlawful Search and seizure in criminal case
Evidence- unlawful Search and seizure
The issue of unlawful search and seizure and as to the lawfulness of warrants are ones that are often heard in criminal cases.
There are many example where it may be considered unlawful such as “an intentional abuse of power, the overbearing of the will of the applicant, wilful disregard of a suspect’s rights, the deliberate adoption of the police of an objectionable practice, or conduct of such carelessness that the reception of the evidence could be seen to compromise the integrity of our legal processes.”
Judge’s have a fairly wide discretion in relation to whether to rule a search and seizure unlawful. As with many other issues in criminal cases they turn a lot on the facts in the case.
Some case law follows about this issue;
“With respect to the contention that the admission of the evidence was unfair in the circumstances, Stephen and Aikin, JJ. in their joint judgment in Bunning v. Cross specifically addressed the situation where an unlawful search has been conducted:
“We would agree with those members of the Full Court who were unable to discern anything unfair in what occurred; to our minds unfairness does not enter into this case, any more than it should in a case of the unlawful search of person or premises. … [I]t is surely not ‘unfair’ to use, against a person accused of having in his possession weapons or explosives, evidence obtained by means of an unlawful body search so long, once again, as that search is so conducted as to provide all proper safeguards against weapons or explosives being ‘planted’ on the accused in the course of the search.”
That passage is apposite to the present case. There was nothing “unfair” about the conduct of the police members in relation to either the preliminary examination or the subsequent full search. The only possible basis for the exclusion of the evidence arose from the fact of non-compliance with the statutory requirements and the representation by Templeton that he had “an authority” permitting the search to be conducted. This involved consideration by the trial judge of the question should the evidence have been excluded as a matter of public policy.
The nature of the public policy considerations to be taken into account in the exercise of judicial discretion and the area of operation of the principle were considered by their Honours in Bunning v. Cross:
“The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be ‘a less evil that some criminals should escape than that the Government should play an ignoble part’ – per Holmes J. in Olmstead v. United States …. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.”
This was not an example of an intentional abuse of power, the overbearing of the will of the applicant, wilful disregard of a suspect’s rights, the deliberate adoption of the police of an objectionable practice, or conduct of such carelessness that the reception of the evidence could be seen to compromise the integrity of our legal processes. There was no basis for concluding that the failure to secure written authority to search resulted in the present case from anything more than a possible misunderstanding of the situation on the part of Templeton and Ellis. “No overt defiance of the will of the legislature” was involved or contemplated on the basis of the evidence before the Court. No argument was advanced that the non-compliance with the statutory safeguards on the part of the police members was deliberate in a situation where there was no forensic or other advantage to them arising from non-compliance. Had any problem been perceived or had the applicant sought its production, written authority could have been secured within a very short period. I suspect that the applicant who had had considerable experience with the law well understood the situation and saw no advantage in so doing. I am far from persuaded that his Honour fell into error in regard to the conduct of the police as involving “minor irregularities” that did not attract the public policy consideration referred to in Bunning v. Cross and later cases ”
R v Jamieson  VSCA
It should be noted that each case will turn on its own particular circumstances.