Snapshot
• The HCA has ruled that some (but not all) evidence obtained at a greyhound training facility is admissible despite being obtained improperly.
• Section 138 of the Evidence Act 1995 provides that evidence is inadmissible if it is obtained improperly or in contravention of an Australian law unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained improperly.
• The decision is a reminder to follow the letter of the law in evidence gathering while also recognising that the process of gathering evidence via routine channels may at times defeat the bigger picture, particularly in animal cruelty cases.
Introduction
Back on track. In its first deci- sion of 2020, the High Court has ruled that some (but not all) evidence obtained in contravention of Australian law at a Sydney grey- hound training facility is admissible despite the barriers presented by section 138 of the Evidence Act 1995 (NSW). The prosecution of two greyhound trainers for serious ani- mal cruelty charges will soon resume.
Greyhound racing training is a live topic, racing ahead into widespread public concern. The use of ‘live bait’, such as rabbits, possums or piglets, in training is particularly concerning. The practice is illegal throughout Australia, but feared to be prevalent. The animals suffer horrific injury and distress and eventually die. The concern over such cruel and unlawful practices saw the establishment of the Greyhound Industry Reform Panel following the Special Commission of Inquiry. In a much anticipated decision, Kadir v The Queen; Grech v The Queen [2020] HCA 1, the High Court of Australia (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) gave the green light to the resumption of a long stayed prosecution of two grey- hound trainers on trial for serious animal cruelty charges.
The vexed issue for determination was whether evidence sought to be admitted by the Crown was admissible having regard to its improper provenance. That is, how should section 138 Evidence Act (NSW) operate? It provides that evidence is inadmissible if it is obtained improperly or in contravention of an Australian law unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained improperly. The High Court found that some, but not all, of the evidence was admissible. While specific to the facts at hand, more broadly, the decision is relevant in both criminal and civil trials facing admissibility hurdles if evidence sought to be adduced has circumspect origins. The decision is a salient reminder to follow the letter of the law in evidence-gathering tasks while also opening the door, even just a fraction, in recognition that the process of gathering evidence via routine channels may at times defeat the bigger picture, particularly in animal cruelty cases.
Background
Rewind to November 2014. Animals Australia, an animal protection organisation, received an anonymous complaint. A training facility (‘Property’) was said to be using live rabbits for greyhound training. Animals Australia followed up the lead. Its Chief Inspector (formerly a police officer) concluded it was unlikely that a surveillance device warrant could be obtained on the basis of an anonymous complaint. In addition, in her experience, members of the NSW Police Force referred animal welfare complaints to the RSPCA and the RSPCA tended to share information with Greyhound Racing NSW (‘GRNSW’). Accordingly, she believed the persons alleged to have engaged in ‘live baiting’ might be ‘tipped off’ if GRNSW was made aware of the complaint (at [24]). Giving force to her belief were statements made at the time in proceedings before the NSW Legislative Council’s Select Committee on
Greyhound Racing which were to the effect that the RSPCA was unable to pursue an investigation into live baiting because of the ‘lack of first-hand evidence (at [27])’.
Accordingly, Animals Australia did not apply for a surveillance device warrant. Instead, it privately engaged Ms Lynch, a documentary photographer and animal rights activist, to covertly obtain surveillance evidence at the Property. Ms Lynch entered the Property, without permission, multiple times, for several months. She obtained seven video recordings including of the ‘bullring’, the running area used in training (‘Recordings’). The Recordings corroborated the anonymous complaint. They revealed live rabbits being used to train greyhounds. Animals Australia supplied the Recordings to the RSPCA and obtained a search warrant. The process yielded more evidence corroborative of the complaint. A diary recording the cost of rabbits was seized (‘Search Warrant Evidence’). Ms Lynch also attended the Property where she spoke to a trainer, posing as an owner inquiring about the training methods for her greyhounds. The trainer is alleged to have responded, ‘I get 30 live rabbits a week from a guy and I put them in the bullring with the dogs’ (‘Admissions’).
Collectively, the Recordings, Search Warrant Evidence and Admissions presented a compelling case for the prosecution. Its probative value was very high and the offences were serious. The case for the Crown was, one might think, a sure win. But at the inception of the trial, Defence objected to the admissibility of the evidence on the basis that it was illegally obtained. The DPP conceded the Recordings had been obtained illegally as a result of a trespass on the Property and relevant consents had not been obtained to procure the Recordings. It was clear that section 8 of the Surveillance Devices Act 2007 (NSW) had been infringed. Defence contended the Search Warrant Evidence and Admissions were similarly tainted because they were obtained in consequence of the illegally obtained evidence.
Operation of s 138 Evidence Act (NSW)
This debate brought into play the operation of section 138 Evidence Act (NSW). It provides for the conditional exclusion of evidence obtained by, or in consequence of, impropriety or illegality (in a criminal or civil trial). It enacts a ‘discretion’ to admit such evidence if it is in the public interest. A court must consider the following factors in determining whether the pub- lic interest favours the admission or rejection of such evidence: (i) the probative value of the evidence; (ii) the importance of the evidence; (iii) the nature of the offence, cause of action or defence; (iv) the gravity of the impropriety or contravention; (v) whether the impropriety or contravention was deliberate or reckless; (vi) whether the impropriety or contravention was contrary to the International Covenant on Civil and Political Rights; (vii) whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention; and (viii) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. On the other hand, the undesirability of admitting evidence recognises the public interest in not giving curial approval to gathering evidence illegally or improperly.
The trial judge excluded the Recordings, Search Warrant Evidence and Admissions. He assessed the gravity of the contravention as very high, and found that the Court should be reluctant to give approval to the deliberate illegal conduct of bodies that are not subject to any form of legislative or executive oversight.
Right of appeal
The ruling triggered the operation of section 5F(3A) of the Criminal Appeal Act 1912 (NSW). It confers a right of appeal on the Director of Public Prosecutions against an evidentiary ruling that substantially weakens the prosecution case. Accordingly, the DPP appealed to the Court of Criminal Appeal.
In respect of the Recordings, their Honours in the CCA reasoned that once the first recording was obtained, Animals Australia might have approached the authorities with a view to obtaining further evidence by lawful means. But they reasoned that the material difficulty of obtaining evidence of acts of animal cruelty at the Property ‘tipped the balance’ in favour of admitting the first recording but not the balance of the Recordings. Their Honours said that although vigilantism, even for laudable reasons, cannot and should not be encouraged nevertheless there were real concerns as to the unlikelihood of an anonymous complaint being able to be properly and effectively investigated and the suspected criminal activities were of a high degree of seriousness.
In respect of the Search Warrant Evidence and Admissions, the CCA held the trial judge erred and the desirability of admitting the evidence outweighed the undesirability of admitting the evidence improperly obtained. The trainers obtained special leave.
The reasoning of the High Court
The High Court found that the trial judge was correct to exclude all of the Recordings, determining that they were each a product of serious and deliberate contravention of law. But they found that the trial judge’s assessment of the Search War- rant Evidence and Admissions was flawed. The High Court agreed that the CCA was correct in assessing each of those items of evidence as admissible.
The High Court held that none of the eight s 138 factors can be considered in isolation. ‘Evidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available to the prosecution’ (at [42]). Here, the importance of the Search Warrant Evidence and the Admissions was greater by reason of the exclusion of the Recordings. Their Honours found that the nature of the offence is serious. The contravention was repeated, deliberate and interfered with privacy. Yet, the admissibility of the Search Warrant Evidence and Admissions arises in criminal proceedings in which the desirability of admitting the evidence reflects the public interest in the conviction of wrongdoers.
In respect of the Search Warrant Evidence, the High Court found that the RSPCA had no advance knowledge of Animals Australia’s plan to illegally record activities at the Property. ‘The desirability of admitting evidence that is important to the prosecution of these serious offences outweighs the undesirability of not admitting evidence obtained in the way the Search Warrant Evidence was obtained’ (at [48]).
In respect of the Admissions, the High Court reasoned that their probative value is high. Obtaining and viewing the Recordings Evidence was a step in the investigation by Animals Australia that led to Ms Lynch ultimately obtaining the Admissions. But Ms Lynch did not use any knowledge that she gained from the Recordings in her conversation with the train- er. There was only a ‘bare connection’ between the contravention of Australian law and obtaining the admissions (at [51]).
Ultimately, much of the evidence is now back in the ring. As a result, the District Court criminal trial will resume in March 2020 in Penrith, approximately 2.5 years from its inception, following many rounds about the track of the justice system.
Publication
As published in LSJ