RELEVANCE AND ADMISSIBILITY - EVIDENCE OBTAINED BY ILLEGAL OR UNFAIR MEANS OTHER THAN CONFESSIONS

Question 1

Evidence obtained by illegal or unfair means

Answer 1

Evidence may be obtained illegally, for example by a crime, tort, breach of contract or
in contravention of statutory or other provisions regulating the powers and duties of
the police or other investigating agencies of the State. Evidence may also be obtained
improperly or unfairly, for example by trickery, deception, bribes, threats or
inducement.

Question 2

Common Law Position

Answer 2

At common law the rule was that admissibility of evidence is not affected as a matter of law by the means used to obtain it. The court is generally not interested in the means by which relevant evidence is obtained.
The words of Crompton J in R v. Leatham sums up the common law position. He held that “it matters not how you get it, if you steal it even, it would be admissible in
evidence”

Question 3

Kuruma, Son of Kaniu v R

Answer 3

Accused was charged with the unlawful possession of ammunition which had been found in his pocket by the officers who were of insufficiently senior rank to have carried the search. Evidence of the search was admitted and the accused was convicted. His appeal to the Privy Council was dismissed. Where evidence is relevant and admissible, the Court is not concerned with how it was obtained”

Question 4

Presumption

Answer 4

One important interpretative presumption is that no one should be allowed to benefit from his illegal act.

Therefore, all evidence necessary to enable justice to be done should be admitted and that those responsible for the illegality or impropriety may be variously prosecuted or disciplined.

Question 5

1st School of thought to the desirability of the admission of evidence which is illegally obtained.

Answer 5

One school of thought is of the opinion that all evidence which is relevant and therefore admissible should not be excluded because of the means by which it was obtained, as to exclude it may in some cases result in injustice. To this school though, all evidence necessary to enable justice to be done should be admitted and that those responsible for the illegality or impropriety may be variously prosecuted or disciplined.
Leatham v. R

Question 6

Other School of Thought

Answer 6

The other school of thought is of the view that illegally or improperly obtained evidence should always be excluded as admitting such evidence will encourage evidence being obtained by such means. Therefore, all such evidence should be excluded even if It results in injustice including the guilty going free so that those responsible for the illegality or impropriety are in future compelled to respect and deterred from invading the ordinary civil liberties of citizen.