Evidence derived from illegally or improperly obtained evidence
By Kerri Mellifont
Published by The Federation Press (2010)1
Reviewed by Stephen Keim
The phrase “fruit of the poisoned tree” is attributed to Justice Felix Frankfurter who used it to describe secondary or derivative evidence in the 1939 case of Nardone v United States 308 US 338. The case concerned illegal wiretapping and held that, provided certain conditions were satisfied, evidence acquired by the prosecution using the information from the wiretap process should also be prevented from going into evidence.
Kerri Mellifont’s doctoral thesis comprises a comparative study of the principles governing the admission of secondary evidence, that is, evidence acquired by relying on information, itself susceptible to being excluded as a result of being obtained by illegal or improper methods. Thus, the admissions obtained by a coercive and intimidatory interrogation may be excluded. However, different questions may arise about a murder weapon carrying the suspect’s finger prints obtained as a result of the coerced and excluded admissions.
Despite stealing Frankfurter J.’s sexy terminology for the title of the book which is an adapted version of her successful doctoral thesis, Ms. Mellifont prefers “derivative evidence” to describe her subject. Fruit of the Poisonous Tree outlines the legal principles applicable to derivative evidence in the United Kingdom, the United States and Australia. In the UK and Australia, both common law and statutory principles are examined. The US cases tend to draw mainly on principles drawn from the Amendments to the Constitution which comprise that country’s Bill of Rights.
Criminal law text books discussing the exclusion of evidence in criminal trials seldom discuss in any systematic way the principles as they relate to derivative evidence. There is also a relative paucity of cases dealing with the exclusion of derivative evidence. Such cases as do exist (and are extracted in some detail in Fruit of the Poisonous Tree) fail to elaborate the principles on which the decisions are based. Accordingly, Fruit of the Poisonous Tree is a resource that supplements in a radically useful way the other books and services in the library of a criminal law practitioner.
But Fruit of the Poisonous Tree has many incidental benefits that make it an even more valuable acquisition. In order to discuss the principles dealing with exclusion of evidence, Ms. Mellifont has to set out the principles dealing with the exclusion of primary evidence. As a result, Fruit of the Poisonous Tree is a well written and thorough text on the exclusion of evidence in criminal trials. Since some of the most important advocacy in criminal trials involves the control of the evidence to go before the tribunal of fact, Fruit of the Poisonous Tree is an exceptionally useful book for any advocate who practises criminal law.
Fruit of the Poisonous Tree considers in detail the different values which form the various justifications for the exclusion of evidence. Ms. Mellifont draws upon discussions in the case law; academic treatises; law reform reports; and the terms of relevant legislation. The reasons for excluding evidence improperly obtained include the desire to ensure that evidence, particularly, confessional evidence is reliable; deterrence of improper conduct by law enforcers; protection of the rights of the accused; the need to preserve the rule of law when enforcing the law; and the desire to preserve the integrity of the judicial process by avoiding it being associated with misconduct. The values militating in favour of receiving evidence, even if it may be tainted, include the desire to ensure that wrongdoers are made accountable to the law and the desire to put all available evidence before the court in the pursuit of truth.
As Ms. Mellifont points out, the values which support a particular discretionary basis for excluding evidence will influence the way in which the discretion is exercised including in respect of derivative evidence.
The comparative consideration of the principles governing the exclusion of evidence in the United Kingdom and the United States make the book much more valuable than just a very useful criminal law text. The discussion of the United Kingdom authorities provide the understanding necessary to access, without long study and much difficulty, modern cases from the United Kingdom on the exclusion of evidence. Fruit of the Poisonous Tree discusses in detail the way in which the common law has developed in the United Kingdom concerning the exclusion of evidence. As well, Fruit of the Poisonous Tree considers, in equal detail, the terms and the application of the Police and Criminal Evidence Act 1984 (“the PACE Act”). Since the PACE Act will loom large in exclusion cases which postdate the publication of Fruit of the Poisonous Tree , the understanding of the statutory and common law context obtained by accessing Ms. Mellifont’s analysis will assist the reader in relating those hyper-modern authorities to an Australian context.
The analysis of United States authorities in Fruit of the Poisonous Tree is even more revealing. For a start, one receives a full and proper introduction to Miranda v Arizona 384US 436 (1966). With the spread of popular culture to foreign shores, American jurisprudence is very influential. I have heard it said that some Australians, when asked if Australia needs a Bill of Rights, insist that we already have one. They not only intend to plead the fifth, if they get into a spot of bother, but also believe strongly in their Miranda rights.
Because the jurisprudence supporting the exclusion of evidence in the United States has its base in a number of the Amendments which go to make up the Bill of Rights, the competing attitudes to the rights of defendants and the needs of law enforcement have been played out on the Supreme Court. Fruit of the Poisonous Tree is therefore an introduction to a form of judicial politics which is still reverberating through the United States political and judicial systems. The Warren Court2 of the 50s and 60s is perceived as liberal, inter alia, because of its development of exclusionary doctrines based on the rights contained in the Fourth,3 Fifth4 and Sixth5 Amendments. Its successor, the Burger Court6 of the seventies, developed a plethora of weakening exceptions to the exclusionary doctrines which many feel have weakened the doctrines and the Constitutional rights on which they are based almost to the point of extinction.7 These exceptions have particular impact in respect of derivative evidence which allows police officers to risk breaking the rules knowing that, even if a confession is excluded, any real evidence which is discovered as a result is likely to be admitted.
Ms. Mellifont’s examination of the state of Australian law includes an examination of exclusionary rules developed by the common law. She considers the various bases for excluding evidence including that a confession is involuntary; the discretion to exclude on the basis of fairness to the accused person;8 and the public policy balancing discretion developed in R v Ireland (1970) 126 CLR 321 and confirmed in Bunning v Cross (1978) 141 CLR 54. The analysis considers in detail all the leading High Court cases on the subject of exclusion of evidence. Ms. Mellifont particularly examines the values understood to underlie the discretion in each of the cases. The analysis, consistent with the subject of Fruit of the Poisonous Tree, also examines each case for its implications for the exclusion of derivative evidence.
Fruit of the Poisonous Tree, however, conducts a similar analysis for the provisions of the Uniform Evidence legislation, contrasting and comparing the effects of the provisions of that legislation with the common law doctrines already discussed. The result, topped off by a discussion of a large number of case examples where derivative evidence has been the subject of the decision, is a unique guide to the law in Australia dealing with the exclusion of improperly obtained evidence.
If you practise at all in criminal law in Australia, Fruit of the Poisonous Tree is a worthy addition to your professional library.9
Footnotes
- The web page of the publisher for the book is here.
- Chief Justice, Earl Warren presided from 1853 until 1969.
- The Fourth Amendment protects against unreasonable searches and seizures.
- The Fifth Amendment protections include the privilege against self-incrimination and the rule against double jeopardy.
- Sixth Amendment rights include a number of important due process rights as well as the right to assistance of counsel in one’s defence.
- Chief Justice Warren Burger was appointed by President Richard Nixon in 1969 as Warren’s successor.
- President Richard Nixon promised prior to his election to appoint judges who would be strict constructionists and would be inclined to overrule the doctrines developed in cases like Miranda.
- See McDermott v The King (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133 and R v Swaffield (1998) 192 CLR 159.
- At $80 direct from the publisher, Fruit of the Poisonous Tree is also excellent value.
