A cop car is often parked on the verge hidden behind some trees on my way to work. Indeed, I saw the cop and the car again yesterday after a hard morning rush hour making the roads safer for me to drive on. But yesterday was different. The cop actually drove over the space next to a yellow-post bus stop, demounted the gutter and drove off. Yesterday was also different because the day before the High Court had just brought down a decision throwing out a heroin-trafficking conviction because the evidence under-pinning it had been collected illegally. Hello, I thought at 60km-h, this cop has driven over a verge illegally and parked illegally in order to collect evidence to prosecute people for speeding.
I wonder if all the good middle-class easy defendants would form an orderly queue at the High Court to get their fines refunded. Obviously not, but there would be a certain outrage among them that the heroin trafficker goes free. The cases have obvious differences. Mounting kerbs is not in the same league as cops actually importing heroin themselves in order to set up a trap. Moreover, it is probably legal for traffic cops to break the road rules to pursue errant motorists. They also have similarities and pose the question: under what circumstances do you allow the cops to break the law to catch crooks. The answer might be never. The ultimate solution should be to make lawful conduct that would otherwise be unlawful. Someone should authorise police under-cover work that might otherwise be illegal _ because that might be the only way to catch the crims. It’s a problem, though, on a couple of counts.
Tragically, Australia’s recent history shows that we cannot have complete trust in even the very highest level of the police forces to have this power. Any general immunity for police to act illegally provided they are pursuing crime is fraught with danger. “”We wuz just importing this heroin to catch a crim, Your Honour, we had no intention of making a quid for ourselves.” Many juries coaxed by a smart lawyer would swallow that. Immunity would have to be given by a judge or magistrate _ just like search warrants and phone-tap orders, even if it is somewhat cumbersome. Secondly, the police forces are part of the executive government. The rule of law is fundamental to our liberal democracy _ the executive must obey the law, too. If not, arbitrary rule and tyranny are not far off. One of the great bloodless battles of English democracy was to separate the King and Parliament and so separate the executive and legislative function. The executive (ministers, public servants and cops) have to obey the law; they cannot act arbitrarily. This is all very well in theory _ separation of powers, kings not ruling arbitrarily and so on is very heady stuff. But what about the practical problem on the ground.
It is all very well to talk about freedom and the importance of not being arbitrarily ruled by cops. But what about freedom from crooks wandering around the street flogging off heroin after they have been set free by the High Court? This is the difficulty I have with the result of the High Court’s ruling. It is fair enough for all seven judges to rule that cops should not arrange importation of heroin because it is illegal _ even if it was done for the highest motives and for the greater public good. My quarrel is with what six of the judges concluded from that. They said that any evidence they gathered as a result of this illegal activity was tainted and inadmissible in most circumstances. One judge, Justice Michael McHugh said it would not be inadmissible.
He said if it were, it would mean the cops could get prosecuted and the real trafficker go free. (Incidentally, I do not think the cops could not successfully plead they were not guilty because they acted with the intention of catching crooks and therefore did not have the requisite criminal intention. Intention for the purposes of the criminal law, tends to look at the act in question, not the motive for the act. The latter may reduce the penalty, but not secure an acquittal.) The other six judges treated the case in classic common-law terms: in black-and-white; very much in the adversary tradition; and mindful that a poor, dumb jury would sit alone in a room and weigh up the evidence. Thus they had to decide whether the illegally obtained evidence was in or out. As the police had been naughty boys their side would punished by not being allowed to present this evidence. Further, as the evidence was tainted by illegality a poor, dumb jury would not be capable of taking that into account, so in the interests of “”justice” the evidence would not be allowed in. The truth is irrelevant, of course.
Whether the accused did the crime is of no moment in this contest between defence and prosecution. Moreover, the black-and-white in-or-out evidence rules invite defence lawyers to challenge key bits of evidence on technical grounds, thereby leaving the jury with a jig-saw with critical bits missing. Cases like this one show some fundamental flaws in the common-law system and some strengths in the European system. Let’s forget the win-or-lose contest. Let’s search for the truth and use (ital) all (ital) the evidence _ just like we do in real life, except a judge should work with the jury while they are coming to their verdict pointing out why some evidence is better or more reliable than other evidence. The common law that led the majority judges to their conclusion this week with the unjust result and a very-likely heroin trafficker is back on the streets is not all that it is cracked up to be.