This issue’s Business and Law section features a piece on a recent Supreme Court ruling over the exclusionary rule in CAB v Murphy.
In short, the case involved an invalid search warrant based on section 29 of the Offences Against the State Act 1939, which was used to search a house in 2009. Section 29 was declared unconstitutional later on in Damache v DPP. Denham CJ ruled it was ‘repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person’, as required by law.
The Criminal Assets Bureau obtained a sum of cash under the Proceeds of Crime Act 1996, as based on the unconstitutional search. Under the ‘exclusionary rule’, a person can attempt to have unconstitutionally obtained evidence excluded from proceedings. The appellants sought to exclude it from evidence, but the High Court and Court of Appeal held the exclusionary rule only applied for in personam proceedings (against an individual) as opposed to in rem proceedings (issues with property).
In criminal trials, the Kenny rule was overturned in DPP V J.C. in 2015. O’Malley J referenced O’Donnell J’s test in J.C. and noted how the exclusionary rule ‘is not a free-standing rule that evolved or exists purely for the benefit of defendants in either criminal or civil proceedings’ as it has a broader purpose. She referenced the 1996 Act as not being a criminal one, then set out a test for the admissibility of evidence obtained by a breach of constitutional rights for proceedings involved under the Act.
The 1996 Act is controversial for allowing the seizure of assets obtained with the proceeds of crime, without any need to prove the person committed a criminal offence. Since it is deemed a civil issue, a ruling is made on the balance of probabilities, as opposed to requiring proof beyond a reasonable doubt. Similarly, constitutional protections for the individual do not apply because it is a civil matter. The latest verdict can be seen as a small step towards the further protection of rights, notwithstanding the underlying problems with the Proceeds of Crime Act itself.