By Talitha Fishburn -
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.
Back on track. In its first decision of 2020, the High Court has ruled that some (but not all) evidence obtained in contravention of Australian law at a Sydney greyhound 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 animal 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 greyhound 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.
