It is extremely important that evidence for prosecutions is
collected legally. If site inspections are not conducted in a legal
manner, any evidence that is collected may be deemed inadmissible
by a Court – which will usually mean the prosecution will
However, in the event that evidence is unintentionally collected
illegally there is a possibility that evidence can be admissible.
This will need to be determined on a case by case basis.
What if we have evidence but it was collected not in
accordance with the entry provision we should have
The most likely way in which evidence has been collected
illegally ( when dealing with local governments) is where a
property has been entered when the officer entering the property
either does not have the appropriate authorisation or has not
complied with the required notice provisions.
If the property has been entered in a way which does not met the
requirements of the appropriate Act – and you need the
results of that inspection to be admitted into evidence, there is a
case which you can use called Bunning v Cross  141
CLR 54 which outlines an option where illegally obtained evidence
can be included in evidence – that of "public interest
"17 This question of the competition of the public
interest in conviction with the unfairness to the applicant in
connection with the taking of the test, he could properly have
come, was that there was no unfairness to the applicant in the
circumstances and manner of the obtaining of the evidence as to the
alcoholic content of his blood. There was nothing whatever to
outbalance the public interest in the enforcement of the
18 I have had the advantage of reading the reasons for
judgement prepared by my brother Stephen and Aickin. I agree
entirely with their observations on the proper principles to be
followed in exercising a discretion to exclude admissible evidence
because of the circumstances or manner in which it was obtained or
came into existence..." Barwick CJ
Stephen and Aickin JJ outline a number of factors to be
considered when attempting to decide whether the public interest
outweighs unfairness. These are:
no deliberate disregard of the law (by the evidence collector)
should be involved;
whether the nature of the disregard of the law (ie the way in
which the evidence was collected) affects the cogency (or the
clearness or lucidity) of the evidence in question. Most of the
time cogency will play a smaller role – if at all if the
illegality of the collection of the evidence was reckless or
how easy it would have been to collect the evidence
the comparative seriousness of the offence versus the
seriousness of the unlawful conduct of the local government;
the intent of the Parliament in limiting the ways in which
evidence may be collected.
This will be determined on a case by case basis and it will be
difficult to predict the outcome of the matter.
Always enter properties using the correct Act and in accordance
with the provisions of that Act. Make sure your authorisations are
current and correct. Relying on the case of Bunnings v
Cross  141 CLR 54 to render evidence admissible is risky
and may not produce the desired result.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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