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[This edited version of the article has been prepared by Dr Robert N Moles]

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Justinian 9 March 2005 - Evan Whitton on … The hanky-panky rule

It is refreshing to see retiring appellate judges going out with a detonation rather than a whimper. In 2002, the Hon Jim Thomas, of the Queensland Court of Appeal, sank the slipper into judicial brethren who announce negligence payouts after changing from their usual frippery to the raiment of Mr S. Claus.

And now the Hon Geoffrey Lance Davies, 68, also of that learned court, has exposed the inadequacy of judicial lucubration on an ancient problem: what to do about relevant and reliable evidence thought to have been procured improperly? He said that if such evidence is concealed, "you end up punishing the public for the sins of the police … you need another solution which punishes the police … and, at the same time, if it is reliable, it should be allowed to go into the trial".

The public, who fondly believe the object of trials is to find the truth and protect them from criminals (including detectives) might see that as an elaboration of the bleeding obvious, but it is not at all obvious to most other judges.

In the USA, home of wretched excess, for example, judges have had to conceal all such evidence since Mapp v Ohio (1961). Mapp is deeply suspect for several reasons. One is that its author, Justice – if that’s the right word - Tom Clark falsely claimed it would deter detectives' malpractice, and was the only thing that would. Another is that there is a weighty circumstantial case that a fixer for the Chicago Mob, possibly Murray (The Camel) Humphreys, effectively appointed Clark to the court. The Camel had a shockingly deplorable view of the judiciary, presumably from local experience. He said:

"The difference between guilt and innocence in any court is who gets to the judge first with the most."

Coolidge v New Hampshire (1971) is one of Clark's finer fruits. A jury correctly found that Edward Coolidge had cut the throat of Pamela Mason, 14, but the Supreme Court overturned the verdict on the basis that the New Hampshire Attorney General was naughty to issue warrants to search Coolidge's car.

The UK purports to go for truth on wrongly gained evidence. Lord Chief Justice Rayner Goddard, 78, stated the approach in Kuruma v R (1955): one side Lord " … the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained." Leaving on Goddard's obvious lie that relevant evidence is always admitted, the last bit positively encourages the wallopers to engage in vile practice, and it may be suspected that the old deviate was less interested in truth than in procuring the flogging and hanging which gave him that delirious sexual frisson.

The Australian hanky-panky rule enshrined in Bunning v Cross (High Court, 1978) is more rational than Mapp and less hypocritical than Kuruma, but it does not deter investigators' dirty tricks, and it does give judges a discretion to conceal relevant and reliable evidence, and that can never be a good thing. In terms of justice, the way forward is implicit in Justice Davies' remarks. Special tribunals like the NSW Police Integrity Commission are required to punish detectives who fiddle evidence, and the High Court should take the first opportunity to revisit Bunning v Cross.

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