The importance of identifying inadmissible evidence in a criminal trial
In criminal trials it is always extremely important to identify any pieces of evidence that is being relied upon by the prosecution that may be inadmissible. Just because the police obtain the evidence and it is disclosed to the defence lawyers does not mean that it will be admissible against the defendant. Pieces of evidence may be inadmissible and therefore excluded against the defendant for a number of reasons. Some of these are due to police oversight, police officers not properly following the law in obtaining the evidence or because the prejudicial affect of the evidence outweighs it’s ‘probative’ value, or what it is that is sought to be proven.
Background
I was recently retained by a young Vietnamese man from Victoria who was charged with a large scale production of cannabis. In 2021 police raided a very large rural property several hours west of Brisbane. The property consisted of a shed dwelling at the end of a long driveway, that had an open shed attached. There was another shed to the side of the property and then at the rear of the property, near a body of water, were four large sheds, referred to as ‘growhouses’. These growhouses were 60m long and consisted of eight 7m wide tunnels connected together. Each growhouse covered an area of 3,360 square meters. Inside growhouses police discovered 4,574 cannabis plants, with an estimated value of $6,861,000.
Inside the dwelling house, which was some distance from the growhouses, the police located four Vietnamese men. All were detained, questioned and searched, and all of their mobile phones were also searched. This is typically done in these types of matters because the police are looking for evidence that the people located on the property had been there for a significant period of time, thereby heading off any claim that the defendant may make that they had just arrived there that day and had no knowledge of the cannabis plantation. For example, the police will check to see if the phone connects to the property’s wi-fi (indicating that there had been a prior and/or prolonged presence at the property), or they will obtain from the service provider (Telstra/Optus/Vodafone) the ‘cell tower data’ that shows the movements of that particular sim-card on a map.
All four were charged with firstly producing the cannabis, and secondly possessing the cannabis. Whilst it may seem that there is some overlap in these two offences, they are both actually very different. The first offence requires the prosecution to prove that a person in same way nurtured, grew or cultivated the cannabis, whereas the second offence simply requires that they had some control over the cannabis.
Two of the men pleaded guilty and were sentence to effectively 8 months of actual imprisonment. This is when my client approached me. My task was therefore to identify some way of distinguishing my client from the other two, otherwise the court would also sentence him to 8 months imprisonment.
The evidence
It was necessary for the prosecution to prove that my client had been at the property for some time – because the longer he had been there, the more unlikely it would have been that he did not know about the cannabis plantation. As mentioned above, what is of critical importance are the mobile phone handsets because these can often establish how long the defendant had been present at the property for.
In the case against my client, the police analysed his mobile phone and found photographs and videos of kangaroos on the property from approximately one week prior – meaning that he had been on the property for at least one week. The problem therefore is that it would be very difficult for my client to demonstrate that he did not know about the cannabis plantation.
However, as stated at the beginning of the article, not all evidence will be admissible against a defendant and I therefore had to carefully consider whether or not I was able to argue that the evidence on his mobile phone was admissible.
Was the evidence inadmissible?
Most of the police officers who attended the raid were wearing video cameras that were attached to their chests. When the police first arrived at the property they were accompanied by another police officer who spoke Vietnamese and was able to act as the translator.
Before questioning a suspect the police are required to administer the rights to silence (that is, that a suspect does not have to answer any questions) and the right to have a friend, relative or lawyer present. It is critical however, that the police not only tell the suspect of these rights but to ensure that they are satisfied that the suspect understands them.
In this case, it is clear that all four defendants had no idea what the police officer was saying to them. And the biggest issue for the police was that when they obtained the mobile phones of all four men they demanded, as opposed to requested, the PIN codes to the handsets. In summary, it is clear that none of the men understood their rights and that they had the right to refuse the police access to their phones and that there was an argument that the evidence on the mobile phone was inadmissible.
Conclusion
Based on this, I sent a letter to the prosecution seeking firstly for them to discontinue the charge of possessing cannabis (because it could not be proven how long my client had been on the property for) and an amendment of the facts to reflect that the prosecution conceded that they could not prove how long my client was at the property for and further that they could not prove what actual involvement my client had in producing the cannabis.
These factors were enough to distinguish him from the first two men and upon sentence he avoided any actual jail time.
It is clear from this example that a defence lawyer should not simply accept that every piece of evidence against their client is admissible. The starting point, before accepting any piece of evidence, is to consider whether or not there is an argument that it may be ruled inadmissible.
If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.
