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My legal matter concerning an application for a Domestic Violence Order was managed by Mr Thomas Allen. I am grateful for the outcome he obtained. Without Mr Allen and his ongoing support, I would be certain of a different result. It has been an extremely stressful period. Mr Allen’s astute ability to liaise on my behalf and his expertise was invaluable and for which I am grateful as I am now able to move forward. Thanking you
I would like to take this opportunity to thank Armstrong Legal and specifically Mr Thomas Allen for representing me in my recent case. At the outset, I would like to thank Mr Allen for the very professional delivery of his legal service. From the first time that I met Mr Allen, I was very impressed with his demeanour and delivery as he made me feel at ease knowing the severity of my case. Mr Allen not only gave me the possible positive outcomes of the case but also the realisation of the worst-case scenario as far as sentencing goes. … I will certainly be recommending Armstrong Legal to any of my friends or family needing representation in criminal matters. Thank you so very much.
Thank you for your representation and help. Fingers crossed for the next step and parole. I just want to say that from the first phone call to your office, your service has been outstanding and have put my mind at ease. I am glad I picked your number to ring.
Thank you Armstrong Legal, the lawyers that have helped over the past 3 years but more importantly, thank you to Thomas Allen for the major part you and Mr Buckland played. Cannot thank you enough. Cheers.
Hi all. I would like to thank Ms Lisa Riley for all her help with my legal issues this past month. It was the most harrowing experience of my life and thanks to her expertise, professionalism and knowledge of the law, I came out almost unscathed. I have no hesitation in recommending Lisa Riley and Armstrong Legal if you need help. The service is amazing and the cost was very minimal for the great outcome. Thank you Lisa for helping me in the most difficult time.
I just want to thank you from the bottom of my heart. My whole life I was thrown away, you made me feel like I did mean something. I could not have asked for a better lawyer. Your compassion and love for your job is inspiring. Your upfront and honesty were muchly appreciated, you are a beautiful person. Thank you for not giving up on me and thank you for all the work you put in. I wish you all the best for the future and I will be recommending you to everyone I know. You're amazing!!!!
I just wanted to thank you for representing me on Monday, I was overjoyed & relieved with the outcome. I don’t think it could have gone any better. All the best, I hope you got to celebrate this one instead after work, you forever made a difference in my life.
I know I thanked you before we parted company but please allow me to reiterate in writing my sincere deepest thanks for defending me in court today. … Armstrong Legal certainly has a great Lawyer you are a credit to the company and I'm quite sure you will secure a very successful future! … My Kindest Regards and Thanks
Throughout Angela has been the consummate professional. She maintained a calm, yet strong demeanour remained informative and completely open in her communication and took complete ownership of the situation. We felt confident we finally had an advocate to steer us out of the nightmare we were in, and she did so with great respect and sincerity. I cannot speak more highly of Angela. She has literally rescued our family from what looked very much like a hopeless future.
Words can’t describe how grateful I am to Trudie Cameron being my solicitor and to Andrew Tiedt presenting my case in the court. They both have been very supportive and amazingly professional and effective. I’ve got an absolutely fantastic outcome I couldn’t even dream about.
Soon after meeting Andrew I knew he was the solicitor I wanted to handle my matter. He immediately sprang into action which brought me stability and hope during a tumultuous time in my life. Andrew was never afraid to give me straight answers to my tough questions which is a true mark of integrity. He is clearly at ease in the court environment and I believe his calm and measured demeanour went a long way to helping me secure the best result from my day in court. I would certainly recommend you approach Andrew if you need assistance.
"Andrew Tiedt was very professional and considerate to personal circumstances and gave sound advice that resulted in the best outcome possible. Highly recommended."
Discretion to Exclude Evidence: Bunning v Cross
When evidence against an accused person has been obtained in a way that did not comply with procedural rules, the court may be asked to exercise its discretion to exclude the evidence. This may occur where a police interview was carried out without the proper caution, where police searched a property without a warrant or where the search went beyond the scope of the warrant.
In this situation, the defence may argue that the relevant piece of evidence was obtained improperly and ought to be excluded from the proceedings. The court will then be required to consider whether to exercise its discretion to exclude the evidence. The discretion to exclude evidence improperly obtained is known as the Bunning v Cross discretion.
Bunning v Cross
IN 1978, the High Court decision of Bunning v Cross dealt with when courts should exercise their discretion to exclude evidence that has been improperly obtained. In that case, Western Australian police had stopped a man who was driving erratically and speeding. The patrolman smelt alcohol on the man’s breath and asked him to get out of the car, which he did, with some difficulty. The patrolman asked the driver if he had been drinking and he told him that he had had about three beers. The patrolman did not ask the driver to do a preliminary breath test but asked the driver to come back to the police station with him. There the driver was breath tested and recorded a BAC of 0.190.
The decision at first instance
The driver in Bunning v Cross was charged with speeding and driving under the influence of alcohol. In the Perth Court of Petty Sessions, he was found guilty of speeding, but the charge of driving under the influence was dismissed due to the magistrate finding that evidence of the breath test was inadmissible. This finding was based on the fact that the patrolman had had no objectively reasonable suspicion that the driver was affected by alcohol before administering the breath test. This was because the police had failed to administer an on-the-spot breath test, as required under the WA Road Traffic Act 1974.
The prosecutor obtained an order to have the Supreme Court review the decision. It found that the magistrate had erred in ruling the evidence inadmissible. Rather, it said, there was a discretion for the magistrate to exclude the evidence based on the finding that it was improperly obtained. The Supreme Court remitted the matter back to the magistrate, who exercised the court’s discretion to exclude the evidence. He then dismissed the charge.
After the matter had been through a number of other procedural steps, it came before the High Court, which found that the Magistrate had exercised his discretion to exclude the evidence correctly.
Discretion to exclude evidence
The High Court found that the discretion to exclude evidence improperly obtained can rightly be exercised where the unfairness to the defendant if the evidence were admitted, outweighs the public interest in obtaining evidence to aid the enforcement of the law. Courts may also exercise their discretion to exclude evidence where the extent to which the evidence would prejudice a fair trial outweighs the probative value of the evidence.
The High Court found that there was no room for the exercise of the discretion to exclude the evidence of the breath test result in the matter of Bunning v Cross. This was because what occurred, in that case, did not involve unfairness to the accused but was unlawful only because the patrolman wrongly believed he was entitled to take the driver back to the police station without first conducting an on-the-spot breath test. There was no deliberate disregard of the law. Furthermore, the nature of the illegality did not have a bearing on the cogency of the evidence that was subsequently obtained and the offence being investigated was a relatively serious and prevalent offence. The High Court stated that the magistrate did not appear to have considered any of these criteria or to have given any weight to the public interest of convicting persons who commit offences.
Excluding evidence improperly obtained
When a person is charged with a criminal offence and it appears that some of the evidence the police are relying on may have been improperly obtained, the defence should seek that the matter be listed for a voir dire.
A voir dire is a pre-trial proceeding where the admissibility or inadmissibility of an item of evidence is determined after submissions from defence and prosecution. Where the defence is seeking to have evidence that is prima facie admissible excluded from the trial, it bears the onus of establishing that the evidence ought to be excluded. This can be achieved by persuading the court to exercise the Bunning v Cross discretion. Where the prosecution is seeking to have evidence admitted that is prima facie inadmissible, it bears the onus of establishing that the evidence should be admitted.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal.
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