How should Australian criminal trial courts treat evidence deriving from illegally or improperly obtained evidence? The fact that derivative evidence gives rise to factors distinct from primary evidence makes it deserving of an examination of its peculiarities. In doing so, the assumption may be put aside that derivative evidence falls wholly within the established general discourse of illegally or improperly obtained evidence. Just as the judicial response to primary evidence must be intellectually rigorous, disciplined and principled, so must be the response to derivative evidence. As such, a principled analysis of how Australian courts should approach derivative evidence can significantly contribute to the discourse on the law with respect to the exclusion of illegally or improperly obtained evidence. This thesis provides that principled analysis by arguing that the principles which underpin and inform the discretionary exclusionary frameworks within Australia require an approach which is consistent as between illegally obtained derivative evidence and illegally obtained primary evidence.

Text in Afrikaans / "Free people expect much from their police. In such societies the police stand at the point of balance on the one hand securing human rights on the other exercising their lawful powers given to them by Governments in the name of the people, to protect people and their institutions" (J Alderson Human Rights and Police Rights. Publication of the Council of Europe.) This is no small expectation. It means that the police are expected to maintain and secure the principles of democracy and human rights, the principles upon which our Constitution is based. At the same time it is the duty of a police service to maintain law and order which sometimes require the exercise of power and the use of force which on the face of it may appear to violate human dignity and certain rights and freedoms which a police force is expected to maintain in a democratic society. The manner of exercising that power has an impact on the credibility and effectiveness of the police. Human rights law internationally accepts that a police service needs to be given the power to, at times restrict certain individual freedoms in the interests of the security of the community at large. These restrictions may take place only in a constitutional way. If it takes place in an unconstitutional way the courts must have the right to exclude evidence which is unconstitutionally obtained. At this stage the courts have to formulate such a qualified exclusionary rule, but the ultimate goal must be to include such an exclusionary rule in a future Constitution. / Department of Criminal & Procedural Law / LL.M.

Text in Afrikaans / "Free people expect much from their police. In such societies the police stand at the point of balance on the one hand securing human rights on the other exercising their lawful powers given to them by Governments in the name of the people, to protect people and their institutions" (J Alderson Human Rights and Police Rights. Publication of the Council of Europe.) This is no small expectation. It means that the police are expected to maintain and secure the principles of democracy and human rights, the principles upon which our Constitution is based. At the same time it is the duty of a police service to maintain law and order which sometimes require the exercise of power and the use of force which on the face of it may appear to violate human dignity and certain rights and freedoms which a police force is expected to maintain in a democratic society. The manner of exercising that power has an impact on the credibility and effectiveness of the police. Human rights law internationally accepts that a police service needs to be given the power to, at times restrict certain individual freedoms in the interests of the security of the community at large. These restrictions may take place only in a constitutional way. If it takes place in an unconstitutional way the courts must have the right to exclude evidence which is unconstitutionally obtained. At this stage the courts have to formulate such a qualified exclusionary rule, but the ultimate goal must be to include such an exclusionary rule in a future Constitution. / Department of Criminal and Procedural Law / LL.M.

博士(法学) / 甲第520号 / x, vi, 227p / Hitotsubashi University(一橋大学)