"Section 138 of the uniform evidence legislation deals with the discretion to exclude improperly or illegally obtained evidence, and has its origins in the well-known judgment of Stephen and Aickin JJ in Bunning v Cross. Section 138 prevents the admission of improperly or illegally obtained evidence ‘unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’. Thus, unlike the common law, s 138 places the onus of proof on the Crown to justify the admission of improperly or illegally obtained evidence, a situation this article argues should be reversed. The balancing exercise is undertaken through an examination of a non-exhaustive list of matters to be taken into account by the court as set out in s 138(3)(a)-(h). This article will analyse the list of matters in s 138(3)(a)-(h) with a view to considering whether the list should be prioritised in some form, given that jurisdictions such as New South Wales have attempted to influence the balancing exercise by introducing legislation that confers a right of appeal on the Director of Public Prosecutions against an evidentiary ruling that substantially weakens the prosecution case: s 5F(3A) of the Criminal Appeal Act 1912 (NSW). In particular, in light of animal welfare cases such as Lenah Game Meats and Kadir v The Queen, there will be a focus on the matter set out in s 138(3)(h), namely, ‘the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law’. Finally, the interaction between s 138 and s 90 Discretion to exclude admissions will be considered, given that s 90 is effectively a residual fairness discretion to exclude evidence."
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