ABSTRACT
Students of this topic need an important warning. In reading cases where evidence has been excluded under either section, but particularly under s 78, you are almost never reading precedents that will have to be followed in later cases. The reason for this is that no situation is ever exactly repeated, defendants are not all alike, and the effect of acts or omissions by the police is likely to vary greatly from case to case. Knowledge of previous decisions cannot be a substitute for rigorous thought about the facts of your own particular case, facts that of course include the personal characteristics of the defendant. This is plain enough from looking at the basic law. Subsection (2)(b) of s 76 – probably the provision in that section which is most relied on – has the effect of requiring the court to attend to the particular circumstances of the individual defendant who relies on the provision. And, in Jelen and Katz (1989), the Court of Appeal emphasised that the application of s 78 was ‘not an apt field for hard case law and well founded distinctions between cases’.1
