Commonwealth Consolidated Acts

DEFENCE FORCE DISCIPLINE ACT 1982 - SECT 101ZB

  (1)   Where, in proceedings before a service tribunal in respect of a service offence, upon objection being taken to the admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, a provision of this Part, the service tribunal or, in the case of a court martial, the judge advocate of the court martial, is satisfied, on the balance of probabilities but having regard to any provision of this Act or the regulations relating to proof of particular matters, that the evidence was so obtained, the service tribunal or judge advocate must not admit the evidence unless the service tribunal or judge advocate is of the opinion that:

  (a)   admission of the evidence would substantially benefit the public interest in the administration of justice; and

  (b)   this benefit would outweigh any prejudice to the rights and freedoms of any person, including the accused person, that has occurred, or is likely to occur, as a result of the contravention or the admission of the evidence.

  (2)   The matters that the service tribunal or judge advocate may have regard to in deciding whether to admit the evidence include:

  (a)   the seriousness of the service offence, the urgency and difficulty of detecting the offender and the need to preserve evidence of the facts;

  (b)   the nature and seriousness of the contravention;

  (c)   the effect that admission of the evidence in the particular circumstances of the case is likely to have on the operation of the provisions of this Part;

  (d)   the effect (if any) of the contravention on the cogency of the evidence so obtained; and

  (e)   the extent to which the evidence might have been obtainable lawfully.

  (3)   This section is in addition to, and not in substitution for, any other law or rule under which a service tribunal or, in the case of a court martial, the judge advocate of the court martial, may refuse to admit evidence.

  (4)   Subsection   (3) shall not be taken to authorize a service tribunal or judge advocate, in proceedings in respect of a service offence, to refuse to admit a statement in evidence on the ground that an investigating officer contravened the rules known as the Judge's Rules.

  (5)   Nothing in this section derogates from the application of section   101J or 101K.