The exclusion of evidence under s 138 of the Evidence Act 2008 involves a discretionary judgment attracting House v The King principles on appeal, and an appellate court will not interfere unless the decision was not reasonably open. Where a trial judge's finding that police conduct was deliberate is based substantially on credibility assessments, it will not be set aside unless glaringly improbable. Recklessness under s 138(3)(e) requires advertence to the possibility of illegality and a conscious decision to proceed regardless — mere carelessness, even of a high order, does not constitute recklessness. However, the Court signalled that a finding of inadvertent or careless (rather than deliberate) conduct might well lead to a different outcome on the s 138 balancing exercise.
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