When assessing the gravity of a contravention under s 138(3)(d) of the Evidence Act 2008 (Vic), the fact that the unlawful conduct could readily have been authorised under an appropriately worded major controlled operation authority is a relevant consideration capable of mitigating the gravity of the breach. Section 138 does not enact the 'fruit from the poisoned tree' doctrine, and an authorising officer for a subsequent MCOA is not required to conduct an exclusionary exercise on intelligence derived from earlier unlawful conduct.
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