¹ 33 L.S.I. 141.

² In sec. 1 of the law, the legislature prescribes: “Monitoring” means listening to the conversation of another by means of an instrument. “Secret Monitoring” means monitoring without the consent of any of the participants in the conversation, and includes the recording thereof. “Conversation” means conversation by word of mouth or by any other means of communication.

³ Sec. 2 of the Law reads as follows: “(a) A person who without a proper permit engages in secret monitoring shall be liable to imprisonment for a term of three years, (b) A person who knowingly, without lawful authority, uses any infor mation, or the contents of any conversation, obtained by secret monitoring, whether authorised or unauthorised, or knowingly discloses any such information or the contents of any such conversation, to a person not competent to receive it shall be liable to a term of imprisonment not exceeding three years.

(c) A person who sets up or instals an instrument for the purpose of unauthorised secret monitoring, or to enable the use thereof for that purpose, shall be liable to imprisonment for a term of one year”.

⁴ Chap. 2 of the Law (secs. 4 and 5) deals with secret monitoring for purposes of state security. Chap. 3 (secs. 6 and 7) deals with secret monitoring to prevent offences or detect offenders. The differences between these provisions relate to the procedure for receiving permission, and to the authorities empowered by the Law to grant such permits in each set of circumstances. In each chapter the legis lature also deals with granting permits in writing in specified urgent cases. A permit will not be valid for more than 48 hours, and can be cancelled by the appropriate minister (Minister of Defence or the Interior Minister).

⁵ Sec. 13(b) prescribes as follows: “Whatever has been recorded by way of lawful monitoring under sec. 7 shall only be admissible as evidence, where monitoring has been approved as provided in that section”. Sec. 7 allows the receipt of permission in writing for secret monitoring but its period will not exceed 48 hours. This is when the Inspector General of the police is satisfied that secret monitoring is needed without delay to prevent an offence or to detect its perpetrators and when there is no possibility of receiving permission for such an activity under the normal procedure. Monitoring done under such urgent permission may be authorised retroactively by the authorities competent under the Law to grant permission (The President of the District Court, and in his absence the relieving President of the Court) (sec. 6(a)). Only in such a case where such permission is given, will matters recorded by secret monitoring be admissible as evidence, but it seems that it will only be admissible “in criminal proceedings, not arising out of a private complaint” (sec. 13(c)). Sec. 13(d) states: “The provisions of this section shall not detract from a plea as to the admissibility of any evidence, even if it was recorded by way of secret monitoring in accordance with the provisions of this Law”. Thus, for example, where a confession made by the accused outside the court is recorded, the fact that the monitoring was done law fully still does not make the confession admissible as evidence in trial. One must examine whether the confession is admissible according to the admissibility test in sec. 12 of the Evidence Ordinance [New Version] 5731–1971 (2 L.S.I. [N.V.] 198), i.e., that the accused made it “free and voluntary”. Moreover, it must also be examined whether the recording itself passes the criteria fashioned by Israeli precedents as regards the precondition for admissibility as evidence of tape-recording. See A pallo and others v. Stale of Israel (1980) (IV) 34 P.D. 561, 570–575.

⁶ Sec. 13 (a) prescribes that matters recorded by secret monitoring in contravention of the provision of the Law will not be allowed as evidence in the court. Therefore, the operation of the exclusionary rule will depend on the question whether the act which served to obtain the evidence (and not necessarily the litigant who offers it at court but also someone else, who transmitted the content of the con versation to the litigant) really constitutes “secret monitoring” within the meaning of the Law (supra n. 2), and whether it was done in contravention of the Law's provisions. See also Apollo v. State of Israel, Ibid., at 570.

⁷ See sec. 13(c) of the Law. Since the legislature deals with matters obtained through secret monitoring, it seems that its emphasis is to a case, where were it not for the granting of lawful permission for the monitoring, it would be forbidden by the Law, and therefore its contents would have been excluded as evidence. This is as distinct from the case in which from the beginning the monitoring of the conversation docs not constitute an unlawful secret monitoring within the meaning of the Law. For example, where one of the parties to the conversation gives his consent, or where the monitoring was not accomplished through the use of a device. Lawful secret monitoring of another's conversation consists of an act authorized within the framework of the special procedure which the legislature prescribed for the authorities in the Law itself (supra n. 4) or secret monitoring which does not require permission under the Law. Thus, for example, no permit is required for secret monitoring in the public domain if it is performed either by a person so authorized by the Head of a Security Service for reasons of State security, or one so authorized by a competent Police Officer in pursuit of crime prevention and detections. See on this matter Shohami and others v. State of Israel (1981) (IV) 35 P.D. 62, 73–76, Cohen and others v. State of Israel (1981) (II) 35 P.D. 393, 396–8. Even then the exception to sec. 13(c) is limited only to criminal proceedings not arising from a private complaint.

⁸ See infra text to nn. 15–38. This is also the approach of the English Common Law. See Cross, R., On Evidence, (London, 5th ed., 1979) 31–36, 318–328Google Scholar; Heydon, J.D. “Illegally Obtained Evidence” [1973] Crim. L. R. 603, 690Google Scholar; Williams, G., “Evidence Obtained by Illegal Means” [1955] Crim. L. R. 339Google Scholar; Williams, G., “The Exclusionary Rule under Foreign Law (England)” (1961) 52 J. Crim. L. C. & P. S. 272.Google Scholar In a number of decisions, however, there is some indication that the court may have the discretion in criminal trials to exclude illegally obtained evidence. See Kuruma, Son of Kanuiu v. R. [1955] A.C. 197, 203–204 (P.C.); Callins v. Gunn [1963] 3 All E.R. 677, 680, 681; R. v. Payne [1963] 1 All E.R. 848; King v. R. [1969] A.C. 304; Jeffrey v. Black [1978] 1 All E.R. 555. This question was also raised before the House of Lords in R. v. Sang & Mangan [1979] 2 All E.R. 1222 (H.L.) There the House of Lords limited the use of judicial discretion to exclude illegally obtained evidence only in the case of admissions, confessions or other evidence tantamount to admissions of an accused obtained after the commission of the offence. The House of Lords based its opinion on the privilege of self-incrimination and the need to ensure the accused of his right to receive a fair trial in instances where this privilege was violated in the course of the investigation. Re the general subject of illegally obtained evidence, the House of Lords emphasized the rule of admissibility prevailing in the English legal system. On this matter see also Cross, ibid; Heydon, J.D., “Entrapment and Unfairly Obtained Evidence in the House of Lords” [1980] Crim. L. R. 129, 132–135Google Scholar; Dawson, J.B. “The Exclusion of Unlawful Obtained Evidence: A Com parative Study” (1982) 31 I. & Comp. L.Q. 513.CrossRefGoogle Scholar Also see Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure, Cmnd. 8092 (1981) para. 4123–4133Google Scholar; Inman, M., “The Admissibility of Confessions” [1981] Crim. L. R. 469.Google Scholar

⁹ See infra, text to nn. 23–25 and also Suleiman v. State of Israel (1979) (II) 33 P.D. 204, 207; Nahum v. State of Israel (1976) (I) 30 P.D. 659, 664; Zohar v. State of Israel (1978) (I) 32 P.D. 326, 329.

¹⁰ S.H. 1011, p. 128. Sec. 1 of the Law prescribes as follows: “A person shall not infringe the privacy of another without his consent”; sec. 2 of the Law details in eleven subsections what is an infringement of privacy under the Law; sec. 3 defines “consent” under the Law as express or implied consent.

¹¹ Recently this provision was dealt with by the Supreme Court, sitting as the High Court of Justice, in Vak'nin v. The Military Court of Appeal et al. (1983) (II) 37 P.D. 393. This case will be discussed below.

¹² Sec. 2 of the Protection of Privacy Law prescribes in subsec. 2 that secret monitoring prohibited by law is an infringement of privacy. (These prohibitions are found in the Secret Monitoring Law).

¹³ The Secret Monitoring Law does not itself prescribe liability in tort for acts therein prohibited. However, the inclusion of the illegal secret monitoring within the concept of “infringement of privacy” in the Protection of Privacy Law makes the acts prohibited by the Secret Monitoring Law civil wrongs under sec. 4 of the Protection of Privacy Law.

¹⁴ Sec. 5 of the Law. The penalty prescribed in the section is one year imprisonment. As against this, the penalty prescribed in sec. 2 of the Secret Monitoring Law is three years imprisonment. From this it follows that the Israeli legislature chose a specially severe punitive attitude because of its feeling towards an incident where privacy is infringed by way of secret monitoring. This standpoint can be explained in the light of the gravity of the act itself. The sophisticated capability of one who conducts secret monitoring and the technological equipment available to him as opposed to the unwitting injured party unable to prevent its happening, places the injured party in an inferior position to that of the perpetrator of the infringement, and necessitates taking a severe punitive sanction against the perpetrator.

¹⁵ Supra n. 14.

¹⁶ Baranes v. State of Israel (1976) (III) 30 P.D. 507, 516; Meiri v. State of Israel (1978) (II) 32 P.D. 180, 182; Suleiman v. State of Israel, supra n. 9; Abu Midijam and Others v. State of Israel (1979) (III) 33 P.D. 376, 381–2; Abu Midijam and Others v. States of Israel (1980) (IV) 34 P.D. 533, 537–540, 546; Boulos v. State of Israel (1981) (I) 35 P.D. 785, 800–2; Malka v. State of Israel (1982) (IV) 36 P.D. 309, 316–319, and compare to Vak'nin, supra n. 11 as regards the exclusionary provision included in sec. 32 to the Protection of Privacy Law and the Israeli legal position regarding illegally obtained evidence. Only in Rehavia v. Attorney General (1970) (II) 20 P.D. 376 did the Supreme Court (Silberg D.P. and Berenson J) suggest, merely in obiter dictum, the possibility of excluding evidence because of the forbidden way it had been obtained. In contrast to this, Witkon J. in the same case restated the position in Israeli law regarding admissibility (ibid., at 385). For the approach of Israeli law to this subject, see Harnon, E., “Evidence Obtained through Improper Means” (1967) 23 HaPraklit 27Google Scholar; Harnon, E., The Law of Evidence (Jerusalem, 1977, in Hebrew) vol. II, pp. 256–266.Google Scholar

¹⁷ Meiri v. State of Israel, ibid.Malka v. State of Israel, ibid.

¹⁸ Hirsch v. State of Israel (1976) (III) 30 P.D. 197, and compare with R. v. Sang and Mangan, supra n. 8 at 1227.

¹⁹ On this subject see Harnon, “The Law of Evidence” op. cit. supra n. 16 at 246–281.

²⁰ Abdul Hadi v. Attorney General (1950) 3 P.D. 13, 33; Seitz v. Attorney General (1953) 7 P.D. 801, 808; Kisi v. Attorney General (1965) (III) 19 P.D. 561, 566; Hasin Yasin v. Attorney General (1963) 17 P.D. 1541, 1555; Artzi v. Attorney General (1966) (II) 20 P.D. 225, 231; Abu Midijam (1980), supra n. 16 at 539.

²¹ Meisan v. Attorney General (1957) 11 P.D. 769, 772; Kisi, ibid.; Hasin Yasin, ibid.; Abu Hatzeira v. Attorney General (1966) (IV) 29 P.D. 787, 792. Despite this, some judges do not stress reliability as a reason for excluding the confession, as much as they stress the concept of “free will” in sec. 12 of the Evidence Ordinance [New Version]. According to this concept, a confession must not be “extorted” from an accused by improper means and against his will, thus infringing his right to be silent. See e.g. Hirsch, supra n. 18 at 200; Artzi, supra n. 20 at 235; Tau v. Attorney General (1966) (III) 20 P.D. 539, 545; Abu Midijam (1980), supra n. 16 at 539.

²² 2 L.S.I. [N.V.] 198 at 200.

²³ According to this approach, reflecting the opinion of the majority of the Israeli Supreme Court, the question whether the reliability of the confession should be doubted is a question of law (or at least a mixed question of law and fact). Therefore, when it is prescribed that the means used were “improper”, the confession should be excluded without examining its content. See Artzi, supra n. 20 at 231; Yasin, supra n. 20; Kisi, supra n. 20; Hirsch, ibid.; Abu-Midijam, ibid. As opposed to this, the minority opinion in the Supreme Court (Cohn J.) is that in every case it should be examined whether the improper means really influenced the accused's free will, or whether in spite of those means he gave his confession voluntarily. For this purpose the contents of the confession should also be examined, including the circumstances of its giving and the form of its writing. See Barones, supra n. 16 at 515; Abu Midijam, ibid., at 546; Abu Midijam (1979) supra n. 16 at 380–381.

²⁴ Supra n. 16 (1980).

²⁵ Ibid., at 538. Concerning the voir dire or “little trial” see generally, Harnon, E., “A New Draft of an Evidence Code: Are Revolutionary Changes Desirable?” (1983) 18 Is.L.R. 99.Google Scholar

²⁶ Ibid., at 539.

²⁷ Ibid., at 546–7. The judgments of Landau D.P. and Cohn J. should be read against the comments in supra n. 23.

²⁸ See Landau D.P., ibid., at 539–540 on the question of physical or psychological violence as an improper means which infringes the element of “free will” required under sec. 12 of the Evidence Ordinance. See also per Landau D.P. in Artzi, supra n. 20.

²⁹ And see supra n. 23.

³⁰ ibid., at 537–538.

³¹ Indeed Landau D.P. has reservations in the Abu Midijam case about the test of the evidence's reliability as the exclusive test for admissibility or rejecting evidence. But this is in order to emphasize the legal interpretation given in the Supreme Court's precedents to the words “of his own free will” in sec. 12 of the Evidence Ordinance. In other words, it does not follow from Landau's judgment that the reason for excluding evidence in a specific instance is not derived from sec. 12 of the Evidence Ordinance, but from the existence of an unlawful method of investigation.

³² ibid., at 456. Cohn J. was not required to deal with this question because according to his approach, the improper methods themselves cannot exclude a confession extracted from the accused so much the more with objective evidence.

³³ (1980) (III) 34 P.D. 294. For a digest of this case see “Digest: Recent Legislation and Cases” (1981) 16 Is.L.R. 110 at 122. And see also Peretz v. Attorney General (1963) (IV) 17 P.D. 2104; Khouri v. State of Israel (1982) (II) 36 P.D. 85.

³⁴ See Cherrick, J.B., “Constitutional Adjudication in Israel? The High Court Speaks Out for Person's Rights” (1981) 30 I. & Comp. L. Q. 835.CrossRefGoogle Scholar

³⁵ Ibid., at 301.

³⁶ (1983) (II) 37 P.D. 393.

^36a The question of the legal meaning of sec. 2(1) of the Protection of Privacy Law and the interpretation of the words “other form of harassment” included therein will soon be brought before a bench of five Justices, in a Further Hearing in the case of Vak'nin now pending before the Supreme Court.

³⁷ Sec. 47(b) prescribes that if a court rejects the witness's request not to give evidence, “the evidence shall not without his consent be used against him in proceedings in which he is charged with the offence of which the fact disclosed by the evidence is an element”. “A court” in this section should be read as including any court, “tribunal, authority, bodies or person competent under law to take evidence”, as prescribed by sec. 52 of the same Ordinance.

³⁸ Cf. Karib v. State of Israel (1978) (II) P.D. 729 and Khouri, supra n. 33. It cannot be ascertained from these two cases whether the Supreme Court prefers the narrow approach of interpreting the concept “evidence” in sec. 47(a) above, namely, as including only incriminating testimonial evidence or the broader approach, incriminating objective evidence taken from the accused against his will after the commission of the offence. In these two cases Shamgar J. compared to the rule of the United States Supreme Court concerning the interpretation of the Fifth Amendment of United States Constitution. However, the American interpretation focuses on the express language of this Amendment which emphasizes that no one should be compelled to be a witness against himself. As against this, sec. 47(a) of the Israel Evidence Ordinance uses the word “evidence” and not “testimony” or “‘witness”. This question has as yet not been directly dealt with by the Israeli Supreme Court. See Libai, D., “Interrogation of a Suspect and the Privilege against Self-Incrimination” (1972) 2 Is. Yrbk. on Human Rights 247, 259Google Scholar;

³⁹ See supra n. 37.

⁴⁰ Cf. the approach of Landau D.P. in Abu Midijam, (1980), supra n. 16, regarding the possibility of neglecting the reliability test, and emphasizing the “free will” test concerning the subject of the accused's confession outside the court. Also see R. v. Sang and Mangan, supra n. 8 at 1230 and R. v. Payne, supra n. 8.

⁴¹ The assumption is that the accomplice was not charged of this offence but was called to testify as a “state witness” in the accused's trial. According to sec. 10A (a) of the Evidence Ordinance [New Version], “a written statement made by a witness out of court shall be admissible as evidence in a criminal proceedings if the witness… denies its contents in court”. For the admissibility of an accomplice's written statement under this section, see Shoami v. State of Israel (1981) (IV) 35 P.D. 62.

⁴² Both in the framework of pleadings in civil proceedings and in the framework of indictment and defence in criminal proceedings.

⁴³ In civil proceedings the tendency is to simplify and shorten proceedings so that the different procedural obstacles will be reduced to a minimum, and the procedure of clarifying the truth will be done as quickly as possible and with maximum efficiency. See, for example, rr. 108–109, 115–122, 123–134 of the Civil Procedure Rules, 1963, dealing with discovery of documents and their inspection, and the introduction of interrogatories. Also see rr. 140–50 dealing with the special pre-trial procedure. In criminal proceedings the tendency is substantially different. This difference is rooted in the special structure of the criminal process, which is based on the principle of the presumption of innocence and the need to ensure the legal rights granted the accused to a fair trial. Therefore, it can be argued that the requirement that official behaviour be limited by the principle of legality is necessary in order to guarantee the accused's right, at trial. According to this view, whenever evidence was obtained as a result of illegal official actions, the court is entitled to exclude it because it would be unfair to use it as a proof against the accused at trial. Compare on this matter to R. v. Sang and Mangan, supra n. 8 at 1230, 1246.

⁴⁴ Thus, for example, where a witness can not be compelled to give evidence for reasons of professional privilege. A court must investigate the substance of a witness's claim for privilege, notwithstanding the fact that this may postpone the hearing of the main issue. Moreover, such a claim can obstruct the hearing of the dispute since, because of the privilege, one cannot submit to the court evidence necessary to prove one's claim. Yet, general considerations of legal policy stand behind the legal recognition of the witness's privilege, which are preferred to any considerations of the court's convenience or the shortening of proceedings. Compare, for example, sec. 48 of the Evidence Ordinance [New Version], 1971, granting a definite privilege to matters or documents which have passed between a lawyer and his client. However, the Israeli legislature foresaw the possibility that difficulties could arise in proving legal disputes at court as a result of a claim of privilege. Therefore, in other similar professional relationships, such as a doctor or psychologist and his client, the court has been granted the power to order the witness (the professional) to disclose the contents of the evidence if the court has found that the necessity to disclose this evidence for the purpose of doing justice outweighs the interests in its non-disclosure.

⁴⁵ This reason is founded in the basis of the American rule, as the first ground that was raised by the U.S. Supreme Court to justify the need for the existence of the exclusionary rule where evidence was obtained by the authorities in a way which unlawfully invades the accused's constitutional rights. Weeks v. United States 332. U.S. 383, 391–392, 394 (1914); but this reason, commonly known as the “normative ground” or the “judicial integrity” of the court, must be understood in the light of the particular legal structure on which the United States legal system is based. The Supreme Court derives its authority from the Constitution. Therefore it can exercise its authority only in the framework of its provisions, including the provisions granting protection to the basic rights of the individual against unlawful acts of the authorities. By admitting evidence thus obtained the court becomes an accomplice to the unlawfulness and thus strikes at the root of its power. See on this subject Elkins v. United States 364 U.S. 206, 222 (1969); United States v. Calandra 414 U.S. 338, 357–359 (1974); Olmstead v. United States 277 U.S. 438, 470 484–485 (1928); Terry v. Ohio 392 U.S. 1, 13 (1968); Kamisar, Y., “Is the Exclusionary Rule an ‘Illogical’ or “Unnatural” Interpretation of the Fourth Amendment?” (1978) 62 Judicature 67–68.Google Scholar

⁴⁶ Olmstead v. United States, ibid., at 470, 484–485; Rochin v. California 342 U.S. 165, 173–174 (1952); McCormick, C.H., Handbook of the Law of Evidence (St. Paul, Minn., 2nd ed. by Cleary, E.W., 1972) 368, 374Google Scholar; Paulsen, M.G., “The Exclusionary Rule and Misconduct by the Police” (1961) 52 J. Crim L. C. & P.S. 225, 257–259Google Scholar; Allen, F.A., “Due Process and State Criminal Procedures; Another Look” (1953–1954) 48 N.W.U.L.R. 16, 34.Google Scholar

⁴⁷ The reason of deterrence was raised by the U.S. Supreme Court in the early sixties, when the question of the application of the exclusionary rule in the courts of the individual States was raised. Elkins v. United States, supra n. 45 at 217; Mapp v. Ohio 367 U.S. 643 (1961): Linkletter v. Walker 381 U.S. 618 (1965).

⁴⁸ McCormick, supra n. 46 at 367–368, 374; D.H. Oaks, “Studying the Exclusionary Rule in Search and Seizure” (1970) 37 U. Chi. L. R. 665, 668, 711, 756–757; see also Cross, supra n. 8 at 33; A.J. Ashworth “Excluding Evidence as Protecting Rights” [1977] Crim. L. R. 723; Hirsch, supra n. 18 at 200; Meiri, supra n. 16 at 182; Abu Midijam (1980), supra n. 16.

⁴⁹ For the rule ex turpi causa non oritur actio in the Israeli contract and torts law, see Friedmann, D., “Consequences of Illegality in Israeli Law in Light of Sections 30–31 of the Contract Law, General Part” (1975) 5 Iyunei Mishpat 618Google Scholar, and (1976) 6 loc. cit. 172; More, D. “Ex Turpi Causa Non Oritur Actio in Torts” (1970) 25 HaPraklit, 254Google Scholar; Barak, A., Tort Law, ed. Tedeschi, G. (Jerusalem, 2nd ed., 1977, in Hebrew) 340–345.Google Scholar

⁵⁰ Sec. 30 of the Contracts (General Part) Law, 5733–1973 (27 L. S. I. 117) indeed prescribes that “a contract, the making, contents or object of which is or are illegal, immoral or contrary to public policy is void”. But sec. 31, which deals with the consequences of such a contract, prescribes that where one party has fulfilled his obligation under the contract the court may, if it deems it just to do so and on such conditions as it sees fit, require the other party to fulfil the whole or part of the corresponding obligation under the contract. See Friedmann, ibid., and also Howard v. Meira (1981) (II) 35 P.D. 505, 512; Elhanani et al. v. Raphael et al. (1981) (I) 35 P.D. 702, 710–711; Adrai et al. v. Gdalyahu et al. (1982) (IV) 36 P.D. 28.

⁵¹ See Abutbul v. Klieger (1965) (I) 19 P.D. 429; Asparanes Nathan v. Abdulla (1970) (I) 24 P.D. 455; Ploni v. Almoni (1976) (I) 30 P.D. 383; and also Friedmann, op. cit., supra n. 49, (1976) 6 Iyunei Mishpat 180–184; Barak, supra n. 49; More, supra n. 49.

⁵² See supra nn. 50–51.

⁵³ And compare with R. v. Sang, supra n. 8 at 1230, 1234, 1239–1241, 1246.

⁵⁴ For the Israeli legal approach to this subject see text at supra nn. 19–27. As regards objective evidence extracted from the accused under the same circumstances, and which because of its evidential content is tantamount to an admission of an incriminating fact, see text supra at nn. 29–40 and also n. 53, supra.

⁵⁵ The assumption here, as aforesaid, is that the evidence relevant to the dispute is admissible under the accepted tests of admissibility in the Israeli Law of Evidence, and that its content is true.

⁵⁶ McCormick, supra n. 46 at 367; Wigmore, J.H., Evidence in Trials at Common Law (Boston, McNaughton, Rev. 1961) vol. 8, §§2183–2184aGoogle Scholar; Paulsen, supra n. 46 at 256; Ashworth, supra n. 48 at 724; Andrews, J.A., “Involuntary Confessions and Illegally Obtained Evidence in Criminal Cases” [1963] Crim. L. R. 15, 17.Google Scholar

⁵⁷ And see per Cardozo J. in People v. Defore 242 N.Y. 13, 19–25; N.E. 585, 587–589 (1926). See also Irvine v. California 347 U.S. 128, 136 (1954); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 403 U.S. 388, 411–418 (1970); Stone v. Powell 428 U.S. 465, 489–491 (1975); Wigmore, ibid., at § 2184a; Amsterdam, A.G., “Search, Seizure and Section 2255: A Comment” (1964) 112 U. Pa. L. R. 378, 338–391CrossRefGoogle Scholar; Oaks, supra n. 48 at 736–754; Paulsen, supra n. 46 at 256.

⁵⁸ This is in addition to the court's decision that the litigant's behaviour outside the court was tainted with illegality. Such a decsion on its own casts a shadow on the litigant's good name.

⁵⁹ Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra n. 57 at 422–424; Oaks, supra n. 48 at 717–719, 756–757; McCormick, supra n. 46 at 367–368.

⁶⁰ Supra n. 57.

⁶¹ Rr. 115–122 of the Civil Procedure Rules, 1963 deal with filing interrogatories to the opponent. (But these rules are limited only to civil proceedings before a District Court). Rr. 125–139 deal with the discovery of documents and the right of every litigant to inspect and copy documents which are in his opponent's possession. Also see Sussmann, Y., Civil Procedure (Tel-Aviv, 4th ed., 1973, in Hebrew) 333–357.Google Scholar

⁶² Civil Procedure Rules, 1963, rr. 108–110. R. 110 prescribes that an admission of any fact can be used only for the purpose of the same litigation and only in regard to the right of a litigant, in relation to whom it was made.

⁶³ See Sussmann, supra n. 61. R. 136 of the above regulations provides that where a litigant does not comply with an order to reply to an interrogatory, or to discover or make available for inspection a document, his claim will be rejected (if he is the plaintiff), or his defence will be struck out as if it had not been submitted at all, but the court may extend the time for complying with the order.

⁶⁴ Sec. 74 of the Criminal Procedure Law [Consolidated Version] 5742–1982 (S.H 1043, p. 43). But the provision is confined to offences that constitute a crime or misdemeanour. The provision does not apply to evidence designed to refute the accused's contention which the prosecution could not have foreseen in advance, nor to evidence designed to explain the absence of a witness, or pertaining to any other formal matters not material to the clarification of the charge (sec. 80 of the Law). Sec. 76 provides that whosoever obstructs a person appointed under sec. 75 in the carrying out of his functions, shall be liable to imprisonment for a term of three months. Sec. 77 provides for a restriction on the production of evidence at trial by the prosecution. The prosecutor shall not produce any evidence to the court, or call any witness if the accused or his defence counsel has not been given a reasonable opportunity to inspect and copy the evidence or the statement made by the witness during the investigation. unless they have waived the right to do so. There is an exception to the rule in sec. 74 as regards material whose non-disclosure is permitted, or whose disclosure is prohibited by any law. But in such a case, the prohibition in sec. 77 shall apply to such material. The prosecutor cannot submit such material as evidence at the trial. (This is subject to the special provision in sec. 128 of the Penal Code, 5737–1977 (L.S.I. Special volume) dealing with offences against state security, granting the prosecutor special permission to submit evidence to a court even if the accused has not been given an opportunity to inspect it, and even if he is not present in court while the evidence is produced).

⁶⁵ With the exception of the right to inspect and copy an expert's written opinion or a doctor's certificate which the accused intends to produce before the court as evidence (secs. 82–83 of the Criminal Procedure Law [Consolidated Version]. Sec. 84 of the law provides that the accused shall not submit to the court written opinions or a doctor's certificate, and shall not call an expert witness, where the order granted in relation to them under sec. 83 was not fulfilled except upon the prosecution's consent or by leave of the court.

⁶⁶ Nevertheless the prosecutor, with the permission of the court, may present evidence to rebut contentions arising out of the evidence of the defence and which the prosecutor could not have foreseen (sec. 165 of the Criminal Procedure Law [Consolidated Version]). However, in such a case the accused may also bring evidence to rebut the prosecution's evidence (sec. 166 of the same Law).

⁶⁷ See infra text to nn. 87–89 for the question whether the exclusionary rule functions as a deterrent.

⁶⁸ Cf. LaFave, W.R., “Improving Police Performance Through the Exclusionary Rule—Part I: Current Police and Local Court Practices” (1965) 30 Mo. L.R. 391, 411–415.Google Scholar But as regards the development of an exception to the exclusionary rule in American Law, which emphasizes the honest belief and good faith of the investigator in the legality of the act done to obtain the evidence, see United States v. Peltier 422 U.S. 531, 537 (1975); Michigan v. Tucker 417 U.S. 433, 477 (1974); United States v. Janis 428 U.S. 433, 455 (1976); Stone v, Powell, supra n. 57 at 538–540; Michigan v. Fillippo 433 U.S. 31, 39–40 (1979); United States v. Williams 622 F. 2d 830 (1980) cert, denied 499 U.S. 1127 (1981); United States v. Ajilouny 629 F. 2d 830 (1980). And see Ball, E.F., “Good Faith and the Fourth Amendment: The ‘Reasonable’ Exception to the Exclusionary Rule” (1978) 69 J. Crim. L. & C 635CrossRefGoogle Scholar; Wright, C.A., “Must the Criminal Go Free if the Constable Blunders?” (1972) 50 Tex. L. R. 736Google Scholar; Note, “Exclusionary Rule: Good Faith Exception—The Fifth Circuit's Approach in United States v. Williams” (1981) 15 Georgia L. R. 487.

⁶⁹ LaFave, ibid., at 432–437; LaFave, W.R. & Remington, F.J., “Controlling the Police: The Judge's Role in Making and Reviewing Law Enforcement Decisions” (1964–1965) 63 Mich. L. R. 987, 1010CrossRefGoogle Scholar; Oaks, supra n. 48 at 700.

⁷⁰ Or to cause the authorities to create a fictitious set of circumstances, which amounts to a legal justification for preventing the operation of the rule, Oaks ibid., at 739–742.

⁷¹ The extent of the influence of each of these means on the way the investigator behaves depends of course on the nature of the immunity or defence granted to him according to law against liability in criminal or civil proceedings, and also on the nature of the disciplinary provisions prescribing the required man ner of conduct and the disciplinary measures imposed on the person in violation of them.

⁷² This is in order to examine if he has an immunity or a legal defence according to law against criminal or civil liability. See e.g., sec. 44 of the Criminal Procedure (Arrest and Searches) Ordinance [New Version], 5729–1969 (2 L.S.I. [N.V.] 30); sec. 6 of the Police Ordinance [New Version], 5731–1971 (2 L.S.I, [N.V.] 158); secs. 6 and 7 of the Civil Wrongs Ordinance [New Version], 5728–1968 (2 L.S.I. [N.V.] 4); and also secs. 24 (2) and (4) of the same Ordinance.

⁷³ But see supra n. 68 as regards the development of an exception to the ex clusionary rule in American law, taking into consideration the doctrine of the investigator's good faith and honest belief in the legality of the act used to obtain the evidence.

⁷⁴ See supra nn. 4 and 7.

⁷⁵ See sec. 13(a) of the Secret Monitoring Law, set out verbatim supra, in text to n. 5.

⁷⁶ See text of sec. 32, set out verbatim supra, in text to nn. 10–11.

⁷⁷ Sec. 19 of the Law prescribes as follows:

(a) A person shall not be liable under this law for an act which he was authorized under the law to perform.

(b) The security authorities or someone in their service or someone working on their behalf, shall not be liable under this law for an infringement reasonably done as part of their duties and in furtherance of their performances

(c) “Security authorities” for the purposes of this section, comprise any of the following: (1) The Israel Police; (2) The staff of the Security Department and the I.D.F. Military Police; (3) The General Security Service.

⁷⁸ Sec. 18 of the Law provides for defence for the accused at a criminal trial or for the defendant in a civil case where the issue is invasion of privacy. Subsec. 2 emphasizes the accused's or defendant's good faith at the time he committed the infringement as is shown in those circumstances mentioned in the section. Thus, for example, where he did not know or had no reason to know of the possibility of an infringement of privacy (subsec. 2(a)) or where the infringement was done under circumstances where the accused or the defendant had a legal, moral, social or professional obligation to so proceed (subsec. 2(b)) or the infringement was done in order to protect a legitimate personal interest of the accused or the defendant (subsec. 2(c)). Sec. 20 of the Law prescribes presumptions concerning the accused's or the defendant's good faith. Sec. 21 prescribes that where the accused or the defendant produced evidence, or himself testified in order to prove one of the defences provided by the Law, the prosecutor or plaintiff may produce rebutting evidence.

⁷⁹ See supra n. 64.

⁸⁰ However, it is possible that, as a result of the illegal act, the right of a third party, unconnected with the litigation, is infringed. Sec. 32 of the Protection of Privacy Law foresees this possibility. Pursuant to this section, the evidence will be excluded unless the consent of the injured party is given. In this context the injured party need not be a party to the proceedings and can be a third, unconnected party.

⁸¹ Also, he can often take measures of self-defence provided that these measures are reasonable and under such circumstances that would prevent the occurrence of an infringement. See, e.g., sec. 24 of the Civil Wrongs Ordinance [New Version] dealing with defences available in the event of an unjust attack.

⁸² The argument that criminal and tortious measures are not effective to safeguard the individual's constitutional rights against illegal invasion of privacy by the authorities, was employed as a reason to justify the need for the existence of the exclusionary rule in the American law. See Mapp v. Ohio, supra n. 47; Oaks, supra n. 48 at 673–674; Edwards, R.A., “Criminal Liability for Unreasonable Searches and Seizures” (1955) 41 Va. L. R. 622Google Scholar; Foote, C., “Tort Remedies for Police Violations of Individual Rights” (1955) Minn. L. R. 493Google Scholar; Scwartz, L. B., “excluding Evidence Illegally Obtained: American Idiosyncracy and Ra tional Response to Social Conditions” (1966) 29 Mod. L. R. 635, 636.CrossRefGoogle Scholar

⁸³ See Harnon, (HaPraklit), supra n. 16 at 42–44.

⁸⁴ Cf. secs. 3, 19, 21, 22, 25–29, and 32 of the Criminal Procedure (Arrest and Searches) Ordinance [New Version] prescribing the power of a police officer to arrest a person and to carry out a search and seizure on his person or property and possession. Sees. 4 and 5 of the Police Ordinance [New Version] prescribes the power of a police officer and his functions. Secs. 135 and 277 of the Income Tax Ordinance [New Version] (1 L.S.I. [N.V.] 145) prescribing the authority of an assessing officer to make a search and seizure in order to carry out the provisions of the Ordinance.

⁸⁵ See supra n. 72, and also Barak, supra n. 49 at 384–392; Rubinstein, A. and Friedmann, D., “The Liability of Public Servants in Torts” (1965) 21 HaPraklit 61.Google Scholar

⁸⁶ See e.g., Ra'ad et al. v. State of Israel (1971) (I) 25 P.D. 197, 215–224; Shahada v. Hilu (1970) (IV) 20 P.D. 617, 623–625; Avrahami. v. The Mayor of Tel-Aviv, Jaffa et al. (1969) (I) 19 P.D. 114, 119; Elon v. Peled (1967) (IV) 17 P.D. 2572; Bohan Insurance Co. Ltd. v. Eisenberg et al. (1973) (II) 27 P.D. 720.

⁸⁷ The Police Ordinance [New Version] in Part 5 deals with police disciplinary procedures. The State Service (Discipline) Law, 5723–1963 (17 L.S.I. 58) considers the disciplining of public servants.

⁸⁸ See ibid. Each of these Laws prescribes how disciplinary proceedings will be commenced, and the authorized administrative tribunal which will conduct the proceedings and ultimately prescribe the appropriate disciplinary sanction in a case where the police officer or state servant is convicted of a disciplinary offence.

⁸⁹ For examination of deterrence as a rationale in support of the exclusionary rule in American law, see supra nn. 47–48.

⁹⁰ For an examination of the exclusionary rule in the light of its function as a means of deterring the authorities, see Oaks, supra n. 48; McCormick, supra n. 46 at 366–367; LaFave, supra n. 68 at 403–415; LaFave & Remington, supra n. 69 at 1002–1011.

⁹¹ Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra n. 57 at 413–19; United States v. Peltier, supra n. 68 at 544; Oaks, supra n. 48 at 709–710, 726; LaFave, supra n. 68 at 393.

⁹² LaFave & Remington, supra n. 69 at 1002–1008.

⁹³ Oaks, supra n. 48 at 710–730; McCormick, supra n. 46 at 367; LaFave, supra n. 68 at 402–403.

⁹⁴ See Nahum v. State of Israel, supra n. 9; Suleiman v. State of Israel, supra n. 9 at 208.

⁹⁵ And see Barak J. in Suleiman, ibid., at 207.

⁹⁶ For the suggestions raised in American law as an alternative solution to the exclusionary rule, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra n. 57; Oaks, supra n. 48 at 717–719, 756–757; Wilkey, M.R. “The Exclusionary Rule: Why Suppress Valid Evidence?” (1978) 62 Judicature 217, 227–232.Google Scholar But compare to Kamisar, Y., “The Exclusionary Rule in Historical Perspective: The Struggle to Make the Fourth Amendment More Than ‘An Empty Blessing’” (1979) 62 Judicature 337, 345–347.Google Scholar As to the dispute on whether such means of protection can be used to replace the exclusionary rule, or whether they should be used in addition to the exclusionary means, see Cann, S. and Egbert, B., “The Exclusionary Rule: Its Necessity in Constitutional Democracy” (1980) 23 Howard L.J. 299, 314.Google Scholar

⁹⁷ Oaks, supra n. 48 at 676.

⁹⁸ LaFave, supra n. 68 at 403; McCormick, supra n. 46 at 367; Oaks, ibid., at 729.

⁹⁹ Oaks, ibid., at 727–729; McCorniick, ibid.; LaFave, ibid., at 403–411; LaFave & Remington, supra n. 69 at 1008.

¹⁰⁰ See supra n. 70.

¹⁰¹ See text at supra nn. 19–27.

¹⁰² And cf. Kariv, supra n. 38 at 744.

¹⁰³ See text at supra nn. 28–40.

¹⁰⁴ Ibid.

¹⁰⁵ Also the Supreme Court in Vak'nin refrains from determining a general attitude as regards the question whether the admissibility position of the Israeli legal system should be changed. The Supreme Court was satisfied with scrutinizing the specific provisions of the Protection of Privacy Law.

¹⁰⁶ See text at supra nn. 4–5 and 10–11 where these sections are reproduced verbatim.

¹⁰⁷ According to each of these provisions the infringement does not necessarily have to be committed by the party who wants to produce the evidence in court, nor necessarily committed against his opponent. An invasion of privacy may occur to a third party, unconnected to the litigation itself. Even then the evidence, under each of these statutory provisions, will be excluded at the trial.

¹⁰⁸ See supra n. 8, and also Wigmore, supra n. 56 at § 2183 and McCormick, supra n. 46 at 365.

¹⁰⁹ Therefore the exclusionary rule will not be employed where the act that led to obtaining the evidence, although constituting a violation of statutory law, did not invade the individual's constitutional rights. See McCormick, ibid., at 365, n. 4; united States v. Scolnik 398 F. 2d. 320 (1968), cert, denied 392 U.S. 391; People v. Brannon 108 Cal. Rptr. 620 (1973); People v. Rowlings 117 Cal. Rptr.

¹¹⁰ Supra n. 45.

¹¹¹ Weeks v. United States, supra n. 42; Mapp v. Ohio, supra n. 44; Miranda v. Arizona 384 U.S. 436 (1966); Gideon v. Wainwright 372 U.S. 335 (1961); Escobedo v. Illinois 378 U.S. 478 (1964); United States v. Wade 388 U.S. 218 (1967).

¹¹² Supra nn. 47–48.

¹¹³ The rule will not apply where the infringement was committed by private individuals as distinguished from the governmental agents: Burdeau v. McDowell 256 U.S. 465 (1921); Wigmore, supra n. 56 at § 2184a; McCormick, supra n. 46 at 369–374; Allen, F.A., “The Exclusionary Rule in the American Law of Search and Seizure” (1961) 52 J. Crim. L. C & P. S. 246, 247.Google Scholar Also the rule will not apply where another's right as distinct from the accused, is infringed: Alderman v. United States 394 U.S. 165, 174 (1969); United States v. Calandra, supra n. 45 at 364–365; Rakas v. Illinois 439 U.S. 128, 133–135, 143 (1978); United States v. Payner 447 U.S. 727 (1980); Wigmore, ibid.; Oaks, supra n. 48 at 734–735; Allen, ibid., at 247.

¹¹⁴ And compare with Rochin v. California, supra n, 46. Although this ruling deals with the question of whether the method used by the authorities to obtain evidence infringes the accused's right to due process of law under the Fourth Amendment of the U.S. Constitution. It must be noted that this decision was given before the exclusionary rule was applied to all the state courts of the United States as in Mapp v. Ohio, supra n. 46. See also Breithaupt v. Abram 352 U.S. 432 (1956).

¹¹⁵ Schmerber v. California 384 U.S. 757 (1965).

¹¹⁶ Holt v. United States 218 U.S. 245, 252–253 (1910); Schmerber v. California, ibid., at 761–765; Wigmore, supra n. 56 at § 2263; McCormick, supra n. 46 at 264–266. However, the United States Supreme Court in the Schmerber case was of the opinion that the deed that served to obtain the evidence (the blood test) had to be examined in light of the Fourth Amendment of the Constitution; ibid., at 700–766.

¹¹⁷ Katz v. United States 389 U.S. 347 (1965).

¹¹⁸ Therefore, the United States Supreme Court held that the protection granted by the Fourth Amendment also extends to secret surveillance but only where it was carried out by unlawful entry onto the premises. Mere spoken words, as intangibles, were held beyond the scope of the protection of the Fourth Amendment, which was viewed as protecting only “material things”. See Olmstead v. United States, supra n. 45 at 438, 464; Goldman v. United States 316 U.S. 129 (1942); Silverman v. United States, 365 U.S. 505, 509 (1961); Lee v. United States, 343 US. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); McCormick, supra n. 46 at 398–399.

¹¹⁹ Katz v. United States, supra n. 117 at 353; McCormick, ibid., at 399–400.

¹²⁰ Supra n. 113.

¹²¹ See Vak'nin v. The Military Court of Appeal et al, supra n. 11 at 417–419, 423, 435.

¹²² For the position in Israeli law, see supra, text to nn. 16–41.

¹²³ And, obviously, also for the definition of the terms “monitoring” and “conversation” in the same section, see supra n. 2 where these definitions are reproduced verbatim.

¹²⁴ In the Secret Monitoring Law, the legislature was silent on this matter. As against this, the legislature in promulgating the Protection of Privacy Law expressly noted that consent can also be by implication. (Sec. 3 of the Law).

¹²⁵ It follows from the language of the provision that in each of the described situations the evidence will be excluded at court as the emphasis is on “matters recorded by way of secret monitoring in contravention of the provisions of this Law.” Yet, the question arises in relation to a case where secret monitoring is done with lawful permission, but where the contents of the conversation are unlawfully transmitted to another person, who is the litigant in a specific litigation, and who wants to make evidential use of the information in order to prove his allegation at trial. On the face of it, it seems that the evidence is admissible, although the act of disclosure or making use of the contents of the conversation amounts to a criminal offence under sec. 2(b) of the Law.

¹²⁶ Sec. 2 of the Protection of Privacy Law.

¹²⁷ Thus, for example, it seems from the language of the provision ihat evidence obtained by an invasion of privacy will be excluded at trial. However, if in consequence of this evidence, further evidence is obtained, it seems that the latter will be admissible, even though it is clear that had it not been for the infringement, the evidence would not have been obtained. Cf. the rule in American law of “fruits of the poisonous tree”: McCormick, supra n. 46 at 344–346, 411–416.

¹²⁸ See supra, text to nn. 108–119.

¹²⁹ But see the proposed basic law: Rights of the Individual and Citizen in Israel, 5733–1973 (H.H. 1085, p. 448).

¹³⁰ The statutory exclusionary provisions are not employed against the authorities only. They apply to an equal extent in criminal and civil proceedings whether the litigant who wants to submit evidence at trial is a private person or the authorities, or whether the infringement of the right was committed by a private individual or the authorities.

¹³¹ See Cf. supra, text to nn. 28–41.

¹³² See supra, Chap. B. of this article for a full discussion on this subject.

¹³³ As mentioned, the assumption is that the evidence was obtained by means prohibited under the Law (Secret Monitoring Law or Protection of Privacy Law). But if it was obtained from another person with his consent there is no risk of an infringement of that person's privacy by revealing the contents of the evidence at court, since by his consent, he waived his right to privacy in relation to this evidence.

¹³⁴ Sec. 2(a) of the Secret Monitoring Law, which was reproduced verbatim, supra, n. 3. The concept “secret monitoring” is defined in sec. 2 of the Law, and reproduced verbatim, supra n. 2. But this is on condition that A did not receive lawful permission to carry out the monitoring (supra n. 4) or that the monitoring was not within the definition of secret monitoring permitted under the Law (supra n. 7).

¹³⁵ Sec. 2(b) of the Secret Monitoring Law, reproduced verbatim, supra n. 3. “Lawful authority” for the purpose of this provision means both the permission of the injured party, (each party to the conversation monitored) and the permission of the person authorized, pursuant to the Law, to permit secret monitoring by the investigating authorities (supra n. 4).

¹³⁶ On this subject it is immaterial who will be the opponent of A at the trial; whether he was one of the parties to the conversation which was secretly monitored or not.

¹³⁷ Under sec. 13(c), matters lawfully recorded by secret monitoring will only be admissible as evidence in criminal proceedings not arising from a private complaint. In other words, this specific provision will apply only to secret monitoring done by legal permission acquired pursuant to those procedures prescribed in the Law and to secret monitoring that the Law specifically permits, (e.g., the monitoring of a conversation made in a public place, if conducted by someone authorized by the head of the Security Service for reasons of state security (sec. 8(a) and supra n. 7).

¹³⁸ See supra, text to nn. 120–132.

¹³⁹ The Law prescribes in sec. 3 “consent – express or implied”.

¹⁴⁰ Sec. 3 of the Law prescribes that “publication” for the purposes of the Law takes its meaning from sec. 2 of the Defamation Law, 5725–1965 (19 L.S.I. 254). Sec. 2 of that Law prescribes as follows:

“(a) publication, in relation to defamatory matter, means publication by speech, writing or printing, including painting, effigy, gesture, sound and any other means. (b) without excluding other modes of publication, defamatory matter shall be regarded as published—(1) if it is intended for any person other than the injured party; (2) if it is in writing, and the writing is likely, in the circumstances of the case, to reach any party other than the injured party.

¹⁴¹ Sec. 18(1) refers to sec. 13 of the Defamation Law, 5725–1965. Subsec. 5 of sec. 13 says that “any publication by a judge, a member of a religious court, an arbitrator, or any other person vested with with judicial or quasi-judicial authority by any law, made in the course of a proceeding before him, or in his decision, and any publication by a party or the representative of a party to a legal proceeding or by a witness, made in the course of and for the purposes of and in connection with the proceedings”. But note must be taken that while sec. 13 of the Defamation Law states that publication of this kind is permitted, and will not serve as a ground for a criminal or civil action because of such defamation, the legislature in the Protection of Privacy Law did not convert an unlawful publication to a lawful one, but only created a defence for the accused or the defendant in a criminal or civil action of invasion of privacy.

¹⁴² Cf. sec. 13 of the Defamation Law, supra n. 141.

¹⁴³ This section was reproduced verbatim, supra n. 10.

¹⁴⁴ For this matter it is immaterial whether the injured party is or is not a party to the litigation.

¹⁴⁵ Sec. 2(5) of the Law provides that copying the contents of a letter or other writing not intended for publication, or using the contents without the permission of the addressee or writer, constitutes an infringement of privacy if the writing has no historical value and fifteen years have not elapsed since the date of its composition.

¹⁴⁶ Sec. 2(1) of the Law provides that surveillance of an individual in a manner that may harass or otherwise annoy him is an infringement of privacy. It is not enough that a man is followed; the following must be liable to harass him. The presumption made in this article is that such an infringement in fact occurred.

¹⁴⁷ Sec. 2(10) of the Law provides that publication or transmission of anything obtained by an infringement of privacy under subsecs. (1) to (7) or (9) of the section is also an infringement of privacy.

¹⁴⁸ See supra n. 141.

¹⁴⁹ Therefore, even if the content of the evidence was published in another way after the infringement occurred, the evidence will be excluded under the first part of sec. 32. However, if the publication was made with the consent of the injured party, one can perhaps say that he also gave his consent to the submission of the evidence at court and therefore it can be admissible. See infra, text to n. 152. Sec. 2 of the Law provides that if the publication was made without the consent of the injured party, it constitutes an infringement of another's privacy, and therefore, the evidence should be excluded. But the court has discretion to permit its admissibility, for reasons it shall record. For this matter, it will be possible to weigh the injustice that will be caused to the injured party if the evidence is submitted in light of the fact that its contents have already been published in public. Where the individual who performed the infringement is a party to the proceedings, he may raise a defence claim under the Law, in order to justify his unlawful act and thus give a justification for the admissibility of the evidence, as an exception to the exclusion under the latter part of sec. 32.

¹⁵⁰ The act does not even amount to an illegal infringement of privacy of the other party to the conversation that was recorded, because when the consent of one of the parties to the conversation has been given for the monitoring, the act is not within the purview of secret monitoring prohibited under the Secret Monitoring Law. See supra n. 2 for the definition of the term “secret monitoring” in the Law.

¹⁵¹ But consent to the submission of evidence at court does not negate the illegal element from the act committed to obtain the evidence. The act infringing another's privacy without his consent constitutes a criminal offence and civil wrong under the Law.

¹⁵² Therefore, with the consent of the injured party, the conversation, recorded by secret monitoring forbidden under the Secret Monitoring Law, will be admissible as evidence, even though sec. 13(a) of the Law does not refer to this possibility.

In other words, if the reason for excluding the evidence is based on the need to protect each of the parties to the conversation against further infringement of their privacy, there is no need to use this evidential tool, where the injured party agreed to the disclosure of the contents of the conversation at court. (The ‘injured party’ in this context refers to each of the parties to the conversation, and therefore the consent of one of them does not suffice). According to this approach one should read the exclusionary provision of sec. 13(a) in accordance with sec. 1 of the Protection of Privacy Law which prescribes that “no person shall infringe the privacy of another without his consent”.

¹⁵³ Supra, text to nn. 8–9 and 16.

¹⁵⁴ A similar explanation can be suggested as regards the provisions of sec. 47 of the Evidence Ordinance [New Version]. Sec. 47(a) provides for a person's right to privilege against self-incrimination. Sec. 47(b) prescribes that “where a person has asked to be excused from giving evidence, on the ground that is likely to incriminate him as specified in subsec. (a), and the court has rejected his request and the evidence has been given, the evidence shall not, without his consent, be used against him in proceedings in which he is charged with the offence of which the fact disclosed by the evidence is an element.” It can be said that the exclusion of the evidence under subsec. (b) above, is designed to protect the accused, whose right against self-incrimination was infringed outside the court, from a further infringement. Such an invasion will occur if the prosecution is permitted to produce evidence which the accused was forced to render against his will, and which results in his conviction. This explanation can apply in a case of a confession taken from the accused against his will. According to this explanation, the reliability ground is not needed as justification for excluding the confession. But will the exclusionary means be employed where the accused was forced to give, as a result of unlawful means, objective evidence, which, because of its testimonial contents incriminate him? On this question see supra, text to nn. 35–40.