R v Payne

Facts

Payne was suspected of driving while unfit through drink. He agreed to be examined by a police doctor on the express basis that the doctor would see whether he was ill or injured, and would not be asked whether he was fit to drive. At the trial the doctor gave evidence that he was unfit. He was convicted.

Issue

May the prosecution use a doctor's opinion obtained on a promise that it would not be used for that purpose?

Held

No. The Court of Appeal quashed the conviction. The judge should have excluded the evidence. The accused had submitted to the examination because of the promise.

Principle

The discretion to exclude is used where evidence was obtained by a promise that it would not be given. It is not a general rule that illegally obtained evidence is excluded.

Why it matters

This is the only case in the group in which the evidence was kept out. Kuruma, Jeffrey, Fox and Apicella went the other way.

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