---
title: "Prepare the issues for excluding improperly or illegally obtained evidence"
url: "https://ailawframework.com/practice/criminal-law/prepare-the-issues-for-excluding-improperly-or-illegally-obtained-eviden"
type: "task"
site: "AI Law Framework"
id: "A20-SB20261022-2"
practice_area: "Criminal Law"
tier: "red"
lawyer_review: "required"
last_reviewed: "2026-10-22"
---

# Prepare the issues for excluding improperly or illegally obtained evidence

> From the de-identified account of how the evidence was obtained, build an issues table under Evidence Act 1995 (Cth) s 138.…

Canonical page: https://ailawframework.com/practice/criminal-law/prepare-the-issues-for-excluding-improperly-or-illegally-obtained-eviden  
Last reviewed: 2026-10-22

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Criminal Law](https://ailawframework.com/practice/criminal-law.md) |
| Human involvement | Red: Lawyer writes; AI may check, clarify or collect data |
| How AI is used | From the de-identified account of how the evidence was obtained, build an issues table under Evidence Act 1995 (Cth) s 138. State the rule in s 138(1): evidence obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or contravention, is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. Row the questioning deeming provisions in s 138(2). List each matter in s 138(3)(a) to (h), with a blank for the fact that touches it. The tool does not write the application or the submissions. |
| What the lawyer must review | The lawyer decides whether s 138 is engaged and how the discretion falls, and writes any application and any submission. The section opened is the Commonwealth Evidence Act. A proceeding under a State or Territory evidence statute is checked against that statute. |
| Written for / versions | 1 jurisdiction versions below |

## Checking plan

**Lawyer decides exclusion and writes the application**

The tool rows s 138 from a de-identified account of how the evidence was obtained. The lawyer decides and writes the application.

- What the AI does: From the de-identified account of how the evidence was obtained, build an issues table under Evidence Act 1995 (Cth) s 138. State the rule in s 138(1): evidence obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or contravention, is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. Row the questioning deeming provisions in s 138(2). List each matter in s 138(3)(a) to (h), with a blank for the fact that touches it. The tool does not write the application or the submissions.
- What the lawyer does: The lawyer decides whether s 138 is engaged and how the discretion falls, and writes any application and any submission. The section opened is the Commonwealth Evidence Act. A proceeding under a State or Territory evidence statute is checked against that statute.
- Who reviews: Responsible lawyer with competence in the matter
- Basis: Practical workflow informed by the linked primary sources; the traffic light and working checks are editorial guidance, not a court classification.
- Why: The level reflects what the work is, the consequence of an error, and how much of the output the lawyer must independently re-derive.
- Restriction: The lawyer makes the substantive assessment and writes any document that will be sent, filed or signed. Any permitted AI assistance remains supporting work with its own checks.

## Checks the lawyer makes

1. Identify the impropriety or the contravention of an Australian law before the balancing factors are filled in.
2. Apply the questioning deeming rule in s 138(2) only where the evidence is an admission or was obtained in consequence of an admission.
3. Give each paragraph of s 138(3) a fact or a marked gap.
4. The lawyer writes the application. Nothing from the table is filed as the submission.

## Notes

- These are suggested working checks. Confirm the required checking with the responsible lawyer before work starts; the checking approach does not establish permission to use AI.

## Sources

- [Evidence Act 1995 (Cth) s 138](https://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s138.html) (checked 2026-10-22)

## Jurisdiction versions

| Jurisdiction | Level |
| --- | --- |
| [United States](https://ailawframework.com/practice/criminal-law/prepare-the-issues-for-excluding-improperly-or-illegally-obtained-eviden/united-states.md) | Yellow |

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*