DPP v Kan [2026] ACTSC 198.

The decision in summary.

DPP v Kan [2026] ACTSC 198 was a judge-alone trial. The Director of Public Prosecutions had charged the defendant with aggravated burglary, criminal damage, take motor vehicle without consent, and theft. The prosecution was a joint commission case, alleging that the defendant had acted in concert with another person who was not before the court.

Two issues attracted detailed reasoning. The first was the admissibility of police body-worn camera footage and other material gathered at the crime scene. The defence challenged the evidence under section 138 of the Evidence Act 2011 (ACT) on the basis that it had been obtained improperly. The challenge was rejected. The evidence was admitted.

The second was identification. The case was circumstantial. The footage placed two persons at the relevant location. The prosecution argued that one of the persons was the defendant. Muller J was not satisfied beyond reasonable doubt that the identification had been established. The defendant was acquitted.

Two strands of reasoning. Two practical lessons. The s 138 lesson is for the trial. The identification lesson is for the verdict.

What is section 138 of the Evidence Act 2011 (ACT)?

Section 138 of the Evidence Act 2011 (ACT) is the discretionary exclusion provision for improperly or illegally obtained evidence. It applies to evidence obtained in contravention of an Australian law, or in consequence of an impropriety in the conduct of an officer. The court may admit the evidence only if the desirability of admitting it outweighs the undesirability of admitting evidence that has been obtained in the way it was obtained.

The court is required to take into account the matters in section 138(3). They include the probative value of the evidence, the importance of the evidence in the proceeding, the gravity of the impropriety, whether the impropriety was deliberate or reckless, the difficulty of obtaining the evidence without impropriety, and the steps that could reasonably be taken to avoid the impropriety. The list is not exhaustive.

A defence challenge under section 138 is not run lightly. The challenge requires evidence of the impropriety. Body-worn camera footage of the moment when the impropriety was alleged to have occurred is now central to most of these arguments. Where the footage shows the impropriety, the challenge is strong. Where the footage shows compliance, the challenge fails. Kan is a worked example of the second outcome.

What did the defence challenge in Kan?

The reasons identify the challenge as one to the lawfulness of a search and to the conduct of officers at the crime scene. The body-worn camera footage was central. The defence argued that the officers had exceeded their crime-scene powers and that the search had been carried out without proper authority. Muller J considered each ground.

The challenge was rejected. The reasons explain that the officers had acted within the scope of their powers, that the body-worn camera footage corroborated rather than contradicted the police account, and that the section 138 discretion was not engaged. The evidence was admissible.

The lesson is that body-worn camera is a double-edged sword for the defence. It can establish impropriety. It can also defeat a section 138 challenge by showing that the conduct was within the powers conferred. A defence practitioner needs to obtain the footage early and to assess whether the challenge is viable on the material.

Why was the identification not proved?

The case against the defendant was circumstantial. The prosecution relied on a combination of CCTV from neighbouring premises, body-worn camera footage of the immediate aftermath, financial transaction records, and the discovery of items at the defendant's residence. Each item was a piece of the puzzle. The prosecution submitted that the items, taken together, proved the defendant's involvement beyond reasonable doubt.

Muller J disagreed. The reasons identify the points at which the prosecution chain weakened. The CCTV showed two persons at the relevant location, neither clearly identifiable. The body-worn camera footage was of the scene after the offence and did not place the defendant there. The financial transaction records were consistent with the defendant's involvement but were also consistent with innocent explanations. The items recovered at the residence were of a kind that many residences contain.

The reasons emphasise that in a circumstantial case the prosecution must exclude every reasonable hypothesis consistent with innocence. The hypothesis that the defendant was not present at the scene and that another person was the second offender was not excluded. The verdict was not guilty.

Judge-alone trials in the ACT.

Section 68B of the Supreme Court Act 1933 (ACT) allows an accused to elect to be tried by a judge alone. The election is the accused's choice. The Crown does not have a corresponding right. The accused's decision is generally made at arraignment after consultation with counsel.

The judge-alone trial has two practical advantages and one disadvantage. The advantages are the structured reasons and the reduced risk of prejudice on emotive material. The disadvantage is the loss of the possibility that a jury will return a verdict driven by sympathy or by a general assessment that the accused does not "look like" a person who commits the offence. The disadvantage is mostly theoretical.

The judge-alone trial is the better choice in a circumstantial case where the legal reasoning is the principal battleground. Kan is an example. The reasoning that produces the not-guilty verdict is the careful application of the rule on circumstantial cases set out in Knight v The Queen (1992) 175 CLR 495 and the line of authority since.

What does this case tell defence practitioners?

Four practical points emerge.

First. Get the body-worn camera early.

A section 138 challenge depends on the footage. The footage is supplied as part of the brief but should be requested earlier where possible. A challenge that is run on a transcript alone, where the footage shows compliance, will fail.

Second. Be honest about the strength of a circumstantial case.

A circumstantial case can be won when the prosecution chain has gaps. Kan identifies the gaps in plain terms. Defence practitioners should be ready to articulate every reasonable hypothesis consistent with innocence at trial. The judge-alone reasons will then run through each one.

Third. Joint commission cases need careful attention to identification.

A joint commission case under section 45 of the Criminal Code 2002 (ACT) requires the prosecution to prove an agreement and that the accused was a party to the offence. Where the identity of the second person is in issue, the prosecution case may be weaker than it appears at brief stage.

Fourth. The judge-alone trial is a tool to use.

Where the reasoning is the issue, a judge-alone trial gives the defence the benefit of structured reasons. A jury would not have been asked to give reasons; an appeal from a jury verdict is limited to the questions the jury was directed on. An appeal from a judge-alone verdict is directed at the reasons themselves.

What we do for clients in similar cases.

We obtain the body-worn camera footage and review it for the section 138 issues. We map every piece of the prosecution case against the hypotheses consistent with innocence and identify the weakest links. We brief counsel for an early advice on whether a judge-alone trial is the better path. We prepare a chronology and a witness list that is run separately from the prosecution's. We take instructions on every item in the brief.

At trial we run the case in the way the reasoning will be reviewed. We make sure that every objection is recorded. We do not run trials on instinct in the ACT Supreme Court. We run them on the reasoning. Kan is the kind of careful reasoning that an acquittal needs.

Frequently asked.

What is a judge-alone trial in the ACT?

A trial in the Supreme Court conducted by a judge alone, without a jury, after election by the accused under section 68B of the Supreme Court Act 1933 (ACT). The judge delivers a verdict with structured reasons.

Does section 138 apply to all illegally obtained evidence?

Section 138 of the Evidence Act 2011 (ACT) covers evidence obtained in contravention of an Australian law or in consequence of an impropriety. The court has a discretion to admit such evidence if the desirability of admitting it outweighs the undesirability of admitting evidence obtained in the way it was. It is not an automatic exclusion.

What is joint commission?

Section 45 of the Criminal Code 2002 (ACT). The Crown must prove an agreement to commit the offence and that the accused was a party to the agreement. It is the ACT equivalent of joint criminal enterprise in NSW.

Is body-worn camera footage always admissible?

Generally yes. It is treated as a recording of events made by an officer in the course of duty. A challenge under section 138 is open if the recording was made improperly, but the challenge is rarely successful where the footage shows compliance with the powers being exercised.

Can the prosecution appeal an acquittal?

In limited circumstances. Section 37O of the Supreme Court Act 1933 (ACT) provides for prosecution appeals on certain grounds. An appeal against a not-guilty verdict in a judge-alone trial may be brought on a question of law alone. The grounds are narrow.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 25 June 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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