injustice cannot be corrected by another injustice.” – Cardozo J.1
The above quote
correctly lays down the essence of the topic of my assignment, i.e. improperly
obtained evidence and its admissibility.
Laws of evidence regarding improperly obtained evidence has come a long
in the last four decades. On a timeline,
the rules of admissibility for improperly obtained evidence can be laid out on six
critical milestones viz, period prior to New Zealand Bill of Rights Act 1990 (NZBORA),
NZBORA enactment, judgment in R v Shaheed,
codification of Evidence Act 2006, R v
Williams ruling and finally the judgment in Hamed v R. This essay presents a brief overview on the changes in the
rule for admitting improperly obtained across these milestones. The essay is divided into three major
sections. The first section focusses on
the common law principles for admitting improperly obtained evidence and the
corresponding progression of law post the implementation of NZBORA and the rule
in R v Shaheed. The second section will then focus on the
next phase of the changes brought about in the rule through the codification of
the common law principle in Evidence Act 2006 and its application in two
critical cases of Williams and Hamed.
This part will finally conclude with a brief view on the current state
of law post Hamed.
AND LAW PRIOR TO EVIDENCE ACT 2006
Law of evidence
has been made up over the years through various provisions and common law rules
built from hundreds of cases and piecemeal reforms to the original Evidence Act
1908 through to 2006. As a basic common
rule, all evidences are admissible in the court if they are relevant to the
case subject to the discretion of a court to exclude it on grounds of
COMMON LAW RULE
One of the
earliest cases in NZ to rule out the admissibility of evidence on grounds of
unfairness were that of R v Capner3
and R v Montella4
in which Williamson J excluded the evidence due to the uncertainty on the
consent of the accused if it was given of free will and being well
informed. Also in R v Smith (Malcolm) the court accepted that the fairness test
involves questioning whether the admissibility of the evidence will bring a
disrepute to the judiciary system.5 The courts use their discretion to exclude
evidence not on the grounds that it has been obtained unlawfully, but because
it was obtained unfairly.6 In R v
Fahey, the Court confirmed that the fairness discretion embraces “both the
fairness of an accused trial where improperly or unlawfully obtained evidence
is given by the Crown and the need on public policy grounds to avoid
sanctioning conduct likely to bring the administration of justice into
disrepute.”7 A challenge to admissibility of an evidence
will fail if it appears that there is some reasonable basis for admitting the
evidence.8 Before the New Zealand Bill of Rights Act
1990, all that existed for the courts to exclude unfairly obtained evidence was
a judicial discretion.
ZEALAND BILL OF RIGHTS ACT (NZBORA) 1990 & EVIDENCE RULES
The New Zealand
Bill of Rights Act was enacted in 1990 setting out the various fundamental and
common law rights entitlement of each New Zealander. The purpose of this Act is “to affirm,
protect, and promote human rights and fundamental freedoms in New Zealand”9.
Since the NZBORA enactment, the courts started adopting a prima facie exclusion
rule for evidences obtained in breach of the NZBORA. In R v
H the court confirmed this rule by stating “There is a prima facie rule of
evidence obtained in consequence of a breach of the Bill of Rights. ….”10
Though the court also clearly noted the exception in this case by stating that
the evidence can be admitted only in cases wherein it is in the interest of
justice which can affect and override on the fundamental rights affirmed and
protected by the BORA.11 This prima facie rule of exclusion was
devised by the courts from 1992 to 2002 (until the rule in Shaheed) as a
mechanism to vindicate the breach of rights of the accused.12
Until R v Shaheed, any evidence obtained in
the breach of the NZBORA was prima facie inadmissible, but everything changed
post the ruling in Shaheed13. In Shaheed,
the Court of Appeal abandoned the prima facie exclusion rule based on the
breaches of NZBORA and held that the admissibility must be determined through a
balancing exercise with a reasonable weight given to the fact that the rights
of the accused has been breach.14 The court advised this as the starting point
of the balancing exercise. The principle laid out in Shaheed focussed on an idea of the overall interests of justice in
a criminal proceeding and the balancing test required the judges to weigh
several factors in assessing if the exclusion of the evidence was or not a
proportional remedial response to the breach of rights affirmed by the BORA in
any given case.15 To sum up the rule in Shaheed, the court identified six factors to assess the
admissibility of an evidence through the balancing test. There are16:
The nature of the right and the nature of the
Whether the right was breached in bad faith,
recklessly, negligently or due to a genuine mistake of the law by the police
Whether there were other investigatory
techniques available to the police but not used by the them
The courts need to assess the reliability,
cogency and probative value of the evidence obtained in violation of the Bill
The gravity and seriousness of the crime
The importance and centrality of the evidence to
the prosecution in the context of the case
aspects formed the overall calculations, but “the principal balancing act of Shaheed pits seriousness of the breach
of the Bill of Rights and the blameworthiness the of police misconduct
against the gravity of the offence(s) charged and the centrality of the
evidence to the prosecution” case.17
ACT 2006 – THE CODIFICATION
In 2006, post
the various preliminary papers submitted by the law commission, a codified
version of Evidence Act was enacted in 2006.
One of the codifications in this Act was the section on the
admissibility of improperly obtained evidence.18 Section 30 of the Act, in effect, codified
the Shaheed test and brought together
years of various common law rules under the ambit of a single code. Though section 30 provides an approach to
exclude evidence in criminal proceedings, the listed factors also acts as a
guidance in other contexts such as the one noted by the Supreme Court for in Wilson v R which related to an abuse of
the statutory process.19 Section 30 is expressed to operate only in criminal
proceedings and the exclusion of an illegally obtained evidence in a civil
proceeding was addressed by the Supreme Court in Marwood v Commissioner of Police.20 The court assessed the exclusion of the
evidence on the grounds of a breach of the rights enshrined in NZBORA rather
than applying section 30 of the Act.21
Section 30 is limited in application only for the evidence offered by the
prosecution. The admissibility of
evidence offered by the defendants and/or the co-defendants are guided through
the various other sections of the Act which we won’t be discussing in this
paper. Also, section 30 of the Act should
be read in conjunction of the general provision under sections 7 and 8 of the
Act and to be read specifically on the aspects of evidence being submitted by
the prosecution which could have argued to have been obtained illegally.
IN WILLIAMS – A GENUINE EFFORT
inception of the Evidence Act 2006, R v
Williams was the first case decided by the New Zealand Court of Appeal to
provide a structured application of section 30 of the Act.22 In Williams, the court intended to create an
analytical matrix designed to provide “more consistent results” in the
application of the proportionality-balancing test. 23 To achieve this, a two-phase approach was created
to work out the balancing test. Phase
one considered the first half of the codified s 30(2)(b), focussing on the
impropriety that produced the challenged evidence in question.24 This phase laid down the factors aligned on
excluding the evidence. The factors
The nature and the extent of the police
illegality and the breach of the BORA.
The courts also need to assess the extent of unfairness, as read in s
30(5)(c), to the accused in producing the evidence.
The characterisation of the police misconduct
and the way they acted which could be deliberate, reckless, careless and/or in
Any other circumstances in which the evidence
was obtained improperly including but not limited to the police having
knowledge of other lawful means to secure the evidence but failed to do so, the
strength of the causal connection between the police impropriety and the
obtaining of the evidence, the strength of causal connection between the
defendant and the placed searched or property seized, especially in cases of
real evidence and finally if the police investigation was carried out in any
urgency or emergency.
Once the judges assess
the seriousness of the police impropriety based on the above factors, Williams then requires the judge to
consider any public interest factors that could point away from the exclusion
of the evidence and then balance these against the seriousness assessment.26 Williams
laid down the major two considerations inclining towards the admission of the
improperly obtained evidence. These are:27
The seriousness of the offence. Williams
tried to quantify the seriousness based on the sentence of conviction and
adjudged serious offences as ones having sentences greater than 4 years along
with a consideration of any threat to public safety.
The second of the militating factors is the
nature and quality of the evidence which includes the probativeness,
reliability and centrality to the prosecution.
Williams genuinely tried to create some
consistency in the application of exclusionary rule laid in s 30 of the
Evidence Act, nevertheless, it faced criticisms by jurists on aspects relating
to, but not limited to:28
inappropriate and inapposite balancing done in s
nature and extent of police illegality and the
characterisation of police misconduct analysed as part of ss 30(3)(a)-(b)
standing of the defendant
factors adjudging the seriousness of the offence
especially defining seriousness of an offence based on the sentence it carried
a thin analysis on the physical danger and urgency
in obtaining the evidence as laid out in ss30(3)(g)-(h)
COURT POSITION IN HAMED AND THE
CURRENT POSITION OF LAW
The Court of
Appeal’s decision in Williams was
applied consistently and successfully by the lower courts with minor variations
until the decision in Hamed.29 The decision in Hamed is by far one of the most academically criticised decisions
of the Supreme Court. Hamed effectively has changed the status
quo established by Williams and
brought the entire jurisprudence on the exclusion of illegally obtained
evidence back to where it started prior to Evidence Act 2006. The Supreme Court in Hamed has neither explicitly overruled Williams in determination of the balancing tests but neither has it
applied it. Rather than the application of
the matrix put forward by Williams,
Elias CJ in her judgment treated s30 balancing test factors as mere checklist
for the court to consider during the application of the section. 30
As laid out in Williams, s 30(2)(b)
was treated in a two-phase approach to bring about the dichotomy suggested by
the Act. The Supreme Court in Hamed
rejected this bifurcation and focused on the weighing in the remedy aspect of
the breach.31 Also even though the Supreme Court had an
opportunity to bridge the gaps left out in Williams
especially in areas such as the seriousness of the offence, it didn’t really
delve into the issue.32 Though the Justices didn’t accept the
criteria laid out by the Court of Appeal in Williams,
Tipping J in his ruling stated that he preferred “the more neutral and more
fairly administrable approach of assessing seriousness on a continuum by
reference to maximum penalties.” These
being the major areas wherein the Supreme Court missed providing guidance,
there were other aspects of s 30 too which was left unanswered in Hamed.
The Supreme Court decision in Hamed,
left the courts to address s 30 on case by case basis on its facts rather than
ascertaining the Court of Appeal’s decision in Williams or regardless by having its own consistent approach. Though the law commission review report
supports the view of the Supreme Court ruling in Hamed, it does acknowledge the gaps left by the apex court in
interpreting s 30 of the Evidence Act.33 Based on this the law commission has advised
the lawmakers on changing the wordings to s 30(2)(b) of the Act, still leaving
the matter open to interpretation by the courts in future.34
1 People v Defore Court of Appeals of New
York 242 N.Y. 13; 150 N.E. 585.
Commission Criminal Evidence: Police Questioning: A Discussion Paper (NZLC PP21, 1992) at 72.
3 R v Capner 1975 1 NZLR 411.
4 R v Montella 1992 1 NZLR 63.
5 R v Smith (Malcolm) 2000 3 NZLR 656.
6 R v Fraser 1997 2 NZLR 442.
7 R v Fahey (CA 94/00, 11 May 2000).
8 R v P 1996 3 NZLR 132.
New Zealand Bill of Rights Act 1990.
10 R v H 1994 2 NZLR 143
11 R v H 1994 2 NZLR 143
Scott L Optican and Peter J Sankoff “The New
Exclusionary Rule: A Preliminary Assessment of R v Shaheed” 2003 NZ L Rev 1
at 2–4 “Preliminary Assessment”.
Consendine “R v Shaheed: The First Twenty Months” (2004) 10 CanterLawRw 77
14 R v Shaheed 2002 2 NZLR 377.
Optican “R v Williams and the Exclusionary Rule: Continuing Issues in the
Application and Interpretation of Section 30 of the Evidence Act 2006” (2011)
NZLR 507 at 508.
Consendine “R v Shaheed: The First Twenty Months” (2004) 10 CanterLawRw 77.
Scott L Optican “The New Exclusionary Rule: Interpretation and Application of R
v Shaheed” 2004 NZ L Rev 451 at 527 “Interpretation and Application”.
Evidence Act 2006, S 30.
19 Wilson v R 2015 NZSC 189 at 60.
Rupert Cross Cross on Evidence (10th ed,
LexisNexis, Wellington, 2017) at 112.
21 Marwood v Police 2016 NZSC 139.
22 R v Williams 2007 NZCA 52, 2007 3
Scott L Optican “Hamed, Williams and the Exclusionary Rule: Critiquing the
Supreme Court’s Approach to s 30 of the Evidence Act 2006” 2012 NZ L Rev 605
25 R v Williams 2007 NZCA 52 at 245- 249.
Above n 16 at 543-546.
29 Hamed v R 2011 NZSC 101, 2012 2 NZLR
30 Hamed v R, above
n 30, at 59 and 64.
31 Hamed v R, above
n 30, at 58 and 62.
n 24 at 623.
Law Commission “The 2013 Review of the Evidence Act 2006” (NZLC R21, 2013) at