Chapter 4
Improperly obtained evidence

Introduction and background

4.1At common law, courts had a discretion to exclude evidence on the grounds of unfairness.255  Following the enactment of the New Zealand Bill of Rights Act 1990, courts developed a prima facie exclusion rule for evidence obtained in breach of that Act.256
4.2In its report on Police Questioning the Law Commission proposed that evidence that was improperly obtained would be inadmissible, unless the court considered that exclusion would be contrary to the interests of justice.257  The Law Commission refined this recommendation in subsequent publications on its Evidence Code.258
4.3After the Law Commission’s Evidence Code had been published, but prior to the enactment of the Evidence Act 2006, the Court of Appeal replaced the prima facie exclusion rule with a new “balancing test” in R v Shaheed.259  The test required courts to balance a number of non-exhaustive factors to determine whether exclusion of the evidence is a proportionate response to the breach of the right.260

4.4The improperly obtained evidence rule in the Evidence Bill essentially codified the test outlined in R v Shaheed, but extended it beyond evidence obtained in breach of the New Zealand Bill of Rights Act 1990. Section 30 now provides:

30 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a) the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2) The Judge must—
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is improperly obtained if it is obtained—
(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
4.5The Select Committee’s recommended changes to the Bill included insertion of subs (6) and removing the words “in particular whether it is central to the case of the prosecution” from subs (3)(c).261
255Law Commission Criminal Evidence: Police Questioning : A Discussion Paper (NZLC PP21, 1992) at 79.
256R v Butcher [1992] 2 NZLR 257 (CA).
257Law Commission Police Questioning (NZLC R31, 1994) at 101.
258Law Commission Evidence: Volume 2 – Evidence Code and Commentary (NZLC R55, 1999) at 84.
259R v Shaheed [2002] 2 NZLR 377 (CA).
260At [145].
261Evidence Bill 2005 (256-2) (select committee report) at 4.