#8444 - Improperly Obtained Evidence - LAWS 307 Law of Evidence

1992 – 2002: prima facie exclusionary rule: if you breached BORA then evidence is excluded (R v Butcher) R v Shaheed [2002] – move towards a balancing act, now codified in s 30. R v Williams and R v Hamed have refined the rules in s 30. Although Gallavin notes that R v Hamed has left the law “shrouded in mist”.

Relationship between s 28, 29 and 30 discussed in R v Hawea, where a “three tier approach to confessional statements” was observed:

1. Most serious are statements obtained under oppression: s 29. If evidence supports the proposition that oppression was used, then the Crown must disprove this beyond reasonable doubt. A high threshold of oppressive conduct is found under s 29(5): “oppressive, violent, inhuman, or degrading conduct”. There is no discretion to admit if oppressive conduct is found.

2. Second concerns reliability (s28). If a confession was made in circumstances casting doubt on reliability then the Crown must prove on BoP that the circumstances do not affect reliability. This is a lower standard and less serious than s 29.

3. If neither s 28 or 29 apply then s 30 may apply, it is “more general”. A judge may find on the BoP whether or not a statement was improperly obtained. If it is improperly obtained then this becomes on of a number of “balancing factors” under s 30(3).

Cardozo J objected to this in The People v Defoe – stating that the criminal should not go free “because the constable has blundered”. One injustice cannot be corrected by another injustice. An alternative punishment to the police should be considered.

COUNTER ARGUMENT: Inadmissibility may be the best deterrent against police blunders.

“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.”

Procedural Matters:

• D must establish evidential foundation: s 30(1)(a) and R v Ullah.

• S 344A Crimes Act 1961: you can seek an interlocutory order to admit the potentially inadmissible evidence.

• S 379A Crimes Act 1961: you can appeal the interlocutory order made under s 344A.

STEP 1 – was the evidence improperly obtained? s30(2)(a) and s30(5).

• Judge must decide on the BoP under s 30(2)(a) but it is unclear who has the onus to fulfil this.

• Causal link: you must show that the evidence was obtained “in consequence” of BORA or an inadmissible statement or obtained unfairly under s 30(5).

  • R v Shaheed – CA discarded the prima facie exclusionary rule relating to improperly obtained evidence (R v Butcher) in favour of a balancing test. Was needed because although the prima facie exclusionary rule was only meant to be a rebuttable presumption, “it failed to provide any transparent form of balance” between societal interests and the rights of the defendant (Gallavin).

  • FACTS: Shaheed gave a blood sample without being told his right to a lawyer or to refuse to give blood (Criminal Investigations (Blood Samples) Act 1995). A positive DNA match was made from a girl who had been raped. The girl was able to identify S in a photomontage. Later a legitimate blood sample was taken.

  • ISSUE: The question in applying the new balancing test was whether there was still a causal connection between the original improperly obtained DNA evidence and the new DNA and identification evidence, so as to render it inadmissible?

  • HELD: ID evidence admitted by majority because causal connection with original breach was too remote, 2^nd DNA match was excluded by majority 4/3.

• R v Williams – having a dual purpose (1 legitimate and one bad faith) to get a search warrant will not be unreasonable under s 21 BORA (and therefore not improperly obtained) unless in “extreme cases of police bad faith”.

• S 30(5)(c) “unfairly obtained evidence” is defined by Practice Note on Police Questioning:

1. Police may ask questions “but must not suggest that it is compulsory for the person questioned to answer”.

2. If police are going to charge a person or ask a person in custody questions they must first caution that person:

   1. That they have the right to remain silent

   2. That they have the right to consult and instruct a lawyer before answering questions.

   3. That anything said will be recorded and may be given in evidence.

3. Questions of a person in custody must not amount to a cross-examination

4. When a person is questioned about statements by others or other evidence, the nature of those statements or other evidence “must be fairly explained.”

5. A statement by a person in custody or for whom there is sufficient evidence to charge should preferably be recorded by video. Otherwise use audio or writing. The person must be able to look at the recording correct errors or add anything further. Where in writing you must ask the person if they wish to confirm it by signing.

• R v Hawea – suggested that it might be decided that a breach in the Practice Note of cl 5 might be given less weight in the balancing exercise than a more fundamental breach of BORA.

• Other types of unfairly obtained evidence R v Petricevich – NOT unfair where a drug deal was made to deliver drugs to the police station but the D did not believe them and was consequentially arrested for having made the drug offer.

• R v Rock – aspects of a search warrant were incomplete held to be “unfair” under s 30(5)(c) – probably should have been under s 30(5)(a).

STEP 2 – Is exclusion of the improperly obtained evidence a proportionate response? S 30(2)(b)

R v Hamed – SC agreed that surveillance of D in the Urewera Ranges amounted to a breach of s 21 BORA then sought to apply the s 30 balancing test. Under s 30(2)(b) the Court must take “proper account of the need for an effective and credible system of justice.” This required the court to consider both taking the current case on its merits while resisting the temptation to allow “[t]he short-term public clamour for a conviction in a particular case [to] … deafen the … judge to the longer-term repute of the administration of justice”.

Methodology:

1 Assess magnitude of breach:

• Nature of the right and seriousness of breach (extent of illegality): s 30(3)(a).

  • For privacy you may assess the standing of the right e.g. are you at home or in public?

  • Hamed v R all judges agree that the more important the right the greater the intrusion, the stronger the argument will be for exclusion.

• Aggravating factors – towards exclusion

  • S 30(3)(b) – nature of the...