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Improperly Obtained Evidence Notes

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6 Improperly Obtained Evidence

6.1 Context 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: a)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. b) 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. c) 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.

6.2 The balancing process under s 30 "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:

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