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Improperly obtained evidence

  • September 19th, 2011

Graeme Edgeler objects to my comments on the Supreme Court's treatment of the Urewera evidence obtained by filming from land without the permission of the landowner, suggesting that the Court was doing only what the Evidence Act requires.

Section 30 of the Act sets out the test as follows:

"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 i portance 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."

                                If the charges relate to behaviour that is as serious as has been rumoured (and as serious as Tame Iti once threatened me with in TVNZ's green room) then how could the Supreme Court find it appropriate to toss out material  evidence because the Police committed trespass to get it?
                                Why should the police have not instead  been treated as trespassers and made to pay the price the courts often charge other trespassers – that is no price.  The Supreme Court plainly have no idea of their subordinate courts' pitiful response to trespassing.
                                Two trespassers on my property with firearms were, unusually, charged by the Police (I think because they foolishly claimed to be police when caught). The Police warned that the judge could make it all a waste of time but nevertheless went to all the trouble to prove the elements of the offence (including getting me to provide evidence of title). The Court then did just what Police wearily expected – discharging without conviction because of the effect of conviction on the offenders. They forfeited the firearm recovered. Being an old .303 that would not have troubled them much.
                                 [update] The Government is moving to limit the effect of the Supreme Court's judgment. What a shame for us all that for so long there have been suppressed judgments floating among the justice insiders but not available publicly to give  citizens enough information  to understand the issues.
                                Graeme's comment below reminds me of the extended discussion on this topic after I blogged in 2008 on the exclusion of improperly obtained evidence.
                                Graeme asks what the court response should be. I think they should rarely exclude evidence that would help to the court to know the truth. But they should assert ( or request) an express power to initiate proceedings against enforcement agents shown to have misconducted themselves in gathering evidence. They should also have the power to order compensation to those injured by any such misconduct.



                                  <i>If the charges relate to behaviour that is as serious as has been rumoured (and as serious as Tame Iti once threatened me with in TVNZ's green room) then it is inconceivble to me that the Supreme Court could find it appropriate to toss out material  evidence because the Police committed trespass to get it.</i>
                                  Which is probably why they didn't throw out the evidence in respect of those facing the more serious charges, including Tame Iti. The police are somewhat on record as noting that in respect of at least some of the defendants solely charged under the Arms Act, that fines were the likely penalties. Given that, it can't be that the charges that those defendants face (cf. the charges of belonging to an organised criminal group) are so serious as you fear.

                                  • KG
                                  • September 19th, 2011
                                  • 3:22 pm

                                  As a layman, it seems to me that 2(b) is the crucial point. Could it be that the Supreme Court was simply looking for an excuse to toss out the evidence?


                                  For me, the moral hazard argument has some sway. More than perhaps anyone else (except may be judges and prosecutors) the police should be expected to behave lawfully.
                                  If the police commit a crime – no matter how minor – to obtain evidence in a case, throw it out.
                                  It won't take too many instances before the Police realise that they'd better stop. The Law Commission report preceding the Search and Surveillance Act was pretty clear that there was no legal basis for a number of police investigative techniques. But they've still been using them. Had the Government said "the police have been breaking the law and we will hold them to account, heads will roll etc." then Police would have gotten the message that the should behave lawfully pretty quickly. Major trials would have been fine (as the charges against the four accused charged with serious crimes in the Urewera case show), and the police would in the future be a lot more like to do things properly. Now they know that's not the case.
                                  The Police have been knowingly and deliberately breaking the law for years. Civil penalties may be your preferred solution to the moral hazard, but do you really think there will be any? Instead we get something barely less offensive than a Bill of Attainder.


                                  A further query: if you believe the remedy for breaches of rights lies not in throwing out evidence, but in claims for monetary damage in the civil courts, I imagine you must be a strong opponent of laws that would remove or limit the right to compensation for state breaches?
                                  I'll have to hunt them out, but I look forward to reading your speeched in Hansard detailing your trenchant opposition to the Prisoners' And Vicitms' Claims Bill…

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