Public policy exclusion of evidence

The relationship between the common law discretion to exclude evidence on fairness grounds, to the discretion to exclude evidence for breach of the Bill of Rights, is a matter about which the Court of Appeal seems rather hesitant. A misleading approach is evident in R v Murphey (2003) 20 CRNZ 278 (CA), where the discretions seem, without full discussion, to be regarded as being distinct from each other.

The true relationship between these discretions, I suggest, is that they are the same: the Bill of Rights discretion, explained in R v Shaheed [2002] 2 NZLR 377 (CA), is a common law discretion, because the Bill of Rights has no provision for what the consequences of breaches should be. Shaheed does not interpret the Bill of Rights. It does, however, develop the interpretative approach to determining what is unreasonable, in the context of searches, as set out in R v Grayson and Taylor [1997] 1 NZLR 399 (CA). Just as reasonableness involves a balancing of certain factors which emerge from the circumstances of a given case, so too does fairness. It is not surprising that factors relevant to reasonableness will be similar to those relevant to fairness.

In R v Pedersen 12/11/04, CA209/04 the New Zealand Court of Appeal had to address the fairness discretion, as the case did not involve a breach of rights. It did not refer to R v Shaheed, but the factors relevant to the decision, and the decision process itself, to the limited extent to which they were explained in the judgment, can be seen to be akin to the Shaheed model. The police had followed the appellant on to private property to require her to undergo a breath test; there was no evidence that the property was that of the appellant, and for the purposes of the case it was assumed that both the appellant and the officer were trespassers.

"[51] … The trespass [by the police] was brief and minor in nature. There has been no challenge to the accuracy, or the integrity of the police evidence. They were acting in good faith in a situation where it could be inferred that the appellant was attempting to avoid the breath testing checkpoint. In the circumstances, no investigatory alternatives were available for the police, and their actions overall must be considered reasonable. We do not consider fairness requires the exclusion of this evidence."

Here, just as pursuant to Shaheed, the first point to consider is the wrongfulness of the police conduct. In the absence of a breach of rights, this could not be given the same weight as it would have if there had been such a breach. The evidence was reliable and so it could not be suggested that its admission would result in trial unfairness. Good faith, although often mentioned, is, as Shaheed stated, just a neutral factor; the Court could be taken as mentioning it to indicate that the wrongful conduct was not aggravated by deliberation. Absence of alternatives is relevant, because if a lawful procedure had been ignored that would weigh in favour of exclusion of the evidence, as the Court recently pointed out in R v Harder 9/11/04, CA61/04 at para 46. There is also a suggestion of urgency in the circumstances of the case, and this always weighs in favour of admission of the evidence.

In summary, it would have been appropriate for the Court to apply Shaheed directly, rather than to treat the fairness discretion as somehow more mysterious and detached. The result, in any event, is correct.