Monday, September 19, 2011

The NZSC on improperly obtained evidence

At last Hamed v R [2011] NZSC 101 is online, although in redacted form. It does not answer the question that will occur to most people: is it the duty of the police (1) to detect and stop offending, (2) to bring offenders to court with admissible evidence, or both of those, or some compromise between those?

The Prime Minister has indicated today that he will get legislation passed "suspending" the Supreme Court's decision in Hamed. Whatever that means, it is designed to ensure that other cases where covert surveillance has been used do not collapse because of exclusion of evidence obtained in that way. If in those cases, why not in this one too, since retrospective effect is intended? In any event permanent law reform is on the way "after the election".

This underlines the fact that it is not the police who are to blame for this (see my comment yesterday) but rather it is the fault of those who are responsible for giving effect to the Law Commission's recommendations.

But here I am concerned with the aspect of the case that will be of enduring interest to lawyers. This is the Supreme Court's first in-depth analysis of s 30 of the Evidence Act 2006.

The relevant question here is the extent, if any, to which the Supreme Court alters the interpretation of s 30 established in Williams v R [2007] NZCA 52, [2007] 3 NZLR 207 (CA) (not currently available online).

Where Williams is cited in Hamed, that is done with approval except on one point on which Tipping J departed from it at 240 by rejecting the Williams approach to assessing the seriousness of the offending. McGrath J also thought (277) that the maximum penalties were the guide although they were not a complete basis for assessment of the seriousness of the offending. But those were minority views, and Williams remains authoritative on s 30.

The application in Hamed of the balancing factors mentioned in s 30 needs to be considered. Broadly, it is orthodox. Aside from the minority difference just mentioned, there is some comment on the relevance of the centrality of the evidence to the prosecution case, but this only concerns whether this is relevant as a separate unspecified factor (Blanchard J at 201, Gault J agreeing at 281) or as part of the quality of the evidence factor in s 30(3)(c) (McGrath J at 276), but Tipping J dissented saying centrality is not relevant (236).

In applying the balancing criteria there was the usual variation in judicial opinion. The absence of an alternative investigatory technique was thought by Elias CJ to increase the seriousness of the impropriety (73), Blanchard J (196) appears to include this as a factor favouring admission of the evidence (Gault J agreeing at 281), Tipping J (246) also thought this pointed towards admission of the evidence, although not strongly, and McGrath J (274) treated this factor as increasing the reasonableness of the police misconduct. So, 4-1 absence of an alternative investigatory technique favoured admission.

The deliberate nature of the breach of the defendants' rights was an aggravating factor: Elias CJ 73, Blanchard J 194, Tipping J 233-234, but dissenting on this point McGrath J 267 thought that because the law was only now clarified by this case the deliberate nature of the breach did not enhance the gravity of the impropriety. And on the same point Gault J 284 did not agree with Blanchard J and held that the intrusion on the defendants' rights was no more serious that it was in relation to searches pursuant to warrant. Again, but by a different 3-2, the deliberate nature of the breach of rights did weigh in favour of exclusion.

The Supreme Court of Canada got some favourable mention, particularly for some of its dicta in Grant (see my discussion of that case here on 19 July 2009, and here twice on 18 July 2009). Tipping J at 230 approved dicta on the desirability of taking the long view of the repute to the justice system as opposed to responding to the immediate public clamour for conviction. Blanchard J 187 noted that the decision is not just a balancing of impropriety against the need to convict, but rather it comes down to the need to avoid bringing the system of justice into disrepute. Elias CJ 58 made the same observation, after saying 57 "It would be wrong to treat the assessment of proportionality as being the same in all cases of impropriety" – by which I think she means the division between exclusion and admission of the evidence is not marked by a straight line (see my discussion of improperly obtained evidence).

So, all in all (carefully working through the judgments to find the majority on each point) this is an orthodox application of s 30, even when the seriousness of the offending is assessed at an enhanced level because of public safety considerations.