Balancing and proportionality in admissibility decisions

How do we predict judges’ decisions on the admissibility of improperly obtained evidence?

 

Some lawyers think it all depends on who the judge is, and what the judge had for breakfast.

 

But really, prediction is quite easy, at least for lawyers competent in this area of practice.

 

In New Zealand, the decision must follow a statutory structure, set out in s 30 of the Evidence Act 2006. According to s 30(2)(b),

 

“if the Judge finds that the evidence has been improperly obtained, [the judge must] 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 and takes proper account of the need for an effective and credible system of justice.”

 

 

Points to note concerning the method are: (1) it is a proportionality determination, (2) carried out by means of a balancing process. Further, (3) appropriate weight must be given to the impropriety, and (4) proper account must be taken of the need for an effective and credible system of justice.

 

We can’t give this any meaning until we see how it is applied in practice. But structurally, at least we know that there is balancing, proportionality, and importantly point (4) which is the decision criterion. It is all decided against what an effective and credible justice system requires.

 

But again, we need the judicial decisions to reveal what this means.

 

There are two kinds of precedents here: weight precedents and proportionality precedents.

 

We need to know, in the case we are dealing with, what weight will be given to factors favouring admission of the evidence, and what weight will be given to factors favouring exclusion of the evidence. Then, with that combination of admission and exclusion weights, we need to know what the precedents indicate will be the proportionate outcome.

 

You might find it easiest to consider the whole thing diagrammatically. Not all lawyers need the assistance of diagrams, but I certainly do.

 

As there are basically two things to consider – admission and exclusion factors – we could put them on the x- and y-axes of a graph. The y-axis, the vertical one, will be for the admission factors, and the horizontal x-axis will be for the exclusion ones.

For each axis there will be movement to a higher or lower position as relevant matters are taken into account. For example, the logically first consideration on the admission axis will be the starting point for sentencing, but movement down from this may be required if the evidence is not particularly important to the prosecutor's case or, more significantly, if the evidence is unreliable. And on the x-axis, a serious impropriety might be reduced in weight by considerations of urgency or public safety.

 

Experience warns us that the x-axis will need to carry more information than the y-axis, so we can stretch it out a bit to make room. The rectangular field, bounded on two sides by these axes, can be thought of as a field of balance points.

 

This field of balance points will be divided into an area of admission points and an area of exclusion points. There will be a boundary between these points, and the shape of that boundary line will be a visual representation of the decision criterion, point (4) above. The shape of the boundary will be revealed by decided cases.

 

And yes, it has been. Although different lawyers, reading the cases and coming to their own understanding of them, might come up with differently shaped boundary lines, here is mine:

 

 

I like to think it reveals this pleasing curve because the outcomes of the decision process have been pleasingly rational. There are, inevitably, a few cases that don’t fit the pattern, and they can reasonably be said to have been wrongly decided. There are also some cases in which the weighing process has not been carried out consistently with the logic of binding precedents, but although wrongly reasoned they are usually correctly decided insofar as their proportionality outcome is consistent with the pattern of precedents.

 

Walking through the diagram, we have:

 

O to A: the merely technical nature of the impropriety is insufficient to ever result in the exclusion of evidence.

 

A to B: low level impropriety and low level public interest in admission: usually the result will be exclusion of the evidence. The line A-B is not straight, and it is bent to increase the exclusion zone in this part of the field.

 

B is the flattish part of the boundary line, reflecting the distortion of the field that occurred because we stretched out the x-axis a bit. It corresponds to point E on the y-axis. Broadly, if the starting point for sentencing, based on the prosecutor’s summary of facts (or on the state of the evidence at the time the issue has to be decided), would be in the region of four years’ imprisonment or more, the offending can be called - in this context - serious. There are exceptions, where public interest concerns require the offending to be regarded as serious even though the starting point would have to be lower because the statutory maximum penalty is relatively low. These cases can be given appropriate weight on the y-axis as exceptions to the four-year guide.

 

C to D: some improprieties are too serious for evidence obtained as a result of them to ever be admissible, regardless of how serious the alleged offending is. The boundary line between the admission and exclusion zones reaches the top of the field before the top right corner. This can be thought of as a representation of the “cuts both ways” description of offending of high level seriousness. [1] Such offending favours both admission and exclusion, and long-term considerations of the repute of the justice system lead to exclusion prevailing.

 

Of course, there is much more to be said about this. [2] But my point here is that diagrams can help to reveal the underlying rationality of balancing and proportionality decisions.

 

 

[1] See my recent discussion of this here (11 November 2020).

 

[2] For much more, see my perpetually draft paper on this site. Recent updating of that paper has been difficult because of the caution required by suppression orders and the increasing of court backlogs. But I can say that the pattern of precedents has continued up to the present.

Justifying the "implied licence" exception to trespass

Sometimes the common law recognises that uninvited entry onto another person’s (the occupier’s) private property is not trespass. An implied licence is given, in some circumstances, to strangers to enter on private property to speak to the occupier. This usually, in the suburbs, involves going through a gate, walking up a path to the front door, and knocking. In a more urban environment it can mean just entering a vestibule and pushing a doorbell intercom. Or even just pushing a button if there is no vestibule. It is the existence of the gate, path and front door, or the bell, from which the occupier’s permission to enter is implied.

 

This common law implied licence can be revoked by an occupier. A sign prohibiting entry may be displayed. The person may be told to leave. The occupier may simply not answer the door knock or bell push. If the visitor does not leave, a trespass is committed.

 

The traditional justification for the implied licence has been protection of the occupier’s property rights against undesired entry by everyone else, including officials of the state. Whether an implied licence exists has traditionally been determined according to what the visitor is seeking to achieve by entering. This is because permission to enter would not be implied if the occupier would not have wanted to receive a visitor who had an adverse purpose. In this sense it is a subjective assessment.

 

For example, an implied licence would not authorise an official, entering without any legislated authority, to coerce an occupier to give information. But a purpose of seeking the occupier’s voluntary cooperation would be within the licence.

 

Some revision of the legal basis for implied licences has occurred. Under this revision, implied licences exist for pragmatic reasons, not because of what an occupier would want, but because of the way society works today. This is an objective justification for implying the licence to enter.

 

A consequence of this revision is that where the person entering has both a traditionally legitimate reason for entering (that is, a reason to which the occupier would not object) and a traditionally illegitimate reason (that is, a reason that is objectively reasonable although not one that the occupier would have been assumed to like), the entry is not a trespass but is protected by the implied licence, subject always to revocation. To both check on well-being, and if the circumstances arise, to compel release of information, can be within an implied licence: Roy v O’Neill [2020] HCA 45 (9 December 2020).

 

The Court split 3-2 on this. Two majority judgments were delivered, by Kiefel CJ and jointly by Keane and Edelman JJ. The joint dissenters were Bell and Gageler JJ. The dissent was on both the law and the interpretation of the evidence.

 

Bell and Gageler JJ summarise what I have called the traditional or subjective basis for an implied licence:

 

“[37] The implied licence to ‘knock and talk’ is accordingly confined by reference to the ‘purpose’ of the visit, in the sense that the status of an uninvited visitor as either a licensee or a trespasser depends on what the visitor is seeking to achieve at my home by walking up my path, standing at my doorstep and knocking on my door. If the purpose is just to talk to me, and in talking simply to ask for permission to come inside or to go elsewhere on my land or simply to ask for my voluntary cooperation in pursuing some inquiry, the totality of the conduct is within the scope of the licence. If the purpose is just to coerce me, the totality of the conduct is outside the scope of the licence; it is a trespass.”

 

 

And as to visitors with mixed purposes,

 

 

“[40] ... the answer lies in identifying the limits of the permission granted by the implied licence to ‘knock and talk’. The preferable view is that a police officer who walks up my path, stands at my doorstep and knocks on my door exceeds the limits of the permission granted by the implied licence, and is therefore a trespasser, if the police officer has any conditional or unconditional intention of ordering me to do anything. That view is preferable because it is clear and workable and because it is consonant with contemporary community expectations. At this stage in the development of the common law of Australia, it is an appropriate resolution of the ‘contest between public authority and the security of private dwellings’ [citing Kuru v New South Wales(2008) 236 CLR 1 at 15 [45], quoting Halliday v Nevill (1984) 155 CLR 1 at 9.]”

 

The objective basis for the implication of a licence to enter private property was put by Keane and Edelman JJ as being akin to a presumption:

 

“[67] ... it is based upon ‘an incident of living in society’ [citing Halliday v Nevill (1984) 155 CLR 1 at 19], ‘the reasonable requirements of society’ [citing Tararo v The Queen [2012] 1 NZLR 145 at 172; [2010] NZSC 157 at [15]], ‘the habits of the country’ [citing McKee v Gratz (1922) 260 US 127 at 136], or ‘background social norms’ [citing Florida v Jardines (2013) 569 US 1 at 9].”

 

 

Plainly, citation of those authorities makes it appear that what I have called the revised or objective approach is really long-established. However, in Tararo at [11]-[12] the joint judgment by Blanchard, Tipping, McGrath and William Young JJ points out that originally the licence was based on the implied consent of the occupier (that is, it was what I am calling subjective), and more recently, to accommodate such things as undercover police operations, a “more satisfactory legal basis” is that the licence is implied by law to permit entry for reasonable inquiry, subject to revocation.

 

The move from subjective to objective justification for implication of a licence to enter private property accommodates the “mixed purpose” visitor, subject to express revocation (Kean and Edelman JJ at [72]-[73]).

 

Kiefel CJ accepts the objective justification for recognition of implied licences (at [11]). The law implies the occupier’s permission as a socially desirable limitation on the law of trespass. Importantly, the purpose of entry must involve “no interference with the occupier’s possession nor injury to the occupier” (at [13], [16]).