EVERY SILVER LINING HAS A CLOUD — THE EXCLUSION OF IMPROPERLY OBTAINED EVIDENCE IN CIVIL PROCEEDINGS: MARWOOD V COMMISSIONER OF POLICE [2016] NZSC 139, [2017] 1 NZLR 260

Abstract

Section 30 of the Evidence Act 2006 (the Act) codifies New Zealand’s rule for the exclusion of improperly obtained evidence in a criminal trial. Pursuant to s 30(5), “improperly obtained” evidence is real or confessional proof secured by police (or other state agents) either: (a) illegally; (b) unfairly; or (c) in violation of the New Zealand Bill of Rights Act 1990 (NZBORA). Whenever evidence has been obtained “in consequence of” (s 30(5)) one or more of these improprieties (whether directly or derivatively), s 30(2)(b) requires a court to determine whether exclusion of the material is or is not a proportional response to the police transgression at issue in the case. To make this determination, a judge must “give appropriate weight to the impropriety and also take proper account of the need for an effective and credible system of justice” (s 30(2)(b)) — a balancing process based on a number of (non-exclusive) factors set out in s 30(3). The judicial decision to exclude or to admit improperly obtained evidence will result from whatever proportionality assessment is reached.