“Fruit of the poisonous tree”? Remedying NZBORA breaches

Relying on courts’ obligation to give effect to NZBORA under its s 3, the Supreme Court held the exclusionary remedy could be said to have arisen “under” NZBORA

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As evidence obtained by arguable police impropriety again hits the headlines (police use breath-testing checkpoint to obtain information on attendees at an Exit International euthanasia meeting), the Supreme Court has explained the Evidence Act 2006’s fundamental principle – all relevant evidence is admissible unless inadmissible or excluded “under” any statute – permits exclusion of such evidence in civil proceedings, if necessary to remedy New Zealand Bill of Rights Act impropriety.

The issue arises because the Evidence Act only expressly addresses such evidence in criminal proceedings, requiring its exclusion if proportionate to the impropriety.  In Marwood v Commissioner of Police [2016] NZSC 139 (26/10/16), after Marwood was discharged of cannabis offences once his successful challenge to the police’s search warrant excluded the evidence it obtained, the Commissioner sought profit forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 against Marwood and his associates, relying on the same evidence.  The CPRA specifies profit forfeiture orders are civil, not criminal, proceedings.

New Zealand courts previously recognised a power to exclude illegally obtained evidence in criminal cases, as a matter of fairness at trial.  On enactment of NZBORA, which established a right to freedom from unreasonable search and seizure, the courts progressively developed a remedial rationale to respond to NZBORA breaches – including exclusion of evidence if necessary to vindicate the right breached.  Declarations, damages, or even disciplinary proceedings were alternatively available, but of limited utility in criminal proceedings, as risking a perception police could secure a result while in breach.

Relying on courts’ obligation to give effect to NZBORA under its s 3, the Supreme Court held the exclusionary remedy could be said to have arisen “under” NZBORA, and thus permitted its exception to the Evidence Act’s “fundamental principle”.  The Evidence Act’s retention of courts’ “inherent and implied powers”, including in provision of remedies for NZBORA breaches, supported that approach.

As against the “fundamental principle”, that seems a bold conclusion, when NZBORA remedies are expressly a public law remedy, on which NZBORA itself is silent (and its draft remedies provision was not enacted).  The availability of remedies for NZBORA breaches was noted in Baigent’s case [1994] 3 NZLR 667 (CA), which recognised “an adequate public law remedy for [NZBORA] infringement obtainable through the Courts”.  While Cooke P described such redress as being available ‘under’ NZBORA, the weight of the Baigent (and subsequent) judgments is in favour of a freestanding discretionary public law remedy (extending to exclusion of improperly obtained evidence) vindicating breach of NZBORA rights.

None of the Supreme Court’s advance stood to benefit Marwood, however: the police conduct was not in serious breach (but “sloppy”); dismissal of his criminal proceeding provided some vindication; and the impropriety did not warrant exclusion. The evidence is admissible in the profit forfeiture proceeding.

[This article was first published in The Capital Letter (39/42, 1 November 2016)]

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