Abstract:
Supplementing the legislative control of police investigations via numerous statutory provisions, s 21 of the New Zealand Bill of Rights Act 1990 requires that police searches and seizures also be reasonable. Early case law from the New Zealand Court of Appeal declared that all illegal police searches would be unreasonable under s 21. However, subsequent decisions divorced the connection between unlawfulness and unreasonableness, principally — this article argues — to avoid application of the judicially created “prima facie rule of exclusion” for evidence obtained by the police in violation of the New Zealand Bill of Rights Act 1990. However, in R v Shaheed, the New Zealand Court of Appeal abandoned the prima facie rule in favour of a discretionary approach to exclusion that involves weighing various factors and interests in each criminal case. The new “proportionality-balancing” test — now enshrined by Parliament in s 30 of the Evidence Act 2006 — recently caused the New Zealand Court of Appeal to declare, in R v Williams, that all substantively unlawful police searches would once again be considered unreasonable under s 21 of the New Zealand Bill of Rights Act 1990. In doing so, the Court recast the most significant considerations relevant to reasonableness under s 21 of the New Zealand Bill of Rights Act 1990 as factors for consideration under Shaheed and s 30 of the Evidence Act 2006. This article explores the interconnected relationship between the Court’s “front-end” adjudication of reasonableness under s 21 and its “back-end” approach to excluding evidence obtained by police in violation of the New Zealand Bill of Rights Act 1990. It argues that the shifting nature of the exclusionary rule has improperly driven the Court’s changing approach to the interpretation of reasonableness under s 21. The article criticizes the New Zealand Court of Appeal for allowing the possibility of exclusion to distort a principled application of the New Zealand Bill of Rights Act 1990. It calls for a return to the “prima facie rule of exclusion” and is sceptical of the attempt in Williams to bring doctrinal coherence to the balancing test under Shaheed and s 30 of the Evidence Act 2006. The article concludes that, by contrast with the approach under Shaheed and s 30, every police violation of s 21 of the New Zealand Bill of Rights Act 1990 must be accompanied by a remedy that courageously addresses its breach.
