30 Improperly obtained evidence

(1)

This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

(a)

the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b)

the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2)

The Judge must—

(a)

find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b)

if the Judge finds that the evidence has been improperly obtained, 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.

(3)

For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a)

the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b)

the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c)

the nature and quality of the improperly obtained evidence:

(d)

the seriousness of the offence with which the defendant is charged:

(e)

whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f)

whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:

(g)

whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:

(h)

whether there was any urgency in obtaining the improperly obtained evidence.

(4)

The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5)

For the purposes of this section, evidence is improperly obtained if it is obtained—

(a)

in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b)

in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c)

unfairly.

(6)

Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.

Section 30(1)(a): amended, on 4 July 2007, by section 9 of the Evidence Amendment Act 2007 (2007 No 24).

Section 30(2)(b): amended, on 8 January 2017, by section 10 of the Evidence Amendment Act 2016 (2016 No 44).