The New Exclusionary Rule:
A Preliminary Assessment of R v Shaheed
Scott L Optican and Peter J Sankoff |
In R v Shaheed [2002] 2 NZLR 377 (CA) the Court of Appeal abandoned the decade-old, prima facie rule of exclusion for evidence obtained by the police in violation of the New Zealand Bill of Rights Act 1990. Balancing various factors, a court must now decide if exclusion is a proportional remedial response to the breach of the Bill of Rights at issue in the particular criminal case. This article undertakes a preliminary assessment of Shaheed and concludes that, while a change to the law of exclusion may have been inevitable, the Court failed to justify its abandonment of the prima facie rule and did not adequately rationalise its decision to adopt a proportionality-balancing approach. Moreover, while Shaheed may give judges more discretion to deal with the admissibility of improperly obtained evidence in a criminal trial, the Court's new approach to exclusion is vague, lacking in structure, and capable of continual manipulation to reach a desired result. Various aspects of the judgment are explained, analysed, and critiqued, with particular emphasis on: (1) the uncertainty likely to be created by Shaheed with respect to the judicial decision to exclude; and (2) the problematic role assigned to causation under the proportionality-balancing test.
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R v Shaheed:
The Prima Facie
Exclusion Rule Re-examined
Simon Mount
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The approach of New Zealand courts to the exclusion of evidence for breaches of the New Zealand Bill of Rights Act 1990 has been altered significantly by R v Shaheed [2002] 2 NZLR 377 (CA), which replaces the prima facie exclusion rule with a balancing test. This article considers the arguments both for and against the exclusion of evidence in criminal cases. It also considers the approaches of other Western countries to the exclusion of evidence in such cases. The article concludes that the new balancing test has the potential to be a positive development in the law, and, contrary to the fears of many, it is unlikely to result in any major erosion of the rights of criminal defendants. |
Leave to Appeal and the Proposed Supreme Court of New Zealand
Joshua Pringle
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The Supreme Court of New Zealand may soon be a reality. Controversies surrounding abolition of the Privy Council, and the process of judicial appointment, continue to dominate discussion of the proposed Court. Relatively little attention has been paid to other important aspects of the proposal. One such aspect is the Court's leave jurisdiction. Subject to designated criteria, Judges of the new Supreme Court will be able to choose which cases they will hear and which they will not. This article examines this power, through both a comparative assessment of leave provisions operating in the highest courts of four foreign jurisdictions, and a critical evaluation of the Supreme Court Bill 2002. It is concluded that the present formulation of the Court's leave jurisdiction is less than satisfactory, and a number of improvements are proposed. |
2003 PART I
