Canterbury Law Review
Until R v Shaheed, evidence obtained in breach of the New Zealand Bill of Rights Act 1990 was prima facie inadmissible. However, the test is now one of balancing the seriousness of the breach of the right against the need to secure convictions. The test involves consideration of numerous factors. The Shaheed test was summarised by Blanchard J as:
Where there has been a breach of a right guaranteed to a suspect by the Bill of Rights, a Judge who is asked to exclude resulting evidence must determine whether that is a response which is proportionate to the character of such breach. The Judge must make that determination by means of a balancing process in which the starting point is to give appropriate and significant weight to that breach but which also takes proper account of the need for an effective and credible justice system.
Now that the Court of Appeal has had almost two years to reflect on and apply its judgment in Shaheed, it is possible to observe more confidently where the Shaheed test is leading New Zealand courts. This essay concludes that the introduction of a balancing test is ajustifiable development in New Zealand's Bill of Rights Act jurisprudence. Furthermore, this essay will show that the first twenty months of judicial application of Shaheed has not lead to the erosion of rights that was feared by some critics. Indeed, the New Zealand Bill of Rights Act 1990 itself contemplated such a balancing approach being given to the application of its provisions. The Act is still providing the necessary protection for individuals when their rights are transgressed by the police. However, it is not doing so at the expense of New Zealand enjoying a credible justice system. Our system of justice also needs to emphasise the importance of convicting guilty offenders. The courts' application of the New Zealand Bill of Rights Act 1990 appears to view the Act as a set of guidelines of how society expects the State to behave in certain circumstances, as much as an entrenchment of rights. Thus, the gravity of the breach continues to play the crucial role in the new balancing test. Indeed, even under the new test, it is unthinkable that a serious breach of a right would be overlooked and tainted evidence admitted in all but the rarest of circumstances. This essay will explore, with reference to Shaheed and subsequent cases, what value and significance should be, and is being, attached to each factor, if any at all. This essay will then evaluate the early criticisms levelled at the majority of the Court of Appeal's judgment in Shaheed. It is shown that, without exception, the factors identified as being relevant to the Shaheed balancing test are far more likely to result in bolstering the case for the accused than encouraging the admission of tainted evidence. Subsequently, fears of an erosion of human rights have proved unfounded.
Attention is paid to R v Vercoe, the first decision on Shaheed where it can confidently be stated that the evidence in that case would not have been admitted under the prima facie exclusion rule. It is argued that most New Zealanders would agree with the High Court's ruling, and that such a decision does not run counter to the spirit of the New Zealand Bill of Rights Act 1990.
The aim of this paper is to appease the criticisms of Shaheed by demonstrating that the balancing test it has introduced will create a more credible system of justice without seriously impinging on individual human rights.
The general rule at common law is that relevant evidence is admissible. The courts are not generally concerned with how that evidence was obtained. However, a judge's duty to secure a fair trial requires him or her to exclude evidence which would lead to an unfair trial, and to stay proceedings where such proceedings would be an abuse of process of the court. Prior to the enactment of the New Zealand Bill of Rights Act 1990, all that existed to exclude unfairly obtained evidence was a judicial discretion. As summarised in R v Coombs, the principle emerging from New Zealand cases was that 'evidence obtained by illegal searches and the like was admissible subject only to a discretion, based on the jurisdiction to prevent an abuse of process, to rule it out in particular instances on the ground of unfairness to the accused'. Importantly, the common law discretion has itself been viewed as a balancing act. The New Zealand Bill of Rights Act has not disposed of the discretion and it still remains a means by which a judge can exclude evidence obtained unfairly but not in breach of the Act.
The New Zealand Bill of Rights Act was enacted without a remedies section. Thus, it was left to the courts to decide the fate of evidence obtained in breach of the Act. The Court of Appeal made it clear early on that it was not prepared merely to develop the common law fairness discretion, and instead fashioned a prima facie rule of exclusion. What was developed was the 'prima facie rule', initially in the context of confessional evidence and then later extended to real evidence. The prima facie exclusion rule started from the premise that the onus was on the accused to show that the evidence had been obtained in breach of the New Zealand Bill of Rights Act. Once that evidential onus was discharged, the potential exceptions to the rule were framed in the following way:
[T]he prima facie rule may be excluded and the evidence admitted where the breach was inconsequential, where there was no real and substantial connection between the breach and the obtaining of the evidence or where the evidence would have been discovered in any event. The only justification in any such case or in any other case for allowing the admission of the evidence is that the overriding interests of justice require it notwithstanding the breach of that right.
The potential breadth of this formulation, the 'interests of justice' exception, was not pursued in later cases and 'certainly not applied in that way by the lower courts'. Nonetheless, there were numerous comments, and even dissenting judgments, which gave early indications that the prima facie rule of exclusion was being applied more mechanically and rigidly than had been anticipated when it was conceived. In R v Te Kira, Richardson J stated 'determining what remedies are appropriate for violation of a particular right necessarily involves assessment of public interest considerations in the circumstances of the particular case'. His Honour also stated that 'a rights-centred approach does not mean that other aspects of public interest are to be ignored'. Notwithstanding these directives in favour of a broader view of remedies for Bill of Rights Act breaches, the Court of Appeal was forced to reiterate its desire for a broader approach to the issue and ultimately stated, in R v Grayson and Taylor, that 'on an appropriate occasion it would be prepared to re-examine the prima facie exclusion rule'.
Abdul Shaheed was charged with offensive behaviour after an October 1999 incident at a secondary school. He was requested to give a blood sample for the police database. Mr Shaheed was told that if he refused to do so a court-ordered sample would be obtained authorising such to be taken by compulsion. Shaheed was not given an opportunity to consult a lawyer nor was there actually any such power under the Criminal Investigations (Blood Samples) Act 1995 to require such a sample. In his ignorance, Shaheed provided a sample which linked him to a rape which had occurred a year earlier in similar circumstances. Shaheed had not previously been suspected of the rape. The victim then identified Shaheed from a photomontage and the police applied for a court order to gain a blood sample on the basis of this new evidence. The order was granted and ultimately Shaheed was charged. The Crown made a pre-trial application for a ruling on the admissibility of the second blood sample. The Court of Appeal also examined the merits of the victim's identification from the photomontage.
In the High Court, Laurenson J excluded the evidence. Laurenson J effectively saw the case as an application for a stay of proceedings and excluded the evidence largely on the basis of the strong causative links between the flagrant breach and the obtaining of the second sample and the complainant's visual identification. When the matter went on appeal to the Court of Appeal, a seven-member Bench was formed in recognition that it was likely a landmark judgment would be delivered, given that this was the first case since R v Grayson and Taylor to discuss the prima facie exclusion rule. The Court voted, by six members to one (Elias CJ dissenting), to replace the prima facie exclusionary rule with a balancing approach which aimed to make exclusion of evidence apply only in circumstances where it was a proportionate response to the breach of the right which had occurred.
As far as the new balancing test was concerned, the majority of the Court of Appeal identified six key factors to be considered in the inquiry:
1. The nature of the right and the nature of the breach;
2. Whether the right was breached in bad faith, recklessly, negligently or due to a genuine misunderstanding of the law by the police;
3. Whether other investigatory techniques were available but not used by the police;
4. The reliability, cogency and probative value of the evidence obtained in violation of the Bill of Rights;
5. The seriousness of the crime; and
6. The importance and centrality of the evidence to the Crown's case.
Applying the law to the facts of Shaheed's case was, however, a more discordant path. Elias CJ held that the evidence was not dependent on the earlier breach for its cogency and held the evidence admissible on those grounds. Gault J and Anderson J held that the evidence had not been
unfairly obtained and was not obtained in breach of Shaheed's rights. Richardson P, Tipping and Blanchard JJ held to the contrary, noting that but for the earlier breach, the evidence seeking to be admitted would have never been known to the police. McGrath J concurred, but dissented regarding the identification evidence, creating a majority vis-à-vis that particular piece of evidence. Thus, the blood sample evidence was excluded, but the identification evidence would be admissible.
Those in favour of maintaining the old prima facie exclusionary approach suggest it had four vital components.
1. It created a strong presumption of inadmissibility, providing the area of law with certainty and placing an onus on the police to act in accordance with the prescription;
2. It put the burden squarely on the Crown to justify the admission of tainted evidence, which again added certainty and predictability to the area;
3. The rule did not distinguish between real and confessional evidence, which avoided a problematic subsequent distinction of enquiry as to the utility of the tainted evidence;
4. The prima facie exclusionary rule was triggered in every instance by a police breach of the Bill of Rights.
The move to a balancing approach taken in Shaheed has attracted more criticism than praise from academics. There are three main criticisms:
1. Insufficient reason was given for the move away from the prima facie exclusion rule;
2. The balancing test will ultimately lead to an erosion of human rights;
3. The balancing test creates uncertainty.
Much criticism directed at Shaheed is that it is a landmark judgment, making a fundamental change to New Zealand's evidence jurisprudence, yet the decision is apparently made on a whim, with very little justification given in the judgment for the change. The prima facie rule, whilst abandoned by the majority, was not really criticised to any serious extent. The worst treatment it received was to be described as 'inflexible', or 'blunt with use' Critics have questioned why the majority felt the need to transform a decade-old and well established tenet of Bill of Rights Act law. The majority of the Court of Appeal suggested that the prima facie exclusion risked undermining the public's faith in the justice system. However, there was no reference to any pre-Shaheed cases which the majority believed should have been decidedly differently. Elias CJ stated that she was not persuaded that the prima facie exclusion experience prompted reconsideration of the presumption. The Chief Justice stated that the prima facie rule 'had the considerable advantage of giving clear guidance ... in an important area ... It is not at all clear that the direction that the presumption can be displaced for good reason is not being conscientiously followed'.
Critics of Shaheed have expressed a fear that the new balancing test would only ever lead to more evidence being admitted and to an erosion of human rights. The balancing test is criticised as being 'capable of continual manipulation to reach a desired result'. Furthermore, Shaheed has been criticised because it appears aimed at allowing evidence in 'serious' cases. Critics argue that the entire point of having a Bill of Rights is to allow human rights to be vindicated in every criminal case. The majority judgment suggested that their approach would accord more closely with societal demands. Commentators of the opposite view have suggested that society must be prepared to suffer the burden of some offenders escaping punishment in order to live in a state without police misconduct and supportive of the vindication of human rights. Criticism has been levelled at what is viewed as the current Court of Appeal's preference for an exclusionary rule based on crime control rather than the protection of rights. It is clear that such critics have a high opinion of the strength of the New Zealand Bill of Rights Act 1990.
There has been much criticism that the introduction of a balancing test will diminish the certainty which was the hallmark of the prima facie exclusion test. As we have seen, under that test, once the defence had discharged an evidential onus that a breach of the Bill of Rights Act had occurred, the prosecution needed to prove that either there had been no breach, or that there was no real and substantial connection between the breach and the obtaining of the evidence, or that, despite everything, the evidence should still be admitted. Case law showed that under this test, the Court of Appeal consistently denied the admission of evidence obtained in breach of a right. Prosecution lawyers knew exactly what they had to do to get tainted evidence admitted. The exclusionary rule was considered successful in that 'it was easy to understand by all players in the system and it kept the police honest.'
Shaheed is criticised in this regard because the list of factors given by the majority of the Court of Appeal is not exhaustive and no major effort is made to instruct future benches and practitioners what weight will apply to each factor and when each factor is likely to apply. Critics fear that the existence of a discretion provides judges with unbridled power to make subjective decisions. It was felt the language used to instruct future benches was illusory in its assistance. Guidelines such as 'the balance may be more likely to be struck in favour of exclusion where other investigatory techniques are unavailable' or that 'cogent and probative evidence may be a weighty factor' were criticised as providing no assistance to judges at all. The decision also left uncertainty as to who had the onus was to establish whether or not evidence should be excluded. Was it still the Crown's responsibility to show the Shaheed test favoured inclusion or did the move to a balancing test require more of the defending counsel? The majority judgments in Shaheed were quiet on this issue.
The remainder of this paper will focus on what has occurred in cases post-Shaheed and attempt to discover whether or not the criticisms levelled at the judgment have been proven correct.
As at February 2, 2004 there have been 41 cases, at High Court or Court of Appeal level, that have discussed (to varying degrees) the applicability of Shaheed. As issues concerning evidence admissibility are decided prior to the substantive trial, there are no doubt several more cases that have discussed Shaheed which are subject to suppression orders until trial. Of the 41 cases known to have considered Shaheed thus far, the following statistics and conclusions are discernible:
• 54% of the cases conclude there has not been a breach of the New Zealand Bill of Rights Act, either eliminating the requirement for a Shaheed balancing test discussion or rendering the subsequent discussion obiter dicta.
• Of the cases which conclude there has been a breach of the Bill of Rights Act, and which subsequently engage in the Shaheed balancing test, 86% of those cases result in an exclusion of the evidence.
• In only one of the nineteen Court of Appeal cases has evidence been admitted subsequent to the balancing test.
• 39% of all cases have concerned drug offences, where exclusion has become largely automatic.
Thus, the primary conclusion that can be drawn is that Shaheed has certainly not been responsible for any radical change to the admission of evidence obtained in breach of the New Zealand Bill of Rights Act. The general rule is still that tainted evidence will be excluded. There are only three cases, R v Vercoe, R v Taito and R v Lapham, where evidence has been admitted notwithstanding that it was obtained in breach of the Bill of Rights Act. These three cases will be examined following a broad review of how the balancing test has operated in its first 20 months. One preliminary criticism that can be levelled at some High Court cases (and one Court of Appeal case) is for the unnecessary use of the Shaheed balancing test after the court has concluded that there was no breach of the New Zealand Bill of Rights Act. This process is futile. It appears motivated by a judicial desire to reinforce the decision and perhaps deter appeals, but it is fundamentally flawed. Effectively, what a judge is saying is 'Had I found what occurred to be in fact a breach, I would have…' which inevitably leads to the application, in an obiter dictum, of Shaheed and the conclusion that the evidence would still have been admitted. This is, however, patently obvious. The judge is clearly going to approach the balancing test from the starting point that any breach has been extremely minor (given that the judge has already concluded there was no breach at all) and so any possible factor favouring admission will easily override the breach. This has occurred in Manuel v Police, Tawhai v Police, R v Ballard, R v Natua, R v Wellman and Coupe v Police in the High Court; and R v Hardy in the Court of Appeal. Comments such as 'in any event, the extent of any breach of privacy is completely outweighed by the seriousness of the offence and the reliability and importance of the evidence' add very little to the jurisprudence in this area. They actually involve no balancing at all as all the arguments are in favour of inclusion. Fortunately, the Court of Appeal has stated, in R v C, having concluded there was no breach of the Act, that 'our finding renders unnecessary any balancing exercise in terms of R v Shaheed.. [and] ... we are not disposed to examine that question hypothetically'. This will avoid obiter statements being made loosely and hastily and threatening to create precedent for future cases without the necessary thought processes.
The balancing test will not exclude evidence where the breach of the right has been trivial. To discharge an accused on such a technicality would not be in the interests of justice. This is no change from the position under the prima facie rule. Serious breaches, vis-à-vis s21, appear to ascend in the following order, from most serious to least serious:
• invasion of the person;
• invasion of domicile;
• invasion of personal property of the person.
Making the assessment of the seriousness of the breach is the starting point in the balancing test. In essence, the level of seriousness of the breach sets the benchmark to which the other factors must rise in order to have tainted evidence admitted.
It is clear that there will be cases, especially where the charge facing the accused is not at the top end of the culpability scale, where a gross and substantial breach of the accused's rights will hasten arriving at a conclusion that evidence should be excluded. Focus on the seriousness of the breach was determinative in such cases as R v I, where drug evidence was excluded pursuant to an unlawful lengthy detainment and strip-search of a prison visitor. Similarly, in R v Iles, confessional evidence was excluded following the police's blatant ignoring of a detainee's request for a lawyer and the continuation of questioning for the purpose of producing an incriminatory statement. Indeed, this factor is closely linked to the issue of 'police good faith'. Police bad faith will raise the gravity of the nature of the breach and make exclusion more likely. This, in fact, best explains the majority decision in Shaheed to exclude the evidence. Despite the compelling nature of the evidence and its linking of the accused to a serious crime, the fact that Shaheed had been so badly misled by the police and had his body searched in a highly invasive manner tilted the balancing test in favour of exclusion. Exclusion of the evidence was not disproportionate in the circumstances of this grave breach.
It is more questionable, however, whether the 'nature of the right' should be relevant. This suggests that some of the rights affirmed in the New Zealand Bill of Rights Act are more 'fundamental' than others. As no real guidance was given in Shaheed, it is unclear which of the provisions in ss 21-24, which deal with the gathering of evidence, are the more important. Who is to decide this? It is perhaps best to treat all of the rights enshrined in the Act as of equal importance, so as to avoid such problematic inquiries.
However, in Shaheed, Gault J stated that 'the rights and freedoms protected by the Bill of Rights Act... are not absolutes. Nor are they all the same'. Indeed, there appears to be room for argument that some judges are making a distinction between the various evidence gathering sections of the Act. The three aforementioned cases in which evidence has been admitted following an application of the balancing test have all involved breaches of s 22 - the right not to be arbitrarily detained. Only in R v Schutte, which involved a 'blatant and intentional' breach, does a breach of s 22 lead to exclusion of evidence. In the other sixteen cases, involving mostly breaches of s 21 and ss 23 (1)(b) and (4), the evidence is consistently excluded. There is, of course, a limit to the extent of this argument. No judge has ever pronounced, nor is ever likely to, that a particular section of the Bill of Rights Act is less important than another. Thus, drawing conclusions such as the above is inherently based on inferences drawn from results and is easily criticised in its lack of explicit supporting material. What can be said is that in cases involving s 22 there is not the same 'rights rhetoric' as is evident in cases concerning ss 21 and 23. In R v Chapman, a breach of s 21 was said to 'count heavily against admissibility'. Similarly, with regard to s 23(4), in R v Kokiri, McGrath J stated that that right was 'strongly entrenched in our legal system ... In the balancing process the right to silence carries significant weight'. By contrast, it appears less than lip service is being paid to s 22. In R v Taito Williams J stated that the s 22 right is 'of value to everyone and not lightly to be infringed', but the evidence was admitted on drugs charges. In R v Vercoe, Baragwanath J stated that 'exclusion may be necessary to give force to the longstanding judicial condemnation of unlawful detention'. Both these statements contained more than a hint of judicial reluctance to give s 22 as much credence as might be given to s 21 or s 23 (1) (b) and it should be seen as no surprise that in both cases the evidence was still admitted. It is perhaps best to view the 'ranking' of sections as not being a ranking of rights at all, but in fact a ranking of what police behaviour is more reprehensible. As the authors of the leading text on the New Zealand Bill of Rights Act state 'the starting point is that the point of bills of rights is to set a benchmark for acceptable government conduct'. P Indeed, it is seen as one of the principles of the New Zealand Bill of Rights Act 1990 that the Act 'binds government and public actors to act in such a manner that the rights of individuals ... are not breached'. Fundamental common law rights significantly pre-date the New Zealand Bill of Rights Act 1990, and thus the Act is more responsible for the creation of a code of police conduct than the creation of human rights. This interpretation of the purpose of the Act is evident in many decisions applying Shaheed. It is trite to say that the more serious the breach the more likely is exclusion of the evidence, but the gravity of the breach (largely determined by reference to police behaviour) will be shown to be the dominating factor in the Shaheed balancing tests. Thus, the poorer treatment given to s 22 may be a lot more to do with the fact that an arbitrary detention is short-lived and can occur without the accused even being aware he or she is detained, compared with a confession shaken out of an accused when he or she has already communicated that they wish to exercise their right to silence (s 23(4)).
Some overseas jurisdictions, especially the United States, employ a 'good faith' exception. That is to say that where the breach of the right was not the result of wilful or negligent conduct, evidence obtained should not be excluded. However, it is notable that such jurisdictions more often have a deterrence based justification for the exclusion of evidence. As such, excluding evidence obtained in good faith would do nothing to bolster the underlying rationale for their exclusionary rule.
In New Zealand, under the prima facie rule, the fact that the police acted in good faith was considered largely irrelevant. In R v Goodwin, Cooke P stated 'Bill of Rights Act violations do not depend on a kind of mens rea on the part of the officer'. The good faith of the police is an expectation, not a privilege. In Shaheed, Blanchard J stated 'whilst bad faith on the part of the police will usually require exclusion of the resulting evidence, good faith will in itself often be merely a neutral factor'. This is a sensible requirement. Deterrence of police heavy-handedness is a valid consideration. The courts should not be seen to sanction the executive's breach of its statutory duties. Taking rights seriously requires us to focus on the fact that a right has been violated and not the state of mind of the violators. 'Good faith' is relevant to whether or not there has been a breach of a right in the first place. It will be relevant to whether the search and seizure was 'unreasonable' and should not again be considered to favour admission of tainted evidence in the later balancing test.
Case law shows the approach suggested by Blanchard J is prevailing. In Maihi, the Court of Appeal noted that the breach there was 'neither deliberate, reckless nor grossly careless', but nevertheless said that fact 'tells not so much in favour of admissibility, rather it is the absence of a feature which would have pointed strongly in favour of exclusion'. In McManamy, Salmon J accepted, with regard to drugs found at the appellant's premises, that there had been no bad faith, but stated 'that is a neutral factor only'. Similar comments can be noted in the more recent cases of R v Hjelmstrom and R v Moran indicating an unwavering approach to this issue.
In cases where the court has concluded there has been bad faith on the part of an officer, this has certainly been a factor militating heavily in favour of exclusion. A number of cases discussing Shaheedhave involved the police execution of search warrants. The search warrant has been used to gain entry to the premises and then incriminating evidence has been found, either pursuant to the invocation of the s 18(2) Misuse of Drugs Act 1973 power of warrantless search or pursuant to the original warrant. In R v M, the police were held to have embellished the evidence presented in order to obtain a search warrant. Heath J stated
... the Court must discourage firmly embellishment of prosecution evidence of this nature. A system of justice which condones such embellishments to evidence in order to facilitate the admission of evidence, will not, in the long term, command the respect of the community.
In both R v Kau and R v Kokiri, the accused's lawyer was unable to be present at the police station upon the accused's detention. However, the interviewing officer was aware in both cases that the accused wished to exercise their right to silence. Nevertheless, in both cases, the respective officers managed to create a situation in which the accused made damaging admissions. In Kau, Priestley J stated 'to condone a police officer going behind the clear advice of counsel by seeking to continue an interview would be significantly to dilute the right to counsel'. Similarly, in Kokiri, where the Court of Appeal relied on its earlier ruling in Kau, McGrath J stated 'Kokiri was manoeuvred into the situation in which his statement was prised out of him while he was in his shaken state ... (these) circumstances weigh heavily in favour of exclusion'. In both cases, the Court had little difficulty in concluding that the evidence should be excluded. In R v Ji, the appellant, charged with murder, indicated that he did not wish to answer any more questions. Nonetheless, the interviewing officer pressed him to do so, taking advantage of the appellant's distressed state. Despite the grave nature of the charge, the subsequent confessional evidence was quickly excluded by the Court of Appeal. To allow such evidence, the Court of Appeal stated, 'would devalue the rights breached in the same breath as substandard police practices would be condoned'.
Deterrence of police bad faith and misconduct, whilst perhaps not the underlying rationale for the exclusion of evidence in New Zealand, will certainly favour exclusion in cases where police breaches of rights have been particularly egregious. Alongside the consistent denial to consider the absence of bad faith by the police to play any worthwhile role in the balancing process, it can be concluded that this part of the balancing process can really only militate in favour of the accused.
In pre-Shaheed cases, urgency of the need to obtain evidence was sometimes seen as a sufficient ground to displace the prima facie exclusion. This was due to concerns regarding the potential destruction of evidence and on public safety grounds. Thus, evidence could potentially still be included even if obtained, for example, without a search warrant. In Shaheed, the majority held that, in cases where other investigatory techniques, not involving any breach of rights, were known to be available and not used, the balance would be more likely to come down in favour of exclusion. This has proved to be true in the few cases where other investigatory techniques have been available. In Police v Wallis, a drink-driving appeal, it was held that the officer had wilfully decided to ignore the provisions of the Transport Act 1998, and require an evidential breath test even after the respondent had passed the initial test. The subsequent failed blood test was ruled inadmissible, John Hansen J stating:
... this is a case where the police officer obviously had another course available to him. If the officer had formed the view that the respondent was incapable of having proper control of the vehicle because she was under the influence of drink, he could have arrested her under s 58 [Transport Act 1998].
The fact that the officer had alternative means by which to immobilise the vehicle and stop the driver driving clearly favoured exclusion of the evidence and diminished any justification which may have existed for his pursuance of the evidential breath test and subsequent blood test. It has been argued that a corollary must exist; that where there were no other techniques available or, if there were, that the police did not know of them, that this must favour inclusion. This corollary accords with the pre-Shaheed urgency exception in that it excuses police breaches where no alternative existed. However, if it were to apply so as to favour inclusion of evidence in such cases it would run counter to the lack of a similar approach regarding 'good faith' breaches. Why reward or excuse police ignorance in this instance and not another? Another fear is that the argument could be raised to justify a breach where no legal method of gaining the evidence obtained existed. If Parliament has not seen fit to provide a legal means of obtaining the evidence, the suspect should be left alone. Where police take it upon themselves to act in a manner that is not prescribed by the law, this should increase the seriousness of the breach of the rights and weigh in favour of exclusion of the tainted evidence. There is no doubt, however, that the urgency exception has at least partly survived the change to a balancing test. A situation of urgency will help to justify a breach and make the nature of that breach less serious. In R v Taito, a car was stopped and searched in breach of s 21, as part of 'Operation Flower' - a large police operation attempting to break a sophisticated drugs ring operating in Auckland. Williams J concluded that 'the stopping was undertaken in urgent circumstances and in a way which meant the safety of the officers installing the listening device was not compromised'. This factor played at least a minor role in the subsequent admission of the evidence.
The point has generally, however, received very little attention. In the majority of cases the point is paid mere lip service and plays a minor role in the balancing test. Any weight attributable to this factor is usually to bolster (albeit only slightly) the arguments in favour of excluding the evidence obtained following a breach of s 21. In R v Hjelmstrom, Blanchard J stated 'there was no urgency in the situation requiring an immediate search other investigatory techniques could have been tried'. Situations involving search warrants insufficiently broad to cover the real evidence discovered upon the search being carried out have caused some difficulty. However, the Court of Appeal has ruled in favour of the accused and excluded evidence obtained outside the ambit of the warrant. An example is R v Chapman, where the Court of Appeal stated 'they had available to them another investigatory technique which should have been pursued, namely going back to the issuing officer and obtaining an amended or further warrant'.
Whilst this factor can cut both ways, and with the exception of Police v Wallis, the availability or non-availability of other investigatory techniques has not played a crucial role in any cases applying the Shaheed balancing test thus far. At the most, it has bolstered already strong cases, usually in favour of exclusion of the evidence. Thus, its general effect has been to the accused's advantage.
Under the prima facie rule, both confessional and real evidence were consistently excluded. In Shaheed, the majority stated:
... if the evidence is of doubtful reliability, and therefore not particularly probative, it will be given little or no weight... On the other hand, where real evidence ... has been found ... the probative value of that discovery may be a weighty factor.
The result is that real evidence obtained in breach of s 21 is more likely to be admitted than, for example, confessional evidence obtained in breach of s 23(1)(b). The rationale appears to be that public interest requirements heighten when real evidence, which is naturally highly reliable and exists independently of the breach (in contrast to a confession) is at issue. Cases applying Shaheed initially consistently dealt with the obtaining of real evidence. Maihi,  McManamey, R vPou, R v Rollinson, and R v I all dealt with the discovery of either drugs or stolen goods, in breach of the New Zealand Bill of Rights Act 1990. In Pou, Randerson J, delivering the judgment of the Court of Appeal, simply stated 'it is accepted that the evidence found is real' which appeared to equate to 'we accept that the evidence has no issues of reliability'. In R v M, Heath J stated 'the evidence is real evidence. Thus, there are no concerns about the probative value of the evidence'. Clearly, the reliability of the evidence in such cases has not been in dispute. However, in all of these cases the evidence has been excluded. Whilst it has consistently been judicially labelled as a relevant and important factor, high reliability has never been considered to be important enough by itself to tilt the balancing test in favour of inclusion. One can conclude that reliability of evidence is not currently holding powerful weight in the balancing test. It has, however, been lightly tried in the 'serious' cases at which Shaheed appears targeted. All the aforementioned cases concerned drug offences and minor amounts of stolen property which, as we will see later, have been considered by the Court of Appeal as 'not offending at the most serious level'. Interestingly, however, in Shaheed itself, DNA evidence, which was described by Blanchard J as 'a very powerful indication of Shaheed's guilt', was excluded. Thus, the logical inference is where the gravity of the breach is as great as it was in Shaheed, the seriousness of the crime will need to be greater than rape before even the most reliable of evidence is likely to be admitted.
It is clear that confessional evidence will create extra concerns and does not carry the same level of reliability, thus leading to it having even less of a sway in the balancing test. In R v Kokiri, the accused's statement, obtained in breach of s 23(4), was excluded by the Court of Appeal. McGrath J stated that 'the finding that the appellant was manipulated into making his statement does raise questions concerning its reliability as evidence which affect its probative value'. RvHaapu also concerned confessional evidence. The evidence was ruled inadmissible, with the Court placing emphasis on 'some concern about reliability' and the likelihood the evidence would have a significant impact on the outcome of the case. Whilst there were also other factors which favoured the Court excluding the evidence, it was an emphatic decision, with the Court allotting less than six lines to its justification. This appears to have been influenced by the inherent doubts regarding the reliability of evidence obtained in breach of the Judges' Rules.
If the general rule is that confessional evidence is less likely to be admitted, then R v Vercoe is the exception to that rule. There, a damaging admission was made by the accused whilst he was detained in breach of s 22 New Zealand Bill of Rights Act. Baragwanath J, in the High Court, held that despite the confessional nature of the evidence 'it strongly indicated the accused's consciousness of guilt'. It is noteworthy that Baragwanath J concluded the breach of s 22 in this case was not overly gross. The statement had been spontaneously given and was not elicited through any coercion. The nature of the breach was crucial. In Vercoe, the breach was not as flagrant as that in Kokiri and thus the mountain that the evidence favouring admission had to climb was not as steep. The general rule is that confessional evidence, of inherently more doubtful reliability, will play a weaker role in the balancing test than real evidence. However, case law is so far proving that real evidence also, despite its cogency and probative value, will be excluded where the other factors in the balancing test favouring inclusion are weak, or where the crime with which the accused is charged is insufficiently serious to justify a failure to vindicate the accused's rights. Shaheed itself showed that whenever a serious breach of the accused's rights occurs, even the most reliable evidence can be excluded.
It was suggested in Shaheed that there will be some cases where the offence in question is so grave that reliable and crucial evidence should be included, even if it was obtained as a result of a significant breach of the accused's rights. This was appropriate so as to recognise the enhanced public interest in convicting serious criminals. Murder was given as an obvious example.
It has been argued in some quarters that when the offence charged is particularly serious is precisely the time when a court should most rigidly enforce an accused's rights. A proportionality test which places the seriousness of the crime as a key factor certainly creates a strange result in some respects. The more society demands a conviction, the more an accused needs protection and rights. Taking such an approach can mean that a Bill of Rights is only useful for petty thieves, which surely was not the intention of its drafters. Furthermore, a problem which could potentially arise is that on a charge of murder, due to the seriousness of the charge, the judge agrees to admit some evidence say, for example, obtained without advising the accused of his right to a lawyer. The jury instead convicts the accused of manslaughter, finding him to have lacked the necessary mens rea for murder. The problem here is that it is by no means clear that had the accused been charged with manslaughter simpliciter that the tainted evidence would have been admitted, given the accused would then have been facing a lesser charge where the public interest arguably does not call for the inclusion of such evidence. Indeed, 'the proportionality test only makes sense if the accused is presumed guilty of the offence with which he is charged'.
Case law, however, appears to be restricting 'serious' offences to a paltry few. Cases applying Shaheed thus far have largely involved crimes at the lower end of the seriousness scale. For example, Maihi involved the possession of a knife, morphine tablets and one pound of cannabis. Tipping J described the offences as 'not particularly serious'. McManamey involved the importation of four ecstasy tablets, described by Salmon J as 'low down on the scale of culpability' . This approach continued in 2003. In R v Chapman, where the accused was charged with cannabis cultivation, the Court of Appeal described the offence as 'not of the most serious kind'. Small scale drugs charges will generally need only a slight breach to see the evidence obtained excluded. It has been argued that the reason that judges feel more comfortable excluding evidence on drugs charges is that is a victimless crime. One of the key criticisms of the exclusion of evidence is that it disregards victims' rights, when the breach of the Bill of Rights Act is almost always not the fault of the victim. Thus, when a drugs case is before the court, it is suggested that it should be seen as no surprise that a court will have little difficulty stating that drugs charges are 'not of the most serious kind', where there are no victims directly before the court.
Unfortunately, when the crime has exceeded the low level of culpability ascribed to the majority of drug offending, the approaches taken by the High Court and the Court of Appeal have been discordant, and it is by no means obvious who is to blame for this state of affairs. Take two of the more serious cases to have confronted these two courts thus far, both decided in recent months: R v Kokiri and R v Ji. Kokiri concerned a manslaughter charge following a head-on collision during a high-speed police chase of the accused who was driving a stolen car. Ji is a high profile Christchurch murder case, in which a Chinese national murdered his ex-girlfriend by driving her off the side of the road on Christchurch's Port Hills. Both cases followed an identical path. The High Court weighed up what it saw as serious breaches against confessional evidence of a very serious crime. The High Court on both occasions held that the evidence should be admitted on the balancing test. On both occasions, the Court of Appeal allowed the appellant's appeal. However, very frustratingly, the Court of Appeal did so on both occasions with absolutely no mention of the seriousness of the crimes with which the accused were charged when they repeated the balancing tests and concluded in favour of the appellants. In Kokiri, the Court of Appeal went to the trouble of mentioning every other factor relevant to the balancing tests as suggested by the majority in Shaheed, but for the seriousness of the crime, which, given the circumstances of the case, was an interesting omission. The upshot is that the area remains in a slight state of confusion, with the High Court being overruled on its interpretation of Shaheed without being told exactly what it is doing wrong. The Court of Appeal's approach seems to bethatthe 'seriousness of the crime' is dangerous territory and unless it is an argument that can be used to favour exclusion because of the low level of culpability involved, then it is better not to mention it at all. This is hardly 'the greater exercise of judgment' that Shaheed called for. It is noteworthy that the only decision of the Full Court of the Court of Appeal on any such issue is still the decision in Shaheed itself. However, in Shaheed, highly reliable evidence was still excluded despite the fact that Shaheed was charged with rape, which must be considered to be a 'serious' offence. However, despite the seriousness of the offence, the reliability of the evidence and the centrality of the evidence to the prosecution case, the majority held that the seriousness of the breach of Shaheed's right was sufficient to outweigh these factors. So, drugs, robbery, manslaughter, rape and murder have been insufficient in their respective circumstances. What will suffice then? The story may well be different when the breach is considered by the court to have been particularly minor. There, it would seem that the crime need not be as serious as a rape or a murder. R v Vercoe is a perfect example of this. As will be seen later, Baragwanath J there concluded that 'allegations of sexual offending against children in the accused's care are very serious' . Few would disagree with His Honour on that point, but there is no doubt the very minor nature of the intrusion on the accused's right, and perhaps also the fact it was a breach of s 22 and not one of the other sections of the Bill of Rights Act, played an important role in Baragwanath J's finding. It appears clear from Blanchard J's judgment that murder raises special concerns. His Honour referred favourably to the House of Lords' judgment in Attorney-General's Reference (No 3 of 1999), where the House of Lords opined that substantial breaches will be excusable in the case of a serial murderer. It is an extreme example with which it is difficult to disagree. The murderer has committed heinous crimes and seems certain to commit again. It is so extreme it adds little to the argument about where the line is to be drawn in these cases. What we can say is that where the breach of the right is substantial, as was the case in both Shaheed and R v Ji, the crime will need to be of a more serious nature than (one) rape or murder before the evidence obtained will be included. This immediately reduces drastically the class of cases to which this could apply. Where the crime with which the accused has been charged is less serious than rape or murder, as will be the case more often than not, a substantial breach will see the evidence excluded. With more minor offences, such as drug possession, even more minor breaches will be enough to exclude the evidence. The 'seriousness of the crime' factor is thus more likely to weigh in favour of the accused. A court is more likely to conclude that the offence charged is insufficiently serious to justify not vindicating that person's right.
Blanchard J stated:
It is also a matter which must be given weight in favour of admission if the disputed evidence is ... also central to the prosecution's case - that the admission of the evidence will not lead to an unfair trial and the case is likely to fail without it... although this factor ought not by itself lead to automatic admission.
Whilst emphasis was placed on this factor in the creation of the balancing test, it has not received much more than lip service from judges since. In Shaheed, Blanchard J stated in regard to the DNA evidence that 'without it the case seems unlikely to proceed', but still excluded the evidence. Similarly, in Maihi, Tipping J said in regard to the real evidence obtained from the search of Maihi's car and person that 'without it there is no case'. Again, the evidence was excluded, this time in circumstances not involving as serious a breach as Shaheed. In R v Rollinson, O'Regan J stated in regard to the evidence 'the prosecution will not be able to proceed without it'. However, the evidence was excluded. The same can be seen in R v Hjelmstrom where evidence which the Court of Appeal described as 'crucial to the prosecution' was quickly excluded in the balancing test process.
Indeed if there was one case where this factor of the balancing test has been persuasive it was in fact to aid the arguments for the exclusion of evidence. In R v M, Heath J placed some emphasis in his balancing process on the fact that exclusion of the evidence at issue was only likely to lead to the dismissal of three of twenty charges which had been brought against the accused, and thus it was highly likely a conviction would still be entered on at least one of the other seventeen counts, if indeed the accused was guilty. The evidence was excluded, despite its reliability and the seriousness of the crime, which Heath J described as not 'carrying weight' in the face of the fact that only three charges were likely to be dropped, and there had been a significant breach of the accused's rights. What one can therefore conclude is that the centrality of the evidence is only likely to achieve inclusion where the other factors in the test which favour exclusion are decidedly weak, and the crime involved is serious. The Court of Appeal is yet to be confronted by such a case. This factor can even militate in favour of exclusion of the evidence. However, only in relatively few cases will this factor play a more than ceremonial role in judicial decisions.
In Shaheed, Blanchard J concluded his lengthy judgment pre-empting criticism of the new balancing approach with the comment that 'this approach should not lead ... to results different from those envisaged in earlier judgments'. This has proved to be true. It will be remembered that there were only three cases which have applied the Shaheed test and subsequently admitted the tainted evidence - R v Vercoe, R v Taito and R v Lapham. It is suggested that it can only confidently be stated that Vercoe would definitely have been decided differently under the prima facie exclusion rule. The prima facie rule's urgency exception arguably would have meant Taito would have been decided the same, and it can be argued that the evidence in Lapham could have still been admitted due to inconsequentiality and a fairly minor breach. Thus, it is beneficial to examine closely Vercoe to draw safely the conclusion that Shaheed has not unnecessarily eroded human rights and will in fact create a more credible system of justice in New Zealand.
In Vercoe, the accused was the subject of allegations by two sisters of sexual offending whilst they were in his care. The accused was interviewed by police in relation to these allegations. Having been informed of his rights, Vercoe asked to speak with his lawyer. Great attempts were made by police to locate the lawyer of Vercoe's choice, but to no avail. Whilst waiting for that particular lawyer to contact the station, the detective and Vercoe engaged in conversation. The officer did not directly raise the allegations or invite any response to them from the accused but did raise the topic of the conversation leading to a formal interview. Unprompted, the accused then stated, with regard to one of the complainants 'with [her] it's something I have regretted all my life. It was the only time and I have always regretted it'.
Some time later, the accused spoke with his lawyer. Subsequent to this conversation, the accused then stated he would communicate no further with the officer. The accused was then charged with the offences and released on bail.
Baragwanath J concluded that the statement was obtained in breach of s 22 New Zealand Bill of Rights Act - the right to not be arbitrarily detained. His Honour then embarked on a very interesting employment of the Shaheed balancing test.
The following are excerpts from Baragwanath J's judgment:
[T]he starting point in this analysis is the right of the accused not to be arbitrarily and unlawfully detained by the state in order to assist in their investigations. That right has been breached. I accept the police officer in question did not seek to violate the NZBORA in bad faith but in my judgment any properly trained police officer would and should be aware that there is no power to detain suspects for questioning. It follows that notwithstanding the absence of bad faith the fact remains that the police officer's mistake was unreasonable and cannot be relied on to support the admission of the evidence.
I further accept that there was no flagrant or particularly grave breach of the right in this case. The accused drove to the police station voluntarily. The absence of evidence from the accused indicating any deleterious effects of detention on him also tends to show that this is not a particularly severe violation of s 22.
... .the particular incriminating statements were not made as a result of a sustained interrogation or cross examination.
the evidence in question is confessional, not real. Nonetheless, it strongly indicates the accused's consciousness of guilt and will be a central plank of the Crown case. This militates against exclusion. Further, allegations of sexual offending against children in the accused's care are of their nature very serious.
Balancing these factors, I have come to the conclusion that the evidence should be admitted. A credible justice system cannot afford to close its eyes to cogent evidence of guilt in relation to sexual offending against children where the breach of the NZBORA that caused the evidence to be obtained is relatively minor.
It is important to note that this is a High Court judgment only. Whilst Baragwanath J concluded that the breach of s 22 was minor, His Honour never considered it 'trivial' and thus it is highly likely the evidence would have been excluded under the old Te Kira test. Thus, if this is an example of the different results that Shaheed contemplated, is it correct? It is suggested that the majority of New Zealanders would consider that cogent evidence such as the confession given by the accused should be admitted. Indeed, it was obtained in breach of a right, but the behaviour of the police officer in the circumstances was not reprehensible. Strenuous efforts were made to contact the accused's lawyer. Notwithstanding that it is confessional evidence, and thus traditionally of lesser reliability, it is crucial that the statement was given freely and without prompting. The situation was certainly not a grave breach of s 22. The arbitrary detention was of short duration. Sexual offending against children by those in a position of trust is something of which New Zealand society has suffered immensely in recent years and was rightly given much emphasis by Baragwanath J. The evidence was reliable, central to the prosecution, regarding an offence of a serious nature. The breach was not great - the confession was not 'squeezed' out of the accused. Indeed, as Baragwanath J stated 'the conduct of the police was at the benign end of the spectrum'. Thus, with a very minor breach of s 22 faced with cogent evidence of serious offending, it is suggested that most New Zealanders would agree with the admission of the evidence in Vercoe. Indeed, it is now argued that such a decision accords with the spirit of the New Zealand Bill of Rights Act 1990 itself.
The majority of the criticisms levelled at the decision in Shaheed have been advanced by academics with a deep belief in the strength of the New Zealand Bill of Rights Act 1990. However, there appears to be, amongst those academics and some judges, some important misconceptions about the Act.
There exists confusion as to exactly how strong the rights contained in the New Zealand Bill of Rights Act 1990 truly are. In R v Moran, the Court of Appeal referred to the s 21 right to be free from unreasonable search and seizure as 'an important guaranteed right'. Academics have made similar errors. In perhaps the leading article criticising the new test, Optican and Sankoff wrote that the benefit of a presumption of inadmissibility was that it gave 'continued primacy to the vindication of guaranteed rights'. However, nowhere in the Bill of Rights are any of the rights therein guaranteed. The word 'guaranteed' is indeed a notable omission in the change from the Bill of Rights as a White Paper to the Bill of Rights as an Act of Parliament, where it is replaced with the word 'affirmed'. The long title to the Act states that it is 'an Act to affirm, protect and promote fundamental freedoms'. The rights are clearly not absolute, as Gault J pointed out in Shaheed.
Furthermore, Shaheed was criticised as having undermined the rights contained in the Bill of Rights Act. Again, this is difficult to agree with if one examines the Act itself. Section 5 of the Act states that the rights and freedoms contained in the Act are subject to 'such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. This section recognises that there will be competing rights at stake within a society, and the rights of one individual or group will on some occasions be subjected to the will of the majority, who have rights also. Section 5 is the very 'out' upon which the judgment in Shaheed is built. Indeed, the wording of s 5 is visible in the judgment of Gault J when he states, in regard to the Bill of Rights Act rights, 'their scope and enjoyment can be impacted upon by the existence and exercise of competing rights; by reasonable limits demonstrably justified in a free and democratic society'. It was never believed that the wording 'by law' in s 5 should be restricted to Acts of Parliament, and thus the common law can be a restriction also. What the New Zealand Court of Appeal is saying in Shaheed is not that they do not value the rights expressed in the Act or believe them to be important to each and every New Zealander, but that there will be instances where competing interests will require them to choose whose is to prevail. When Blanchard J talks of the 'enhanced public interest in convicting and confining a murderer', His Honour is not saying that the rights of the murderer affirmed under the Act are to be ignored or liberally transgressed, but simply highlighting the rights of all other New Zealanders to live in a safe society.
Shaheed should not be seen as a watershed on the issue. In R v Goodwin, Richardson J stated 'the Bill of Rights Act has to be applied in our society in a realistic way' and 'the Bill of Rights Act itself mandates a rights-centred approach to the assessment of public interest. That does not mean that other aspects of the public interest are to be ignored' . That is exactly what the Shaheedtest aims to do - to balance the competing considerations, something inherently contemplated by Parliament with the inclusion of s 5 in the first place. The judges upon whom the task of applying Shaheed falls are limiting the rights contained in ss 21 -24, but as long as they do so in the manner contemplated by s 5, they cannot be said to be acting contrary to the spirit of the Act. It is suggested that there is no case applying Shaheed thus far where it can be said that allowing admission of the evidence cannot be demonstrably justified. All three cases have involved minor breaches only, and, in two of the cases, the offending has been particularly serious. The failure to vindicate the accused's right is a price it is suggested most honest and innocent New Zealanders are prepared to pay to enjoy a safer community.
Shaheed was criticised as having failed to justify its abandonment of the prima facie exclusion rule. It is true that there was no reference given to any case which the majority of the Court of Appeal believed should have been decided differently. However, the move to a balancing test is in many ways a cry of frustration from the Court of Appeal. In many formulations of the prima facie exclusion rule there was reference to 'interests of justice' which were subsequently ignored by lower courts. Voices of dissent were heard from the Court of Appeal right from R v Te Kira in 1992. The consistent failure of lower courts to adopt this approach is what prompted the Court of Appeal to abandon finally the 'rule'. It had found that the prima facie rule was being applied much more as a 'rule of exclusion' than a 'prima facie rule'. Indeed, 'the perception in the Court of Appeal was that lower courts were excluding evidence too readily rather than too little'. As Blanchard J stated:
... there has been an attempt to articulate a solution which would give primacy to the vindication of guaranteed rights but with some flexibility to recognise other societal interests; but in practice the exclusion of evidence has followed almost automatically once it has been established that there has been a breach which is more than trivial and there is a sufficient connection between that breach and the availability of the challenged evidence.
Blanchard J further criticised the approach taken by judges as 'mechanical' and failing 'to ascertain whether exclusion of the evidence would be a truly proportionate response to the breach'. Thus, whilst it is conceded that no particular case was able to be identified as being incorrectly decided, it is clear that the change to a balancing approach came after reminders of the potential breadth of the prima facie rule continually fell on deaf ears. It was apparent to the Court of Appeal that a loud landmark change of approach (without actually changing the approach radically) was necessary to awaken judges from applying the prima face rule in an exclusory slumber. The fear that Shaheed will erode human rights appears based on a concern regarding the existence of a judicial discretion at all in this area, as opposed to a rule of exclusion. It would appear this is an unnecessary anxiety as judges have traditionally excluded tainted evidence. As has been shown, this was so even prior to the New Zealand Bill of Rights Act, when all that existed to exclude improperly obtained evidence was a judicial discretion. Then, tainted evidence was admissible subject only to a discretion to rule it out in particular instances on the ground of unfairness. It was in fact felt at one stage, when considering how to approach the issue of remedies for breach of the Bill of Rights Act, that the existing common law discretion would be more than capable of dealing with the issue. An examination of post-Shaheed cases reveals that the fear of an erosion of rights is unlikely to materialise. The factors identified as being relevant to the Shaheed balancing test are far more likely to operate in favour of the accused than in favour of the Crown. The 'good faith' requirement will likely militate in favour of excluding evidence. Good faith by the police is consistently viewed as a neutral factor only. Police bad faith has heightened the gravity of breaches, making exclusion of the tainted evidence an almost inevitable result in such cases. Notable examples of this are R v Kau are R v Kokiri, where the accused were interviewed by the police notwithstanding a direction from their lawyers that they wished to exercise their right to silence. Police misconduct certainly militates in favour of exclusion of the evidence. The availability of other investigatory techniques, though having played a key role in few cases, has generally had the effect of bolstering already solid cases in favour of exclusion of the evidence. The urgency exception has continued over from the prima facie exclusion rule, as is evidenced by R v Taito. Where an alternative investigatory technique exists, this factor will work in favour of the accused having the evidence excluded, as seen in Police v Wallis. As for the reliability and centrality of evidence, these factors have been largely paid mere lip service, both in Shaheed and subsequent cases. Evidence in Shaheed which was highly reliable was excluded. There is little distinction being made between real and confessional evidence. In Maihi, McManamey, Hjelmstrom, Pou, Rollinson, R v I and R v M, real evidence of undoubted reliability was excluded, principally because the offences charged were drug related and thus exclusion was considered a proportionate remedy. Confessional evidence, traditionally of lesser reliability, has also generally been excluded. Again, the interesting case of R v Vercoe shows that confessional evidence (or real evidence, for that matter) can be admitted where the breach of the accused's right is particularly minor.
In Maihi, Hjelmstrom, and Rollinson, evidence without which the prosecution could not go ahead was excluded. The common reason in these cases was that the crime was not considered to be sufficiently serious. Centrality of the evidence has played a weak role in the balancing test. As was discussed earlier, the only case in which this factor has been crucial was in fact to favour exclusion of the evidence, in R v M. The crucial factors in the balancing test have been the nature of the breach and the seriousness of the crime. Where the breach has been gross, such as an invasion of the person in Shaheed, or a deliberate attempt to elicit information in breach of a right from a suspect as in Kokiri, Kau and, to a lesser extent, in Ji, evidence has been excluded without a great amount of judicial angst, despite the serious crimes at stake in all four of those cases. Equally, where the breach has been minor, it is more likely that evidence will be admitted, if the evidence is reliable, central and the crime is more serious than a small-scale drug offence. The lesser nature of the breaches in Vercoe, Lapham and Taito are the basis for the ultimate exclusion of evidence, where the other factors in the balancing test were strongly in favour of inclusion.
The nature of the breach largely determines how serious the crime needs to be before the tainted evidence will be admitted. Small breaches will still be sufficient to exclude evidence on small-scale drugs charges, such as those in Maihi, McManamey and Hjelmstrom. More flagrant breaches will be capable of disposing of highly reliable and central evidence in more serious cases, such as in Ji (murder) and Kokiri (manslaughter). Similarly, where a serious crime meets a minor breach, reliable and central evidence will be admitted. The prima facie rule was criticised as not adequately addressing the interest of the community that those who are guilty of serious crimes should not go unpunished. Such a societal interest, however, will not outweigh an egregious breach of rights - particularly where such a breach is a result of deliberate or reckless police behaviour.
With change always comes initial uncertainty. The seriousness of the crime is one factor where the High Court and the Court of Appeal appear to be approaching the Shaheed test from different angles. The Court of Appeal has done little to alleviate this problem when cases have gone there on appeal, by being silent on the issue. However, it is naïve to believe this will be permanent. It was argued in a preliminary assessment of the judgment that Shaheed would create a lasting uncertainty because decisions would be left to the facts and circumstances of each case, 'with judges inevitably emphasising different factors' making every decision unique and creating no significant precedent value. However, Shaheed has not done away with the doctrine of precedent and overtime rules will be developed so as to provide the certainty arguably currently lacking. It has become clear that the onus in the balancing test lies on the prosecution to show that the balance favours including the evidence, once a breach of the New Zealand Bill of Rights Act has been established by the accused. Lawyers on both sides must by now be becoming accustomed to the court's approach to particular issues and the weight the court is attaching to the various factors, and will be in a good position to advise clients. The crucial point in the inquiry is the nature and circumstances of the breach. That is what decides the benchmark which the other factors in the inquiry must exceed before tainted evidence can be admitted.
This paper has argued that the Shaheed balancing test is justified in terms of s 5 of the New Zealand Bill of Rights Act. The balancing process, like s 5, recognises that there are competing rights in society. The Shaheed test will not unnecessarily erode human rights. Evidence will only be admitted where it would have been anyway under the prima facie rule, or where admitting the evidence is demonstrably justifiable in our free and democratic society. This paper concludes that the criticisms that were levelled at the new balancing test have proven to be largely unfounded. The Shaheed test has led to very few differences in result, and those differences have been justifiable. Case law is proving Blanchard J correct in stating that 'this approach should not lead ... to results different from those envisaged in earlier judgments'.
Shaheed aimed to encourage 'a greater exercise of judgment'. One fundamental requirement of decisions applying Shaheed in the future is candour. Judges need to be clear in their written decisions as to why they are deciding the case the way they are. They need to state frankly what weight they are giving to each factor and why. This will significantly hasten the creation of certainty in the law and allow for more worthwhile comparisons and predictions to be made about the admissibility of evidence. Such an approach will also lead to a further lightening of the weight of Shaheed's criticisms.
[*] Simon is currently enrolled in a BA (Hons) Course at the University of Canterbury.
Acknowledgement is given to Andru Isac and Simon Porter for valuable comments on drafts of this paper.
  2 NZLR 377.
 R v Te Kira  3 NZLR 257.
 See above n 1, 422.
 HC Rotorua, T01/3866, 6 September 2002, Baragwanath J.
 Indeed, in Jones v Owens (1870) JP 759, Mellor J stated, at 760, that 'it would be a dangerous obstacle to the administration of justice if we were to hold, because evidence was obtained by illegal means, it could not be used against a party charged with an offence'.
 See particularly, although solely in the context of real evidence, the comments of Lord Diplock inR v Sang  UKHL 3;  AC 402, 437, where His Lordship stated 'the judge has no grounds to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The Court is not concerned with how it was obtained'.
 See the judgment of Elias CJ in R v Shaheed  2 NZLR 377, 384.
  1 NZLR 318.
 Police v Hall  NZCA 3;  2 NZLR 678 (accused drink-driver who was refused access to call his father and his lawyer wanted evidence excluded of his subsequent medical examination by police doctor - doctor's evidence excluded on appeal), R v Hartley  2 NZLR 199 (evidence against one of the accused, which had been obtained in breach of the Judges' Rules regarding confessions was held to be inadmissible and his conviction was quashed), Police v Lavalle  1 NZLR 45 (appeal dismissed where trial judge admitted evidence obtained where police had merely provided the opportunity for the accused to commit the crime), R v Menzies  NZCA 19;  1 NZLR 40 (evidence of communications recorded between the accused and another was admissible against the accused despite the fact that it had been obtained pursuant to a warrant to intercept the communications of the 'other' only) and R v Loughlin  NZCA 1;  1 NZLR 236 (Court of Appeal applied Lavalle regarding a heroin purchase by an undercover police agent).
 Above n 8, 321.
 In R v Webster  2 NZLR 129, 140: Bisson J stated, 'while the courts have a supervisory function over law enforcement officers, it is not a disciplinary body. The ends of justice must be the paramount consideration. Fairness to the person being interviewed is not to be assessed in a vacuum but in the light of all the circumstances of the particular case and having regard, too, to the public interest in the proper investigation of crime, prosecution of offenders and the protection of the public'.
 C Walker 'Wilkes and Liberty' (1996) 17 New Zealand University Law Review 69, 71.
 R v Kirifi  NZCA 111;  2 NZLR 8, R v Butcher  NZCA 135;  2 NZLR 257, and R v TeKira, above n 2.
 R v H  2 NZLR 143.
 Ibid 150, per Richardson J.
 S Mount 'R v Shaheed: The Prima Facie Exclusion Rule Re-examined'  New Zealand Law Review 45, 61.
 In R v Te Kira, above n 2, Thomas J dissented, stating, at 279, 'in my mind there is no place for the application of the prima facie rule or presumption in determining whether evidence obtained as a result of a breach of s 23(3) of the Bill of Rights Act should be excluded. I consider that such a rule or presumption is unnecessary and, ultimately, unhelpful'. Thomas J clearly considered that there would be particular sections of the Act where the prima facie rule should not apply, continuing, 'this is not to say that the prima facie rule is necessarily inappropriate in the context ofs23(1)(b)'.
 Ibid 273.
  1 NZLR 399, 412.
 Thomas J further criticised the prima facie exclusion rule in one of his final judgments, in R v Whareumu  NZCA 380;  1 NZLR 655.
 R v Shaheed, HC Auckland, T 001056, 20 December 2000.
 Above n 21.
 R v Shaheed, above n 1, 383.
 Ibid 428.
 Ibid 431.
 Ibid 423-4.
 Ibid 430.
 On the strength of the complainant's identification and other evidence (not including the DNA match), on 12 April 2002, a High Court jury convicted Shaheed of sexual violation and abduction. On 6 June 2002, Nicholson J sentenced him to 10 years' imprisonment for sexual violation and 6 years' imprisonment for abduction. On 12 November, 2003, the Court of Appeal dismissed Shaheed's appeal against conviction and sentence (CA 202/02). Interestingly, all three judges who sat on Shaheed's appeal against conviction and sentence, Gault P, Blanchard and Tipping JJ, had sat on the Bench during the pre-trial evidence admissibility hearing.
 S Optican and P Sankoff, 'The New Exclusionary Rule: A Preliminary Assessment of R v Shaheed'  New Zealand Law Review 1, 2.
 S Optican 'R v Shaheed: the demise of the prima facie exclusion rule,  New Zealand Law Journal 103, B Robertson Editorial  New Zealand Law Journal 129, and S Optican, and P Sankoff, see above n31, are critical of the majority judgment. Praise is found in S Mount, see above n 16. The judgment is also reviewed in R Mahoney 'Evidence'  New Zealand Law Review 141.
 R v Shaheed, above n 1, 418, per Blanchard J; 426, per Gault J.
 Ibid 431, per Anderson J.
 Optican and Sankoff, above n 31, 18.
 R v Shaheed, above n 1, 418, per Blanchard J.
 Optican, above n 32, 103-4; Optican and Sankoff, above n 31, 18.
 R v Shaheed, above, n 1, 385.
 Ibid 385, per Elias CJ. See also Mount, above n 16, 67. Optican and Sankoff also identified, above n 31, 19, that 'Shaheed reflects the present desire of the Court to fashion a jurisprudence of exclusion permitting more improperly obtained evidence to be admitted in criminal trials'
 Optican and Sankoff, above n 31, 1.
 Optican, above n 32, 105.
 R v Shaheed, above, n 1. Blanchard J, at 420, stated 'The example of a serial murderer given in Attorney-General's Reference is compelling. Public confidence in the justice system would obviously be severely shaken were probative evidence to be excluded in such circumstances....' Regarding murderers, Blanchard J stated, at 420, there was 'enhanced public interest in conviction'. At 426, regarding the balancing test, Gault J stated 'it rightly emphasises the importance of values reflected in the rights and freedoms while maintaining the flexibility and judgment necessary to ensure that the overall interests of justice are served'.
 Optican, above n 32, 105.
 Optican and Sankoff, above n 31, 19.
 R v Shaheed, above, n 1, 385, per Elias CJ. Ip, J ‘The End of the Prima Facie Exclusionary Rule'  9 Auckland University Law Review 1016, 1028. Optican, above n 32, 104-5.
 R v Te Kira, above n 2.
 R v Butcher  NZCA 135;  2 NZLR 257; R v Te Kira, above n 2; R v Pratt  3 NZLR 21. Optican, above n 32, 103
 R Lithgow 'When Ignorance is Bliss?'  New Zealand Law Journal 151, 152. 51 Optican, above n 32, 104.
 Optican & Sankoff, above n 31,19.
 R v Shaheed, above n 1, 420, per Blanchard J (emphasis added).
 Optican & Sankoff, above n 31, 23.
 Above n 4.
 HC Auckland, T002481, 9 April 2003, Williams J.
 (2003) 20 CRNZ 286.
 HC Auckland, A29/02, 31 May 2002, Heath J.
 HC Auckland, A109/02, 26 August 2002, Rodney Hansen J.
 HC Wellington, T 4858/02, 12 September 2003, Hammond J.
 HC Auckland, T 013481, 26 July 2002, Randerson J.
 HC Auckland, T030395, 7 October 2003, Frater J.
 HC Napier, AP 42/02, 21 February 2003, Durie J.
 CA 307/02, 27 November 2002, Glazebrook, Baragwanath and Randerson JJ.
 Coupe v Police, above n 63, 4 per Durie J.
 CA 86/02, 26 June 2002, Anderson, Williams, Paterson JJ.
 Ibid 11, per Anderson J.
 R v Shaheed, above n 1, 419, per Blanchard J.
 R v Goodwin  2 NZLR 153, 171, per Cooke P.
 R v Maihi  NZCA 205; 19 CRNZ 453, 462, per Tipping J.
  NZCA 351; (2002) 19 CRNZ 413.
 HC, Auckland, T012095, 10 April 2002, Priestley J.
 S Optican, 'Exclusion of Evidence' in Rishworth P, Huscroft G, Optican S, Mahoney R, The New Zealand Bill of Rights (2003), 785.
 Blanchard J, delivering the judgment in R v Shaheed, above n 1, of Richardson P, Tipping J and himself, accepted, at 424, that '[the police] did not deliberately set out to flout (the Act's) fundamental requirements' but concluded that 'what they did was grossly negligent almost to the point of recklessness'. Note, however, the obiter partial dissentingjudgments of Gault, Anderson and McGrath JJ. Having found no real and substantial connection between the databank sample obtained in breach of s 21 and either the evidential blood sample or the complainant's photomontage identification of Shaheed, neither Gault J nor Anderson J found it necessary to rule on the issue of admissibility under the new balancing test. However, Gault J, at 428-9, stated:
I consider the breach of the respondent's rights should not in the circumstances of this case, prevent the admission of essentially indpendent evidence of extremely high apparent liability. I see exclusion of the evidence as disproportionate to the impact of the breach of the evidence in issue. That outcome...is consistent with the overall interests of justice. Gault J found that there had been no bad faith by the police. Anderson J agreed, at 432, stating: I think our system of justice risks its credibility in allowing such compelling evidence of guilt of such serious crimes to be excluded in the circumstances of this case.
McGrath J, at 430, felt the photomontage evidence should have been admitted on a balancing test, because a failure to do so would in effect grant an immunity in cases dependent on identification where a breach of rights does no more than lead to the suspect.
 Above n 1.
 Mahoney, above n 32, 143.
 Ibid, 144.
 R v Shaheed, above n 1, 426.
 CA 178/03, 22 September 2003, Keith J.
 Section 21 New Zealand Bill of Rights Act 1990 is 'the right to be secure against unreasonable search or seizure, whether of the person, property, correspondence or otherwise'.
 Section 23 (1)(b) New Zealand Bill of Rights Act 1990 is the 'right to consult and instruct a lawyer without delay and to be informed of that right'.
 Section 23(4) New Zealand Bill of Rights Act 1990 is the 'right to refrain from making any statement and to be informed of that right'.
 CA 241/02, 4 November 2002, Blanchard, Morris, Williams JJ.
 Ibid 11, per Blanchard J.
 CA 190/03, 1 October 2003, Keith, Tipping, McGrath JJ.
 Ibid 9.
 Above n 56.
 Ibid 10.
 Above n 55.
 Ibid 11.
 In R v Grayson and Taylor, above n 21, the Court of Appeal stated, at 411, 'the obligations in the Bill are placed on state authorities which might emphasise compliance by those authorities with the Bill'.
 P Rishworth, 'Interpreting and Applying the Bill of Rights', in Rishworth et al, The New Zealand Bill of Rights (2003).
 Ibid 22.
 United States v Leon  USSC 201; 468 US 897; 82 L Ed 2d 677 (1984).
 In Elkins v United States  USSC 116; 364 US 206 (1960), 217, it was stated 'the rule is deterrence centred - to compel respect for the constitutional guarantee in the only effective way, by removing the incentive to disregard it'.
 However, see the judgment of McKay J inR v Jeffries  1 NZLR 290. The police accidentally failed to comply with the statutory conditions of the Arms Act 1983. However, McKay J held, at 317-318, they had gained no advantage from their accidental non-compliance and concluded that the breach should be regarded as "immaterial to the discovery of the evidence and ... not of a kind which should lead to exclusion of the evidence".
  2 NZLR 153. 98 Ibid 172.
 In R v Goodwin, above, n 33, 193-4, stated 'the primary thrust of the statute [the New Zealand Bill of Rights Act] is on the positive assurance of rights rather than on the deterrence of official misconduct'.
 R v Shaheed, above n 1, 420.
 M Davies 'Alternative Approaches to the Exclusion of Evidence under s 24(2) of the Charter'  46 Criminal Law Quarterly, 38-9.
 In Shaheed, above n 1, 420, Blanchard J considered there would be instances where police good faith could favour inclusion of tainted evidence, but that this was more likely in regard to breaches that did not necessitate an inquiry into "reasonableness".
 R vMaihi, above n 70.
 Ibid 462. Similarly, as Hardie-Boys J said in R v Goodwin  2 NZLR 153, 202, 'to admit tainted evidence on the basis the police were not aware that they were acting in breach of the accused's rights is to put a premium on ignorance of the law by those in charge of law enforcement'.
 (2002) 19 CRNZ 669, 675.
 (2003) 20 CRNZ 208. There Blanchard J, applying the very test he laid down in R v Shaheed, stated, at 213, with regard to an unreasonable search of the accused's premises, 'although the officers may not have acted in bad faith, that is only a neutral factor'.
 CA 412/02, 25 March 2003, Blanchard, Robertson and William Young JJ. Blanchard J reiterated, at 6, 'the absence of bad faith is merely a neutral factor'.
 HC Hamilton, T022528, 4 October 2002, Heath J.
 Ibid 25.
 CA 179/02, 22 August 2002, Gault P, Priestley and Paterson JJ.
 Above n 85.
 Above n 110, 9.
 Above n 85, 9.
  NZCA 415;  1 NZLR 59. The Court of Appeal allotted less than eight lines to its justification of the exclusion of the evidence.
 R v Ji, ibid 65, per Anderson J.
 R v Te Whatu, CA 400/01, 7 March 2001, Blanchard, McGrath, Durie JJ.
 Dunlea v Attorney-General  NZCA 84;  3 NZLR 136, R v Williams CA101/00, 31 July 2000, Tipping, Baragwanath, Panckhurst JJ.
 R v Shaheed, ibid 420, per Blanchard J.
 HC Dunedin, AP 30/01, 22 May 2002, John Hansen J.
 Ibid, 10-11.
 Optican, 'Exclusion of Evidence' in Rishworth et al, The New Zealand Bill of Rights Act (2003) 786-7.
 Above n 56, 10.
 In R v Maihi, above n 70, 462, Tipping J stated that he was to examine the Shaheed factors in Maihi's circumstances. However, Tipping J went on, at 462-3, to ignore the issue of availability of other investigatory techniques in his discussion.
 Above n 106.
 Ibid 213.
 Above n 83.
 Ibid 12, per Blanchard J.
 Above n 119.
 1 For example, R v Kirifi  NZCA 111;  2 NZLR 8, R v Butcher  NZCA 135;  2 NZLR 257, R v Te Kira, above n 2.
 For example, RvH  2 NZLR 143.
 Above n 1, 420.
 Optican, 'Exclusion of Evidence' in Rishworth et al, New Zealand Bill of Rights Act (2003) 782.
 Above n 70.
 Above n 105.
  3 NZLR 637.
 CA 434/02, 25 March 2003, Glazebrook, Hammond and O'Regan JJ.
 Above n 71.
 Above n 137.
 Ibid, 646.
  3 NZLR 481.
 Ibid 23.
 Furthermore, in Maihi, above n 26, 462, Tipping J stated in regard to the drug discovered pursuant to the unreasonable search that 'its reliability is undoubted'.
 R v Rollinson, above n 138. 146R v Shaheed, above n 1, 391.
 Above n 85.
  NZCA 254; (2002) 19 CRNZ 616.
 Ibid 622, per Chambers J.
 Above n 4.
 Ibid 14.
 The approach taken in Vercoe is not dissimilar to that taken in R v Lapham, above n 57. InLapham incriminating statements made by the accused in breach of s22 were admitted, largely because, at 291, the 'questioning was entirely reasonable and proper' and the officer 'could not have anticipated (the) answer'. In both cases, the Judge was influenced by the minor nature of the breach and the voluntariness of the admission.
 R v Shaheed, above n 1, 421, per Blanchard J.
 Ibid 421. Blanchard J refers to the murder example given in Attorney-General's Reference (Number 3 of 1999)  UKHL 71;  1 All ER 577, as 'compelling'.
 Optican, 'Exclusion of Evidence' in Rishworth et al, The New Zealand Bill of Rights (2003), 780.
 Davies, 'Alternative Approaches to the Exclusion of Evidence'  46 Criminal Law
Quarterly 21, 27-8. 158 Ibid.
 Ibid 28.
 K Roach 'Constitutionalizing Disrepute: Exclusion of Evidence after Therens' (1986) 44 University of Toronto Faculty Law Review 209, 224.
 R v Maihi, above n 70, 463. 162 R v McManamey, above n 105.
 Ibid, 675.
 Above n 83.
 An arguable exception to this is R v Lapham, above n 57, where the Court of Appeal admitted confessional evidence regarding cannabis plots, in a situation where the breach of the Bill of Rights was minor. R v Taito, above n 56, is another drugs case where evidence was admitted, but Taito involved, per Williams J, at 10, 'sophisticated methamphetamine manufacture from more than one location, large number of persons involved, substantial quantities of drugs and substantial sums of money', and thus cannot be considered a small- scale drug offence.
 Mount, above n 16, 54.
 Above n 85.
 Above n 114.
 However, note the text at n 74, where Anderson and Gault JJ especially, opined in obiter that had they found a causative link between the breach of the Act and the evidence obtained, they would still have admitted the evidence on the balancing test.
 Above n 4.
 Ibid 14.
 Above n 155.
 R v Maihi, above n 70, involved a breach which Tipping J, at 462, described as 'not a major invasion of privacy'. His Honour, at 463, described the offending in question as 'not particularly serious'. The evidence was excluded.
 R v Shaheed, above n 1, 420-1.
 Ibid 424.
 Ibid 462.
 In R v Pou, above n 137, 646: Randerson J stated 'it is accepted that the evidence.... is central to the joint burglary counts but in our judgment, this does not outweigh other factors'.
 Above n 138.
 Ibid 11.
 Above n 106.
 Ibid 213, per Blanchard J. 184 R v M, above n 142.
 Ibid 25.
 R v Shaheed, above n 1, 42.
 Above n 4.
 Above n 56.
 Above n 57.
 In R v Lapham, ibid Doogue J stated, at 291, 'we are satisfied beyond question that given the unusual circumstances in a remote location the constable's question, where he had not resolved what kind of situation he was actually dealing with, was entirely reasonable and proper. He could not have anticipated Mr Bowman's answe. He immediately refrained from asking any further questions. We are satisfied that on any analysis in terms of Shaeed the evidence is admissible.'
 Ibid 13.
 Ibid 14.
 Above n 107.
 Ibid 6, per Blanchard J.
 Optican and Sankoff, above n 31, 27.
 Palmer, A Bill of Rights for New Zealand: A White Paper (1985).
 In Shaheed, above, n 1, 426, Gault J stated 'the rights and freedoms protected by the Bill of Rights Act ... are not absolutes'.
 R v Shaheed, above n 1, 426.
 Palmer, above n 200, 72. 204 R v Shaheed, above n 1, 421.
 Above n 69.
 Ibid 191.
 Ibid 194.
 Above n 2.
 Mount, above n 16, 67.
 R v Shaheed, above n 1, 418.
 Mount, above n 16, 67.
 S France 'Exclusion of Improperly Obtained Evidence' (1985) 11 New Zealand University Law Review 334. France noted that it was particulalrly rare for real evidence, as opposed to confessional statements, to be excluded.
 R v Coombs  1 NZLR 318, 321, summarising Police v Hall  NZCA 3;  2 NZLR 678,R v Hartley  2 NZLR 199, Police v Lavalle  1 NZLR 45, R v Menzies  NZCA 19;  1 NZLR 40 and R v Loughlin  1 NZLR 23.
 R Cooke 'Practicalities of a Bill of Rights (1985-1986)' 2 Australian Bar Review 189, where Cooke J (as he then was) stated 'adequate safeguards for the accused probably already operate'.
 Above n 110.
 Above n 85.
 Above n 56.
 Above n 119.
 Above n 70.
 Above n 105.
 Above n 106.
 Above n 137.
 Above n 138.
 Above n 71.
 Above n 142.
 Above n 4.
 Above n 70.
 Above n 106.
 Above n 138.
 Above n 142.
 Above n 85.
 Above n 110.
 Above n 114.
 Above n 4.
 Above n 57.
 Above n 56. 23 8 Above n 70.
 Above n 105.
 Above n 106.
 Above n 114.
 Above n 85.
 R v Vercoe, above n 4.
 R v Shaheed, above n 1, 419, per Blanchard J.
 Optican and Sankoff, above n 31, 41-2.
 Mount, above n 16, 68.
 In R v Zhu, HC Auckland, T032562, 22 October 2003, Laurenson J stated, at para 38, 'the onus is on the Crown to satisfy me that there are sufficient countervailing reasons to justify the admission of the evidence'.
 R v Shaheed, above n 1, 422.
 Mount, above n 16, 69.