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APPENDIX D

Extract from R v Grayson and Taylor⁶⁰

Remedies for breach

_There being no breach of s 21, the issue of remedy does not arise for determination. We propose however to make some brief comments in that respect.

The development and choice of remedy in the case of breach of the Bill of Rights is often seen as affected by the purposes and nature of the provision in issue.

A rights centred approach, supported by the title, by s 2 and by the formulation of the substantive provisions, might emphasise remedies (such as monetary damages or compensation as well as the exclusion of evidence) favouring the person aggrieved.

Another aspect is that the obligations in the Bill are placed on state authorities (including the Courts) which might emphasise compliance by those authorities with the Bill.

A broader perspective also looks to the general underlying public interest. That involves in particular the tension between the affirmation of the rights of the individual, to be enjoyed by all members of the community, and the recognition to be found in particular provisions, notably in s 5 of the fact that there are limitations on the rights, in particular “reasonable limits prescribed by law [which] can be demonstrably justified in a free and democratic society”.

A further important feature of many provisions of the Bill of Rights is their procedural character. In particular if the state is to take action which will deprive members of the community of their liberty for breach of the criminal law, then correct procedures, reflecting centuries of development and principle, are to be followed. It has been wisely said that the history of individual liberty is largely the history of the development of procedural safeguards.

The remedies might, in the first place, relate to the trial itself. For example evidence might be rejected, with the possible consequence of the prosecution failing, the penalty imposed might be reduced or there might be an appropriate order for costs. There is the possibility of police disciplinary proceedings, criminal prosecution, and civil proceedings. Proceedings brought by an aggrieved person might lead to damages or compensation, a declaration, or future-looking relief.

The experience in other jurisdictions, notably Canada and the United States of America, suggests the need for a careful balancing of the identification and scope of the guaranteed rights and appropriate remedies where rights have been breached. The pursuit of a broad approach to right identification with remedies inflexibly allowed could lead to imbalance in individual and community rights. Protection and vindication of individual rights are themselves community values but, as the Act makes clear, limitations are justified (indeed necessary) in a free and democratic society. There are helpful discussions of these issues by the Law Commission in its report Police Questioning (NZLC R31, 1994) 23, 33–34, 53, 98–105, and in the articles by Mahoney, “Vindicating Rights: Excluding Evidence Obtained in Violation of the Bill of Rights”, in Rishworth and Huscroft (eds) Rights and Freedoms (Brooker’s, Wellington, 1995) 447; and Walker, “Wilkes and Liberty: A Critique of the Prima Facie Exclusion Rule” (1996) 17 NZULR 69.

A robust and rights centred approach to individual rights is not necessarily inconsistent with flexibility of remedies where rights are breached. A remedy is no less an effective remedy because it is one appropriate to the circumstances of the breach rather than a remedy inflexibly applied in respect of all breaches.

The formulation of appropriate remedies should be approached broadly. To settle upon a single remedy to be applied in all cases rather than keeping open the full range of possible remedies risks inflexibility and the rejection of possibly more appropriate remedies in particular cases. Similarly the response to any particular breach arguably should be at the appropriate level. It should be no less an effective remedy because it is fashioned to bear some relationship to the nature and seriousness of the breach. Whether there should be the same response to breaches of rights in the course of activities resulting in the discovery of real evidence as to breaches of rights in the course of obtaining, for example, confessional evidence also requires careful consideration.

Having regard to the above matters, on an appropriate occasion the Court would be prepared to re-examine the prima facie exclusion rule.