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Part V Addenda

EXCLUSION OF EVIDENCE IN INTERCEPTION CASES

42 ALTHOUGH IT IS NOT PART OF OUR TERMS OF REFERENCE, we draw attention to the problems created by the absolute terms of the Crimes Act 1961 sections 312M(1) and 312(N)(1) and the Misuse of Drugs Amendment Act 1978 section 25(1) (which preclude evidence of communications intercepted by means of a listening device otherwise than in pursuance of an interception warrant). It is understandable that these provisions should have been inserted to allay fears of misuse when interception warrants were first given statutory authorisation. William Young J has recently drawn attention to the inappropriateness of these provisions in a case where interception has occurred innocently and unofficially. (Moreton v Police (unreported) Greymouth Registry AP No 1/01 Judgment 20 September 2001). A better approach than a blanket exclusion is that contained in the Evidence Code proposed by the Law Commission (NZLC R55 (1999)). Under clause 29 of that proposed code the court has power to admit evidence improperly obtained in certain circumstances. We understand that it is proposed to introduce legislation adopting the substance of this proposal, but the effect of the generalia specialibus non derogant rule is that this will leave the provisions referred to in the opening sentence of this paragraph unaffected. They should, as part of the statute adopting the Evidence Code, be expressed to be subject to the Evidence Code provision.

OTHER LAW ENFORCEMENT AGENCIES

43 Our letter of request is, by its terms, confined to police search powers, but we would note that there seems no logical reason why comparable powers should not be available in appropriate cases to other state enforcement agencies.