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By: Shane Campbell
On 26 October 2016, the Supreme Court released its decision in Marwood v Commissioner of Police [2016] NZSC 139.  This decision required the Court to determine whether New Zealand courts have jurisdiction to exclude improperly obtained evidence in civil proceedings and, if so, whether the jurisdiction should be exercised on the facts of the case before it.
This comment relates only to the majority decision of William Young, Glazebrook, Arnold and O'Regan JJ.  Elias CJ delivered a lone dissenting judgment.  However, in the interests of clarity there is no need to refer to that minority decision.
The essential decision
The majority of the Supreme Court held that the court did have jurisdiction to exclude the evidence in cases where the evidence was obtained in breach of the New Zealand Bill of Rights Act 1990 (NZBORA) or otherwise an abuse of process.  This analysis rested on an interpretation of ss 7 and 11 of the Evidence Act 2006 (Act).
The implications of this decision for civil litigation generally are not clear.  However, where any evidence has been obtained in breach of NZBORA, or otherwise in circumstances amounting to an abuse of process, exclusion may be available.  This may lend itself to evidence being obtained by an employee or other person obtaining evidence in breach of a contract, evidence being obtained by fraud, or any number of other improper modes of obtaining evidence.
In all likelihood, the decision will have a minimal impact for all civil decisions which do not involve evidence being obtained by the coercive powers of the State.  Nonetheless, the residual abuse of category process may provide fertile fodder for exclusionary arguments moving forward.
After receiving a tip-off, Police searched Mr Karl Marwood's house in Taupo.  In the course of that search, Police found a reasonably commercial cannabis operation including cannabis and scales.  As a result of what was found in the course of the search, Mr Marwood was charged with cultivating and possessing cannabis for the purpose of sale, selling cannabis, and stealing electricity.  After the search operation, Mr Marwood made admissions as to criminal conduct.  Nonetheless, Mr Marwood challenged the search warrant issued under the now-repealed s 198 of the Summary Proceedings Act 1957 (SPA).
For a warrant to be validly issued under s 198 of the SPA, there must have been reasonable grounds to believe that a cannabis growing operation was underway at Mr Marwood's house.  In this case, the District Court judge reached the conclusion that the tip-off amounted to no more than a suspicion of offending.  Judge Bouchier noted that police had made no inquiries about the reliability of the tip-off and considered that the warrant was invalid and the search contravened s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). 
As a result, her Honour concluded that it would be a proportionate response to exclude the evidence under s 30 of the Evidence Act 2006 (Act).  Having done so meant there was no longer any admissible evidence against Mr Harwood with the result that the charges against him had to be discharged under s 347 of the Criminal Procedure Act 2011.
The Commissioner of Police then commenced proceedings under the Criminal Proceeds (Recovery) Act 2009 (CPRA) seeking profit forfeiture orders against Mr Marwood, his partner Ms Erana King and a trust associated with the two of them, the Perrin Trust.  The proceeding under the CPRA effectively alleged that Mr Marwood and Ms King received substantial benefits as a result of significant criminal activity.  The proceeding relied in large part on the evidence which was excluded in the criminal proceedings, in respect of which Mr Marwood was discharged.  The Supreme Court was therefore tasked with resolving whether the Commissioner of Police could rely on that previously excluded evidence.
It is worth noting that s 94 of the CPRA provides a qualified rule of evidence exclusion where evidence obtained under powers contained in the CPRA is improperly obtained.  That does not apply to this case, however, as the evidence was obtained as a result of a criminal investigation.  The CPRA is silent in these situations.
Historical development of the law
The Court then embarked on a review of the historical position relating to exclusion of improperly obtained evidence in criminal and civil proceedings.  The detailed overview of the law may be summarised as follows:
(a)        the general position at common law was that illegally obtained evidence was admissible in both criminal and civil proceedings;
(b)        in England the law developed such that there was a limited ability to exclude improperly obtained evidence, though the courts there rejected a general discretion to exclude such evidence;
(c)        the law in New Zealand set a different course, by which judges were entitled to exclude improperly obtained evidence – the jurisdiction for which derived from either, or both, of a standalone discretion to exclude, or as part of the abuse of process jurisdiction; and
(d)        despite this development in the sphere of the criminal law of evidence, there was no corresponding development in relation to evidence in civil proceedings, although there were certain principles relating to return of improperly obtained privileged information and evidence obtained amounting to a contempt of court.
The enactment of NZBORA was somewhat of a paradigm shift in the way courts approached this issue.  Therefore, post-enactment, an issue the courts had to confront the issue of how to deal with evidence obtained in breach of s 21 of NZBORA.
Initially the courts held that the common law position continued to apply, but adopted a prima facie exclusionary rule by which such evidence was 'out' unless there were good reasons why this should not be the case.  The ground again shifted, however, after the Court of Appeal decided Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent's Case] by which it was established that exclusion of improperly obtained evidence in criminal cases amounted to a remedy for breach of a right secured by NZBORA.  Ultimately the New Zealand courts moved to a balancing exercise which was founded by the Court of Appeal's decision in R v Shaheed [2002] 2 NZLR 377 (CA) by which evidence would be excluded where to do so would be necessary to vindicate the impinged right balanced against other relevant factors.
Not long after Shaheed was decided, Parliament enacted the Act, including s 30 which expressly deals with the admissibility of improperly obtained evidence.  However, even the Act contemplates resorting to common law in certain situations (see ss 10–12A). Therefore, in Fan v R [2012] NZCA 114, [2012] 3 NZLR 29 the Court of Appeal had to decide whether there was a residual discretion to exclude evidence in criminal cases on the basis of unfairness where the threshold of exclusion in s 30 is not met.  The Supreme Court did not have to determine the correctness of the Court of Appeal decision in this case.
All of the above issues, however, relate to criminal cases.  The issue before the Supreme Court was whether the courts possessed a power to exclude in civil cases in light of the fact that s 30 of the Act applies exclusively to civil proceedings.
The decision on exclusion in civil cases
The Supreme Court began its analysis by commenting on the decision of the High Court and Court of Appeal as follows:
(a)        High Court: Cooper J concluded that ss 7 and 30 of the Act did not oust NZBORA and that s 12 (evidential matters not provided for) applied on the basis that s 30 (improperly obtained evidence) only applied to criminal proceedings.  In his Honour's view, evidence excluded under s 21 of NZBORA could amount to evidence excluded under another enactment for the purposes of s 7(1)(b) of the Act.
(b)        Court of Appeal: the Court of Appeal essayed the history of the Act and concluded that because NZBORA does not expressly, or by necessary implication, provide for a remedy of exclusion then it is insufficient for the purposes of s 7(1)(b) of the Act.  Further, s 12 was no answer because there was no legislative lacuna – there was no need for a s 30 equivalent for civil proceedings because the position was adequately addressed by ss 7 and 8 of the Act.
The decision of the Supreme Court on the jurisdictional enquiry can be summarised as follows:
(a)        prior to the enactment of the Act in proceedings akin to the present, it would have been open to a judge to exclude evidence which had been obtained in breach of NZBORA;
(b)        evidence so excluded could be said to have been excluded under another enactment, being NZBORA, for the purposes of s 7(1)(b) of the Act;
(c)        the Court of Appeal's approach to the interpretation of s 7(1)(b) is a reading down of that section;
(d)        the remedy for exclusion is part of the inherent and implied powers of a court to exclude evidence obtained in breach of process or in breach of NZBORA.
The Supreme Court therefore concluded that there was jurisdiction to exclude the evidence.
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