Plain language law

New Zealand law explained for everyone

Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings

30: Improperly obtained evidence

You could also call this:

"When evidence is collected unfairly or illegally, the court decides whether to use it in a trial."

Illustration for Evidence Act 2006

If you are in a criminal trial, the court might look at evidence that was obtained in a way that was not fair or legal. You or the Judge can raise the issue of whether the evidence was obtained improperly. The Judge will then decide if the evidence was obtained improperly.

The Judge will look at whether the evidence was obtained unfairly, and if so, they will decide whether to exclude it from the trial. They will consider things like how important the right that was breached is, and how serious the breach was.

The Judge can also look at things like how serious the crime you are accused of is, and whether the Police could have gotten the evidence in a different way. If the Judge decides that the evidence was obtained improperly, they might exclude it from the trial if they think that is proportionate to the impropriety. Evidence is considered improperly obtained if it was gotten because of a breach of the law, or if it was gotten unfairly. The Judge will follow guidelines set out by the Chief Justice when deciding if a statement was obtained unfairly. You can find more information about your rights in the New Zealand Bill of Rights Act 1990.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393610.

Topics:
Crime and justice > Courts and legal helpCrime and justice > Criminal law
Previous

29: Exclusion of statements influenced by oppression, or

"When someone was mean or scary to you, a Judge can stop the police from using what you said as evidence."

Next

31: Prosecution may not rely on certain evidence offered by other parties, or

"The prosecution can't use some evidence given by others in court."

Part 2Admissibility rules, privilege, and confidentiality
Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings

30Improperly obtained evidence

  1. This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

  2. the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
    1. the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

      1. The Judge must—

      2. find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
        1. if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.

          1. For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

          2. the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
            1. the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
              1. the nature and quality of the improperly obtained evidence:
                1. the seriousness of the offence with which the defendant is charged:
                  1. whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
                    1. whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:
                      1. whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
                        1. whether there was any urgency in obtaining the improperly obtained evidence.

                          1. The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

                          2. For the purposes of this section, evidence is improperly obtained if it is obtained—

                          3. in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
                            1. in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
                              1. unfairly.

                                1. Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.

                                Notes
                                • Section 30(1)(a): amended, on , by section 9 of the Evidence Amendment Act 2007 (2007 No 24).
                                • Section 30(2)(b): amended, on , by section 10 of the Evidence Amendment Act 2016 (2016 No 44).