NCJ Number
78952
Journal
New Zealand Law Journal Dated: (February 7, 1978) Pages: 25-32
Date Published
1978
Length
8 pages
Annotation
The rationale of the judicial discretion to exclude evidence deemed to have been obtained unfairly is examined, and relevant recent New Zealand case law development is considered, as well as future areas of concern.
Abstract
The rationale for the judicial discretion to exclude evidence obtained unfairly is that without it, there would be no effective means of deterring police from obtaining evidence by abusive practices. Further, by accepting such evidence, the court participates in and reinforces the wrongful actions of the police. The recent activity regarding judicial discretion to exclude such evidence has centered in the related areas of evidence unfairly obtained by entrapment, evidence unfairly obtained during interrogation, and real evidence illegally or unfairly obtained by search and seizure. After a considerable number of cases espousing the principle of an exclusionary discretion, but admitting the evidence nonetheless, a number of recent cases have actually excluded evidence deemed to have been obtained illegally. By putting limits on the use of agent provocateurs, enforcing the standards of proper interrogation procedures, and rejecting unfairly obtained real evidence, the judiciary is properly ensuring that those accused of crime and dealt with fairly. To date, the New Zealand courts have rejected the adoption of stated guidelines or factors to consider in excluding evidence deemed improperly obtained. The use of such guidelines, however, could be useful in achieving uniformity, especially since the number of precedents is few. A total of 35 footnotes is listed.