This post has been removed because you can now read an article based on this post at [2018] NZLJ 189.

 

Important note regarding suppression

The defendant in this case still has name suppression, so I have anonymised the case name as Z.  When or if the suppression is removed I will edit this post.

I also cannot link the decision because I am bound by the suppression order, and also everyone else is to, so the only place to find a copy is behind a paywalled legal database.

Overview

Z v R contains guidance from the Court of Appeal on the application of one part of the balancing test in s 30 of the Evidence Act 2006 (Act).  The “seriousness of the offence” should no longer necessarily be assessed by looking to the likely penalty.  Further, if the offence is serious then the s 30(3)(d) factor favours admission.  If the offence is not serious then the factor is neutral.

Facts

Mr Z was charged with possession of objectionable material (indecent images of children).

The evidence had been improperly obtained as the Police acted on a search warrant that had been issued without proper authority.

Therefore admissibility depended on the balancing test in s 30(2) of the Evidence Act 2006.

In the District Court, Judge Harvey ruled the evidence admissible.  Mr Z appealed.

Issues

The Court of Appeal considered the s 30(3)(d) criterion “the seriousness of the offence with which the defendant is charged”.  That factor is one of many in the familiar list of factors to consider when determining whether improperly obtained evidence is admissible. But how to interpret it?

In particular:

• What did Parliament mean by “serious”?
• Does it “cut both ways”? That is, if an offence is not very serious, then does this factor favour exclusion?

The old law

In R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 the Court of Appeal said that an offence could be considered serious for the purposes of s 30 if the sentencing starting point was likely to be around four years’ imprisonment.

The (present-day) Court of Appeal on R v Williams

Appellate courts can either accept the s 30(2) admissibility test as a discretionary decision and in doing so accept inconsistency and unpredictability in the outcomes, or they can “impose a structured methodology” to the balancing exercise (Z v R at [16]).

Williams represented an attempt to impose that structure on the s 30(3) factors.

Then Hamed

Next was Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305. Five judges wrote separately.  On some s 30(3) factors clear rationes emerged.  But there was no consensus on how the “seriousness of the offence” factor was to be interpreted.  Indeed, it’s difficult to see how five people could be more apart…

• Elias CJ: look to the particular offending, have regard to the maximum sentence but not a determinative factor, seriousness itself does not always demand admissibility.
• Blanchard J: look to both maximum sentence, and the likely sentence in that particular case.
• Tipping J: look to maximum sentence as that is what legislature intended and all a court needs to carry out a comparison as it is only one factor in a multi factor test, rejected the Williams four year rule of thumb. Also, all offences punishable by imprisonment seem sort of serious to me.
• McGrath J: agreed with Blanchard J’s test but applied it to come to a different outcome in the same case (!).
• Gault J: the s 30(3) factors are value judgments that depend on the inclination of particular judges.

Back to Z v R

Given that no clear ratio on “seriousness of the offence” emerged from the Supreme Court, the Court of Appeal had to consider the term itself.

The Court surveyed the legislative history (and Canadian authority on which our test is based). That revealed that the considerations for the “seriousness” factor were historically one-way.  It works to get evidence of serious crimes in.  It is a factor that, when triggered, favours admissibility.

But, says the Court, “if allowed too much rein s 30(3)(d) could run away with the balancing exercise, excusing almost any breach of rights where the offence is serious enough. For this reason appellate courts have consistently and firmly insisted that it must not take primacy.” (at [33]).

So, it is just one of the many factors in s 30(3).

Cutting both ways?

The Court observed that other courts have considered that the s 30 test “cuts both ways” for admissibility. The Court clarified that this meant that some factors in s 30(3) that favour exclusion may assume greater importance in serious cases (eg. the nature the impugned right and the nature of the breach).

But s 30(3)(d) – the seriousness factor – only works in one direction. If an offence is serious, s 30(3)(d) will favour admission.  The absence of seriousness does not favour exclusion.

What does seriousness mean? (Or, “no more thumbs”)

Williams says look to penalty (specifically, likely starting point). But penalty (either starting point or statutory maximum) is a poor way of assessing seriousness because (at [43]):

• Sentencing starting point is set by reference to aggravating factors, but under s 30(2) even just one of the aggravating factors may make an offence “serious”.
• The sentencing exercise and the admissibility exercise have different concerns. At sentencing the Court focuses on the particular offence and the particular offender.  Under s 30(2) the Court is concerned with the administration of justice (and may focus more on general public safety concerns).
• Where an offender has multiple charges, the Court may assess seriousness using a charge that would not be the lead offence at sentencing.
• Admissibility decisions often affect a group of co-offenders, and generally the s 30(2) inquiry will be a general one, rather than focusing on each individual (except where co-offenders’ rights have been breached in different ways).

But if you have to use penalty, what should you use: starting point, maximum sentence, or likely end sentence?

Definitely not end sentence – that is dictated by personal factors such as guilty plea that have no relation to the question of admissibility. Further, the end sentence is determined by things like pre-sentence reports that a judge determining admissibility simply will not have (at [47]).

Starting point is better than the statutory maximum

The Court of Appeal considered that the starting point was a better guide to seriousness than the statutory maxim for the following reasons:

• Admissibility is a case-specific balancing exercise, so the statutory reference to the “offence” in s 30(3)(d) means the particular offence. (cf Tipping J in Hamed)
• The maximum sentence is only a rough guide, and maximums change not infrequently. The maximum is going to be reflected in the starting point anyway.
• Using the maximum may give the s 30(3)(d) factor too much weight.
• Using the maximum may be simpler in theory, but trial judges routinely assess the nature and apparent strength of a Crown case when making pre-trial decisions: this sort of provisional assessment is within the wheelhouse of trial judges.

But no need to assess seriousness by having recourse to penalty. It is an evaluative exercise

Ultimate guidance on seriousness

[49] For these reasons, we conclude that the four-year starting point adopted in Williams as a standard or guide to seriousness of the offence in s 30(3)(d) should no longer be used. Rather, seriousness should be treated, like other s 30(3) criteria, as an evaluative consideration. Penalty need not be used to gauge seriousness, although judges may sometimes find it appropriate. When assessing seriousness it is always necessary to bear in mind the points discussed at [33]-[37] above; in summary, the assessment requires a long-term perspective of the administration of justice, in which trials generally should be conducted on their merits but systemic integrity is paramount; that being so, seriousness cannot take primacy over other considerations, seriousness does not justify admission where the breach of rights causes an unfair trial, and a grave breach of an important right may justify exclusion although the evidence would not result in an unfair trial.

(footnote omitted)

Applied to the facts of this case

The likely starting point for Mr Z’s alleged offending may have been around two years’ imprisonment.  The Court of Appeal said that it did not find the level of penalty a very sueful guide (at [52]).

Child pornography intrinsically serious. The images involved vulnerable victims, there were 1,650 images, and there is a market for the images that must be vigorously suppressed.

So it is correct to say that in Mr Z’s case the offending is intrinsically serious albeit the images are not the worst of their kind.

The seriousness of the offence should be accorded “low to moderate” weight in the balancing exercise.

After considering the other matters (nature of the breach etc) the Court agreed with Judge Harvey that the evidence was admissible.

Commentary

The most useful takeaway from the decision is its confirmation that seriousness really “cuts one way” in the balancing exercise. If an offence is serious, then the s 30(3)(d) factor favours admission, if it’s not, then the factor is neutral.

The Court counselled caution about letting the seriousness factor dominate though. It is clearly not a wide licence for admission.  It should not be seen as increasing the overall likelihood of admission in serious cases.  As the Court pointed out, in serious cases the other s 30(3) factors will also be strong.  It will be a case of turning every speaker up to 11: you do not get any change in the overall balance.

Where it will have an effect is cases where the offence is of low seriousness. Defence cannot say “oh this isn’t very serious, so this factor favours exclusion.”  Now, the factor is neutral.

The decision also probably gives greater licence to argue what is or is not serious. Seriousness is no longer tied to the penalty rule of thumb.  Whichever side is assisted by penalty can (and still will) argue that.  But you can have a better crack at arguing your side under the guise of “seriousness is an evaluative exercise”.

This slightly favours the prosecution as one can always make the argument that there are certain public safety elements in any type of offence that mean the offence is serious.

However the effect will be limited, because this decision has “freed up” the assessment of seriousness. And at the same time has confirmed that in cases involving “serious” offending, the other s 30(3) factors that might favour exclusion will be more at play.  So, any time the Crown tries to say “look, this is really serious” in a bid to get s 30(3)(d) into play, the defence can say “yes, they’re right, but that only increases the importance of these other factors that favour exclusion.”

 

The term McKenzie friend stems from McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472 (CA).  As recorded in the judgment of Davies LJ:

Mr Hanger is alive today!  He became Ian Hanger AM QC and a keen amateur photographer.  He delivered an excellent lecture in which he recounted his experience of appearing in front of Lloyd-Jones J as a freshly admitted Australian barrister (he literally rode to work each morning on the Clapham omnibus!).  The lecture is below and keyed to start at the description of the case.  It skips the part where he recounts the captain of his ship to the United Kingdom shooting himself in the head.