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Copyright (c) 2004 Legal Research Foundation Inc. 
New Zealand Law Review

ARTICLE: The New Exclusionary Rule: Interpretation and Application of R v Shaheed


2004 NZ Law Review 451




Introduction: A Preliminary Assessment of R v Shaheed

In the most significant criminal procedure decision of 2002 -- R v Shaheed 1 -- the Court of Appeal replaced the decade-old prima facie rule of exclusion with a purely discretionary rule of exclusion for evidence obtained by the police (or other state agents) in violation of the New Zealand Bill of Rights Act 1990 (hereinafter "the Bill of Rights" or "the Act"). 2 The new exclusionary rule creates no presumption of inadmissibility for tainted proof challenged by an accused prior to trial. Instead, Shaheed obliges judges to determine whether exclusion is a proportional remedial response to the violation of the Bill of Rights at issue in the particular criminal case. To accomplish this task, courts are required to balance a number of non-exclusive factors that, depending on the facts and circumstances of the crime, the proceeding, and the contested police investigation, will cause a judge to decide whether vindication of the right infringed requires exclusion from the accused's trial of any evidence improperly obtained by the police. While a court must give appropriate and significant weight to the fact of the breach and the need to uphold rights, regard must also be had to the public interest in law enforcement and the maintenance of an effective and credible system of criminal justice. Accordingly, Shaheed states that the relevant factors in the proportionality-balancing test will include: 3

1. the nature of the right violated and the nature of the breach;

2. whether ...
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