Hamed, Williams and the Exclusionary Rule: Critiquing the Supreme Court's Approach to s 30 of the Evidence Act 2006

Section 30 of the Evidence Act 2006 codifies the judicial power in a criminal trial to admit or exclude evidence improperly obtained by the police. In Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305, the Supreme Court issued its first and, to date, only judgment dealing with the “proportionality-balancing” test for exclusion — an approach initially promulgated in R v Shaheed [2002] 2 NZLR 377 (CA) and eventually codified in s 30(2)(b) of the Evidence Act 2006. Hamed effectively does away with the analytical scheme for s 30 determinations declared by the Court of Appeal in R v Williams [2007] NZCA 52, [2007] NZLR 207. While not perfect, and itself subject to critique, the Williams methodology was laudably designed by the Court as a self-conscious response to perceived defects and inconsistencies in case law application of the Shaheed/s 30 exclusionary rule. This article examines and appraises the Supreme Court's explication (or lack thereof ) of s 30 in Hamed, arguing that, while abandoning Williams, the Court offers little in the way of a rationalised or coherent structure to direct lower court application of relevant considerations underlying the s 30 exercise. Critiquing Hamed's approach to judicial decision-making under the s 30(2)(b) test — together with its interpretation and use of various key factors relevant to proportionality-balancing set out in s 30(3) — it concludes that the Supreme Court has abandoned s 30 determinations to the largely unguided discretion of trial and appellate judges. Accordingly, instead of ironing out certain problematic aspects of Williams and its progeny — or offering its own fully realised approach to proportionality-balancing and the considerations codified in s 30(3) — the unfortunate result of Hamed will be to regress judicial decision-making under s 30 back to a period of inconsistency, unpredictability and confusion characteristic of earlier (pre-Williams) case law application of the exclusionary rule.