Introduction
On 26 October 2016, the Supreme Court released its decision in
Marwood v Commissioner of Police [2016] NZSC 139. This decision
required the Court to determine whether New Zealand courts have
jurisdiction to exclude improperly obtained evidence in civil
proceedings and, if so, whether the jurisdiction should be
exercised on the facts of the case before it.
This comment relates only to the majority decision of William
Young, Glazebrook, Arnold and O'Regan JJ. Elias CJ delivered a
lone dissenting judgment. However, in the interests of clarity
there is no need to refer to that minority decision.
The essential decision
The majority of the Supreme Court held that the court did have
jurisdiction to exclude the evidence in cases where the evidence
was obtained in breach of the New Zealand Bill of Rights Act 1990
(NZBORA) or otherwise an abuse of process. This
analysis rested on an interpretation of ss 7 and 11 of the Evidence
Act 2006 (Act).
