Case Example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

This is the fifth blog in our Human Rights Act Series, looking at the case of R v Shaheed[1] regarding police powers and exclusion of evidence.

As discussed in our previous blog, courts have discretion to exclude unlawfully or improperly obtained evidence.[2] In Victoria, this discretion is enlivened by a breach of right/s as contained in the Charter.[3] In New Zealand, which has analogous legislation, the Court of Appeal have ruled that the test of admissibility is one of balancing the seriousness of the breach of the right against securing convictions.[4] The Queensland Act will operate in a similar way.


Mr Shaheed was charged with offensive behaviour and requested to provide a blood sample for the police database. He was told that if he refused to do so, authorisation from the court would be sought so that the sample could be taken by force. No such power existed to require a blood sample under the relevant legislation. Mr Shaheed was not provided the opportunity to consult a lawyer, and provided a sample that linked him to a rape case of which he was not previously a suspect. He was then identified by the rape complainant from a photo-board.


The New Zealand Court of Appeal overruled previous decisions that provided for exclusion of evidence obtained in breach of the NZBORA. They replaced the exclusionary rule with a new ‘balancing test’, summarised by Blanchard J as:[5]

The Judge must make that determination by means of a balancing process in which the starting point is to give appropriate and significant weight to that breach but which also takes proper account of the need for an effective and credible justice system.

The majority of the Court of Appeal also identified six key factors to be considered in applying the balancing test:

  1. the nature of the right and the nature of the breach;
  2. whether the right was breached in bad faith, recklessly, negligently or due to a genuine misunderstanding of the law by the police;
  3. whether other investigatory techniques were available but not used by the police;
  4. the reliability, cogency and probative value of the evidence obtained in violation of the Bill of Rights;
  5. the seriousness of the crime; and
  6. the importance and centrality of the evidence to the Crown’s case.

The result, though with judges providing considerably varied reasons, was that the blood sample was rendered inadmissible while the photo-board identification evidence was admissible.[6] The ‘balancing test’ was essentially codified in the Evidence Act 2006 (NZ).[7] Significant academic debate is present in New Zealand as to whether this test affords sufficient consideration of human rights.

This decision makes it clear that where police breach the requirement to act compatibly with and give proper consideration to human rights, this will be an important consideration when deciding whether to exclude evidence. Further, it confirms that police conduct that breaches a person’s rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[8] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[9]

[1] [2002] NZLR 377.

[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.

[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.

[4] See generally: Simon Consedine, ‘R v Shaheed: the first twenty months” (2004) 10 Canterbury Law Review 77.

[5] R v Shaheed [2002] 2 NZLR 377, [156].

[6] Elias C held all evidence should be admissible (at 383). Richardson P, Tipping and Blanchard JJ excluded all evidence (at 423-4). Gault and Anderson JJ admitted all evidence (at 428 and 431). McGrath J excluded sample 3 but admitted the photo-board identification evidence (at 430).

[7] See generally Law Commission, The 2013 Review of the Evidence Act 2006 (Report No 127, February 2013) 68-74.

[8] Ibid at [333].

[9] Ibid at [348], [479].