As you know
by now, much of law involves waiting. Waiting for decisions of appellate courts
gives law much of its suspense. Perhaps. Here are some interesting points
awaiting determination:
Grounds for search
When the
adequacy of grounds for a search are assessed, should illegally or improperly
obtained information be disregarded? An appeal from R v Alsford [2015] NZCA 628 is on the way. [Update: Oops, this escaped my attention; it was decided on 29 March that information that has previously been ruled inadmissible may usually (except in extraordinary circumstances involving torture or violence) be used in an application for a warrant, but when admissibility of evidence consequently discovered is determined the illegality or impropriety will be relevant to the balancing exercise: R v Alsford [2017] NZSC 42. I expect the effect of this will be to reduce the exclusionary effect of s 30 of the Evidence Act 2006 by permitting the admission of improperly obtained evidence of less serious offences than previously.]
Mental elements of unlawful drug possession and
related offences
Does the
mental element that makes possession of a drug unlawful include recklessness?
Related to this, is there a good-faith defence, and if so, when? I’m not sure
if there are suppression orders still in effect in this one, but let’s pretend
there are: see [suppressed?] [2016]
NZSC 87 (leave granted). [Update: on 19 June 2017 the Supreme Court decided that recklessness is sufficient mens rea for drug offences if no more specific state of mind is specified in legislation. There is therefore no need for a separate good-faith defence. Suppression of some details continues so I just mention the citation: [2017] NZSC 89.]
Privacy balancing
When, if
ever, is a defendant’s right to privacy diminished by another person’s privacy
right that has been breached by the defendant? If breach of another person’s
privacy does reduce the defendant’s own privacy right for the purposes of the
admissibility balancing exercise, would it be double-counting to also take the
breach of the other person’s privacy as increasing the public interest in
admitting the evidence? More abstractly, can policy justify compromising the
logic of the balancing exercise, and if so, when? See [name suppressed] (CA597/2016) v R [2017] NZCA 118,
granting leave for a second pre-trial appeal.
[Update: On 17 November 2017 the Court released its judgment in this appeal, [2017] NZCA 522 (publication suppression orders still in force), holding that breach by the defendant of a third person's privacy is relevant to the seriousness of the offending and weighs in favour of admission of the evidence, and is separate from and independent of the seriousness of the breach of the defendant's privacy right, which weighs in favour of exclusion of the improperly obtained evidence. The Court cited favourably dicta in R v Patrick 2009 SCC 17, [2009] 1 SCR 579 at [32] per Binnie J for the majority.]
[Update: On 17 November 2017 the Court released its judgment in this appeal, [2017] NZCA 522 (publication suppression orders still in force), holding that breach by the defendant of a third person's privacy is relevant to the seriousness of the offending and weighs in favour of admission of the evidence, and is separate from and independent of the seriousness of the breach of the defendant's privacy right, which weighs in favour of exclusion of the improperly obtained evidence. The Court cited favourably dicta in R v Patrick 2009 SCC 17, [2009] 1 SCR 579 at [32] per Binnie J for the majority.]
Is an electronic file an object?
[Update: on 5 July 2018 the Court of Appeal held that all the grounds for extradition were made out, and that an electronic file is an object in which there can be a copyright: Ortmann v United States of America [2018] NZCA 233.]
