Butler v Police
[2014] NZHC 1059
•20 May 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-470-000007 [2014] NZHC 1059
VICTOR ZANE BUTLER Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 8 May 2014 Appearances:
Rita Nabney for the Appellant (on instructions from Mr
Nabney)
Hayley Sheridan for the RespondentJudgment:
20 May 2014
RESERVED JUDGMENT OF MOORE J [Appeal against conviction]
This judgment was delivered by on 20 May 2014 at 2:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
BUTLER v NEW ZEALAND POLICE [2014] NZHC 1059 [20 May 2014]
Introduction
[1] This is an appeal against a conviction on a single charge of cultivating cannabis. The appellant was convicted by his Honour Judge Geoghegan in the Tauranga District Court on 4 February 2014.
[2] The appellant submits that the Judge was wrong to admit evidence arising from a search undertaken by the police without warrant under s 20 of the Search and Surveillance Act 2012.
[3] It is common ground that if the evidence obtained pursuant to that search is excluded, there is not sufficient evidence to prove the elements of the charge.
Appeal
[4] Section 229 of the Criminal Procedure Act 2011 sets out the right to appeal against conviction. Under s 232(2)(b) and (c) the High Court may only allow an appeal if it is satisfied the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason”.
[5] A miscarriage of justice is defined in s 232(4) as:
In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[6] This section makes it clear that not every error or irregularity may lead to a miscarriage of justice:1
A miscarriage is more than an inconsequential or immaterial mistake or irregularity.
[7] The error or irregularity must lead to either of the consequences listed in (a)
or (b).
1 Matenga v R [2009] 3 NZLR 145, [2009] NZSC 18 at [30].
[8] A “real risk” that the outcome of the trial was affected exists when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.”2 This standard means an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe but that there is a real possibility the verdict would be unsafe.3 An unfair trial exists when the errors or irregularities are prejudicial or unacceptably give rise to the appearance of unfairness. The errors must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irredeemable” that the Court must quash the decision.4
Factual background
[9] On 31 July 2013, Constable Bonner went to the appellant’s address to undertake a drug and alcohol test to determine whether the appellant was complying with his bail conditions. The appellant was on bail for serious drug offences. One condition of bail was that he was not to consume drugs or alcohol. He was also subject to a 24 hour curfew.
[10] Constable Bonner, who was the sole witness for the prosecution, gave evidence that accompanied by a representative of the New Zealand Drug Detection Agency, he arrived at the appellant’s address and advised the appellant he would be tested. He was read his rights under the Bill of Rights Act 1990 and was asked to provide a sample of urine for testing. After some delays, which the constable suspected was stalling on the part of the appellant, a sample was provided.
[11] The sample was tested and returned a positive result for the presence of methamphetamine and amphetamine. This indicated the appellant had consumed methamphetamine and/or amphetamine within the preceding four days.
[12] The constable arrested the appellant. He told the appellant he intended to carry out a search of the property under s 20 of the Search and Surveillance Act
2012. He told the appellant this was because he had returned a positive drug test.
2 Sungsuwan v The Queen [2006] 1 NZLR 730 (SC), [2005] NZSC 57 at [110] per Tipping J.
3 At [110].
4 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R [2007] 1 NZLR 300, [2006] NZSC 62 at [38].
[13] The constable also took into account the fact the appellant was on a 24 hour curfew for serious drug offences. He did not consider it practical to obtain a search warrant at that time because there was a female occupant on the property who was in a relationship with the appellant’s brother and who the constable knew.
[14] As a result of the search, four cannabis plants in two containers were discovered in the appellant’s bedroom. The appellant acknowledged they were his although he claimed they were tomato plants.
District Court decision
[15] After traversing the facts, his Honour identified the primary issues as to whether the constable’s search was lawful in terms of s 20 and if not, should the evidence nevertheless be admitted under s 30 of the Evidence Act 2006.
[16] His Honour determined that for the search to be lawful in terms of s 20 the constable must have had reasonable grounds to believe it was not practicable to obtain a search warrant; that there was a controlled drug in the place to be searched; to suspect an offence against the Misuse of Drugs Act 1975 had been committed in that place; and to believe that if entry and search was not carried out immediately evidential material would be destroyed, concealed, altered or damaged.
[17] On the question of whether there existed reasonable grounds in terms of s
20(c), his Honour referred to the other occupant at the premises who was in a relationship with the appellant’s brother and who had “… what are euphemistically referred to as other dealings …” with the constable.
[18] His Honour also determined Constable Bonner had reasonable grounds to believe an offence against the Misuse of Drugs Act had been committed at the premises. In particular, he noted the appellant was subject to a 24 hour curfew and the test revealed drug use within the previous four days. He concluded there was an objective and credible basis for the constable to believe on reasonable grounds there was a controlled drug at the address.
[19] Against those facts, his Honour noted there were only two logical explanations available:
(a) either someone had brought drugs to the property for the appellant’s
consumption; or
(b) the appellant was in possession of a controlled drug.
[20] Although the quantity consumed by the appellant was unknown, the possibility of drugs being located on the premises could not be discounted.
[21] His Honour concluded that Constable Bonner had reasonable grounds to believe a controlled drug was likely to be at the address and thus found the constable had lawfully exercised his powers of search under s 20.
[22] His Honour noted that even if he had determined the search to be unlawful he would have ruled the evidence of the search admissible under s 30 of the Evidence Act.
[23] He found the charged proved.
The appeal
[24] The issues on appeal are as follows:
(a) Whether the constable had reasonable grounds to believe a controlled drug would be located at the address.
(b)Whether the constable had reasonable grounds to suspect an offence against the Misuse of Drugs Act 1975 had been, was being or was about to be committed at the address.
(c) Whether the constable had reasonable grounds to believe it was not practicable to obtain a search warrant and that evidential material relating to the suspected offence would be lost.
(d)If any of the above requirements were not met whether the evidence ought, nonetheless, be admitted under the balancing test in s 30 of the Evidence Act.
Reasonable grounds to believe and reasonable grounds to suspect
[25] The terms “reasonable grounds for belief” and “reasonable grounds to suspect” are both found in s 20. A pre-requisite for a constable to enter and search premises without a warrant requires the constable to have reasonable grounds to believe that it is not practicable to obtain a warrant and that in the place to be
searched is a controlled drug or pre-cursor substance.5
[26] Furthermore, the constable must have reasonable grounds to suspect that in the place to be searched, an offence against the Misuse of Drugs Act has been committed or is being committed or is about to be committed in respect of that controlled drug or pre-cursor substance.
[27] On the question of reasonable grounds to believe, the appellant submitted the constable must be of the view that the state of affairs in question actually exists. In the present circumstances the appellant submitted that while the positive test for the presence of methamphetamine and amphetamine “gave some basis for concern … it fell short of the reasonable suspicion standard let alone satisfied the required test of reasonable grounds to believe.”
[28] For the respondent, it was submitted that the fuller description of the test in R v Williams was of assistance.6 In Williams the Court was concerned with the meaning of the expression in the context of the now repealed s 198 of the Summary Proceedings Act 1957. The Court said:7
Having ‘reasonable grounds to believe’ … is a higher standard to meet than “reasonable grounds to suspect”. Believe means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant while suspicion means thinking it is likely that a situation exists. The issuing officer must hold the view that the state of
5 Search and Surveillance Act 2012 ss 20(a)(i)-(iv).
6 R v Williams [2007] 3 NZLR 207, [2007] NZCA 52.
7 At [213].
affairs the applicant officer is suggesting actually exists – see Sanders at p 461; p 21.
[29] The belief may be founded on a number of factors which, viewed in combination, give rise to the reasonable grounds for belief.8“Reasonable grounds to suspect” engages a lower threshold than “reasonable grounds to believe”.9 It requires, however, more than mere speculation or concern.10 It has been defined as thinking it is likely a situation exists.11 Whether “reasonable grounds to suspect” in fact exist must be determined objectively with to regard to all relevant factors considered cumulatively.12
Reasonable grounds to believe controlled drugs would be located at the address
[30] In my view, the learned Judge was correct to find there was an objective and credible basis for the constable’s belief that drugs were at the property. The factors justifying the constable’s belief are set out at [5] of the District Court judgment as summarised earlier in this judgment at [13].
Reasonable grounds to suspect an offence against the Misuse of Drugs Act
[31] In this case, particularly having regard to the lower threshold the prosecution is required to meet, I find that the Judge was correct to conclude this element of s 20 was made out on the evidence. The provision is broadly drafted; the officer’s suspicion can be of an offence that has been, is being or is about to be committed.
[32] Applying that test to the present facts, the urine test revealed the appellant had consumed illicit drugs within the previous four days; a period during which he was required to be confined to the address by his bail conditions. It follows the constable was objectively justified in thinking it was likely an offence, such as consuming a controlled drug or possessing a controlled drug, had been committed at
the property.13
8 R v Yeh [2007] NZCA 580 at [37].
9 Collins v R [2010] NZSC 3 at [2].
10 Rimine v R [2010] NZCA 462 at [22].
11 R v Williams above n 6 at [213].
12 Steeman v R [2011] NZCA 553 at [9].13 Section 7(1)(a) of the Misuse of Drugs Act 1975.
Reasonable grounds to believe it is not practicable to obtain a search warrant and that evidential material relating to the suspect of the offence would be lost
[33] The Judge considered both of these elements under s 20 together. This is often required in such cases:14
The formation of the belief that it is not practicable to obtain a search warrant would often be based on the perceived need for prompt action because otherwise the evidential material will be compromised …
[34] He held the presence of the other person at the premises (who was in a relationship with the appellant’s brother) meant it was not practicable to obtain a search warrant as there were reasonable grounds to believe if the search was not carried out immediately, evidential material would be destroyed, concealed, altered or damaged.
[35] The appellant submitted that concerns around the integrity of evidential material should have been managed by the police remaining at the property while a warrant was obtained is. This, in my view, is impractical.
[36] As the Court of Appeal observed in Williams:15
Regard must be had to the practicalities of policing, including whether a property can be kept under surveillance, and the resources available to officers at that time, in assessing whether the situation faced by a police officer made it reasonable to invoke a warrantless power …
[37] The security of attending officers is also a factor, as is the fact that based on the knowledge of the police at the time, they would have been entitled to consider applying for a search warrant without other information.16
[38] In R v Dobson the Court of Appeal noted: 17
Proper regard to the ‘practicalities of policing’ means that regard must be
had to the exigencies of the situation with which the police are dealing.
14 Bruce Robertson (ed) Adams on Criminal Law- Rights and Powers (looseleaf, Brookers) at SS20.02.
15 R v Williams, above n 6, at [24].
16 Dick v R [2011] NZCA 230 at [25].
17 R v Dobson [2008] NZCA 359 at [38].
[39] Again, in my view, the Judge was correct in finding these elements under s
20 made out. The constable was attending the premises without the support of other police officers. Logistically it would have been difficult for him to organise the search warrant while ensuring the property was adequately monitored to prevent any evidential material being lost or otherwise compromised. The appellant was arrested but the presence of the other person at the premises was relevant to the risk evidence would be lost. The other person had a connection to the appellant through her relationship with the appellant’s brother. Furthermore it is reasonable to conclude she would have been aware of the positive test and the likelihood of a subsequent search of the premises. Given those circumstances the constable had no practical option but to remain at the premises and invoke his powers under s 20.
[40] I note the Judge refers to Constable Bonner having, “had other dealings with” the woman who was also present at the address. Later in his judgment his Honour referred to the constable’s evidence and the reference to other dealings. These comments are not a faithful summary of the constable’s evidence. The constable gave evidence there was a female who he believed also resided at the address and who he knew:
I know who she is, I’ve been there before.
[41] On that evidence it would seem that the constable’s knowledge of the other occupant may well have been because he had encountered her at that address in the context of previous bail checks rather than inferring she was known to the constable by reason of previous dealings he may have had with her in an investigative context.
[42] Notwithstanding, in my view, even if that factor is removed from consideration the balance of the evidence comfortably supports the Judge’s conclusion there were reasonable grounds for the constable to believe that if an entry and search was not carried out immediately, evidential material relating to the suspected offence would be destroyed, concealed, altered or damaged.
Conclusion
[43] In conclusion, my view is that the appellant has not shown there were errors or irregularities or otherwise a miscarriage of justice such that the conviction should be quashed. It is thus not necessary to examine the argument advanced by the appellant in terms of s 21 of the Bill of Rights Act. Although lawfulness and reasonableness are distinct concepts18 the unreasonableness test in most cases will be
closely linked to the unlawfulness test:19
The question whether a particular search or seizure is unreasonable will, in most cases, now be answered by determining whether the search or seizure complied with the provisions of the Search and Surveillance Act. If the provisions of that Act were followed, the search or seizure will usually be found to be not unreasonable. If a breach of the Search and Surveillance Act occurred, the search or seizure will be unlawful and will likely be held to be unreasonable and in breach of s 21.
[44] In my view the Judge was correct in finding the warrantless search under s 20 was lawful.
Section 30 of the Evidence Act 2006
[45] Even if I am wrong, I am of the view that the evidence of the search should be admitted pursuant to s 30 of the Evidence Act.
[46] Section 30(4) provides:
The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
[47] The factors which the Court may, amongst others, have regard to are listed in s 30(3) of the Evidence Act include:
For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
18 R v Williams, above n 6, at [24].
19 Brookers Human Rights Law (online looseleaf ed, Brookers) at [BOR21.01].
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged: (e) whether there were any other investigatory techniques not involving
any breach of the rights that were known to be available but were not
used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
[48] The appellant submits that the impropriety in this case is such that the exclusory rule in s 30(4) should prevent the admission of the evidence on the following grounds:
(a) the right breached was serious because it involved a search of the
appellant’s home;
(b)the breach was reckless because the standard required was not properly considered;
(c) the offending was relatively minor involving four small cannabis seedlings growing in two pots in the appellant’s bedroom. On the authority of Terewi v R the offending would likely attract a fine or other non-custodial sentence; 20
(d)there was no danger to the police nor other urgency in conducting a warrantless search given that the appellant was in custody for breaching his bail and the police had an opportunity to apply for a
search warrant.
20 Terewi v R [1999] 3 NZLR 61 at [4].
[49] In response, Ms Sheridan submitted the following factors are relevant to the balancing exercise:
(a) Any breach of the Bill of Rights Act or the Search and Surveillance Act was not deliberate or reckless or undertaken in bad faith. The officer considered the position and genuinely believed he had grounds for a warrantless search.
(b) There were no other investigatory techniques available to the officer.
(c) The search was of a residential home which has a high expectation of privacy attached to it.
(d) The evidence located was real evidence.
(e) The evidence was central to the proof of the charge of cultivating cannabis. Without it, the charge would necessarily fail.
(f) The offending was drug related, although not of a particular serious kind.
[50] In my view the primary factors supportive of exclusion are, first, that the search was of a residential home which carries with it a high and legitimate expectation of privacy and secondly, the offending was not of a particularly serious sort.
[51] On the other hand the evidence supports the conclusion the constable undertook a conscientious analysis of his powers under s 20, was plainly sincere in his belief he had sufficient grounds for a warrantless search, the evidence was real and there were no other investigatory techniques available to the officer. Furthermore, absent the evidence of the search, the charge of cultivating cannabis would necessary fail.
[52] In my view, weighing these factors, any impropriety is outweighed by the need for an effective and credible system of justice. Had I not determined the
evidence of the search was admissible I would have, in any event, ruled the evidence of the search admissible under s 30 of the Evidence Act.
Result
[53] The appeal against conviction is dismissed.
Moore J
Solicitors:
Mrs Nabney, Tauranga
Crown Solicitor, Tauranga
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