C v Police HC Christchurch CRI 2006 409 230
[2007] NZHC 405
•1 May 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2006 409 000230
CRI 2006 409 000231
BETWEEN C
Appellant
AND THE POLICE Respondent
Hearing: 19 April 2007
Counsel: A Bailey for Appellant
S Litt and M Zarifeh for Respondent
Judgment: 1 May 2007 at 2.52pm
JUDGMENT OF HON. JUSTICE JOHN HANSEN
The appeal is dismissed.
[1] The appellant appeals against his convictions on charges of receiving and possession of a pistol. He first appeared before Judge Green on 14 February 2005, when he challenged the admissibility of evidence obtained pursuant to a search warrant. The Judge ruled the search warrant was invalid and unlawful. However, he then determined that the search was not unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990, and ruled that the evidence was admissible. That decision was delivered on 16 February 2005, following which the appellant pleaded guilty to the two charges on 17 February 2005.
[2] The appellant was not sentenced until 16 November 2006 because he did not answer his bail. The sentencing took place after he had been apprehended for other offending.
C V THE POLICE HC CHCH CRI 2006 409 000230 1 May 2007
[3] The appeal against conviction is brought on the grounds that Judge Green was wrong in finding the unlawful warrant was reasonable and the evidence thus admissible.
Background
[4] The police obtained a search warrant, pursuant to s 198 of the Summary Proceedings Act 1957, to search the appellant’s home for property stolen in some 15 burglaries. The warrant was executed on 2 July, and in the course of the search the police found a refrigerator, the subject of the receiving charge, and a Ruger pistol, the subject of the possession of a firearms charge. The pistol was fitted with a silencer and a laser sight. It was wrapped in a towel in a sports bag in a wardrobe. There was one round in the chamber, and a further nine rounds in the magazine. The pistol had been modified so that upon firing a further round would be automatically chambered. The bedroom of the appellant’s 12 year old son was next to the room in which the pistol was found.
The District Court decision
[5] The Judge considered the affidavit filed in support of the application. After setting out the relevant parts of s 198 of the Summary Proceedings Act the Judge stated that “the section required the judicial officer considering the application to be satisfied that there was reasonable grounds for belief that evidence relevant to an offence punishable by imprisonment may be found if a warrant is granted and executed.” He stated it was for the applicant to provide sufficient information to satisfy the judicial officer “that there is reasonable ground for such belief and that information must be both believable and reliable”. Judge Green held the search warrant was invalid. He found the judicial officer should not have been satisfied there was reasonable grounds for the belief that evidence relevant to an offence punishable by imprisonment may be found at the appellant’s address. He said this was because the applicant for the warrant did not state his belief in the reliability of information indicating such evidence would be found. A second fault was that the deponent failed to supply material by which the reliability of the informants relied on
could be assessed. The Judge, therefore, held the search warrant was invalid. Applying R v Hooker (CA163/97 16 June 1997) he held that because the search was based on an invalid warrant it was therefore unlawful. The Judge then went on to consider whether the search was unreasonable, in terms of s 21 of the New Zealand Bill of Rights Act 1990, by applying the balancing test, as set out in R v Shaheed [2002] 2 NZLR 377 (CA). The Judge considered there was nothing to indicate that the search was reckless, or deliberate, or occurred by reason of gross carelessness. He relied on dicta in R v Grayson & Taylor [1997] 1 NZLR 399 at 409 (CA). He pointed out that the property stolen in one of the burglaries was found at the appellant’s address. He said that although the warrant did not explicitly authorise a search for firearms and the pistol was an incidental find, he had no doubt it would have been dereliction of police duty to leave the firearm in its loaded state whilst a further warrant was sought. Ultimately, he found the search was reasonable and, therefore, the evidence obtained admissible.
Submissions
[6] The appellant submits that Judge Green erred in law in finding that the search was reasonable and the resulting evidence was, therefore, admissible. The appellant submits that the finding the search warrant was invalid and illegal was correct, but that the Judge incorrectly applied the Shaheed balancing test in determining the search was reasonable. In light of the recent decision of R v Williams & Ors [2007] NZCA 52, the balancing exercise plays no part in determining whether or not a search is reasonable. The reasonableness of the search is to be determined first, and the balancing exercise is then carried out to determine whether the evidence obtained should nevertheless be admitted.
[7] Mr Bailey analysed the application of the Shaheed balancing principles at the appropriate point, and submitted the evidence was inadmissible.
[8] Mr Zarifeh, for the Crown, accepted that this matter was now governed by Williams. He pointed out that if the appellant had not decamped any appeal in this matter would have been disposed of before Williams, and on the basis of the then existing law the Judge’s decision was correct.
[9] However, he accepted the Judge was wrong to use the balancing exercise to be undertaken under Shaheed to determine whether or not the search was reasonable. He further submitted that this Court was in a position to carry out the balancing test correctly, and when considered against the applicable principles, the Crown submitted the Judge’s conclusion was correct, notwithstanding the approach correctly taken at the time is no longer deemed appropriate in the light of Williams.
Discussion
[10] The matter is now governed by Williams where the Court of Appeal stated at
[10]:
If issues that are dealt with in this judgment arise in the future…the Court is unlikely to find reference to earlier authorities helpful. Reference to this judgment would normally suffice
[11] At [12] to [24] the Court of Appeal clarified the link between unlawfulness and unreasonableness. The Court stated that an unlawful search, or seizure, would be unreasonable and therefore in breach of s 21 of the Bill of Rights Act, except where the error is minor or technical and the error was not noticed before the search or seizure was taken. At [22] the Court stated:
What is minor or technical should not be given an expansive interpretation. An example of what has been seen as a minor and technical breach is R v Smith (1996) 13 CRNZ 481 (CA), where there had been a failure to file a report after the exercise of a warrantless search under s 18(2) of the Misuse of Drugs Act 1975. By contrast, mistakes such as specifying the wrong property in a warrant would not normally be considered a minor or technical breach, even where the intended property is in fact searched. See for example R v Kappely [2001] 1 NZLR 7 (CA) and R v Te Whatu (2002) 6
HRNZ 673, the latter involving the search of a Ford camper-van when the warrant authorised a search of a Nissan vehicle with a different registration number. For completeness, we note that in neither case was the warrantable to be saved by s 204 of the Summary Proceedings Act 1957 – see Kappely at [13] and Te Whatu at [9].
[12] In this case the warrant was held to be defective because the applicant did not state his belief in the information on which the warrant was based. Nor did he supply any material upon which the reliability of the informants could be tested. These defects meant the reliability of information on which the warrant was based could not be assessed, therefore the judicial officer considering the application could
not have had a reasonable belief that evidential material relevant to an offence would be found at the address.
[13] In Williams the Court discussed the importance of being able to assess the reliability of the information upon which warrants are based. (See [214] to [220]). At [215] and [216] the Court said:
Applicants for a search warrant must state that they personally believe in the truth of the facts they are including in the application, or it must be obvious to someone reading the warrant that the applicant personally believes the facts to be true – see Sanders at 460. The person applying for the warrant does not need to have personal knowledge of the facts set out in the application. However, where he or she does not have personal knowledge, the basis for believing in the truth of the facts must be set out. Where an applicant relies on information of which he or she does not have personal knowledge, the source of that information must be clearly stated so that the issuing officer may assess its reliability and cogency – see Baptista at [9] and Sanders at 460.
There is often a particular difficulty with warrant applications based on information provided by informants. In such cases, there has to be some accompanying evidences in the application suggesting why the informant should be considered reliable and why the informant’s assertions are solidly grounded in more than mere suspicion, rumour or gossip – see R v Condren CA233/96 10 September 1996. Evidence of an informant’s reliability could be that the source has supplied reliable information in the past particularly if information provided by them previously has resulted in the conviction of other offenders – see R v Burns (Darryl) [2002] 1 NZLR 204 at [16] (CA) and R v Hepi and Anor CA382/03 5 April 2004, or that their part of the story has been confirmed by police inquiries – see R v Debot (1986) 30 CCC (3d)
207 (Ont CA), upheld by the Canadian Supreme Court in R v Debot [1989] 2
SCR 1140.
[14] In this case I am satisfied that the defect present relating to the informants is not minor or technical breaches, even though it may have followed the applicable practice of the times. It follows that the search was both unlawful and unreasonable.
[15] However, Williams makes it clear that even if the evidence is found as a result of an unlawful and unreasonable search, it may be admissible as a result of the application of the Shaheed balancing test. The purpose of that test is to assess whether the exclusion of evidence in the circumstances is a balanced and proportionate response to the circumstances of the breach of the Bill of Rights Act
1990. The fact of breach is to be taken seriously and given considerable weight and
is a very important factor, but it not necessarily determinative. In Williams the Court dealt at length with the balancing test at [110] to [153].
[16] The test involves the consideration of a number of matters.
The nature of the right involved
[17] The start of the balancing exercise is to consider the nature of the right and the nature of the breach. The more fundamental the right and the more serious the breach, the less likely it is that the balancing test will result in the evidence being admitted. In search and seizure cases the nature of the right is not considered separately, but as part of assessing the seriousness of the breach. The nature of the privacy interests will be one of the important factors influencing how seriously the breach is regarded.
Extent of illegality
[18] Assessing the seriousness of any breach involves a number of steps. Where the search and/or seizure were unlawful, the first task is to assess the extent of the illegality. This involves an assessment of how far the grounds for search and/or seizure fell short of what was required for them to be lawful. Where the search requires a warrant, the assessment of seriousness will involve an assessment as to how deficient the warrant application was. Misleading applications are more serious than merely deficient applications. A warrant obtained on deficient grounds, where the police held no further information which could have justified the application, is worse than a search where the police had information which, if it had been included in the warrant, would have made the search lawful. This is because a baseless search is worse than one where there were in fact sufficient grounds to justify an invasion of privacy.
Nature of the privacy interest
[19] The highest expectation of privacy relates to searches of the person. In terms of searches of property, residential property will have the highest expectation of
privacy attached to it, however, there is some gradation within a residential property, with intrusions in some areas being more serious than others. The public areas will invoke a lesser expectation of privacy than the private areas of the house. Inaccessible areas such as drawers and cupboards (particularly where private correspondence or intimate clothing would be found) would count as private areas. There will be less privacy expected in the garden (particularly the front garden), garages and outbuildings and there is also a lesser expectation of privacy in vehicles. These are not rigid classifications, and although privacy interests are generally assessed objectively and are not influenced by the type of activity being conducted, any outward signs of an increased subjective expectation of privacy (signs, barricades or security) should be taken into account.
[20] The extent of the illegality and the nature of the privacy interest have to be combined in order to assess the seriousness of the breach. For example, a mid-range illegality in the search of a person or a residential property is regarded more seriously than a serious breach relating to open farmland.
Aggravating factors:
[21] The next step in the process is to ascertain if there are factors that reduce or increase the seriousness of the breach. Factors that can increase the seriousness are non-compliance with a statutory code, conducting a search in an unreasonable manner and police misconduct.
[22] Non-compliance with a statutory code can increase the seriousness of a breach where the breach is substantive and where the code is one in which Parliament has carefully detailed the circumstances in which searches can take place, for example, a code that regulates invasive procedures relating to personal bodily integrity such as the taking of blood samples. The Court of Appeal noted, but disagreed with, the argument that admitting evidence obtained in breach of statutory requirements is a challenge to parliamentary sovereignty. The Court of Appeal said that while the breach of a statutory requirement is highly relevant as it gives rise to unlawfulness, it cannot lead to an automatic result under the balancing test.
[23] If a search is conducted in an unreasonable manner, this increases the seriousness of the breach. Such conduct would be where the police persist with an unlawful search and/or seizure when the accused has rightfully objected.
[24] In terms of police misconduct, if the police officers conducting a warrantless search, or those applying for a warrant, know that the grounds are insufficient, then the seriousness of the breach will be increased. This is likely to be a controlling factor as to whether the evidence should be excluded. Misleading applications are often an indication of knowledge that the grounds might be insufficient. Included in police misconduct are situations where the officers were reckless/indifferent as to whether the grounds were insufficient or not. Gross carelessness, where the police have significantly strayed from the dictates of prudent police action will also be an aggravating factor, but it does not extend to sloppy applications made under time pressure or genuine misunderstanding of difficult legal complications on the part of an officer. When the grounds for a search are seriously deficient, gross carelessness would usually be assumed to be present.
[25] In assessing the existence and extent of police misconduct, the police must be regarded as a body, therefore it will be irrelevant that officers executing a warrant have no knowledge of the deficiencies in the application and are acting in good faith on the assumption that the warrant was validly issued.
Mitigating factors
[26] The main factors that can diminish the seriousness of a breach are where the search takes place in a situation of urgency; where the strength of the connection between the person and the property searched/seized is weak; and where there has been attenuation of the link between the breach and the evidence.
[27] A breach that takes place in a situation of urgency, e.g. where a person’s safety is at risk, is less serious than where there was proper time for reflection and the taking of advice. The possibility of the destruction of evidence would only alleviate a minor breach (e.g. Te Whatu, where the warrant application had the wrong
make and number of the vehicle to be searched) and would not even partially excuse a more serious breach.
[28] The degree of connection to the premises or to property searched/seized in those premises is relevant to the strength of the privacy interest of the individual involved. A person with a bare licence will have a lesser expectation of privacy than a person who is the owner or exclusive occupier of the premises.
[29] In terms of attenuation in causation as a mitigating factor, matters such as whether or not the evidence can be given without referring to the earlier breach, the length of time between the breach and the obtaining of the evidence, the existence of intervening events (including fresh illegalities) and any other factors attenuating the link will be relevant considerations. It is also of significance in relation to causation whether the evidence was brought into existence as a result of the breach (e.g. blood sample taken for DNA testing) or merely brought to light because of the breach.
[30] In terms of inevitability of discovery of the evidence as a mitigating factor, such inevitability will only count in favour of admitting evidence if the Crown shows that the police would, on the balance of probabilities, have obtained the evidence by lawful and proper means and that they did not undertake a deliberate (or reckless or grossly careless) course of conduct in contravention of the rights of the accused. The Court of Appeal stressed at [129] that inevitability of discovery, even as a factor in the balancing process, should be used with caution and will mainly be of relevance for downstream evidence.
Neutral factors
[31] Good faith on the part of the police is expected, as is courtesy in executing a warrant. Politeness can never be seen as ameliorating the unlawful or unreasonable nature of a search.
[32] At [132] of Williams the Court of Appeal explained how the assessment of the seriousness of the breach should be conducted:
[33] The assessment of the seriousness of the breach should be conducted in a systematic manner following (as appropriate to the particular case) the steps set out above. All of the factors discussed above, to the extent they are relevant, should be enumerated and reasons given at each stage for the conclusion reached in relation to each factor and the effect that that factor has on the assessment of the seriousness of the breach. An overall conclusion would then be drawn, taking all of the factors in combination, as to the seriousness of the breach in relation to the particular individual and the particular items of evidence involved.
[34] The Court of Appeal further suggested that it might be helpful to consider each step against a sliding scale that ranges from extremely serious through very serious, serious, moderately serious, moderate to minor. eg. a very serious illegality might be reduced to just serious because the search was of open fields, and it might be further reduced to moderately serious because it was only remotely causative of the obtaining of the evidence and it might be reduced further to just moderate because the accused only had a minimal connection to the property. The scale is only a rough tool and the exercise in assessing seriousness is evaluative with the level of seriousness depending on the particular combination of features in any given case.
Public interest factors
[35] The next stage is to balance the breach against the public interest factors pointing towards admitting the evidence, such as the seriousness of the offence, the nature and quality of the evidence and the importance of that evidence to the Crown’s case. It is the combination of those factors that is significant, rather than any one factor on its own. The aim is to assess whether the exclusion of the evidence is a proportionate response to the particular breach in question, however, due weight has to be given to the fact of breach.
[36] An offence can be considered serious if the sentencing starting point is in the vicinity of four years imprisonment or over, assessed on the basis of the Crown case. Even if the likely penalty was less, an offence will be serious if it involves a threat to public safety, such as the carrying of a loaded weapon in public. The more serious the offence, the more weight it has.
[37] In contrast to confessional evidence which is brought into existence by breach of an accused’s rights, different considerations apply to real evidence which is merely brought to light as a result of breach. Where such evidence is undoubtedly reliable, the use of it does not affect the accused’s procedural safeguards, because no issue of self-incrimination arises in such circumstances.
[38] Weight is given to the seriousness of the crime in recognition of victims’ rights and the enhanced public interest in convicting and confining those who have committed serious crimes, particularly if they constitute a danger to public safety. The public might justifiably think the exclusion of evidence that is reliable, highly probative and central to the Crown case is too high a price to pay for a breach.
Nature and quality of evidence
[39] The next factor to consider is the nature and quality of the evidence, which includes its probative value, its relevance to the case and its reliability. The more cogent the evidence, the more likely it is that the accused committed the crime and the stronger the public interest in conviction. Evidence from searches will be real evidence and so its reliability will rarely be an issue. The more crucial the evidence is to the Crown case, the more the public interest in conviction is engaged.
Proportionality
[40] The aim of the balancing exercise is to assess whether, after giving any breach its proper weight, the remedy of exclusion of evidence is proportionate to the breach. The Court of Appeal in Williams made some generalisations with regard to
cases at each end of the scale of seriousness. Where a breach is minor, the balancing exercise would often lead to evidence being admissible where the crime is serious and the evidence is reliable, highly probative and crucial to the prosecution case. The exclusion of evidence in such a situation would be unbalanced and disproportionate to the circumstances of the breach. In contrast, if the illegality is serious, the nature of the privacy interest strong, and the seriousness of the breach has not been diminished by any mitigating factors, then any balancing exercise would normally lead to the exclusion of the evidence, even where the crime was serious. This would usually be the result where the breach was deliberate, reckless or grossly careless because a legal system that condones deliberate breaches of the law, for whatever motive, risks losing moral authority.
Conclusions
[41] In light of Williams, the process to determine whether evidence from an illegal search should be admissible has had a change in emphasis. An invalid and illegal search will also be unreasonable (unless a mere technicality), however, the evidence can still be admitted against the accused if the Shaheed balancing exercise deems exclusion of the evidence to be a disproportionate response to the breach. This is in a slight contrast to Judge Green’s ruling that the invalid and illegal search was nevertheless reasonable on the Shaheed balancing exercise, therefore the evidence was admissible. It is submitted by the Crown that the finding that the evidence was admissible would probably occur whether the balancing exercise was conducted before or after a finding of reasonableness, i.e. even if Judge Green had found that the search was unreasonable, the evidence could still have been admitted on the basis of the balancing exercise conducted.
[42] What occurred in the present case stands to be considered against the various factors set out in Williams.
[43] In this case the right breached was the appellant’s right to be free from unreasonable search and seizure, and the Crown did not really take issue with that. They do, however, take issue with the appellant’s submission that the search was conducted in a deliberate disregard for the appellant’s rights. I agree. There is
nothing in this case to show that the police’s action in applying for the search warrant was deliberate or wilful. There is a degree of carelessness, but I would not class it as gross carelessness.
[44] The real dispute in this case between the parties is the extent of illegality. As noted above, the Judge found two reasons to rule the search warrant was unlawful and invalid. The first was the failure of the applicant to state his belief. However, a reading of the paragraphs of the affidavit in support set out in the learned District Court Judge’s decision form clear grounds to infer the deponent had that belief. The serious illegality in this case was the failure to provide the necessary information relating to the reliability of the informant. In this case there is no suggestion the warrant was obtained from misleading or false information. It is a case where the police officer who prepared the warrant omitted to include relevant information that would have made the warrant lawful. There is no suggestion, as I see it, of any misleading or false information, or insufficient grounds.
[45] In this case what occurred is that the police took steps to protect the identity of an informant. Following Williams, it is now clear that that information must be given to the Court who are to be trusted to protect informants.
[46] The affidavit revealed that the majority of property from the burglaries had been sold to “Tony” who lived in McKenzie Avenue. That had been checked by the police, and [21] of the affidavit showed that the appellant was known as “Tony” and resided at 76A McKenzie Avenue, Christchurch. Stolen property, including the refrigerator, was found at the address. Mr Zarifeh accepted the officer in charge would have, in the light of Williams, dealt with the matter different, but submitted that there was no gross carelessness, and it was not deliberate. He submitted the police had the information and should have put more in, but did not do so to protect an informant. I do not place this defect as seriously as Mr Bailey for the appellant did. I agree with Mr Zarifeh for the Crown that it sits between a minor breach and a moderate breach.
[47] The privacy interest attaching to a private dwelling is important. (Paragraph [113] of Williams). This was a thorough search, with the firearms located in the appellant’s wardrobe.
[48] In relation to aggravating features, Mr Bailey relied on [120] to [121] of Williams. I do no consider this is a case where the police were reckless “in the sense that they were indifferent as to whether the grounds were insufficient or not. We also include gross carelessness on the part of the police as an aggravating factor”. It is a case where the police attempted to protect the identity of an informant in the manner of the day. They had that information, and there was also other information in the affidavit that could be checked and shown to be accurate. (See [46] above). The Crown accepted there were no mitigating factors in this case.
[49] It is next appropriate to consider and balance the breach against public interest factors pointing towards admissibility. These were identified in Williams as “The seriousness of the offence, the nature and quality of the evidence, and the importance of that evidence to the Crown’s case.”
[50] Mr Bailey submitted that it is only offences where the term of imprisonment is likely to be in the vicinity of four years or more than can be considered serious: R v Taueki [2005] 3 NZLR 372 at [8]. However, he did accept that an offence could be seen as serious, even if the likely penalty was less, if the offence involved a threat to public safety, such as carrying a loaded weapon in public. He, however, submitted that the firearm hidden in the wardrobe was not such as to aggravate the seriousness of the offending to that contemplated in Williams.
[51] However, Mr Zarifeh submitted it did. It was a case where there was a 12 year old child in the next room. The pistol had been modified. As I understand it, the effect of the modification was to make it a semi-automatic weapon. It had a laser sight, there was live ammunition in the chamber, and other live ammunition present. In my view, those factors elevate the offending to the requisite level of seriousness: (Williams at [135]). It was accessible to a young person, and was stored in a dangerous condition. It is also apparent that the evidence was crucial to the Crown
case, and as the Court noted in Williams at [141] “The more crucial the evidence is the more the public interest is conviction is engaged.”
[52] Standing back and looking at the matter overall, and applying the Shaheed balancing test in the light of Williams, I am satisfied, for different reasons, that the conclusion reached by Judge Green was correct. Indeed, it is fair to say that the differing conclusions are not markedly different from Judge Green. It is simply that he carried out the balancing exercise at a different stage. In this case the breach is between minor and mid-level, and for the reasons given above the crime is serious. The evidence is reliable and highly probative and crucial to the prosecution case. As the Court of Appeal noted in Williams at [144]:
The exclusion of evidence in such cases would properly be seen as unbalanced and disproportionate to the circumstances of the breach
[53] Accordingly, Judge Green reached the right conclusion and rightly admitted the evidence. Although in the circumstances here, despite the guilty plea, an appeal lies (see Brookers Summary Proceedings Act 115), the appeal in the circumstances is dismissed.
Solicitors
A Bailey, Christchurch for Appellant
Crown Law Christchurch, for Respondent
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