Collis v Police
[2014] NZHC 3259
•16 December 2014
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2014-454-62 [2014] NZHC 3259
BETWEEN GLENN MARK COLLIS
Applicant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 December 2014 Appearances:
Applicant in person
E M FitzHerbert for respondentJudgment:
16 December 2014
RESERVED JUDGMENT OF DOBSON J
[1] This judgment deals with Mr Collis’s application for leave to appeal, out of time, to the Court of Appeal on questions of law arising out of orders made under s 199(3)(b) of the Summary Proceedings Act 1957 authorising the Police to dispose of items seized from Mr Collis’s property.
[2] Items were seized from Mr Collis in the course of a search carried out pursuant to a search warrant. However, the warrant was subsequently held to have been invalidly issued, and the evidence gathered in the course of executing the warrant was accordingly ruled inadmissible in criminal proceedings brought in reliance on it.
[3] Mr Collis wants to argue in the Court of Appeal that the invalidity of the search warrant means that everything done in reliance on it was illegal: the Police had no lawful basis for seizing the items they took, the Police cannot adduce as evidence what they discovered in executing the search warrant in any context, and it
must follow that they are obliged to return the items to him.
COLLIS v POLICE [2014] NZHC 3259 [16 December 2014]
[4] Both the District Court and, on appeal, the High Court have rejected arguments along these lines. It is accepted that evidence obtained pursuant to an invalid search is inadmissible for the purposes of prosecuting Mr Collis. However, the judgments have reasoned that the Police were not so constrained when retaining possession of the seized items, and adducing evidence of the circumstances in which they were discovered in the course of executing the warrant, for the purposes of a civil proceeding under s 199(3) of the Summary Proceedings Act.
The factual background
[5] In June 2012, the Police executed a search warrant at Mr Collis’s property in the Manawatu. Inside a locked room inside in a tin shed close to Mr Collis’s house the Police found a growing tent with relatively elaborate arrangements to facilitate the hydroponic cultivation of cannabis. They also found eight cannabis plants growing hydroponically inside the tent. The tent was powered with electricity from the main house, and the growing system included ceiling fans, heat lamps, timers, multi-boards, heat pump shields and an extractor fan.
[6] Mr Collis was charged with cultivating cannabis. He pursued a challenge to the search warrant which was upheld in a decision delivered on 30 September 2013.1
The challenge was upheld on the basis of an inadequacy in the information provided in the application as to the identity of an informant whose information the Police relied on to apply for the warrant. This was treated as a material departure from the guidelines in R v Williams.2 Because the prosecution depended entirely on what had been discovered during the warranted search, the ruling of that evidence as inadmissible pursuant to s 30 of the Evidence Act 2006 led to the Police not
continuing with the prosecution.
[7] Thereafter, the Police applied under s 199 of the Summary Proceedings Act for orders as to the disposal of the items seized in the course of executing the invalid search warrant. The exhibit schedule listed some 70 items, which included the growing tent, all of the equipment used for hydroponic growing in it, specialised
fertilisers and also publications found inside the house, rather than in the tent,
1 Police v Collis DC Palmerston North CRI-2012-054-002041, 30 September 2013.
2 R v Williams [2007] 3 NZLR 207 (CA).
dealing with growing marijuana and on hydroponics. The items seized included cannabis seeds and plants.
[8] In his judgment following the hearing of the application, Judge Ross recorded Mr Collis’s argument that certainly a number of the items had legitimate uses in hydroponic growing operations.3 However, on the evidence before the Court (all of which derived from the invalid search) the Judge was satisfied that there was more than a suspicion that all the items were used for the criminal activity of growing cannabis. He acknowledged the concern of the Police that they should not be required to return the items to Mr Collis, lest it might be suggested that the Police were:4
… in some way conniving or being a party to or promoting the use of the items again in similar offending to that which has earlier been alleged against [Mr Collis].
[9] The conclusion in the District Court judgment was:5
… That the property is to be disposed of on an item by item basis at the discretion of the New Zealand Police. In terms of destruction of items of no or limited economic value where the costs of sale would exceed the likely return and the balance of the items are to be destroyed. Items which can be sold for an economic return and the proceeds are to be paid to the Government’s consolidated fund.
[10] Mr Collis argued his own appeal against that decision. The appeal was dismissed by Ronald Young J in a judgment of 4 July 2014.6 The judgment upheld the approach at first instance in distinguishing the entitlement of the Court to have regard to the circumstances in which the items had been seized, notwithstanding the inadmissibility of all the evidence in the criminal context. In light of that context, the Judge recognised an exception to the ordinary entitlement of the owner of property to have it returned:7
… where the items are the product of illegality and ordering their return would be an affront to the public.
3 Police v Collis DC Palmerston North CIV-2014-054-000026, 1 April 2014.
4 At [7].
5 At [9].
6 Collis v Police [2014] NZHC 1553.
7 At [8].
[11] Somewhat ironically, the authority for that proposition was the decision in R v Collis.8 The present Mr Collis denied any knowledge of the 1992 decision, or the identity of his namesake involved in the earlier proceeding. It also involved alleged cannabis offending.
[12] The reasoning on appeal was that while the items seized might be used for lawful purposes, there was no evidence before the Court from Mr Collis that he intended to use them for lawful growing, so that the only evidence was that of the cultivation of cannabis within the shed on his property .
[13] Ronald Young J’s conclusion was in the following terms:9
In those circumstances I am satisfied the Judge in the District Court was right to refuse to return the property to Mr Collis. The evidence on balance established that Mr Collis was likely to use the equipment for an illegal purpose. To return the property to him in such circumstances would clearly be contrary to public policy and would therefore be an affront to the public.
[14] Although an application for leave to appeal out of time was filed by Mr Wilkinson-Smith as counsel for Mr Collis in August 2014, counsel’s continued involvement apparently depended on a grant of legal aid which has been declined. Mr Collis appeared on his own behalf. He did not address the grounds he might rely on for the extension of time required. The Police have not raised any prejudice caused to their interests by the lapse in time. Rather, the delay simply puts off a determination of the point at which Mr Collis can either require the items to be returned to him, or alternatively for the Police to achieve finality in disposing of them. In these circumstances, it is appropriate to deal with the application for leave on its merits. I accordingly extend the time within which Mr Collis could make that application to cover the application presently being considered.
[15] The application for leave filed by Mr Wilkinson-Smith on behalf of Mr Collis advanced three grounds for leave to appeal. They were:
(a) that Ronald Young J “erred in his interpretation and application of the
ex turpi causa rule on the basis that the Police should have been
8 R v Collis [1992] NZLR 287.
9 Collis v Police, above n 6, at [13].
precluded from relying on an illegal search warrant to support their application for disposal”;
(b)that the Police’s application for disposal should have been struck out because it could not properly have been brought under s 199 of the Summary Proceedings Act, the property not having been obtained lawfully under s 198 of that Act (the section under which search warrants were issued); and
(c) the appeal raises questions of general public importance on the issue of “whether material ruled inadmissible in a criminal proceeding can be subsequently used in civil proceedings”, which has not been conclusively decided in New Zealand.
[16] The essence of Mr Collis’s position was that the District Court judgment ruling the search warrant invalid had to apply to preclude the Police relying on any evidence obtained during the search of his property, and to deny them entitlement to retain the items seized during the invalid search. Without relying on the circumstances ascertained in the course of the invalid search, there was no evidence of the use Mr Collis was making of the items in question, and therefore no basis on which the Court could find that he would be likely to use the equipment for illegal purposes if it were returned to him.
[17] The application for leave to appeal is governed by s 144 of the Summary Proceedings Act, which requires the Court to be satisfied that the question of law involved is one which, by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision. As the Court of
Appeal has observed:10
Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.
[18] In general terms, the question of law here is the nature of constraints, if any, that should be imposed on the Police in using evidence obtained in an invalid search,
10 R v Slater [1997] 1 NZLR 211 (CA) at 215.
for the purposes of civil proceedings when that evidence has been ruled inadmissible for the criminal proceedings to which the application for a warrant related.
[19] The various assertions Mr Collis made as to how the law in this area ought to apply contemplate questions along the following lines:
(a) What is the entitlement of the Police to use the fruit of a flawed criminal investigation (for example, an invalid search warrant) in civil proceedings such as these?
(b)On what basis should the Police be entitled to dispose of property belonging to a presumptively innocent party? Should Mr Collis now be treated as outside the “reach” of the powers of disposal once the invalid search warrant precludes the admissibility of all evidence obtained for use in the criminal proceedings?
(c) Should the power to dispose of property be read restrictively so as to minimise the intrusion into a presumptively innocent person’s privacy (that is, should there be wider New Zealand Bill of Rights Act 1990 considerations at play)?
(d)Should the Police’s inability to prosecute Mr Collis because of the invalidity of the warrant bar any lawful basis for the Police to even apply to dispose of the property?
(e) Does the principle ex turpi causa non oritur action override admissibility rulings, so that the right of the Police to dispose of property seized is to be determined on all the information known as to circumstances of its use, irrespective of whether the evidence has been ruled inadmissible in criminal proceedings.
[20] A possible factor lessening the importance of these questions is that the process for such applications to dispose of seized property under s 199 of the Summary Proceedings Act have now been superseded by provisions in the Search
and Surveillance Act 2012 (the SSA).11 In general terms, the relevant provisions in the SSA afford greater protection for those asserting an interest in seized property to resist its disposal. Understandably, I did not receive any submissions from Mr Collis on whether the relative importance of the question of law he wishes to pursue is materially lessened by the different statutory procedure that now applies. Nor was Ms FitzHerbert in a position to address the point.
[21] I incline to the view that the principle at issue remains one of public importance, and that a determination on it is likely to provide helpful guidance on the point as and when it arises under the SSA.
[22] A practical concern that I raised with Mr Collis was the risk that questions of law that merit a second appeal may not be presented to a standard that justifies troubling the Court of Appeal with those questions, given his lack of legal training and limited ability to marshal the arguments. The most recent papers filed by Mr Collis contain irrelevancies and extravagances that I warned him would be likely to distract the Court of Appeal, and detract from the prospects of his achieving a successful outcome.
[23] Mr Collis acknowledged the concern I raised. His belief is that if he is granted leave, then a further application for legal aid may be assessed more positively, and from the Court’s perspective that would be highly advantageous.
[24] In the end, concerns at the risk that the important questions of law will not be adequately marshalled in the Court of Appeal are not sufficient to decline leave, where it would otherwise be granted.
[25] Accordingly, I grant leave to appeal on the following question of law:
If evidence has been ruled inadmissible in criminal proceedings because of the invalidity of a search warrant, can the Court have regard to such evidence in the course of civil proceedings seeking disposal of items seized during the
search conducted in reliance on the invalid warrant?
11 Search and Surveillance Act 2012, Part 4, subpart 6, ss 149 to 163.
[26] My description of the question of law in those terms is not intended to exclude argument on the questions set out in subparas (a) to (e) of [19] above.
[27] It is to be hoped that Mr Collis is able to retain appropriate counsel to advance the appeal on his behalf.
Dobson J
Solicitors:
Crown Solicitor, Palmerston North
Copy to: G Collis
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