Dodd v Police
[2021] NZHC 2059
•10 August 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2020-470-134
CIV-2020-470-135 [2021] NZHC 2059
UNDER the Search and Surveillance Act 2012 BETWEEN
ANTHONY WILLIAM DODD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 August 2021 (Heard at Hamilton) Appearances:
W T Nabney for the appellant J M Sutton for the respondent
Judgment:
10 August 2021
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 10 August 2021 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Tauranga Chambers, Tauranga Pollett, Legal, Tauranga
DODD v NEW ZEALAND POLICE [2021] NZHC 2059 [10 August 2021]
[1] By application dated 23 December 2020, Anthony Dodd seeks an extension of time to appeal the decision of Judge P G Mabey QC in the District Court at Whakatane on 23 August 2019,1 striking out his claim for return of a laptop computer and three cell phones seized by the police. By consent, the application for extension of time and substantive appeal were heard together. On the substantive appeal, in addition to the items’ return, Mr Dodd seeks declarations the computer unlawfully was retained by police after 25 April 2019 and any subsequent search accordingly also was unlawful and therefore unreasonable.
Background
[2] Following execution of a search warrant at Mr Dodd’s address on 25 October 2018, and subsequent seizure of the items, Mr Dodd was charged with indecent assault on a young person,2 and sexual violation by unlawful sexual connection.3 When his 14 March 2019 request to police for the items’ return went unanswered, he issued proceedings for their return on 22 July and 1 August 2019. As issued by Mr Dodd then unrepresented, the proceedings’ documents were a little unorthodox and argumentative, but their intention was clear. Police did not formally respond to the documents, but instead inspected the items’ contents on 8 August 2019 and additionally charged Mr Dodd with possession of an objectionable publication.4
Decision under appeal
[3] Judge Mabey understood Mr Dodd, in reliance on the passage of six months for retention of seized items under s 151 of the Search and Surveillance Act 2012, sought mandatory interlocutory and substantive orders for the items’ return.5 Noting s 151 was subject to s 153, which enables time for such retention to be extended,6 the Judge held police were entitled to retain the items as of “forensic relevance” to the charges Mr Dodd then faced,7 and (on police oral application at the hearing) extended
1 Dodd v Police [2019] NZDC 16762.
2 Crimes Act 1961, s 134(3).
3 Sections 128(1)(b) and 128B(1).
4 Films, Videos, and Publications Classification Act 1993, s 131.
5 Dodd v Police, above n 1, at [1].
6 At [4]–[5].
7 At [7].
time for their retention to enable determination if other charges should be brought.8 The Judge accordingly struck out Mr Dodd’s claim.9
[4] For Mr Dodd, Bill Nabney argues Mr Dodd’s initially unrepresented status, and the absence of prejudice by and public importance of his appeal’s substance, commends he be granted an extension of time to appeal. As to the substantive appeal, Mr Nabney says police failures to bring charges in relation to the seized items, and to return them on demand, mean police thereafter had converted the items, rendering their subsequent search of them unlawful, and not open retrospectively to being cured by the Judge’s extension of time.
Discussion
[5]Section 151 of the Search and Surveillance Act 2012 provides:
151 Custody of things seized or produced
(1) A seized or produced thing may, if it is required for investigative or evidential purposes, or it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a court or otherwise), be held in the custody of the person who exercised the search power or that person’s employer or another person acting on behalf of that person or any other person to whom the thing is transferred in accordance with section 90(2) (except while it is being used in evidence or is in the custody of any court) until the first of the following occurs:
(a)a decision is made not to bring proceedings for an offence in respect of which the thing was seized or produced:
(b)the thing is forfeited to the Crown or any other person under any enactment (whether by operation of law or by order of a court or otherwise):
(c)the thing is released under section 158 or 159:
(d)if proceedings for an offence have not been commenced before the date that is 6 months after the thing was seized or produced and a request has been made for the return of the thing, that date or the expiration of a later time ordered by a court under section 153:
(e)in any case where proceedings are brought,—
(i) the withdrawal or dismissal of the proceedings; or
(ii) subject to sections 156 and 159, the completion of the proceedings:
(f)the seized or produced thing is disposed of under section 160.
8 At [8].
9 At [18].
(2) Once the relevant event stated in subsection (1)(a) to (e) occurs, the person in whose custody the property is must immediately release the thing in his or her custody,—
(a)in the case of a subsection (1)(a), (d), or (e) event, to the owner or to a person entitled to possession; or
(b)in the case of any other event, in the manner required by this Act.
(3) However, if the thing is seized or produced in relation to more than 1 alleged offence, the person in whose custody the property is need not release the property until the first of the events described in subsection (1) has occurred in relation to each and every alleged offence.
(4) This section is subject to sections 153 and 163.
[6] Parsing s 151(1) is made a little more difficult by its compound conditionality: “if [the seized items are] required for investigative or evidential purposes”; and “if proceedings for an offence have not been commenced before the date that is 6 months after the [items were] seized” (emphases added). Mr Nabney’s contention is police could not have known the former before inspecting the seized items; only proceedings commenced thereafter fall for the latter qualification, and here that was too late.
[7] That is not the correct comprehension of the section’s operation. Rather, the issue is if the items were required for investigative or evidential purposes for any proceedings commenced within six months of their seizure.10 I do not have the search warrant before me, and there is no challenge to it, but I assume it described the items to be seized,11 in extension of its application’s description of “evidential material”.12
[8] Here, the sexual offending proceeding was commenced within six months of the items’ seizure, meaning the items remained available for investigative or evidential purposes. It is immaterial if they were not inspected within the six-month period. There is no argument the items were incapable of being required for investigative or evidential purposes on the sexual offending proceeding, or there could be no reasonable ground to believe the items had such evidential prospect. Having executed the warrant, obtained the items and commenced timely proceedings, police were free to keep the items to “examine … at any time”.13 That is the necessary implication to
10 Ferens v R [2015] NZCA 564 at [87].
11 Search and Surveillance Act 2012, s 103(4)(g); alternatively, if the items were in plain view, they could so have been described (s 123(2)).
12 Section 98(1)(e).
13 R (CA89/2018) v R [2018] NZCA 341 at [23].
be taken from the Act’s ss 150 and 151.14 As a matter of fact, evidence from the seized items was permitted to be used at trial of the sexual offending charges.15
[9] Thus the proposed appeal has no prospect of success. Given that conclusion, there is no point in granting Mr Dodd any extension of time to bring this appeal.16 Had I to consider it separately, I would have declined him the extension on grounds of the further and extensive delay since 19 June 2020 when Mr Nabney indicated such appeal was in prospect;17 and the prejudice to police use of evidence from the seized items in securing Mr Dodd’s interceding 9 September 2020 convictions on the sexual offending charges.18 The overall interests of justice are met by refusing Mr Dodd’s application.19
Result
[10]Mr Dodd’s application for an extension of time to appeal is dismissed.
—Jagose J
14 At [23], n 5, comparing Search and Surveillance Act, s 125(1)(l): “if any intangible material that is the subject of the search may be in that computer system or other device” (emphasis added).
15 R v Dodd DC Tauranga CRI-2018-087-001904, 23 June 2020 (Addendum to Reserved Decision Dated 22 June 2020 of Judge P G Mabey QC) at [13].
16 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [31]–[32].
17 R v Dodd [2020] NZDC 11516 at [8]–[10].
18 R v [Dodd] [2020] NZDC 22444 at [10], [42]–[43] and [45].
19 Almond v Read, above n 16, at [38].
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