Hamed v R
[2011] NZSC 101
•2 September 2011
| For a Court ready (fee required) version please follow this link |
| ORDER RESCINDING EXISTING SUPPRESSION ORDERS IN RESPECT OF THE JUDGMENT OF 2 SEPTEMBER 2011, MADE BY THE HIGH COURT ON 15 SEPTEMBER 2011. IN PLACE OF THOSE ORDERS, ORDERS PROHIBITING PUBLICATION IN NEWS MEDIA, ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASES OR PUBLICATION BY ANY OTHER MEANS UNTIL FINAL DISPOSITION OF THE TRIAL ORIGINAL JUDGMENT. |
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 125/2010 SC 128/2010 SC 129/2010 SC 130/2010 SC 131/2010 SC 132/2010 SC 133/2010 SC 135/2010 SC 138/2010 SC 139/2010 SC 2/2011 [2011] NZSC 101 |
| OMAR HAMED |
| v |
| THE QUEEN |
| Hearing: 3 and 4 May 2011 |
| Court: Elias CJ, Blanchard, Tipping, McGrath and Gault JJ |
| Counsel: A T I Sykes and T M Wara for Appellant Teepa |
| Judgment: 2 September 2011 |
JUDGMENT OF THE COURT
AThe appeals of Mr Tame Iti, Mr Te Rangiwhiria Kemara, Mr Urs Signer and Ms Emily Bailey are dismissed.
BThe appeals of the other appellants are allowed in part. The video surveillance evidence (other than footage of vehicles on Reid Road) is inadmissible against those appellants. All the other disputed evidence is admissible against them.
REASONS
Para No
Elias CJ [1]
Blanchard J [90]
Tipping J [209]
McGrath J [255]
Gault J [281]
ELIAS CJ
The appeal concerns the powers of search of the police, raising points of constitutional principle and Bill of Rights protections. It can readily be accepted that the police need legal powers to investigate apparently serious criminal offending and that such powers may include powers of surveillance. Parliament has not however provided legislative authority for covert filmed surveillance, despite recommendations that it should do so. The courts cannot remedy the deficiency through approval of police action taken in the absence of lawful authority without destruction of important values in the legal system, to the detriment of the freedoms guaranteed to all.
The appeal
In bush, on Tuhoe-owned lands in the Urewera Ranges, it is alleged that the appellants participated between November 2006 and October 2007 in military-style exercises using firearms, live ammunition, and Molotov cocktails. The appellants have connections with the privately-owned lands (those who are of Tuhoe descent either as beneficiaries of the owner incorporations or through whakapapa, and the other appellants as their invitees). All appellants are charged with offences contrary to the Arms Act 1983 arising out of the possession and use of the firearms and Molotov cocktails.[1] For such offences the maximum penalty is imprisonment for four years.[2] Four of the appellants (Te Rangiwhiria Kemara, Tame Iti, Urs Signer and Emily Bailey) are also charged under s 98A of the Crimes Act 1961 with participation in an organised criminal group. The indictment simply recites the terms of s 98A(1) in describing those participating as “knowing that their participation contributed to the occurrence of criminal activity, or [being] reckless as to whether their participation may have contributed to the occurrence of criminal activity”. Although the objective of the criminal group (a necessary element of the definition of an “organised criminal group” under s 98A(2)) is not specified in the indictment, it has been treated in the lower Courts as being the objective of seizing by force an area of land, believed to be within the tribal lands of Tuhoe, through serious acts of violence.[3] Section 98A is an offence which, at the relevant time, carried a maximum penalty of imprisonment for five years.[4]
[1]Arms Act 1983, s 45(1)(b).
[2]Section 45(1).
[3]See R v Bailey HC Auckland CRI-2007-085-7842, 15 December 2009 [Bailey – Admissibility] at [82] and Hunt v R [2010] NZCA 528, [2011] 2 NZLR 499 at [91]. A letter from the Crown Solicitor at Auckland in respect of one of the appellants recites 11 offences of serious violence alleged to be within the objectives of the group, including murder, arson, kidnapping, and using a firearm against a law enforcement officer.
[4]Crimes Act 1961, s 98A(1). The maximum penalty was raised to 10 years by s 5(1) of the Crimes Amendment Act 2009.
The appeal concerns pre-trial rulings to admit prosecution evidence challenged as having been improperly obtained both through trespass and in breach of the protection against unreasonable search and seizure contained in s 21 of the New Zealand Bill of Rights Act 1990. The evidence includes physical items left on the land after the exercises and photographs of such items on site. It also includes film obtained from motion-activated hidden cameras placed by the police over a number of months on the Tuhoe-owned land in the areas where the exercises were expected to be held. The prosecution relies on these films for identification of the accused and as a record of what they were doing.
The facts are fully covered in the reasons given by Blanchard J and need not be repeated. Much of the investigation carried out by the police between November 2006 and October 2007 did not yield anything of evidential value (principally because exercises occurred in different locations than had been anticipated by the police or because expected exercises were cancelled).[5] The admissibility of evidence obtained from police investigations on the land in November 2006 was not in dispute on the appeal. In the result, the evidence in issue concerned police investigations undertaken in January 2007 on Paekoa Track, in June 2007 at Rangitihi, in August 2007 near Whetu Road and of vehicle movements along Reid Road, and in September and October 2007 near Whetu Road.
[5]The police knew of the planning for the exercises through their monitoring of telephone conversations between the accused under interception warrants the validity of which is not in issue on the appeal.
In the High Court, most of the disputed evidence (including all the filmed surveillance) was found by Winkelmann J to have been improperly obtained[6] but was admitted under s 30 of the Evidence Act 2006 on the basis that its exclusion would be disproportionate to the impropriety.[7] On appeal, the Court of Appeal, disagreeing with the High Court, held that the police entries, physical searches and surveillance filming on the lands was authorised by warrants issued under s 198 of the Summary Proceedings Act 1957.[8] While no s 198 warrant had been obtained for the August entry on to private land at Whetu Road, the Court of Appeal held that the entry was lawful pursuant to an implied licence, since the area was used for recreation by the public without apparent objection from the owners.[9] With respect to the film of vehicle movements along Reid Road, the Court accepted that the placement of the camera had entailed trespass but held that there was no breach of s 21 of the New Zealand Bill of Rights Act and that the evidence should be admitted under s 30 of the Evidence Act.[10] The Court of Appeal indicated that, even if it had been of the view that the evidence obtained pursuant to the s 198 warrants had been improperly obtained (contrary to its view that the warrants were valid), it would have admitted the evidence under s 30 for reasons similar to those given by Winkelmann J.[11]
[6]R v Bailey HC Auckland CRI-2007-085-7842, 7 October 2009 [Bailey – Propriety] at [256].
[7]Bailey – Admissibility at [108].
[8] Hunt v R [2010] NZCA 528, [2011] 2 NZLR 499.
[9] At [70]–[74].
[10] At [75] and [89].
[11] At [90].
On further appeal to this Court, I agree with the reasons given by Blanchard J for holding, contrary to the view taken in the Court of Appeal, that the warrants under s 198 of the Summary Proceedings Act (with the exception of the warrant of June 2007 and possibly that of September 2007)[12] did not authorise the police entry on to the Tuhoe lands either for the purposes of the physical searches undertaken or for the purpose of setting up the hidden cameras and later retrieving the film taken by them. Section 198 authorises a warrant to be issued for search for “things” believed, on reasonable grounds, to be on the land at the time the warrant is issued. That follows from the language employed in the section and is also the interpretation to be preferred in application of s 6 of the New Zealand Bill of Rights Act. (I do not share the doubts expressed by Tipping J as to the application of s 6 because the powers conferred by s 198 are limits on fundamental rights and freedoms.) The authorisation of search under s 198 for physical things believed to be on the land includes observation and recording which is incidental to the search and any seizure but could not authorise the surveillance of people undertaken through the covert filming. No statutory authority other than s 198 of the Summary Proceedings Act was suggested to authorise entry. And, as the Law Commission report on Search and Surveillance Powers concluded, no statutory authority has been provided for surveillance of the kind undertaken through the hidden cameras.[13] That was also the conclusion of the Court of Appeal in R v Gardiner.[14]
[12]See Blanchard J at [153]–[154].
[13]Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [1.14] and [11.38]–[11.40].
[14]R v Gardiner (1997) 15 CRNZ 131 (CA) at 136.
I agree also with the reasons given by Blanchard J for rejecting the suggestion that the police had implied licence to enter for investigative purposes.[15] The limited licence accepted by this Court in Tararo v R[16] (which excuses from trespass someone who approaches a dwelling house to speak to the occupier) has no application to the present case. Nor does any licence to enter arise out of the circumstance that part of the land (particularly that adjacent to Whetu Road) was accessible and used by members of the public for recreational purposes. In the absence of lawful authority, the police trespass in entering the land meant that all evidence resulting from such entry (derived both from the physical scene examination and the covert filming) was “improperly obtained”, requiring consideration of its exclusion under s 30 of the Evidence Act.
[15] At [157]–[159].
[16] Tararo v R [2010] NZSC 157.
I agree also that the evidence was improperly obtained not only by reason of the trespass but because it constituted unreasonable search and seizure, contrary to s 21 of the New Zealand Bill of Rights Act. To his conclusion of unreasonable search, Blanchard J would make an exception for the filming of vehicle movements along Reid Road in August, on the basis that such filmed observation was not a search within the meaning of s 21.[17] I differ with respect to the reasoning relating to the Reid Road filming. I consider it to have been unreasonable search, although I would admit it in application of s 30 of the Evidence Act.[18]
[17] At [171].
[18] See below at [78]–[81].
In addition, I would go further than Blanchard J in respect of the filmed surveillance. I consider that the impropriety in relation to such surveillance arose not only because the police were acting unlawfully in trespassing on the land (the warrants obtained under s 198 of the Summary Proceedings Act being invalid), but because it is unlawful to undertake secret filming of people in the absence of any authority prescribed by law. No such authority was available here.
I agree with the application in New Zealand of the purposive approach to what constitutes unreasonable search adopted by the Supreme Court of Canada in Hunter v Southam Inc.[19] By it, both what constitutes “search and seizure” and what is “unreasonable” must be assessed in the context of the values underlying s 21. Section 21 protects personal freedom and dignity from unreasonable and arbitrary State intrusion. Whether such intrusion is unreasonable or arbitrary is objectively assessed according to the standard of what limitation on personal freedom can be “demonstrably justified in a free and democratic society”.[20] The right protects privacy but, more fundamentally, it holds a constitutional balance between the State and citizen by preserving space for individual freedom and protection against unlawful and arbitrary intrusion by State agents.[21] It describes a “right to be let alone”.[22] Police investigation which invades such private space constitutes search within the meaning of s 21. It may be undertaken through remote technology or through in person observation. I therefore take the view, differing from that expressed by Blanchard J,[23] that s 21 guarantees reasonable expectations of privacy from State intrusion.
[19] Hunter v Southam Inc [1984] 2 SCR 145 at 156–160 per Dickson J.
[20] New Zealand Bill of Rights Act 1990, s 5.
[21]It is not necessary for the purpose of the present case to consider the extent to which s 21 protects values other than a reasonable expectation of privacy (a matter left open in Katz v United States 389 US 347 (1967), and in New Zealand in R v Jefferies [1994] 1 NZLR 290 (CA) at 302–303 and R v Grayson and Taylor [1997] 1 NZLR 399 (CA)).
[22]Described as “the most comprehensive of rights and the right most valued by civilized men” in Olmstead v United States 277 US 438 (1928) at 478 per Brandeis J. See also the discussion in Katz v United States 389 US 347 (1967) at 350 per Stewart J.
[23] Compare Blanchard J at [161].
Whether surveillance amounts to a State intrusion upon reasonable expectations of privacy depends on wider context than property ownership. The values protected by s 21 are not simply property-based, as were the common law protections which preceded it. Rather, they provide security against unreasonable intrusion by State agencies into the personal space within which freedom to be private is recognised as an aspect of human dignity. Such privacy interest has been treated in the Supreme Court of Canada as “the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself”.[24] The privacy protected by s 21 may be invaded as much through secret filming of individuals as through recording private communications, as the Canadian Supreme Court has recognised.[25] In New Zealand, Parliament has provided authority for the interception of communications[26] but has not provided equivalent authority with respect to secret filming.
[24]R v Duarte [1990] 1 SCR 30 at 46 per La Forest J. See also R v Jefferies [1994] 1 NZLR 290 (CA) at 319 per Thomas J who referred to “the right of self-determination and control over knowledge about oneself and when, how and to what extent it will be imparted” as one of the “variety of related values” making up the concept of privacy protected by s 21.
[25]See R v Wong [1990] 3 SCR 36 at 46–47 and 53, referring to R v Duarte [1990] 1 SCR 30. In Wong at 43–44 the Supreme Court of Canada declined to limit the application of the Charter protection in s 8 against unreasonable search to the particular unauthorised audio surveillance in Duarte. Rather, La Forest J acknowledged wide protection embracing “all existing means by which the agencies of the state can electronically intrude on the privacy of the individual, and any means which technology places at the disposal of law enforcement authorities in the future”.
[26] See, for example, Crimes Act 1961, Part 11A.
In principle, there is no reason why activity in public space should, by virtue of that circumstance alone, be outside the protection of s 21.[27] It is consistent with the values in the New Zealand Bill of Rights Act that people may have reasonable expectations that they will be let alone by State agencies even in public spaces in their private conversations and conduct.[28] There is public interest in maintaining as a human right space for privacy in such settings. And in an age when technology makes surveillance impossible to resist, anywhere, the human right described in s 21 would be substantially obliterated if its scope is limited to what cannot be seen or heard by State agencies from public space. It follows that I am also unable to agree with the suggestion made by Blanchard J at [167] that police surveillance in a public place which is not technologically enhanced does not generally amount to a search. If those observed or overheard reasonably consider themselves out of sight or earshot, secret observation of them or secret listening to their conversations may well intrude upon personal freedom.
[27]A reasonable expectation of privacy in public spaces was accepted by the European Court of Human Rights in Von Hannover v Germany (2005) 40 EHRR 1 (ECHR) at [77]–[78].
[28]In R v Wong [1990] 3 SCR 36, the Supreme Court of Canada accepted that s 8 protected individuals from unauthorised film surveillance of gambling in a hotel room to which strangers were admitted. La Forest J rejected at 47 “[t]he notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish”.
I do not regard the fact that surveillance is undertaken covertly as a neutral factor.[29] Covert surveillance by the police of people who do not know that they are being observed collides with values of freedom and dignity in the same way as search of their correspondence or interception of their conversations.[30] The right to be “secure against unreasonable search”[31] underscores a purpose in allowing citizens to relax vigilance and live their lives with freedom.
[29] Compare Blanchard J at [168].
[30]As La Forest J concluded in R v Wong [1990] 3 SCR 36 at 47, surreptitious video surveillance by State agents without judicial authorisation was, like audio recording of conversations, a notion “fundamentally irreconcilable” with expectations of acceptable government behaviour in “a free and open society”.
[31]New Zealand Bill of Rights Act 1990, s 21 (emphasis added).
The reasonableness of the searches in issue on the appeal does not in my view turn on details of ownership or qualities of the land or the connections of the appellants with it. In the present case I take the view that the more critical feature is the absence of lawful authority for police secret surveillance.
Although my views as to the basis for impropriety in the obtaining of the evidence differ only in part from those expressed by Blanchard J, in the end the difference leads me to conclude, in application of s 30 of the Evidence Act, that the filmed surveillance evidence, with the exception of that recording vehicle movements along Reid Road, must be excluded against all appellants. I would however admit under s 30 both the physical evidence discovered on inspection of the sites (including the photographs of the sites as inspected) and the film of vehicle movements along Reid Road, for the reasons given below at [78]–[81].
Before dealing with the application of s 30, it is necessary for me to explain first why I consider that police search which is not authorised by law is unlawful and that unlawful police search is itself unreasonable search, contrary to s 21 of the New Zealand Bill of Rights Act. Both considerations affect the balancing of interests I undertake in application of s 30.
Authority of law is required for State intrusion on personal freedom by search
The New Zealand Bill of Rights Act provides protection for human rights and fundamental freedoms against unreasonable State intrusion. Under s 21 of the Act, everyone has “the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise”. As the White Paper which preceded enactment of the legislation stressed, citing the Canadian Supreme Court case of Hunter, the list of interests protected is not exhaustive: s 21 “guarantees a broad and general right”.[32] While freedom from unauthorised search on private property has long been protected at common law,[33] the former property-based protection expands with human rights values to protect the public interest in “personal freedom, privacy and dignity”.[34] Section 21 protects “people, not places”.[35] Moreover, security from unreasonable State intrusion will often be a necessary condition of other freedoms, such as freedom of conscience, freedom of expression, freedom of movement, and freedom of association.[36]
[32]“A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at [10.154], citing Hunter at 158.
[33]“A Bill of Rights for New Zealand: A White Paper” at [10.145], citing Entick v Carrington (1765) 19 St Tr 1029.
[34]See Richardson J in R v Jefferies [1994] 1 NZLR 290 (CA) at 302 where he stressed that a search of the person or premises not only invaded property rights, but also constituted “a restraint on individual liberty, an intrusion on privacy and an affront to dignity”. See also Thomas J at 319.
[35]See Katz v United States 389 US 347 (1967) at 351 per Stewart J. Although this was said of the Fourth Amendment, it has been equally applied to s 8 of the Canadian Charter of Rights and Freedoms RSC 1985 App II, No 44: Hunter at 158–159 per Dickson J.
[36]See R v Jefferies [1994] 1 NZLR 290 (CA) at 319 per Thomas J (mentioning the impact of surveillance on freedom of conscience) and R v A [1994] 1 NZLR 429 (CA) at 437 per Richardson J (referring to free speech).
Section 21 gives effect to art 17 of the International Covenant on Civil and Political Rights. Article 17 provides that no one is to be subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence”. The United Nations Human Rights Committee, in General Comment on Article 17, has said that art 17 applies to “[s]urveillance, whether electronic or otherwise”, as well as “interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations”.[37] All such are treated as prohibited except to the extent authorised by “relevant legislation”, complying with the obligations under art 17.[38] The term “unlawful” is interpreted to mean that “no interference can take place except in cases envisaged by the law”:[39]
Interference authorised by States can only take place on the basis of law, which must itself comply with the provisions, aims and objectives of the Covenant.
[37]United Nations Human Rights Committee CCPR General Comment No 16: Article 17 (Right to Privacy): The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (1988) at [8].
[38] Ibid.
[39] Ibid, at [3].
Section 21, like s 8 of the Canadian Charter of Rights and Freedoms, is a constraint on State activity.[40] It does not in itself provide any authority for “reasonable” State intrusion.[41] The right to be secure against unreasonable search does not turn on the reasonableness of police conduct, viewed as a stand-alone inquiry and assessed after the event.[42] In Hunter, the Supreme Court of Canada emphasised that the concern of s 8 was with “impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective”.[43] In R v Collins, it held that the Crown must first establish that search is authorised by law before it can be considered reasonable in other respects.[44] In New Zealand, Cooke P pointed out in R v Jefferies that a suggestion in the context of the Bill of Rights that police officers may act reasonably outside the law “is to sow dangerous seeds”.[45] Implication of powers to search was described by Sopinka J in the Supreme Court of Canada as an “Orwellian vision of police authority”.[46] Rather, authority of law for the search must be found elsewhere.
[40] Hunter at 156.
[41] Ibid, at 156–157.
[42]As Dickson J highlighted in Hunter at 160, post facto approval of searches by retroactive inquiry would be “seriously at odds with the purpose of s 8. That purpose is ... to protect individuals from unjustified state intrusions upon their privacy [and] requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place”.
[43] Ibid, at 157.
[44]R v Collins [1987] 1 SCR 265 at 278.
[45]R v Jefferies [1994] 1 NZLR 290 (CA) at 296.
[46] R v Evans [1996] 1 SCR 8 at [20].
Because of the principle of legality, intrusive search is not properly to be treated as implicit in general statutory policing powers. As Hardie Boys J explained in relation to the police in Jefferies, “in our constitutional model police powers are conferred expressly and specifically”:[47]
There is no conferment of general authority. A police officer stands in no different position from any other citizen, save in so far as powers or authorities are conferred on him by particular enactment. There is no power of entry onto property, of search or seizure, except as conferred by statute.
Casey J in the same case expressed himself as being “unwilling to see the extension of implied police power into this area unless it is done by the legislature after due consideration”.[48]
[47] R v Jefferies at 313.
[48] Ibid.
Jefferies was concerned with whether the police had lawful authority to stop and search a vehicle. Private citizens have no such authority and the interference would be an actionable wrong. The finding in Jefferies that the police had no implied authority[49] meant that they, too, were subject to the general prohibition. Similarly, in the present case, the invalidity of the warrants and the absence of any other lawful authority for the police to be on the land made them trespassers. The evidence collected through the trespass was “improperly obtained” and subject to the requirements for admission contained in s 30. On this point all members of the Court are in agreement.
[49]The majority judges in Jefferies in that respect were right in my view to reject the suggestion of the President at 298 that the police officer’s appointment under the Police Act 1958 provided the necessary authority for the police intervention in that case.
In Jefferies it was unnecessary for the Court to consider whether specific authority is required of police conduct which would not constitute an actionable wrong if undertaken by a private citizen. In the present case, I do not think it can properly be assumed that covert surveillance, if it intrudes on personal freedom, is not an actionable wrong if undertaken by a private citizen. In Hosking v Runting a majority of the Court of Appeal was prepared to recognise that invasion of privacy is a tort.[50] Such protection is consistent with the protection of the human right of privacy required by the European Court of Human Rights in Von Hannover v Germany.[51]The matter has not been argued here and it would be wrong to express even a provisional view. If the assumption of lawfulness if surveillance is undertaken by a private citizen is incorrect, the principle referred to by Hardie Boys J in Jefferies would be of direct application because the police can have no implied authority to act inconsistently with the law that attaches to everyone else.
[50]Hosking v Runting [2005] 1 NZLR 1 (CA) per Gault P, Blanchard and Tipping JJ (Keith and Anderson JJ dissenting).
[51]Von Hannover v Germany (2005) 40 EHRR 1 (ECHR).
Whether or not the assumption that individuals are not prohibited by law from undertaking covert surveillance of others is correct, however, I consider that the police cannot undertake such surveillance lawfully in the absence of specific authority of law. The statements in Jefferies are in my view ultimately derived from a wider principle of the common law which withholds from State agents the liberties preserved for individual citizens.
The common law does not permit officials the freedom of action of individual citizens
Public officials do not have freedom to act in any way they choose unless prohibited by law, as individual citizens do. The common law position in New Zealand and in the United Kingdom is that, except in matters within the prerogative or as is purely incidental to the exercise of statutory or prerogative powers, the executive and its servants must point to lawful authority for all actions undertaken. That constitutional principle of legality applies to the police surveillance undertaken here.
The general common law principles applicable are those described in De Smith’s Judicial Review:[52]
While government must be able to carry out incidental functions that are not in conflict with its statutory powers, it is wrong to equate the principle pertaining to private individuals – that they may do everything which is not specifically forbidden – with the powers of public officials, where the opposite is true. Any action they take must be justified by a law which “defines its purpose and justifies its existence”.
[52]Harry Woolf, Jeffrey Jowell and Andrew Le Sueur (eds) De Smith’s Judicial Review (6th ed, Sweet & Maxwell, London, 2007) at [5-025].
The final quote is taken from R v Somerset City Council, ex parte Fewings.[53] There, Laws J held that the principles which govern the relationship between public bodies and private persons are “wholly different”:[54]
For private persons, the rule is that you may do anything you choose which the law does not prohibit. It means that the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which he must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is opposite, and so of another character altogether. It is that action to be taken must be justified by positive law.
The statement of principle in Fewings was expressly affirmed on appeal by Sir Thomas Bingham MR.[55]
[53]R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513 (QB) at 524 per Laws J.
[54]Ibid.
[55]R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 (CA) at 1042.
In New Zealand the general principle that public authorities, unlike citizens (who may do whatever is not prohibited), may do only what they are authorised to do by some rule of law or statute was applied by Smith J in Herbert v Allsopp[56] and Woodhouse J in Transport Ministry v Payn.[57] The principle they applied is not of recent origin. It may be traced to the Proclamations’ Case.[58] It is part of the rule of law expounded by Dicey.[59] The principle is, as successive editions of Halsbury’s Laws of England recognised, a necessary condition for the liberties of the subject. Thus, the third and fourth editions of Halsbury referred to the liberties of the subject being derived from two principles: that the subject is free to do anything not prohibited by law or which infringes the legal rights of others; “whereas public authorities (including the Crown) may do nothing but what they are authorised to do by some rule of common law (including the royal prerogative) or statute.”[60]
[56]Herbert v Allsopp [1941] NZLR 370 (SC) at 374.
[57]Transport Ministry v Payn [1977] 2 NZLR 50 (CA) at 62, citing RFV Heuston Essays in Constitutional Law (2nd ed, Stevens & Sons, London, 1964) at 34.
[58]Proclamations’ Case (1611) 12 Co Rep 74, 77 ER 1352. See also Entick v Carrington (1765) 19 St Tr 1029.
[59]AV Dicey Introduction to the Study of the Law of the Constitution (10th ed, MacMillan & Co Ltd, London, 1959) at 202.
[60]Halsbury’s Laws of England (4th ed, 1974) vol 8 Constitutional Law at [828]; (3rd ed, 1954) vol 7 Constitutional Law at [416].
The lack of equivalence between the subject and public authorities is a necessary condition of the liberties of the subject: “[w]here public authorities are not authorised to interfere with the subject, he has liberties”.[61] Equivalent liberty for public authorities would destroy individual liberty.
[61]Ibid.
There is New Zealand authority to contrary effect. In R v Fraser[62] and R v Gardiner the Court of Appeal took the view that unless police actions in undertaking video surveillance are prohibited by statute or otherwise constitute an actionable wrong such as trespass, they are lawful at common law.
[62]R v Fraser [1997] 2 NZLR 442 (CA).
In Fraser the point was barely discussed, the Court simply saying:[63]
Nor do we accept [that] proceeding without such a warrant was unlawful. Other than s 21 of the Bill of Rights Act, counsel were not able to point to any statutory or common law prohibition against observing or recording on videotape the open area surrounding a residential property and plainly there is none.
[63]Ibid, at 452.
In Gardiner, the search was more intrusive than in Fraser because it entailed telescopic capacity and captured some activity through the window of a dwelling.[64] The Court of Appeal was referred to the Canadian Supreme Court decision in Hunter and a decision of the European Court of Human Rights, Malone v United Kingdom,[65] in support of the argument that filmed surveillance was unlawful without legislative authority. The Court did not refer to Hunter in its reasons. Nor was there reference to Herbert v Allsopp or Transport Ministry v Payn or other authority. The Court considered that the decision of the European Court of Human Rights was not on point because of differences in the expression of the international law obligations under both art 8 of the European Convention on Human Rights and art 17 of the International Covenant on Civil and Political Rights, and the wording of s 21 of the New Zealand Bill of Rights Act. It preferred to apply the United Kingdom High Court decision of Sir Robert Megarry V-C in Malone v Metropolitan Police Commissioner.[66] Although the Court allowed “[t]hat does not mean Malone[67] and the International Covenant have no influence on the question of the reasonableness of conduct falling within s 21 of the Bill of Rights”, it considered it “a much longer step to argue that either this country’s ratification of the Covenant or the enactment of a Bill of Rights which does not adopt the same relevant language has rendered video surveillance (otherwise ungoverned by domestic law) unlawful”:[68]
Such a radical change to the common law is not to have been taken to have occurred except by direct expression. It is to be noted that, at an earlier stage of the Malone litigation, Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620, Megarry J, speaking of telephone tapping in the UK, said that it could lawfully be done in terms of domestic law because, at that time there was nothing to make it unlawful. This is the position for video surveillance (without sound recording) in New Zealand. If New Zealand’s domestic law does not represent an adequate response to the International Covenant, that is a matter for legislative attention.
[64]In Fraser, the filming was into a garden space able to be seen from off the property without enhancement.
[65] Malone v United Kingdom (1984) 7 EHRR 14 (ECHR).
[66] Malone v Metropolitan Police Commissioner [1979] Ch 344 (Ch).
[67]Referring to the decision of the European Court of Human Rights.
[68] R v Gardiner at 134.
I am unable to agree with the reasoning of the Court of Appeal in Gardiner and would not apply it or Fraser. I consider that Malone v Metropolitan Police Commissioner, the United Kingdom decision with which the European Court of Human Rights disagreed, should not have been followed in New Zealand. The general proposition there expressed by Megarry V-C,[69] although cited with apparent approval by the 1996 reissue of the fourth edition of Halsbury’s Laws of England,[70] has been much criticised.[71] More importantly, I consider that it is contrary to the common law principle essential to individual freedom, already discussed.
Authority of law for State powers of search is required by the New Zealand Bill of Rights Act
[69]Malone v Metropolitan Police Commissioner at 367. Megarry V-C held that telephone tapping could be carried out by police because “it does not require any statutory or common law power to justify it: it can lawfully be done simply because there is nothing to make it unlawful”.
[70]Halsbury’s Laws of England (4th ed, reissue, 1996) vol 8(2) Constitutional Law and Human Rights at [6] in fn 3, with the caveat that some actions of the executive not prohibited in England may nonetheless be contrary to the European Convention on Human Rights.
[71]See Anthony Lester and Matthew Weait “The Use of Ministerial Powers Without Parliamentary Authority: The Ram Doctrine” [2003] PL 415 at 421–422; Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at 627; John Lambert “Notes of Cases” [1980] MLR 59 at 65 and Vaughan Bevan “Is Anybody There?” [1980] PL 431 at 436–444.
Quite apart from the position at common law before enactment of the New Zealand Bill of Rights Act, I do not think the approach in Malonev Metropolitan Police Commissioner (a case which preceded enactment of the Human Rights Act 1998 (UK)) can survive enactment of the New Zealand Bill of Rights Act.
The wording of s 21 does not bear the distinction drawn in Gardiner between it and art 17 of the International Covenant on Civil and Political Rights and art 8 of the European Convention on Human Rights.[72] There is no material difference on the point in issue – the need for authority of enacted law – between s 21 and the international obligations. Article 8 of the European Convention permits “no interference [with the right to respect for private and family life] except such as is in accordance with the law and is necessary in a democratic society” and for identified purposes which include “the prevention of disorder or crime”. Article 17 protects against “arbitrary or unlawful interference with ... privacy” and provides that “[e]veryone has the right to the protection of the law against such interference or attacks”. The obligation of protection of law and the requirement of lawful authority for interference are equivalent to the protection in the European Convention against interference except in accordance with the law. And the General Comment of the United Nations Human Rights Committee so treats it in making it clear that it regards statutory authority necessary before interference could comply with art 17.[73]
[72]R v Gardiner at 134.
[73] United Nations Human Rights Committee CCPR General Comment No 16 at [8].
Section 21 does not in its terms contain the reference to “unlawful” interference. The rights are expressed to be without limitation. But, like s 8 of the Canadian Charter on which it was based, s 21 must be read together with the general limitation provision contained in s 5 of the New Zealand Bill of Rights Act. By it, “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[74] The reference to “prescribed by law” is equivalent to the requirements of protection against “unlawful” interference under art 17 of the International Covenant on Civil and Political Rights (as is explained by the General Comment) and the protection against “interference ... except such as is in accordance with the law and is necessary in a democratic society” under art 8 of the European Convention. This equivalence in language means that the reasoning of the European Court of Human Rights in Malone could not be brushed aside, as it was in Gardiner.
[74] Compare Canadian Charter of Rights and Freedoms RSC 1985 App II, No 44, s 1.
Section 21 is properly interpreted to require authority of law for State intrusion upon personal freedom. Such interpretation is necessary to give effect to New Zealand’s international obligations under art 17,[75] and is therefore to be preferred, especially when the legislation in question is enacted to implement those obligations.[76]
[75]In a similar vein see Hardie Boys J in Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case] at 699.
[76]Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA) at 57, citing New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289. More recently, see Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104. As Cooke P observed in Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) at 266, the argument that international instruments may be ignored is “unattractive” as it implies that New Zealand’s adherence to those instruments is “at least partly window-dressing”.
Contrary to the view expressed in Gardiner, I consider that the enactment of the New Zealand Bill of Rights Act did indeed effect radical change to New Zealand law. That is as the White Paper that preceded it envisaged.[77] And New Zealand case law has recognised its transformative effect.[78] Indeed, the New Zealand courts would fail in their obligations under ss 3 and 6 of the New Zealand Bill of Rights Act if they do not ensure that the common law is consistent with the Bill of Rights Act. I consider that the policies and principles of the Bill of Rights Act compel the courts to insist on lawful authority for interference with personal freedom through police surveillance.
Legislative authority is necessary for surveillance
[77]“A Bill of Rights for New Zealand: A White Paper” at 5.
[78] R v Goodwin [1993] 2 NZLR 153 (CA) at 156 per Cooke P.
Parliament has provided many statutory powers of entry, search, and seizure, including for the interception of conversations. It has not however provided any authority for secret surveillance of the type undertaken here, despite having had the absence of such powers drawn to its attention by the Court of Appeal[79] and the Law Commission.[80] I consider that the police act unlawfully if they do not have specific statutory authority for intruding upon personal freedom. That conclusion is compelled in my view both by the common law and by the terms of the New Zealand Bill of Rights Act. It also meets rule of law values of certainty and predictability.[81]
[79]R v Gardiner at 134 and 136.
[80]Law Commission Search and Surveillance Powers at [11.9].
[81] See further my reasons in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [38]–[39].
Citing the United Nations General Comment, the Law Commission in its report Search and Surveillance Powers acknowledged that it is an aspect of the rule of law that “search and seizure should only take place if a law provides a basis for it”.[82] It proposed objectively based legislative powers, “clearly expressed” (so that citizen and law enforcement officers understand the extent of the authority to search), judicial authorisation (“preferably in advance of the powers being exercised”), and reasonable exercise of the authority conferred.[83] Echoing the language of the Supreme Court of Canada in Hunter, the Law Commission considered that such measures aimed “to prevent unreasonable searches and seizures occurring in the first place and ensuring that both before and after intrusive search and seizure powers are exercised they are subject to a transparent and accountable form of public review”.[84]
[82] Law Commission Search and Surveillance Powers at [2.22].
[83] Ibid, at [2.23].
[84] Ibid. See Hunter at 160 per Dickson J.
Five further considerations, in part overlapping, support the view that express legislative authority is necessary for surveillance by the police or other public officials.
First, the obligation undertaken with art 17 of the International Covenant on Civil and Political Rights is to the protection of law. The legislature, which must observe the Bill of Rights Act in its acts under s 3(a) of the Act, must provide both protection and any limits. Section 5 of the Bill of Rights Act, which permits reasonable limits on rights where “demonstrably justified in a free and democratic society”, requires any such limits to be “prescribed by law”. The same term has been held by the European Court of Human Rights to require prescription by enactments accessible to citizens and formulated with precision (so that people know where they stand in law).[85] The international obligations and the statutory policy of the Bill of Rights Act therefore point to a need for legislative authority both to secure fundamental rights and to authorise actions that impact upon them. Parliament ought therefore to be the source of authority for intrusion upon the freedom secured by s 21.
[85]See, for example, Steel v United Kingdom (1998) 28 EHRR 603 (ECHR) at [54] and Hashman v United Kingdom (1999) 30 EHRR 241 (Grand Chamber, ECHR) at [31].
Secondly, Parliament is better placed than the courts to undertake the s 5 assessment. As La Forest J pointed out in R v Evans in the Supreme Court of Canada, while it can be accepted that the police may have difficulty in investigating and prosecuting crime without the authority to undertake surveillance, “[i]f the issue is sufficiently serious, it is for Parliament to amend the law”:[86]
Parliament is in a better position to obtain evidence supporting the need for a change and to assess the extent to which the change may affect householders who are not guilty of any crime. Judges are not in a position to receive such evidence, and they deal with specific cases that ordinarily involve people who have broken the law, a fact that does not encourage the broader perspective that should be brought to the issue.
[86] R v Evans [1996] 1 SCR 8 at [4].
Thirdly, statutory authority is the best indication of objective community expectations in relation to freedom from State intrusion and legislation will be authoritative on the question. That was a point made by Casey J in Jefferies.[87] Conversely, if Parliament has not provided authority for particular surveillance, that suggests that the intrusion is not in accordance with community expectations. Identification in legislation of the purposes for which powers are conferred is also important in scrutiny for legality. Statutes provide the measures by which courts can assess when power is abused. If the scope of police powers is left as wide as the freedom available to the individual, public law accountabilities are undermined.
[87] R v Jefferies at 312 per Casey J.
Fourthly, leaving limits on s 21 to be identified not by statute, but in application after the event by judges in actual cases, raises the danger of ex post facto rationalisation recognised by Dickson J in Hunter. As he suggested, it would be unacceptably destructive of human rights if the reasonableness of search turned only on ex post facto consideration of “the governmental interest in carrying out a given search”.[88] The purpose of protecting individuals from unjustified intrusions on their privacy requires statutory authority for authorisation in advance to prevent unjustified searches before they happen.[89]
[88]Hunter at 160. See also La Forest J’s observations to similar effect in R v Wong [1990] 3 SCR 36 at 50, citing Hunter, warning against ex post facto reasoning which “adopt[ed] a system of subsequent validation for searches”.
[89]In the case of Hunter, the statute in question, the Combines Investigation Act RSC 1970 c C-23, did provide for prior authorisation of search however its provisions failed to specify appropriate standards for the issuance of warrants and were therefore inconsistent with the Charter.
Finally, after enactment of the New Zealand Bill of Rights Act it is not appropriate for the judges, who are bound by the Act, to validate legislatively unauthorised State intrusion on rights and freedoms. Section 30 of the Evidence Act confers authority on judges to decide that evidence obtained through unlawful search may nevertheless be admitted if its exclusion would be disproportionate to the impropriety. But judges have no dispensing power to validate police action which intrudes upon fundamental rights. Parliament must confer authorisation on the police by legislation if covert filmed surveillance is to be authorised, consistently with s 5.
The surveillance was unlawful because not authorised by legislation
The views that the common law allows the police freedom in the absence of prohibitions of law and that the scope of their powers may properly be determined by the courts in the application of s 21 are contrary to important policies of the law. These are seen in long-standing constitutional principle, rule of law considerations, art 17 of the International Covenant and the text and purpose of ss 5 and 21 of the New Zealand Bill of Rights Act. Intrusion on personal freedom through State surveillance must be authorised by legislation. Court recognition of a police freedom to act if not constrained by statute puts the matter the wrong way around and would subvert the scheme of rights and freedoms in the Bill of Rights and the security promised by s 21.[90]
[90] See further at [13] above.
There is in New Zealand no statutory authority which authorises covert filming as a police investigatory technique. The warrants obtained by the police under s 198 of the Summary Proceedings Act (and supplied in draft by the police to the Court) did not in their terms purport to seek authority to carry out such filming, although the affidavit evidence supplied to the issuing judicial officer indicated that the police intended to undertake secret filming. Indeed, the police officer in charge of the inquiry gave evidence in the High Court pre-trial proceedings that his understanding was that s 198 did not provide authority for the filming. I would therefore hold that, irrespective of trespass arising out of the invalidity of the s 198 warrants, the covert filmed surveillance was unlawful.
Unlawful search is unreasonable search
In Jefferies, Hardie Boys J was in my view right to draw attention to the connection between his conclusion there that search without lawful authority is not necessarily unreasonable search and the former prima facie approach that evidence obtained in breach of rights was to be excluded.[91] With the statutory abolition of the prima facie rule of exclusion and its replacement with a rule that evidence improperly obtained is excluded only if exclusion is proportionate to the impropriety, there is no longer such link.
[91]R v Jefferies at 314–315. His position on the relationship between unlawfulness and unreasonableness was shared with Richardson J at 304, Gault J at 315 and Thomas J at 319–321.
I consider that with enactment of s 30 of the Evidence Act the more principled approach taken by McKay J in Jefferies ought now to be preferred to the prima facie approach that unlawful search was unreasonable taken in the same case by Cooke P and Casey J.[92] With the adoption of s 30, considerations such as whether the unlawfulness is technical or inadvertent[93] are better taken into account in the balancing under s 30.
[92] Compare McKay J at 316 with Cooke P at 296 and Casey J at 312.
[93]Casey J in R v Jefferies at 312 considered that situations of “emergency” or where “the illegality arose through some procedural defect or technical omission” would factor into whether prima facie unreasonableness was displaced. Cooke P at 296 offered the view that only “[h]ighly exceptional circumstances” would justify treating unlawful action as reasonable. Compare, more recently, the discussion in R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 in which William Young P and Glazebrook J were inclined to equate unlawfulness with unreasonableness with the exception of “minor or technical breach” at [21].
The view that unlawful search is unreasonable is consistent with that taken in Canada.[94] I would hold that an unlawful search is unreasonable, because, as McKay J recognised, it cannot be reasonable for law enforcement officers to act unlawfully.[95] To accept that such conduct is reasonable is to arrive back at the position, inconsistent with the authorities as described in [19] above, that the reasonableness of police conduct in a particular case determines breach of s 21 as a stand-alone test.
[94]See, for example, R v Collins [1987] 1 SCR 265 at 278; R v Kokesch [1990] 3 SCR 3 at 18; and R v Law 2002 SCC 10, [2002] 1 SCR 227 at [29].
[95] R v Jefferies at 316 per McKay J.
The line as to what constitutes unreasonable search by State actors bound by the Bill of Rights Act is accordingly properly drawn at the extent of lawful powers conferred for investigative purposes by statute. There may be additional unreasonableness in the manner of investigation under lawful authority, so that lawfulness is not exhaustive of unreasonable search and seizure. But where the legislature has not provided authority for intrusion, in application of the limits on reasonable expectations of privacy permitted by s 5 of the New Zealand Bill of Rights Act, then I consider secret surveillance will be unreasonable search, in breach of s 21.
Section 30 of the Evidence Act
The evidence in issue was improperly obtained on two bases. First, when the s198 warrants were invalid, the police entry on to Tuhoe-owned lands was trespass. Secondly, because in respect of the covert filmed surveillance there was no lawful authority for the filming. As unlawful, it was unreasonable search in breach of s 21 of the Bill of Rights Act. The admissibility of the evidence therefore must be determined in application of s 30 of the Evidence Act.
The meaning of s 30 of the Evidence Act is to be ascertained in accordance with its text and the purposes of the Act, as s 5(1) of the Interpretation Act 1999 requires. The purposes of the Evidence Act include securing the “just determination of proceedings by ... rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990”.[96] In addition to the general rules for interpretation provided in the Interpretation Act, s 6 of the New Zealand Bill of Rights Act provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”.
[96]Section 6(b). This paragraph referring to the New Zealand Bill of Rights Act was inserted into the Evidence Act by the Select Committee, which “consider[ed] it important to recognise the fundamental importance of that Act in the purpose section of the bill”: Evidence Bill 2005 (256–2) (select committee report) at 2.
The “[f]undamental principle” of the Evidence Act is that all relevant evidence (that which has a tendency to prove or disprove anything of consequence to the determination of the proceeding) is admissible.[97] That principle does not apply however where evidence is inadmissible or excluded under the Evidence Act or any other Act. Section 30 provides a rule of exclusion in criminal proceedings for evidence obtained “in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies”.[98]
[97]Section 7(1).
[98]Section 30(5)(a).
The general rule is that “[t]he Judge must exclude any improperly obtained evidence [proffered by the prosecution] if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety”.[99] Section 30(2) prescribes the methodology for determining whether exclusion is proportionate to the impropriety:
(2)The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
[99]Section 30(4) (emphasis added).
In subs (3) a number of matters are identified to which the court “may, among any other matters, have regard” “[f]or the purposes of subsection (2)”. Before considering the matters relevant in the present case, some comment on the structure of s 30 is required because of the light it sheds on the meaning of the section.
First, as has already been mentioned, the general rule is one of exclusion once impropriety is found if the judge determines such exclusion is “proportionate to the impropriety”. The judge has no discretion to decline to exclude the evidence once the threshold of proportionality is reached. And proportionality of exclusion is contextually assessed against the particular impropriety. Section 30 applies to all evidence “improperly obtained” (through breach of an enactment or rule of law).[100] It would be wrong to treat the assessment of proportionality as being the same in all cases of impropriety.
[100] Section 30(5)(a).
Secondly, in deciding whether exclusion is proportionate to the impropriety the judge must undertake a “balancing process” in which appropriate weight must be given to the impropriety but proper account must “also” be taken of “the need for an effective and credible system of justice”.[101] This formula does not require a balance to be struck between “appropriate weight to the impropriety” and “the need for an effective and credible system of justice”. It is a reminder, foreshadowed in earlier Canadian and New Zealand case law,[102] that whether exclusion of evidence is appropriate to remedy breach of any enactment or rule of law is a contextual assessment which necessitates a broader inquiry than ascertainment of the fact that the evidence has been improperly obtained. This reform settles differences of view in relation to the exclusion of evidence obtained in breach of s 21 of the New Zealand Bill of Rights Act.[103] What s 30(2)(b) provides is that whether exclusion is “proportionate to the impropriety” is measured against the end of “an effective and credible system of justice”. “[A]ppropriate weight” must be given to the impropriety but the standard for exclusion is the end specified. This expression implements the major reform by making it clear there is no longer a presumptive rule of exclusion.[104]
[101] Section 30(2)(b).
[102]See, for example, R v Collins [1987] 1 SCR 265 at [29] and R v Grayson and Taylor [1997] 1 NZLR 399 (CA) at 411–412.
[103] For example, as expressed in R v Jefferies.
[104] As there was prior to the Court of Appeal’s decision in R v Shaheed [2002] 2 NZLR 377 (CA).
The third point to be made is that the “balancing” required ensures that the reasoning of the court is transparent. What is called for is conscientious disclosure of the full reasons for decision. The section recognises that contextual assessment of proportionality is multi-faceted and entails consideration of factors that may be difficult to compare. A court applying s 30 must explain how the factors relied on bear on a determination that exclusion is proportionate to the impropriety. I do not think this Court should be more prescriptive about how the task is to be carried out in any case than to emphasise the need for explanation, especially in relation to the commonly-recurring (but non-mandatory and non-exhaustive) criteria in s 30(3). I would not encourage the view that courts must go through the formula of referring to each of these criteria in every case.
The fourth point to be made about the structure of s 30 is that “the need for an effective and credible system of justice” is not a consideration that points only to admissibility (as is suggested by the erroneous view that s 30(2)(b) requires a balance to be struck between the impropriety and “the need for an effective and credible system of justice”). The Canadian Charter of Rights and Freedoms provides that evidence obtained in breach of s 8 must be excluded “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.[105] This provision, though differently worded, is comparable to the s 30(2) measure of “the need for an effective and credible system of justice”. Under both provisions, maintenance of “the integrity of, and public confidence in, the justice system” over the long term is the focus.[106]
[105]Canadian Charter of Rights and Freedoms RSC 1985 App II, No 44, s 24(2).
[106]R v Grant 2009 SCC 32, [2009] 2 SCR 353 at [68]. See also R v Harrison 2009 SCC 34, [2009] 2 SCR 494 at [36].
Suggestions in the Courts below that an effective and credible system of justice requires that the accused have their charges “resolved through a proper trial process”[107] begs the question of what is “proper trial process” in an effective and credible system of justice. Public confidence in the effectiveness and credibility of the “system of justice” suggests a wider concern than with the outcome in a particular case.
[107]As Winkelmann J suggests in Bailey – Admissibility at [104].
In New Zealand, an effective and credible system of justice is one that gives substantive effect to human rights and the rule of law. Whenever rights protected in the New Zealand Bill of Rights Act are breached, the s 30 balancing process must take into account the human rights breach. The Evidence Act itself stresses the importance of the rights affirmed in the New Zealand Bill of Rights Act.[108] Such rights are enacted as fundamental values of the legal system.
[108]See [53] above. As well, s 30(3)(a) expressly recognises the importance of rights breached as a factor to which the court may have regard in the balancing process.
The principle of the rule of law that breach of rights must be remedied is also essential to any effective and credible system of justice. And remedy must be tailored to the breach of rights if it is to be effective.[109] For that reason (as well as the consideration referred to by other members of the Court that the appearance of paying for breaches of rights is hardly consistent with the integrity of the system of justice) monetary compensation will seldom be a remedy tailored to breach of s 21 of the New Zealand Bill of Rights Act where unreasonable search has resulted in evidence sought to be admitted in a court proceeding.
[109]See, for example, R v Te Kira [1993] 3 NZLR 257 (CA) at 283–284 per Thomas J and Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 427–428 per Richardson J.
Finally, as the structure of s 30 makes clear, the considerations identified in s 30(3) “[f]or the purposes of subsection (2)” are not mandatory considerations, nor do they purport to be exhaustive. They are a sensible checklist for consideration as applicable in the circumstances of a particular case. Each consideration will not be relevant in all cases. Nor will each relevant consideration be of equivalent weight in all cases. Relevance and weight will be contextual.
In balancing the range of considerations, as s 30 requires, some factors mentioned in s 30(3) may be significant only in combination with others, rather than as stand-alone factors. That is I think particularly likely with respect to the consideration identified in para (d): “the seriousness of the offence with which the defendant is charged”. It cannot be the case that this factor always prompts admission of the evidence obtained in breach of the New Zealand Bill of Rights Act where offending is serious. That would be to treat human rights, which are expressed as universal, as withdrawn from those charged with serious offending.[110] Rather, the seriousness of offending is likely to be of importance in combination with factors such as the deliberateness of the impropriety or the knowledge of alternative investigatory techniques available not involving breach of rights. It may pull towards disproportionality or proportionality in exclusion, depending on the context.
[110] See further S v Coetzee 1997 (3) SA 527 (CC) at [220] per Sachs J.
Where a human right has been breached (a circumstance that is to be taken into account under s 30(3)(a)), that circumstance in context may overwhelm another consideration, such as the nature and quality of the improperly obtained evidence. A Bill of Rights Act consistent interpretation of s 30 (such as is required alike by s 6(b) of the Evidence Act and s 6 of the Bill of Rights Act) does not permit s 30 to be used to deny fundamental rights, but to ensure that the remedy of withholding evidence obtained through breach is proportionate through a process which ensures that disparate factors are openly identified for relevance and contextually assessed.
Application of s 30
In the application of s 30 to the present case, I consider there is a distinction to be made between the evidence obtained on physical inspection through trespass and the evidence obtained through covert filming of the appellants. I also come to a different conclusion on the question of the proportionality of excluding the Reid Road vehicle surveillance from the conclusion I come to in relation to the other surveillance.
Four considerations identified in s 30(3) apply to the three types of evidence and can be conveniently dealt with first. They are the seriousness of the offences with which the appellants are charged, the alternative remedies available to exclusion of the evidence, and the questions of danger and urgency referred to in paras (g) and (h) (which I consider together).
I accept that the offences are serious. The s 98A Crimes Act offences may be more serious than the Arms Act charges, but I do not think that circumstance warrants different treatment under s 30 of those who face Arms Act charges only. All charges are of serious crimes. Section 30 is a general provision, which will fall to be applied to a wide range of offending, ranging from relatively trivial offences under the Summary Proceedings Act to the most serious offences contained in the Crimes Act. I do not think para (d) calls for close assessment once a threshold of seriousness is passed. These charges involved potential for harm, use of weapons, and (in relation to the s 98A charges) concerted criminal activity. They carry maximum sentences of imprisonment of four years (in the case of the Arms Act offences) and five years (in the case of the s 98A offences). All are properly treated as serious.
In common with other members of the Court, I consider that there is no effective remedy for the impropriety other than exclusion of evidence. That must be a significant consideration in assessing whether exclusion is disproportionate to the impropriety. The principle that breaches of rights should be remedied is fundamental to any effective and credible system of justice, and is a principal plank of ours. Moreover, judicial admission of evidence tainted by breach of fundamental rights and freedoms is additional stain on the effectiveness and credibility of our system of justice and inconsistent with the principles of the New Zealand Bill of Rights Act.
While the potential risk to police and public was something about which the police in the present case were properly concerned, it is clear that at least by April 2007 the police knew that any risk was not imminent. Their surveillance was extended principally it seems for evidential purposes and in order to gain a better understanding of what was proposed by and who comprised the group. I do not criticise these policing judgments, but they do mean that considerations of danger and urgency are not as significant in the s 30 weighing as other features of the case.
(i) The covert surveillance
The breach of s 21 entailed in the covert surveillance undertaken without lawful authority must be regarded as extremely serious when assessed against the rights breached. Covert surveillance is a substantial breach of the right to be let alone. As is the case with interception of private communications, it is undermining of the values of dignity and personal freedom which underlie s 21.
I regard it as a significantly exacerbating factor that the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used. In common with the other criteria identified in s 30(3), para (e) is neutrally expressed in terms of its effect: “whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used”. In cases where breach of s 21 consists of unreasonableness in the manner of search, para (e) may pull either way, depending on the context (as for example, where knowledge that there were other investigatory techniques indicates oppressive behaviour, or where, despite such knowledge, there are circumstances of urgency under para (h) or danger under para (g)). In cases where evidence could have been obtained without breach of rights, that circumstance too may pull either way depending on such further circumstances as whether the failure to obtain the evidence lawfully is because of inadvertence or is deliberate, whether the effect of not proceeding lawfully is technical or substantial breach, and the urgency of the case. When a human right is deliberately interfered with without lawful authority, knowledge that no authority could have been obtained will almost always favour a finding of proportionality in exclusion. Admission of evidence so obtained compounds the breach of s 21 and art 17 and, through evasion of the requirement of lawful authority, is inconsistent with the rule of law. I consider therefore that the fact that the police knew that there was no other investigatory technique lawfully available to be used can only be a factor pointing to the proportionality of exclusion of the evidence, when the police knew that their surveillance was unlawful. In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.
It is true that the fact of filming was not concealed from the judicial officer who dealt with all s 198 warrant applications. Indeed, the affidavits supporting the warrant applications referred to the filming. And the warrants themselves (which were supplied to the judge in draft by the police) purported to authorise the retrieval of film from the hidden cameras, while not authorising the placement of the cameras. Although on the appeal it was suggested for the Crown that this apparent candour and attempt to obtain “judicial oversight” was a circumstance in favour of admission of the evidence, I do not see that such implication of the judge in activity beyond the lawful authority of the police is other than a troubling feature of the case.
The s 198 warrants were obtained in advance (the reason for their invalidity) because a principal purpose was to provide opportunity to set up the surveillance cameras to film the expected exercises,[111] since things left behind following the exercises could have been the subject of unexceptional s 198 warrants. I do not think it is proper to infer bad faith on the part of the police on the available evidence. The knowledge of lack of lawful authority meant, however, that the impropriety was deliberate. It was persevered in for many months, long after it had become obvious that the violent seizure of land the police feared was not in immediate prospect, and despite the fact that any immediate risk from the exercises could have been met by the arrest of those taking part. Again, I mean no criticism of the policing judgment to try to gain further information. But the breaches of s 21 were not merely technical or inconsequential procedural errors but “flagrant violation of right”,[112] deliberately undertaken. The breach of human rights entailed the covert filming of individuals who did not appreciate that they were observed and who were not displaying their behaviour for public observation. Because I take the view that the police filming was unlawful, I consider that rule of law considerations are also engaged.
[111]Detective Sergeant Pascoe identified two reasons for entering the land: the installation cameras and retrieval of film and, as “a secondary purpose” for the most part, the undertaking of scene examination after the camps were held.
[112] R v Jefferies at 315 per Hardie Boys J.
The evidence obtained by the filmed surveillance was not obtained by conscripting the accused against himself. But I do not regard it as being in the same category as the spent cartridge shells and other items left behind following the exercises. It is material that requires interpretation. Its admission risks compounding the breach of rights if it effectively requires the accused to give evidence to explain it.
In result, the different emphasis I would place upon the breach of s 21, my view that the police acted unlawfully in the knowledge that they had no authority to undertake covert surveillance, the absence of any other effective remedy (offending the important principle that breach of rights must be remedied), and rule of law considerations lead me to conclude that the exclusion of the surveillance film evidence is proportionate. I differ from those members of the Court who would conclude that the exclusion of this evidence is disproportionate not only because of the different view I take as to the unlawfulness of police conduct but because I disagree that the lack of availability of other investigative techniques is a consideration in favour of admission of the evidence. I regard knowledge of lack of lawful authority as a seriously exacerbating circumstance. For the reasons given, I consider that it is wrong to treat police conduct, though unlawful, as reasonable. Such approach is contrary to the rule of law and the scheme and policies of the New Zealand Bill of Rights Act, which are properly applied in s 30. With the conclusion that the exclusion of the evidence is proportionate, s 30(4) requires it to be excluded.
(ii) The Reid Road surveillance of vehicle movements
I agree with the conclusion of Blanchard J that the filming of vehicle movements on Reid Road should not be excluded as evidence. I reach that view however on the basis that the recordings constituted a search. For the reasons given at [10]–[13] and as is consistent with the Canadian authorities, covert surveillance of others is search within the purposive and broad scope it is appropriate to apply to s 21. I consider that the search was unreasonable both because obtained through trespass and without lawful authority. The evidence was therefore improperly obtained in breach of s 21 of the New Zealand Bill of Rights Act. But I am of the view that the intrusion on the right and the nature of the impropriety were less serious than that entailed in the covert filming of the activities on Tuhoe lands and would admit the evidence in application of s 30.
In weighing whether exclusion of the Reid Road vehicle surveillance is disproportionate, the seriousness of the intrusion on rights must be judged against the policies of the enactment or rule of law breached. In the case of s 21 of the New Zealand Bill of Rights Act, that policy is security from unreasonable intrusion by the State upon personal freedom. I am of the view that the expectation of privacy in respect of information about which cars pass along a public road is not high. The position might have been otherwise if more intrusive information than the fact of passage had been obtained, but that does not arise for consideration here.
Nor is there the same ambiguity in interpretation of the evidence obtained as in the case of the observations of the activities on the land. The information is apparently reliable as to the passage of the vehicles.
Although the film was “improperly obtained” by reason of trespass and lack of authority to undertake surveillance, I would admit it as evidence under s 30. The s 30 Evidence Act balancing in respect of the film was not as destructive of the values underlying the s 21 right to be free of unreasonable search as the hidden surveillance of activities conducted by individuals out of the public view. And while the police acknowledged that their surveillance of the activities was without authority, it is not clear that they appreciated that authority was required for filming the vehicle movements along a public road. Their deliberate trespass in order to set up the camera and retrieve the film (no s 198 warrant having been applied for) is a factor in favour of exclusion. But I do not think it overcomes the slightness of the intrusion upon personal freedom and the nature and quality of the evidence obtained. I consider that exclusion of the evidence would be disproportionate.
(iii) The evidence obtained on physical search following the exercises
Although I would exclude all the covert surveillance films (save those relating to the Reid Road vehicle movements), I would admit, in application of s 30, the evidence obtained from site inspections, despite its having been obtained through trespass (because the s 198 warrants were invalid). In considering that the evidence should be admitted, I differ from Blanchard J who would exclude it except in relation to the s 98A appellants.
The circumstance that the s 198 warrants were invalid was not apparently understood by the police and indeed was not authoritatively established before the decision of this Court. The nature of the impropriety is therefore different in quality from the impropriety in respect of the covert surveillance, for which the police acknowledged that there was no lawful authority.
I regard the breaches in relation to the physical searches following the exercises as more technical than the surveillance undertaken without the possibility of any statutory justification. The searches could have been lawfully undertaken pursuant to warrants under s 198 of the Summary Proceedings Act if the warrants had been applied for on reasonable grounds after the exercises were held (as is the case with respect to the June warrant and potentially that obtained in September). In such circumstances, the police breach may be seen as turning on timing in respect of the material left on the land. The circumstance that evidence could have been obtained without Bill of Rights breach seems to me one in favour of its admission, particularly as the violation was technical and inadvertent. The position might have been different if it could be concluded that the police acted in bad faith or in deliberate disregard of lawful authority.
Further, the evidence obtained from the physical inspections was real evidence, not subject to the ambiguities of the film taken from the surveillance cameras of the activities of those observed. The physical material was left behind and there to be found.[113] This consideration too prompts its admission.
[113] R v Evans at [29] per Sopinka J.
For these reasons, I conclude that the film evidence in relation to the secret surveillance must be excluded with the exception of the film relating to vehicle movements on Reid Road. I would admit the Reid Road film and the real evidence obtained from the physical inspection of the sites (including the film evidence of location of items and of the scene as inspected) on the basis that its exclusion would be disproportionate to the impropriety entailed in obtaining it.
Result
The Court is unanimous that, with the exception of the entry on the Rangitihi land in June and possibly September, all the disputed evidence was improperly obtained by trespass. In respect of the searches purportedly carried out under s 198 warrant, that result follows from the invalidity of the s 198 warrants. In concluding that the search warrants were invalid, the Court disagrees with the approach taken in the Court of Appeal and prefers that taken by Winkelmann J in the High Court.
In respect of the warrantless search undertaken in the Whetu Road area, the Court is unanimous that there was no implied licence for entry, contrary to the view taken in the Court of Appeal. That evidence together with the Reid Road film of vehicle movements (in respect of which the Court of Appeal accepted the police to have been in trespass) is accepted by the Court to have been improperly obtained.
Disposal of the appeal therefore turns principally on the application of s 30 of the Evidence Act. In applying s 30 to the two categories of appellant (those facing both Arms Act and s 98A Crimes Act charges and those facing Arms Act charges only) and to the three different categories of disputed evidence (the film (video) surveillance of the exercises, the evidence obtained on physical search of the land, and the Reid Road vehicle film surveillance), the Court is divided in result, except as to the admissibility of the Reid Road film. The outcome of the appeals, reflected in the formal orders of the Court, may be summarised as follows:
(a)By majority (Blanchard, McGrath and Gault JJ), all the disputed evidence is admissible against those appellants charged under both s 98A of the Crimes Act and s 45(1)(b) of the Arms Act. The appeals of those appellants are dismissed.
(b)Unanimously, the footage of vehicles on Reid Road and the evidence gathered by police in person on the Rangitihi land in June is admissible against all appellants.
(c)By majority (Elias CJ, McGrath and Gault JJ), all evidence other than film surveillance evidence is admissible against the appellants charged only under the Arms Act.
(d)By majority (Elias CJ, Blanchard and Tipping JJ), the film surveillance evidence is inadmissible against the appellants charged only under the Arms Act. The appeals of the appellants charged only under the Arms Act are therefore allowed in part.
The reasoning in the judgment of Richardson P, Blanchard and Tipping JJ in Shaheed generally provides the relevant legislative history that assists in ascertaining the meaning of the language of s 30.[262] The only Shaheed factor not specifically mentioned in that section (having been removed by the Select Committee) is whether the disputed evidence is central to the prosecution case.[263] The reason given by the Select Committee for that omission was “we find it difficult to envisage a circumstance where it would be relevant, given the seriousness test in paragraph (d)”.[264] As s 30(3) is expressed permissively, however, this incident in the legal history does not preclude consideration of this factor where it is relevant in the balancing exercise.
[262]McGrath and Anderson JJ adopted their findings and reasoning for substituting a balancing test to determine admissibility of evidence obtained in breach of rights at [192] and [200]–[201]. Gault J also favoured adoption of a balancing test at [172].
[263]At [152].
[264]Evidence Bill 2005 (256–2) (select committee report) at 4.
In undertaking the balancing exercise, it is implicit that the court should reach its decision by a process of structured reasoning rather than as a matter of broad impression. In that way, the weight accorded to competing interests will be fairly measured.
Finally, s 30(4) provides that:
(4)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.
I agree, for the reasons given by Blanchard J, that evidence relating to the January, June, September and October 2007 camps, in particular that derived from automated video camera surveillance, was improperly obtained in terms of s 30(2)(a).[265] Accordingly, the Court must address whether the exclusion of the evidence is proportionate to the impropriety of obtaining it by undertaking the process of balancing the competing values.[266] The considerations listed in s 30(3) should all be examined, taking as a starting point the importance of the rights breached by the impropriety and the seriousness of the intrusion.
Applying the balancing test
[265]At [149]–[153], [158]–[159] and [175]–[183]. I also agree with Blanchard and Tipping JJ that, while generally an unlawful search will be unreasonable, that will not invariably be the case. See [174] and [226].
[266]Evidence Act 2006, s 30(2)(b).
Section 30 applies to all improperly obtained evidence that the prosecution wishes to adduce in a criminal proceeding. In this case, the main right said to have been breached is the right to be secure against unreasonable search and seizure. It is protected by s 21 of the Bill of Rights Act. The purpose of s 21 includes protection of privacy interests, as is indicated by the words following “unreasonable search or seizure” in s 21: “whether of the person, property, or correspondence or otherwise”.
As Blanchard J points out, the filming of their activities by officers of the state intruded on the privacy of the appellants.[267] Such monitoring was destructive of their privacy and was in breach of their s 21 rights. But the assessment of the seriousness of the intrusion for the purposes of s 30(1)(a) requires consideration of the expectations of privacy of the appellants at the relevant place and time. The filming took place in open spaces where there was a risk that the appellants might be observed by others. Their expectation of privacy was less at the location of the camps than it would have been in a private home or similar location. On the other hand, the number of unlawful acts of surveillance, which were spread over a lengthy period of time, made the intrusion significantly more serious than if it had been a single event. Overall, I accept that the intrusion on the right was a serious one.
[267]At [171].
Turning to the nature of the impropriety, the key facts are that the police entered onto private land without authority, thereby trespassing. They applied for warrants to authorise their searches. They did not seek authority under warrants to use stationary cameras but disclosed to the Judge that they intended to deploy them in the course of searching. They did seek anticipatory warrants which this Court has held were not available.
I do not regard the deliberate nature of the police actions as enhancing the gravity of the improper conduct. It is true that in 1997 the Court of Appeal pointed out that s 198 of the Summary Proceedings Act 1957 was not directed to warrants which authorised video surveillance[268] and that, while there was legislation for use of devices intercepting private communications, that was not the position in relation to video surveillance.[269] The police knew that a search warrant could not authorise video surveillance activity but they did not seek a warrant in those terms. They were also open in applying for warrants as to their intention to deploy video surveillance cameras. In the absence of specific legislation, the officer responsible for management of the investigation said it was decided that this was the best and most reasonable way to proceed. That was understandable given that there was no judicial decision that clearly indicated when video surveillance would be unlawful. In R v Gardiner the Court of Appeal pointed out that “[t]here is no mechanism in the law requiring or enabling the authorisation of video surveillance”.[270] The law’s requirements have been clarified only by this Court’s judgment. The conduct of the police in obtaining the warrants is accordingly a neutral factor in the balancing exercise.
[268]R v Fraser [1997] 2 NZLR 442 (CA) at 452 per Gault J for the Court.
[269]R v Gardiner (1997) 15 CRNZ 131 (CA) at 136 per Blanchard J for the Court.
[270]Ibid.
A further important factor relevant to the nature of the impropriety is the immediate circumstances giving rise to the video surveillance. (...Suppressed...) The difficult position they were in was well summarised by Winkelmann J, who, having had the advantage of hearing the evidence of those involved, found:[271]
... that the police understood that they were investigating a serious crime; one that there was a great public interest in investigating. (...Suppressed...) They were justifiably concerned for public safety, (...Suppressed...) . There was urgency to gather sufficient evidence, both to understand the group’s intentions, and to collect sufficient evidence to charge them. As I have earlier observed, the most effective way of preventing the respondents carrying out their plans was to arrest and charge them in connection with their offending. The intercepted communications only revealed part of what the group was up to. Without evidence of what occurred at the training camp, the respondents were unlikely to be convicted of any offence that adequately reflected the criminality of their conduct.
[271]R v Bailey HC Auckland CRI-2007-085-7842, 15 December 2009 at [65].
While the Court of Appeal took a more expansive approach to the legality of the search warrants, its judgment confirmed that, had it not done so, it would have held that all evidence was admissible in conformity with the approach taken by Winkelmann J. The Court of Appeal said:[272]
(...Suppressed...)
[272]Hunt v R [2010] NZCA 528, [2011] 2 NZLR 499 at [91].
I agree and would add that, in these circumstances, the police were exercising not only their function of law enforcement, but also that of maintaining public safety. This function, now expressly recognised by statute,[273] has always formed part of the common law duties of the police which include:[274]
... the duty to protect life and property and to act where the constable apprehends, on reasonable grounds, danger to life or property ... While there is no obligation on a citizen to take action in situations, a constable has both a moral or legal duty to do so.
[273]Under s 9(b) of the Policing Act 2008 the functions of the police include “maintaining public safety”.
[274]Laws of New Zealand Police at [44] (footnotes omitted). The statute has, it seems, not supplanted this common law duty: see s 11 of the Policing Act 2008.
The nature and scope of common law duties of the police and the extent to which they may intervene in a way that affects the liberty of citizens was discussed in the reasons for the judgment delivered by this Court in R v Ngan.[275] Reference was made to the well-known statement of the English Court of Criminal Appeal in R v Waterfield:[276]
[It is] difficult ... to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
[275]R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [14], [20]–[22], [46]–[50], [77]–[83] and [93]–[99].
[276]R v Waterfield [1964] 1 QB 164 (CA) at 170–171, cited in Ngan at [14], [48] and [81].
The same point was made by Speight J in Police v Amos,[277] when he said:
[I]t is beyond argument that the police must interfere to stop or prevent unlawful conduct, actual or apprehended. In addition circumstances may arise where there is a common law duty on a policeman to take steps which would otherwise be unlawful if he has apprehension on reasonable grounds of danger to life or property, but the limits to which he may go will be measured in relation to the degree of seriousness and the magnitude of the consequences apprehended. There could be less justification for taking what would be prima facie unlawful interference with private rights for the protection of property than there would be in the case of danger apprehended to persons.
[277]Police v Amos [1977] 2 NZLR 564 (HC) at 569 (emphasis added).
Ngan was a case in which the police concern was with danger to property, rather than persons. In that context, the Court’s requirement was that the police should not act unreasonably in dealing with property, confining themselves to acting for the purpose of its preservation.[278] In this case, I have accepted that the trespasses and video surveillance were a serious intrusion on the appellants’ rights but the magnitude of the potential consequences ( ...Suppressed...) were also important. While the duty of the police to protect life and property does not alter the character of unlawfully obtained evidence, it must be recognised that the police actions here were largely driven by a justifiable concern for maintaining public safety. Continuing to monitor the situation was important and, as Winkelmann J recognised,[279] when to close the operation and make arrests involved a question of police judgment. Although the urgency of the situation diminished as the investigation proceeded, (...Suppressed...) their concern remained serious throughout. The reasonableness of steps taken in this context of a threat to public safety is a factor that, under s 30(3)(g), weighs in favour of not excluding evidence derived in the course of the surveillance operation.[280]
[278]At [22] per Elias CJ, Blanchard and Anderson JJ.
[279]See [268] above.
[280]As pointed out in R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [123] per William Young P and Glazebrook J.
Also highly relevant to this consideration, and the reasonableness of the police conduct, is that there were no other practicable means of effective investigation and monitoring of the emerging situation.[281] That is important to the need for an effective and credible system of justice, which s 30(2)(b) requires be taken into account. If the public concluded that, in future, when a similar situation arose, the police could not effectively investigate it as a crime and be able to gather admissible evidence, strong doubts would reasonably arise over the effectiveness in particular of the justice system.
[281]Winkelmann J found that intercepted text messages revealed only part of the group’s activities. See [268] above.
In agreement with Blanchard J, I am of the view that there are no remedies other than exclusion available in this case.[282] For these reasons, the factors specified in s 30(3)(e) and (f) in the balancing exercise favour admission of the evidence.
[282]At [202].
In terms of its quality, the evidence obtained from the video surveillance was, in the absence of any arguments to the contrary, reliable. Real evidence, such as the recordings in question, is less likely to be tainted by the way the evidence is obtained in this respect than confessional evidence.[283] Although not a specific s 30(3) consideration, the centrality of the evidence to the prosecution also goes to its quality and is relevant to the balancing exercise. The evidence is cogent and of probative value as it may reveal the identities and participation of the appellants in the camps, strengthening the case against them and, thus, increasing the public interest in admitting the evidence. The nature and quality of the evidence therefore supports its admission in this case.
[283]Shaheed at [151] per Richardson P, Blanchard and Tipping JJ; R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [140] per William Young P and Glazebrook J.
As to the seriousness of the offending, I accept that there is a distinction between those also charged with being participants in a criminal group under s 98A of the Crimes Act 1961 and those only charged with Arms Act 1983 offences. Nevertheless, I regard those in both groups as charged with serious offences. In the circumstances of this case, the respective maximum penalties of five years and four years’ imprisonment do not provide a complete basis for assessment of seriousness for the purposes of s 30(3)(d) of the Evidence Act.[284] Blanchard J regards the s 98A charges as more significant than those brought under the Arms Act because they demonstrate contemplation of further serious offending. He sees a greater public interest in having the truth, or otherwise, of (...Supressed...) and participating in that group objective resolved at trial with the assistance of the unlawfully obtained evidence. But cordoning off those charged under s 98A does not recognise the true seriousness of the Arms Act offences, which concern unlawful possession of a range of firearms in circumstances prima facie indicating a considerable risk to public safety. Recognition in this way of the seriousness of the offending does not involve trying to predetermine the appropriate sentence if an accused is convicted. Rather it recognises that in these circumstances and, generally, there is danger in using guns unlawfully.
Conclusion
[284]See R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [135] per William Young P and Glazebrook J.
The investigation by the police involved unlawful acts and a serious intrusion on rights. This, however, was a very unusual case requiring that the police closely and continuously monitor the situation in the course of their investigation. The difficult decisions the police faced as to the manner of their investigation must be addressed in the full context, which includes the limitations of the legislation they were operating under. Through no fault of their own, they were not given, and could not obtain, the specific authority required properly to investigate what the appellants were doing, and the extent of the legal authority they did have was unclear. On the other hand, rights guaranteed by the Bill of Rights Act were involved, which enhanced the gravity of the infringements by the police. It would be unfair to the appellants to fully vindicate the police actions simply because the unlawfulness largely stemmed from a sluggish response elsewhere in government to the courts’ concerns over the absence of legislation on the subject of video surveillance.[285] While the principle stated in Amos is an important one, as Speight J recognised, there are limits on its application. It is not generally to be resorted to as a rubber stamp for unlawful acts. In all the circumstances, I am not prepared to decide that in this case the police acted reasonably to the extent that this factor justified their actions as a proper obtaining of the evidence under s 30(2)(a). In circumstances where rights under the Bill of Rights Act are in issue, determination of admissibility under the s 30(3) balancing test is required for that provision to be read consistently with protected rights.
[285]See Gardiner at 136.
The unavailability of other investigatory techniques, however, itself is a relevant factor to weigh in the balancing exercise. Also important is the risk posed to public safety by the actions of the appellants. It required an urgent response. Of significance also is the reliability and probative value of the evidence. Even though the intrusion on private rights was serious and protracted, particularly in light of the tikanga of Tuhoe, on balance and in light of the considerations above the public interest in an effective and credible justice system under s 30(2) weighs in favour of the admission of all the evidence against the appellants.
Balancing all considerations specified in the Act and mentioned in this judgment, I have reached the conclusion that the importance of the rights of the appellants and seriousness of the intrusion on rights involved in the video surveillance recording and other improperly obtained evidence is outweighed by the countervailing factors identified above. In agreement with the High Court Judge and the Court of Appeal, and applying the principle in Amos, I am satisfied that the public interest in the need for an effective and credible system of justice comes down in favour of the prosecution and disposition by fair trial of all charges against all appellants, at which the evidence obtained in breach of rights should be admitted. Accordingly I would dismiss all appeals.
GAULT J
I have read in draft the judgment of Blanchard J and, for the reasons he gives, I agree with his conclusions in relation to the invalidity of the search warrants (while sharing his hesitation concerning the anticipatory authorisations). I agree also with his reasons for determining that the appellants’ rights under s 21 of the New Zealand Bill of Rights Act 1990 were breached. It was argued for the appellants that the evidence so obtained should be ruled inadmissible at their trial.
Except for the period during which the “prima facie exclusion” approach was applied, the courts have long exercised discretions to exclude or admit improperly or unlawfully obtained evidence. Now, under s 30 of the Evidence Act 2006, to determine whether evidence improperly obtained should be admitted or excluded there is required a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice. In that process the statute says that “among any other matters” the court may have regard to eight specified factors to determine whether or not the exclusion of the improperly obtained evidence would be proportionate to the impropriety. All of the factors specified in s 30(3) call for value judgments that may well depend on inclinations of particular judges, as will the comparative weighting to be accorded those factors. They are:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(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.
I have taken into account each of those matters, and have considered the way in which they have been traversed by the other members of the Court. I can state my conclusion briefly. The rights said to have been breached are the rights to be free from trespass on lands to which the appellants or their invitors had tribal links and from unreasonable search of those lands. The circumstances and nature of those breaches of the appellants’ rights must be considered in their factual context.
There were instances of entry onto the lands by police without lawful authority. They may have constituted trespass, but the property rights affected would have been those of others, not of the appellants. In any event, as well as unauthorised entries by police, they did enter onto the lands authorised by valid warrants, so I see no greater intrusion upon any property interests the appellants may claim than they were subjected to by the warranted entries.
The extent to which the expectations of privacy of the appellants were breached must be weighed. In particular the importance of the rights to be free from police conduct in excess of authority is not to be diminished. In this case, however, on my assessment, that is heavily outweighed by the significance of the situation as they saw it that police were attempting to deal with. The use of weapons, the threat of serious danger, the nature of the “training” and the period over which it continued all, to my mind, indicate that an effective and credible system of justice should admit the evidence so that it can be heard and assessed as part of a full determination of the charges.
In agreement with McGrath J, I would dismiss all the appeals including those charged only under s 45(1)(b) of the Arms Act 1983.
Solicitors:
Aurere Law, Rotorua for Appellant Teepa
Crown Law Office, Wellington
67
7
0