Khalifa v Police
[2021] NZHC 746
•1 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-554
[2021] NZHC 746
BETWEEN MOHAMED KHALIFA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 March 2020 Counsel:
A Kashyap for appellant
K Fitzgibbon for respondent
Judgment:
1 April 2021
JUDGMENT OF KATZ J
[Appeal against conviction]
This judgment was delivered by me on 1April 2021 at 4:00 pm
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Office of the Crown Solicitor, Auckland Counsel: A Kashyap Law, Auckland
KHALIFA v NEW ZEALAND POLICE [2021] NZHC 746 [1 April 2021]
Introduction
[1] On the evening of 2 April 2020, police were called to an altercation between two of Mohamed Khalifa’s flatmates. While at the address they undertook a warrantless search of Mr Khalifa’s bedroom. During that search the police located approximately 200 grams of cannabis plant material (separated into clear plastic bags which were found throughout the room), a small set of scales, and numerous empty clear zip lock bags.
[2] Following a Judge-alone trial, Judge D F Clarkson found Mr Khalifa guilty of possessing cannabis for the purpose of sale.1 Mr Khalifa appeals his conviction on the basis that the search of his bedroom was unlawful, and that the evidence found there should not have been admitted.
[3]The issues raised by Mr Khalifa’s appeal are:
(a)whether Constable Allsop had reasonable grounds to believe that there was a controlled drug in Mr Khalifa’s bedroom, prior to entering the room;
(b)whether Constable Allsop had reasonable grounds to believe that Mr Khalifa would destroy, conceal, alter or damage evidence if a search was not carried out immediately; and
(c)whether Constable Allsop had reasonable grounds to believe that it was not practicable to obtain a warrant, prior to searching Mr Khalifa’s room.
District Court decision
[4] Judge Clarkson found Mr Khalifa guilty of possessing approximately 200 grams of cannabis for the purpose of sale.2 The sole issue at the trial was the
1 Police v Khalifa [2020] NZDC 26429.
2 At [31].
legality of the warrantless search of Mr Khalifa’s bedroom, and therefore the legality of the evidence obtained in that search.3
[5] The Judge referred to the “warrant preference rule” (as described by Cull J in Smith v Police).4 However, having regard to the warrantless search powers under ss 8 and 20 of the Search and Surveillance Act 2012 (“the Act”), the Judge found that the search fell within the practical realities exception to the warrant preference rule.
[6] In any event, even if she were wrong in that conclusion, the Judge determined that the evidence would have been admissible under the balancing test in s 30 of the Evidence Act 2006. If there was any impropriety it was an of “extremely minor nature.”5 It would therefore be disproportionate to exclude “what is effectively the entire prosecution case” as a consequence.6
Relevant legal principles
[7] The search of Mr Khalifa’s bedroom was conducted pursuant to the warrantless search power prescribed by s 20 of the Act. Section 20 relevantly provides:
20 Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences
A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—
(a)to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
…
(iii)a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
…
(b)to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
3 At [3].
4 See Smith v Police [2019] NZHC 2371 at [25]-[31].
5 Police v Khalifa [2020] NZDC 26429 at [30].
6 At [30].
(c)to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.
[8] The “warrant preference rule” or “warrant principle” underpins the Act. The learned authors of Adams on Criminal Law describe the warrant preference rule as follows:7
The principle underpinning the powers contained in [the Act] is that a search for law enforcement purposes of any place, vehicle or thing that would otherwise be prohibited by law or impact on a reasonable expectation of privacy should, in the absence of exceptional circumstances recognised by statute, be authorised beforehand by way of a warrant issued by an independent officer acting judicially.
[9] Accordingly, if it is possible to obtain a warrant without prejudicing the purpose of a search, a warrant is to be preferred even when a warrantless power is available.8
[10] In SF v R the Court of Appeal described the “warrant preference rule” as best practice.9 Subsequently, in Kalekale v R the Court of Appeal (while acknowledging the comments in SF v R) emphasised that although the warrant preference rule is best practice where it can be followed, a “realistic and practical approach is, however, required.”10 The decision whether it is practicable to obtain a search warrant must have regard to the realities of policing in the circumstances.11
[11] The warrant preference principle is reinforced and strengthened by s 117 of the Act, which provides for a scene to be secured while a warrant is being applied for and pending. Special powers are conferred on police officers who have reasonable grounds to believe that evidential material may be destroyed, concealed, altered, damaged or removed before a search warrant is issued.
7 Simon France (ed) Adams on Criminal Law – Rights and Powers (online looseleaf ed, Thomson Reuters) at [SS6.01].
8 See Smith v Police [2019] NZHC 2371 at [25]; R v Williams [2007] NZCA 52, [2007] 3 NZLR 207, (2007) 23 CRNZ 1 (CA) at [24]; and R v Laugalis (1993) 10 CRNZ 350 (CA) at 355-356.
9 SF v R [2014] NZCA 313 at [46].
10 Kalekale v R [2016] NZCA 259 at [44]-[45].
11 R v Dobson [2008] NZCA 359 at [38]; and McGarrett v R [2017] NZCA 204 at [24].
Did Constable Allsop have reasonable grounds to believe that there was a controlled drug in Mr Khalifa’s bedroom?
[12] As set out above, s 20 requires a police officer to have reasonable grounds to believe that there is a controlled drug in a place prior to undertaking a warrantless search. Constable Allsop’s reasonable grounds to believe were based on his evidence that he saw a cannabis plant in Mr Khalifa’s room, while looking into the room from an adjacent courtyard.
[13] Mr Kashyap submitted that Constable Allsop’s evidence on this issue should have been rejected by the Judge because it was inconsistent with the evidence of another police witness, Constable Rowe.
[14] Mr Khalifa’s bedroom opened directly onto an adjacent outside courtyard, via two glass French doors. Constable Allsopp’s evidence-in-chief at trial was that:
A. …I was standing directly in the centre of the door, I could see the whole view of the whole room from right to left and I could see both walls from where I was standing. Both doors were open and the light was switched on so I could see clearly from where I was.
Q. And what did you do next?
A. From there, I saw the hydroponic set up which is the set of like ultraviolet lights which sat directly over a plant which I believed to be cannabis and from there, I informed Mr Khalifa that under the Search and Surveillance Act 2012, I was now intending to search the property for drugs and then from there, read him his Bill of Rights.
[15] Under cross-examination, Constable Allsop said that Mr Khalifa was standing in the middle of the doors, about five metres out from them when he arrived. The light was on in the room. He denied that he could only see the right-hand side of the room, not the left-hand side (where the cannabis plant was located). Constable Allsop said that from where he was standing, he could see both the right-hand wall and the left-hand wall. He said that he could see inside the room clearly as he was standing outside in a dark space and looking into a well-lit room, with the cannabis plant lit up by hydroponic lights.
[16] Constable Allsop was shown a photo taken by Constable Rowe from the courtyard outside Mr Khalifa’s bedroom. Constable Allsop confirmed that no
drugs were visible in that photo as it was “taken from a completely different angle” (to the left of the doors) whereas he had been “standing directly in front of the doors”.
[17] Constable Rowe also gave evidence. He confirmed that he had not seen any drugs when standing in the courtyard outside Mr Khalifa’s bedroom because he was standing to the left of the bedroom door.
[18] There is no inconsistency between the evidence of Constable Rowe and Constable Allsop on this issue. Rather, the two officers had a view into the room from entirely different vantage points. Because Constable Rowe was standing to the left of the French doors, he was looking across to the right-hand side of the room. The cannabis plant, however, was on the left-hand side of the room. Constable Allsop, on the other hand, was standing in a central position directly in front of the doors and had a view to both sides of the room. He was therefore able to see the cannabis plant (illuminated by hydroponic lighting) on the left-hand side of the room.
[19] There was accordingly no basis for the Judge to conclude that the evidence of Constable Allsop and Constable Rowe on this issue was conflicting, and that Constable Allsop’s evidence should be rejected as a result.
[20] I further note that the evidence of both Constable Rowe and Constable Pinto was that Constable Allsop told them, while they were standing in the courtyard, that he had seen cannabis in Mr Khalifa’s room and was going to invoke the police’s warrantless search powers. This further corroborates Constable Allsop’s evidence that he had seen the cannabis plant prior to entering Mr Khalifa’s room.
Did Constable Allsop have reasonable grounds to believe (a) that it was not practicable to obtain a warrant to search Mr Khalifa’s bedroom; and (b) that Mr Khalifa would destroy, conceal, alter or damage evidence if a search was not carried out immediately?
[21]I will deal with these two interrelated appeal grounds together.
[22] The warrant preference rule is reflected in the requirement in s 20 of the Act that before undertaking a warrantless search pursuant to that section, the officer must have reasonable grounds to believe that it is not practicable to obtain a warrant.
Section 20 also requires that the officer must have reasonable grounds to believe that if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.
[23] Mr Kashyap submitted that Constable Allsopp did not have reasonable grounds to believe that it was not practicable to obtain a search warrant. On the contrary, a warrant could have been obtained over the telephone or electronically (despite the fact that Constable Allsop was not aware of this possibility). Mr Kashyap further submitted that the scene could have been secured pending the outcome of an application for a search warrant. There were therefore no exigent circumstances that justified a warrantless search.
[24] As noted above, a realistic and practical approach that has regard to the realities of policing in all the circumstances must be taken. Here, those circumstances included that the police were lawfully on the property for entirely unrelated reasons. They had been called to a domestic disturbance or altercation between the occupants of the address. Mr Khalifa was the first occupant they spoke to, so they had yet to engage with the other occupants, who were in the main part of the house. Clearly, the police did not yet know the precise details of the incident they were attending, the extent to which violence may or may not have been involved, whether any of the occupants were armed (or had access to arms), whether tensions were still running high, and so on.
[25] The situation the officers walked into was therefore unknown, potentially fast moving, and unpredictable. It was at night (shortly after 10.15 pm) and, as it was outside ordinary working hours, the nearest Court would be closed. As a result, obtaining a search warrant would likely not be straightforward. The process would likely involve police staff having to prepare documentation (unless the application was to be made entirely orally), and then contact court staff at home. The court staff would then need to contact a Judge at his or her home and arrange to send through the relevant documentation, or schedule a teleconference, and so on. By this time, it would likely be 11.00 pm or later. Meanwhile, matters at the scene could have escalated or the police staff there could have been called to deal with urgent matters elsewhere.
[26] The context also includes that Mr Khalifa knew that there was cannabis and associated paraphernalia located in his bedroom (as he later admitted). Given the unknown and dynamic situation, there was clearly a risk that the cannabis plant seen by Constable Allsop could be removed or destroyed, particularly if police resources had to be rapidly deployed elsewhere, either on the property or elsewhere. There was presumably internal access to Mr Khalifa’s bedroom as well as external access, and Mr Khalifa was not the only person at the property who could have taken steps to remove or destroy evidence. Others were also present at the address.
[27] Given the circumstances I have outlined, and taking into account the practical realities of policing, in my view Constable Allsop had reasonable grounds to believe
(a) that it was not practicable to obtain a warrant to search Mr Khalifa’s bedroom; and
(b) that the evidence would be destroyed, concealed, or damaged if a search was not carried out immediately.
[28] The Judge did not therefore err in finding the warrantless search to be justified. It necessarily follows that the appeal must fail.
Result
[29]The appeal is dismissed.
Katz J
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