Lethbridge v Police
[2018] NZHC 2240
•28 August 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-485-45
[2018] NZHC 2240
TAYLOR OWEN JAYDEN LETHBRIDGE v
NEW ZEALAND POLICE
Hearing: 7 August 2018 Appearances:
V E Thursby for the Appellant
A R van Echten for the Respondent
Judgment:
28 August 2018
REASONS JUDGMENT OF CULL J
[1] Mr Lethbridge seeks leave to appeal against a pre-trial ruling, which held that a Police search of Mr Lethbridge’s property was lawful and the evidence seized during the search was admissible.1
[2] Mr Lethbridge submits the search was unlawful and unreasonable and the evidence was improperly obtained in breach of Mr Lethbridge’s rights. He argues the evidence should be excluded under s 30 of the Evidence Act 2006.
[3] The Crown opposes the appeal and submits it was open to the Judge to find there was a reasonable belief that the evidence may be concealed if there was not an immediate search and that it was impracticable for the Police to obtain a warrant.
1 New Zealand Police v Lethbridge [2018] NZDC 13114. This is the reasons decision following my results decision on 16 August 2018: Lethbridge v New Zealand Police [2018] NZHC 2106.
LETHBRIDGE v NEW ZEALAND POLICE [2018] NZHC 2240 [28 August 2018]
[4] The key issue to be determined in this case is whether the Judge erred in finding the search of Mr Lethbridge’s property was lawful. Specifically, did the Judge err in finding there were reasonable grounds to believe the evidential material would be destroyed or concealed if entry was delayed to obtain a search warrant? If the answer is yes, the subsequent issues are:
(a)whether the search was unreasonable in terms of the New Zealand Bill of Rights Act 1990 (NZBORA); and
(b)whether the evidence should be excluded under s 30 of the Evidence Act.
Factual background
[5] Mr Lethbridge faces the following charges, which are scheduled to be heard by Judge-alone trial:
(a)possession of an offensive weapon;2
(b)intimidation;3
(c)possession of cannabis;4
(d)possession of cannabis oil;5 and
(e)possession of utensils.6
[6] These charges stem from incidents on 24 June 2017. There was a report of some men running around Waikanae near the supermarket. One of the men had an axe. Police were called to the scene and arrested the two men, including Mr
2 Crimes Act 1961, s 202A(4)(a).
3 Summary Offences Act 1981, s 21.
4 Misuse of Drugs Act 1975, s 7(1)(a) and (2).
5 Section 7(1)(a) and (2).
6 Section 13(1)(a) and (3).
Lethbridge, outside Mr Lethbridge’s property. One of the officers asked Mr Lethbridge where the axe was and he replied, “inside the house”.
[7] The defendants were taken to the local Police station while one officer remained and searched Mr Lethbridge’s property without a warrant. The address was well known to Police. The officer went to the front and back door but both were locked and there was no answer. There was a car in the driveway. There was a car tyre under a window, which he used to climb through the window into the house. The window went into the living room. The officer was unsure if anyone else was at the address but he identified himself. He began to look for the weapon and found cannabis oil, cannabis, utensils (including a pipe and spotting knives) and the axe. He took photographs of these items in situ then seized the items and left the address.
[8]Mr Lethbridge challenges the admissibility of all the evidence seized.
District Court decision
[9] After hearing the evidence, the Judge ruled that the search of Mr Lethbridge’s property (the Search) was lawful under s 83 of the Search and Surveillance Act 2012 (the Act). The Judge concluded that the test under s 83 was met:
(a)Mr Lethbridge had been arrested for an offence;
(b)there were reasonable grounds to believe that evidential material (the axe) would be found in a place (his property) because Mr Lethbridge had told the officers so; and
(c)there were reasonable grounds to believe that material would be destroyed or concealed if entry was delayed to obtain a warrant.
[10]As to this last requirement, the Judge made the following findings:
(a)The resources available to the officer who conducted the Search were all deployed and he did not have any alternative staff practicably available to him. There was no back-up available to be requested so
the officer did not request any. There were only four Police staff in the Kāpiti region available and they were occupied with the defendants.
(b)The “realities of front line policing” were such that the Police could not secure the property for a warrant to be obtained under s 117 of the Act.7
(c)While all efforts were made to see if anyone was inside the property, it was unclear if the property was still occupied. The officer believed that if it was occupied, it was likely the axe would be concealed. The property was known to the officer and he knew Mr Lethbridge’s mother lived there. He was concerned she might conceal the axe.
(d)The search was neither deliberately reckless nor conducted in bad faith.
(e)The axe was real, as it had been seen, and was brandished about. It was not realistic to ask an arrested defendant to go into a house and take out an axe and it was unlikely that consent would have been obtained to enter the house.
(f)Upon entry, the officer did a brief reconnaissance to see whether there was anyone at the address and, in doing so, he found the drugs and utensils, which were in plain view. He then had reasonable grounds to change the search to one for drugs.
[11] The Judge accepted that the officer conducting the Search was a credible professional witness. In accepting the officer’s evidence, the Judge observed there was “nothing in the proper and lengthy and detailed cross-examination of him that has exposed any flaws or cracks that I should be concerned about in his credibility”.8
[12] In light of all the circumstances, the Judge found that it was unrealistic to obtain a written warrant and the officer was justified to enter the property without one.
7 Lethbridge, above n 1, at [21].
8 At [46].
Given this finding, the Judge did not undertake the balancing exercise under s 30 of the Evidence Act, as the evidence was obtained lawfully and was therefore admissible.
Leave to appeal
[13] This is an appeal against a pre-trial ruling from the District Court. Section 215 of the Criminal Procedure Act 2011 provides that a defendant or prosecutor may, with leave from the appellate court, appeal to that court against a decision making or refusing to make a pre-trial order about admissibility of evidence.9
[14] The relevant factors for determining a leave application are specified in R v Leonard and affirmed in Hohipa v R.10 In those cases the Court of Appeal held that leave should be granted if the application involves the admissibility of evidence that is important to one of the parties. The Court cautioned that leave should not be granted if the issue will need to be revisited at trial or is best dealt with in the context of the trial, or where the application involves the admissibility of evidence that would not make a significant difference to the course of the trial and is unlikely to lead to post-conviction appeal success.
[15] This application involves the admissibility of evidence that is crucial to the prosecution case against Mr Lethbridge in relation to three of the five charges he faces, being the drug-related charges. Therefore, determining this issue will make a significant difference to the course of the trial in relation to those charges. The evidence relating to the specific weapon used by Mr Lethbridge is relevant to the prosecution case in relation to the offensive weapon and intimidation charge, but not necessarily critical, given the eyewitnesses’ testimony and Mr Lethbridge’s concession.
[16]I grant leave to appeal the pre-trial ruling accordingly.
9 A pre-trial order relating to admissibility of evidence in a Judge-alone trial is made pursuant to s 79 of the Criminal Procedure Act 2011.
10 R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13]–[14]; and Hohipa v R [2015] NZCA
73, [2018] 2 NZLR 1 at [25]–[27].
Approach to the admissibility of search and seizure evidence
[17] The Court of Appeal in R v Williams set out the approach when dealing with the admissibility of evidence in search and seizure cases.11 The Court applied the following steps to assessing the admissibility of the evidence:
(a)Was the search unlawful?12
(b)Was the search unreasonable? If the search was unlawful, it will be unreasonable and in breach of s 21 of NZBORA, except where:13
(i)the error is minor or technical; and
(ii)the error is not noticed before the search or seizure is undertaken.
(c)Is the evidence nonetheless admissible? If the search is unlawful and unreasonable then any evidence obtained therein has been “tainted by the breach”.14 The admissibility of evidence of this kind, which has been “improperly obtained”, falls to be assessed under s 30 of the Evidence Act.15
[18] Following the introduction of the Act, the lawfulness of Police search and surveillance is to be assessed in light of that legislation.16
[19] I adopt the Court of Appeal’s approach below and consider the parties’ positions under each issue.
11 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207. A similar approach was also adopted by the Supreme Court in Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [16] and [174].
12 Williams, above n 11, at [12]–[46], [226] and [231]–[233].
13 At [12]–[24] and [228].
14 At [79] and [241].
15 Here, the Court of Appeal was dealing with the test in the case of R v Shaheed [2002] 2 NZLR 377 (CA), but the Court noted that s 30 of the Evidence Act 2006 effectively enshrines Shaheed in legislation: Williams, above n 11, at [8] and [149]–[150].
16 Laws of New Zealand Police (online ed) at [51].
Did the Judge err in finding the Search was lawful?
[20] The relevant provision of the Act governing the power to search without a warrant is s 83, which provides that a warrantless search may be lawful in certain circumstances. That section provides:
83 Entry without warrant after arrest
(1)This section applies if a person—
(a)arrests a person for an offence; and
(b)has reasonable grounds to believe that evidential material relating to the offence is at a place and that the evidential material will be destroyed, concealed, altered, or damaged if entry to that place is delayed to obtain a warrant.
(2)The person may enter the place without a warrant to search for the evidential material relating to the offence (whether or not the person was arrested there).
[21] Since the enactment of the Act, the Courts and commentators and the authorities have identified the “warrant preference rule”, which underpins the Act.
[22]The commentators in Adams on Criminal Law said of the warrant principle:17
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. … This principle clearly applies to the search of private property.
[23] The Court of Appeal adopted the “warrant preference rule” as best practice in SF v R,18 decided after the Act was passed. The subsequent Court of Appeal decision of Kalekale v R acknowledged the comments in SF v R, reiterating that although the warrant preference rule is best practice where it can be followed, a “realistic and practical approach is, however, required.”19
17 Simon France (ed) Adams on Criminal Law – Search and Surveillance (online ed, Thomson Reuters) at [SS6.01].
18 SF v R [2014] NZCA 313 at [46].
19 Kalekale v R [2016] NZCA 259 at [44]–[45].
[24] The Court of Appeal has more recently considered the ambit of a warrantless search under s 20 of the Act in Hall v R.20 In that decision, the Court examined the scope of an implied licence that permits anyone, including Police officers, to go onto a property for the purpose of speaking to the occupant. The majority reinforced that:21
The principle underpinning the [Act] is that a search for law enforcement purposes should, in the absence of exceptional circumstances recognised by the Act, be authorised by way of a warrant issued by a judicial officer.
[25] Mallon J in her separate judgment said, further that the warrant preference rule is undermined regardless of whether the omission to obtain a warrant is deliberate or unintentional. The fact that it was unintentional in Hall was relevant to the s 30 Evidence Act balancing exercise of admissibility.22
[26] The warrant preference principle underpinning the Act is reinforced and strengthened by s 117, which provides for a scene to be secured while a warrant is being applied for and pending. As the section title suggests, 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.
[27] The authorities have also addressed the practical realities of investigation. The decision whether it is practicable to obtain a search warrant must have regard to the realities of policing in the circumstances.23
[28] From the tenor of the Act and the Court of Appeal authority, the warrant preference rule remains applicable where there is no urgency or compelling practical reason not to obtain a warrant.
Parties’ positions
[29] Mr Lethbridge accepts the Judge was correct in finding that two of the s 83 criteria were met: he had been arrested and there were reasonable grounds to believe
20 Hall v R [2018] NZCA 279.
21 At [56].
22 At [84].
23 R v Dobson [2008] NZCA 359 at [38]; and McGarrett v R [2017] NZCA 204 at [21].
there was evidential material at his property because he had told the officer this. However, Mr Lethbridge challenges the third criteria under s 83 and submits there is nothing from the officer’s evidence which indicates reasonable grounds to believe the evidential material (the axe) would be destroyed, concealed, altered or damaged if entry to that address was delayed in order to obtain a search warrant.
[30] The Crown submits the search power under s 83 was lawfully exercised. The Judge was correct to rule there was a reasonable belief that evidence would be concealed or disposed of and that it was impracticable to obtain a warrant given the officer’s concerns and the time it would have taken to obtain a warrant. The axe was small and not something of great value, increasing the ability for it to be concealed or disposed of.
Discussion
[31] Both parties agree that the first and second criteria under s 83 were satisfied for the warrantless search power to be exercised. The third criteria under s 83 is the source of contention, namely, whether there were reasonable grounds to believe that the evidential material would be concealed or destroyed, if entry was delayed to obtain a warrant.
[32]In addressing this, I consider the following four matters:
(a)the difficulty in obtaining a warrant on a weekend with no open courthouses or easily accessible Justices of the Peace (JPs);
(b)the urgency in obtaining the axe;
(c)limited Police resources; and
(d)the officer’s concern that the axe may be concealed or destroyed.
Difficulty in obtaining a warrant
[33] The focus of the ruling and the Crown’s submissions is that it would have been difficult for the Police to obtain a warrant on the weekend. The Judge found it was unrealistic for the officer to obtain a written warrant. The Judge said:24
It is Saturday midday, a lot of people around, search warrants need to be signed, Courts are not open and JPs are not easily located on such a day.
[34] The Judge made further reference to the difficulty of obtaining a search warrant on a Saturday “because the Court is closed and JPs could possibly be hard to find because they are not at workplaces”.25
[35] From the notes of evidence, it does not appear that there was any evidence adduced about the availability of issuing officers, who are normally contacted in weekends, and from whom a warrant can be obtained. The Judge’s reference to JPs “possibly being hard to find because they are not at workplaces” was not a conclusion based on the evidence.
[36] The officer who had undertaken this Search conceded in cross-examination at the District Court hearing that he knew he could make an application for a search warrant by phone. He also agreed that one of the processes which Police follow to make urgent application for search warrants includes phoning to request a search warrant. The officer said in his evidence:
I have never had to request, I have never requested a phone search before. My belief at the time was sufficient with my belief to go into that property. So I wasn’t, I didn’t think to make that call.
[37] There was no evidence of any previous attempts to make contact with JPs over a weekend or any other on-duty issuing officer, including District Court judges, to illustrate the difficulty and time required in obtaining a search warrant in Waikanae on the weekends.
24 Lethbridge, above n 1, at [22].
25 At [47].
[38] Under s 100(3) of the Act, a warrant can be issued by an issuing officer where she or he is satisfied that the delay that would be caused by requiring an applicant to put all or any part of the application in writing would compromise the effectiveness of the search. Further, the following people can issue search warrants: a judge and a person who is authorised to act as an issuing officer, such as a JP, community magistrate, registrar or deputy registrar.26
[39] Consistent with the warrant preference rule, s 100 also strengthens the warrant presumption, by ensuring that there are issuing officers who can issue warrants on an oral telephoned basis, to accommodate urgency at times where courts are closed. Similarly, the range of persons who are authorised to act as issuing officers ensures ready available resources within the community to accommodate the warrant presumptions within the Act.
[40] In the processes adopted by the Police to make urgent applications for search warrants, a list of available JPs, community magistrates or on-call registrars or deputy registrars should be readily available to each Police station throughout New Zealand. Even an internet search of available JPs in Waikanae, reveals 27 names, together with addresses and phone numbers, including mobiles and work phones where relevant.
[41] The officer was candid in his response that he did not think to make a telephone application for a search warrant, because he believed he was able to go into the property. Although the Judge found it was unrealistic for the officer to obtain a written warrant, his ability to telephone a JP, was not considered. The fact that the officer did not think to make a telephoned application for an urgent search warrant signals that such an option may not have been exercised in that locality before.
[42] In all the circumstances, I consider the Judge’s emphasis on the difficulty of obtaining a search warrant on a Saturday was misplaced.
26 Search and Surveillance Act 2012, ss 3(1), 98 and 108.
Urgency in obtaining the axe
[43] The second ground was urgency and whether s 117 was an alternative option to a warrantless search. The Judge found that the officer undertook his search under s 83:27
pursuant to arrest as the defendant had been arrested and he said that he had an axe and it was inside his property. Therefore, the sergeant considered that he needed to seize the item but his concern was, that it would be concealed.
[44] When asked in cross-examination whether the officer had considered the option of securing the address to await a warrant under s 117 of the Act, the officer considered this was impracticable. He said it was not an option to secure the address, because of a lack of Police resources. He was concerned that the defendant’s mother might be home, and he considered that she might conceal the axe.
[45] The Judge found that the realities of frontline policing in a situation such as this, the limited resources and that assigning a guard to the property and securing it while a search warrant was obtained, meant it was unrealistic to expect the officer to obtain a warrant. The Judge accepted that the officer had attempted to see whether any person was home and was justified in entering the property without a warrant.
[46] At the time the officer arrived on the scene, the two defendants were already handcuffed. They were each taken back to the Police station in separate vehicles by two officers. A third officer was taking statements from people at the nearby supermarket.
[47] After the defendants were taken to the police station, there was no one remaining at the address, but the officer who conducted the Search. The officer stated several times in his evidence that he believed the address to be empty but until he “cleared the address” he could not be sure.
[48] There was no evidence to suggest that the officer could not have secured the premises by himself or indeed, invited Mr Lethbridge into the address to locate the axe. The Crown submits that such a suggestion was impractical, because of safety concerns and the likely negative response from the defendant.
27 Lethbridge, above n 1, at [17].
[49] However, the officer entered the property on his own, after ascertaining no-one was present in the premises, despite any safety concerns. Even if there had been someone present, this did not deter the officer from entering the house.
[50] The officer also conceded that if something went wrong at the address, the other officer taking statements at the supermarket was “literally a sprint away”. On these facts, there seems to be no impediment to the officer remaining outside the property, keeping a watch on it, while he asked other officers at the station to make a phone call to a local JP or making a phone call himself. With no one apparent at the address and with the offenders in custody, there appeared to be no urgency.
[51] Those circumstances are distinguishable from those in Butler v New Zealand Police and Wilkins v New Zealand Police.28 In both cases, it was accepted that logistically it would have been difficult for the Police officer to organise a search warrant, while ensuring the property was adequately monitored, to prevent any evidential material being lost or otherwise compromised. In both cases the evidence concerned drugs on the premises, which were easily disposable. In these cases, there was a reasonable likelihood that if a warrant was obtained the evidence would have been destroyed or concealed.
[52] In this case, the offensive weapon was an axe, which the defendant had readily conceded was in the house, potentially under a mattress. Although the officer was concerned that the axe could be concealed, it was not pivotal to a prosecution of possession of an offensive weapon or intimidation when there were eyewitnesses to the event and the defendant had conceded the axe was in the property. There was also no possibility of further criminal action at the time, as in SF v R.29 Urgency was not a factor that justified a warrantless search in these circumstances.
Limited Police resources
[53] A further reason for not obtaining a warrant or securing the property before a warrant was obtained was the officer’s view that he had limited Police resources to
28 Butler v New Zealand Police [2014] NZHC 1059; and Wilkins v New Zealand Police [2016] NZHC 328.
29 SF v R, above n 18, at [49].
call upon. He described how all “units” on duty in the Kāpiti area went to this “critical incident”. There were four officers in three cars.30 One of those cars was a traffic car, that turned up at the scene unannounced. The officer did not know they were all coming. Two of the Police officers took the defendants back in separate vehicles and the officer from the “Q-car” interviewed witnesses at the nearby supermarket. If the officer wanted further backup, a unit would have come from Porirua. The officer accepted in cross-examination that he did not call for any backup. If there were difficulties in entering the property, he had an officer “literally a sprint away”. At the time of deciding to undertake a warrantless search, the officer referred to the fact that all his staff were otherwise engaged and he made his decision to go into the property after he had knocked at each of the front and back doors. He entered the property through a side window, which from previous experience, he knew to be insecure.
[54]The Judge found that the officer’s evidence was credible and accepted that:31
in a situation such as this, where the police have limited resources, that assigning a guard to the property and securing it while a search warrant is obtained on a Saturday because the Court is closed and JPs could possibly be hard to find because they are not at workplaces, that to obtain a written warrant in the circumstances here that have been outlined … that meant the suggestion that he obtain a written search warrant in those circumstances with the resources he had available was unrealistic.
Part of the constraint on resources was the officer’s concern that there was no support for other incoming jobs, because all his staff was engaged in this incident.
[55] Whilst the officer may have formed a belief that he had limited staff and therefore did not think of other options, such as telephoning for a warrant or making arrangements to secure the property, he acknowledged that there were backup personnel in Porirua, if he had required them. There were already four officers at the scene on Saturday early afternoon. All four officers turned up at the scene and the defendants had been handcuffed at the time of the officer’s arrival and were taken into custody.
30 During the hearing, the Crown submitted there were five officers at the scene, but this is not apparent from the evidence or in the decision.
31 Lethbridge, above n 1, at [47].
[56] Apart from the fact that the officer did not consider the option, there was no evidence of any impediment to one of the constables at the Porirua or Waikanae Police stations being asked to make a telephone call or urgent application for a warrant. These circumstances do not appear to represent the “front line policing” considerations as the Judge labelled them,32 or the realities of policing referred to in R v Dobson.33 A Saturday early afternoon in Waikanae did not appear to be stretching Police resources, such that one of the four officers could not have made an urgent application or a telephoned application for a warrant at the very least.
[57] The Judge found the officer’s evidence to be credible but, with respect, overlooked his evidence where he acknowledged that there were backup personnel in Porirua and that there were four officers at the scene on Saturday afternoon near the Waikanae supermarket.
Concealment or destruction of the weapon
[58] During his evidence, the officer explained that it was always a possibility that there could have been other people at the address, who may take steps to conceal the axe. He accepted that he saw no other signs of life at the address and that on several occasions, he stated that he thought the address was unoccupied but until he cleared the address he could not be sure.
[59] It was plain that after the officer had knocked on the doors of the house, with no response, he did not have any apprehension about entering the premises to search it. The reason for his forming a belief that he needed to search the premises without a warrant was the fear that the axe could be concealed. Once he knew that nobody was in the house, by knocking on the doors, the basis for his belief had evaporated.
[60] Even if there had been someone in the house, his staying at the premises and keeping a watch on the premises until a search warrant was granted, could have been a viable alternative to a warrantless search. With no one at the address, the grounds for the officer’s belief that the axe would be concealed had gone. The Judge
32 Lethbridge, above n 1, at [47].
33 Dobson, above n 23, at [38].
overlooked the fact, that at that point, the officer no longer had reasonable grounds to enter the property without a warrant. No evidential material was going to be concealed when no one was obviously present in the house.
Conclusion
[61] I find that the Judge erred in finding there were reasonable grounds to believe that the evidential material would be concealed or destroyed if entry was delayed to obtain a warrant, because:
(a)the officer did not think to make a telephone application for a warrant and there was no evidence to support a finding that it was difficult to obtain a warrant when there were numerous JPs in the town;
(b)there was no urgency in obtaining the weapon, as the defendants were in custody, there was no one at the property and there was no possibility of further criminal action at that time;
(c)with four officers available and backup if required from Porirua, there were adequate resources for one of the officers to apply to a local JP for an urgent warrant, either by telephone or in person, orally if need be; and
(d)there were no grounds for the officer’s belief that the axe may have been concealed, as soon as he established there was no one at the property.
[62] The evidence obtained by this warrantless search was unlawful and the Judge erred in finding the Search was lawful. Further, there was no basis for the Search to become a lawful search under s 20 of the Act, once the drug-related offending became apparent.
Was the search unreasonable?
[63] Mr Lethbridge submits the Search was unreasonable as it breached his right to be free from unreasonable search and seizure under s 21 of NZBORA.
[64] The question of legality of a search is separate from the question of whether a search was unreasonable under s 21 of NZBORA.34 That provision reads:
21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[65] In Williams, the Court of Appeal held that an unlawful search will normally be unreasonable, except where the search takes place in the context of an emergency or where the error is minor and technical.35
Discussion
[66] Given my findings that there was no question of urgency or an immediate threat to the disposal or concealment of the axe, and that the policing resources did not impede an urgent application or a telephone call to a local JP for a warrant, it was not reasonable to invoke a warrantless search in these circumstances. Entering a property in these circumstances could not be described as a minor or technical breach, when no attempts to obtain a warrant were made. I find that this was an unreasonable search.
Should the evidence be excluded under s 30 of the Evidence Act?
[67] Even if a search does not comply with the Act and is found to be unlawful and unreasonable, the evidence obtained may be excluded if a Judge determines that it is proportionate to the impropriety, by means of a balancing process under s 30 of the Evidence Act. The Judge found that because the officer was justified in entering the defendant’s property under s 83 of the Act without a warrant, the evidence he obtained
34 Hamed, above n 11, at [161] per Blanchard J; which affirms the principles of R v Jeffries [1994] 1 NZLR 290 (HC). See also Williams, above n 11, at [12] and [226].
35 Williams, above n 11, at [16] and [19], citing Jeffries, above n 34, at 296, 312, 315 and 320.
in relation to the drug offending provided the officer with reasonable grounds to change the Search to one for drugs and all the evidence was held to be legally obtained. On the basis of that finding, the Judge noted that she did not have to go into the balancing exercise under s 30 of the Evidence Act.
[68] Given that I have found the warrantless search was both unlawful and unreasonable, I must undertake a balancing exercise under s 30, to determine whether the evidence is admissible.
[69] The first step under s 30(5) of the Evidence Act is to determine whether the evidence is “improperly obtained”, if it was obtained:
(a)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
…
[70] I have already found that the evidence was obtained in breach of s 21 of NZBORA, as well as being in breach of s 83 of the Act. The evidence has therefore been obtained improperly.
[71] Having found that the evidence was improperly obtained, I must now determine whether the exclusion of the evidence is proportionate to the impropriety, taking account of the need for an effective and credible system of justice.36 In making this determination, I may have regard to the factors listed in s 30(3) of the Evidence Act, among any other matters. I will address the factors in s 30(3) under their respective headings:
(a)Seriousness of the breach
[72] The forced entry by the officer into Mr Lethbridge’s home was a serious breach of his right to the privacy of his own home. The Court of Appeal in Williams reinforced that in “terms of searches of property, residential property will have the highest expectation of privacy attached to it”,37 which the Crown accepts. Here, the officer was a trespasser in an area afforded “great protection” by the Courts.38
36 Evidence Act 2006, s 30(2).
37 Williams, above n 11, at [113].
38 SF v R, above n 18, at [15(a)] and [38].
(b)The nature of the impropriety
[73] The Crown contends that the Police acted in good faith, believing that the s 83 criteria under the Act were met and there was no evidence the Police had an improper collateral purpose. The defence say that the nature of the impropriety was at least reckless, as the officer could have delayed the Search to obtain a search warrant and took no steps to do so.
[74] I find that the failure to apply for a search warrant resulted from a mistaken belief that the Police could enter the property under s 83 of the Act but the officer did not turn his mind to obtaining a search warrant by an urgent or telephone application. The officer acted deliberately, but mistakenly, in the belief that he had grounds to enter the property under s 83(3), when there was no one who was present to conceal the axe. There was no deliberate decision not to apply for a warrant so as to circumvent the purpose of the Act. His actions, although deliberate, were not aggravated by an element of deliberate breach, recklessness or bad faith. The nature of the impropriety was relatively low.
(c)The nature and quality of the improperly-obtained evidence
[75] It was accepted by both parties that the evidence obtained was highly probative in relation to the charges. In relation to the cannabis offending, this is the only evidence the Crown has.
(d)The seriousness of the offence
[76]The charges before the Court are moderate to low in seriousness.
(e)The availability of other investigatory techniques
[77] The Police did have other investigatory techniques available to them, including obtaining a warrant, or asking Mr Lethbridge to collect the weapon from inside the house or securing the house, while the warrant was obtained. Nobody was in the house at the relevant time, to dispose of or conceal the weapon.
(f) Alternative remedies to exclusion of evidence which can adequately provide redress to the defendant
[78]There are no alternative remedies to redress the impropriety.
(g)Apprehended physical danger to the Police
[79]There was no physical danger to the Police or others.
(h)Urgency in obtaining the improperly-obtained evidence
[80] As I have held above, there was no urgency as Mr Lethbridge and his co-defendant had already been arrested and taken into custody. The officer had ascertained that no one was in the house and the address could have been secured in the interim while a warrant was being obtained under s 100 of the Act.
Discussion
[81] In this case, evidence was obtained in respect of the intimidation and possession of an offensive weapon charge, namely an axe, as well as the drug-related items, which the officer seized from the kitchen table, on his entry into the house. I do not uphold the Judge’s view that on sighting these items, the officer had grounds to change the search from a s 83 warrantless search to a s 20 drug-related search under the Act. Having made the entry into the property unlawfully, all of the evidence seized was as a result of the unlawful entry into the private property.
[82] The evidence was improperly obtained as a result of a serious breach of an important right to privacy of Mr Lethbridge’s home. The nature of the impropriety was deliberate but misguided and therefore was low in terms of seriousness. The offences are low to moderate in seriousness and those factors must be balanced against whether the impropriety was necessary to avoid physical danger to the Police or because there was an element of urgency required to obtain the improperly-obtained evidence.
[83] The impropriety was not necessary to avoid apprehended physical danger, as none of the inhabitants were in the property. There was thus no urgency, because there
was no danger of the evidence being concealed or disposed of at that time. I consider the exclusion of the evidence is proportionate to the impropriety and the seriousness of the breach.
[84] I take into account one further factor, in making this finding. That factor concerns the obtaining of warrants on weekends and holidays, when courts are closed. The warrant preference rule and the additional powers given to JPs and community magistrates were enacted to ensure that there was no impediment to obtaining a search warrant, when one was required, even on a weekend.
[85] The senior Police officer here was honest and open in conceding that he did not turn his mind to obtaining a search warrant by a telephoned application under s 100(3) of the Act. Applications for search warrants should be the rule of thumb for frontline Police officers, when there is no pressing urgency and issuing officers are available within the community. Doing so, maintains the warrant preference rule under the Act and ensures an effective and credible system of justice.
[86] In this case, the intrusion into a private home was a serious breach of Mr Lethbridge’s rights. A search of a person’s home must be lawful, unless the exigencies of the circumstances, which were absent here, require urgent searches without a warrant. It should be the exception, not the rule. The evidence obtained from this unlawful search was improperly obtained and its exclusion is proportionate to the impropriety and the need for an effective and credible system of justice.
Result
[87]Leave to appeal is granted.
[88]The appeal is allowed.
[89] The evidence obtained from the warrantless search was unlawful, unreasonable and is inadmissible under s 30 of the Evidence Act 2006.
Cull J
Solicitors:
Luke Cunningham & Clere, Wellington for Respondent
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