R v Antonievic
[2015] NZHC 230
•20 February 2015
ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2011-042-000869
CRI-2011-042-000876 [2015] NZHC 230
THE QUEEN
v
TAYLOR IVAN ANTONIEVIC THOMAS JOSEPH BASHFORD NATALIE JEAN BUSCH
COLIN CHINNOCK JORDAN JOHN DALY
JASON PETER GEORGE FRIEND JASON PAUL GRIFFITHS GRANT ROY HAYWARD TERRY JONES
HAYLEY JOANNE KIRKWOOD MARK JAMES LEE
RUSSELL PHILLIP LLOYD JOSEPH MARK PAHL GREGORY JOHN PAGE ROGER PAUL PATRICK
GLYN PATRICK RUTLEDGE CRAIG PETER SMITH DAMIAN JOHN STACEY ROBERT JOHN STEWART GLEN ROSS THOMPSON
R v ANTONIEVIC [2015] NZHC 230 [20 February 2015]
Hearing: 3-4 February 2015 Counsel:
J M Webber for Crown
P B H Hall QC for Defendants Bashford, Lee and Stacey
K H Cook for Defendants Griffiths and Kirkwood
J R Rapley for Defendant Patrick
C W Stevenson for Defendant Thompson
S W Rollo for Defendants Friend and Pahl
C P Stevenson and T H A Spear for Defendant Hayward
A J D Bamford for Defendants Jones, Lloyd and Page
J C S Sandston for Defendant RutledgeJudgment:
20 February 2015
JUDGMENT (No 1) OF COLLINS J
[Pre-trial ruling on improperly obtained evidence]
Introduction
[1] This judgment is the first of two I am delivering in relation to applications brought by the defendants to have evidence excluded from their trials pursuant to s 30 of the Evidence Act 2006 (the Act).1
[2] In this judgment I explain why I intend to exclude evidence which was improperly obtained by the police in relation to a number of the charges. Exactly which charges are affected by this judgment will be explained in the second judgment which will be delivered after I conduct a further hearing in the Nelson High Court on 6 March 2015.
[3] The evidence which is to be excluded was obtained by the police as a consequence of the police embarking on a fictitious scenario which involved a false search warrant, a fictitious prosecution of an undercover officer and abuses of the District Court criminal process by the police (false warrant and prosecution
scenario).
1 I explain s 30 of the Evidence Act 2006 in paragraphs [84] to [88].
[4] I am, however, not excluding evidence in relation to two categories of charges, namely:
(1)a small number of charges and parts of charges based on evidence obtained by the police prior to them engaging in the false warrant and prosecution scenario; and
(2) the “serious” charges faced by some defendants even though
improperly obtained evidence underpins those charges.
[5] The issue as to which charges are “serious” will be the focus of my second judgment. That decision will require a careful analysis of the allegations. The nature of a charge will not necessarily be determinative of whether or not a charge is “serious”.2
[6] In Part I of this judgment I explain the background to the defendants’ applications. The defendants are all members or associates of the Red Devils Motorcycle Club in Nelson (the Red Devils). The false warrant and prosecution scenario initiated by the police involved one of two police undercover officers who infiltrated the Red Devils.
[7] In Part II of this judgment I explain s 30 of the Act and why I intend to grant the applications brought by many of the defendants but decline the applications in relation to the two categories of charges referred to in paragraph [4].
[8] In Part III of this judgment I briefly deal with a submission that evidence should be excluded pursuant to s 8(1) of the Act.
[9] In Part IV of this judgment I explain why I am dismissing the applications brought by some defendants based upon the common law principles governing the
exclusion of unfairly obtained evidence.
2 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.
PART I
BACKGROUND
Context
[10] This judgment is a further chapter in a volume of pre-trial judgments that have been made as a result of charges laid against the defendants. In paragraphs [44] to [51] I explain a judgment of Simon France J in which he stayed the prosecutions against the defendants because of his concerns over the significant misconduct engaged in by the police when undertaking the false warrant and prosecution
scenario.3 The Crown appealed that judgment. The Court of Appeal endorsed the
factual findings made by Simon France J, but concluded he had made an error of law when he stayed all of the prosecutions.4 I explain the Court of Appeal’s judgment in paragraphs [52] and [53].
[11] From the outset I stress that further factual information has come to light which was not presented to Simon France J and the Court of Appeal. The new factual material has a significant bearing on a key issue, namely the connection between the police misconduct in relation to the false warrant and prosecution scenario and the evidence obtained by the police, which forms the basis of many of the charges.
Police investigations
[12] The police commenced their investigations into the Red Devils in September
2009. The police investigations continued through to March 2011, when 21 people were arrested and charged with a wide range of offences. Most of the offences related to the possession and distribution of illicit drugs.
[13] The police commenced their investigations into the defendants because they believed the defendants were engaged in serious criminal offending. The police
3 R v Antonievic [2012] NZHC 2686.
4 R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806.
were concerned that the Hell’s Angels were involved with the Red Devils in Nelson.
The police investigation into the Red Devils was called “Operation Explorer”.
[14] During the first half of 2010 senior police officers applied to the High Court for interception warrants. Those applications were supported by detailed statements. Redacted versions of those statements have been disclosed to the defendants and show that the police believed some of the defendants were very well-organised and potentially dangerous criminals who took precautions to avoid detection by the police.
[15] By the early stages of Operation Explorer the police knew that four of the defendants occupied senior positions in the Red Devils. The police knew Mr Patrick was the president of the Red Devils, Mr Bashford was the vice-president, Mr Lee was the secretary/treasurer, and Mr Pahl was the sergeant-at-arms of the Red Devils until September 2010 when he was recalled to prison for breaching a parole condition. Mr Chinnock took over the role of the sergeant-at-arms after Mr Pahl was recalled to prison.
[16] The other defendants were either prospective members of the Red Devils or associates of the Red Devils.
[17] Operation Explorer included covert investigations which involved intercepting telephone conversations, text messages and the installation of listening devices.
[18] The covert techniques used in Operation Explorer did not enable the police to gather all the evidence they believed they needed to charge the defendants. This led to the police deciding in November 2009 that two undercover officers should infiltrate the Red Devils in order to gain further evidence against the defendants. This phase of the police investigation was called “Operation Holy”.
[19] One of the undercover officers was Constable “Michael Wilson”
(Mr “Wilson”). The other undercover officer was Constable “Kasey Robinson”
(Ms “Robinson”). They posed as a couple, who told some of the defendants they were planning on moving to Nelson.
[20] The infiltration of the Red Devils by Mr “Wilson” and Ms “Robinson” involved the undercover officers slowly gaining the trust and confidence of members of the Red Devils. This was a time consuming exercise.
[21] At all stages of Operation Holy, the undercover officers reported to their senior officers, including Detective Sergeant Mackie and Detective Senior Sergeant Olsson, who were members of the Covert Operations Unit of the New Zealand Police. Those officers in turn reported to senior members of the Organised and Financial Crime Agency of New Zealand (OFCANZ), which is another unit within the New Zealand Police. Detective Inspector Wormald was a senior officer in OFCANZ and was the officer with overall responsibility for Operation Explorer.
[22] The police believed there was a high level of risk associated with Operation Holy. The police believed the safety of Mr “Wilson and Ms “Robinson” would be seriously jeopardised if the defendants learnt their true identities.
[23] It would appear that some of the defendants were initially wary of Mr “Wilson” and Ms “Robinson”. The suspicions harboured by some defendants about the true identities of Mr “Wilson” and Ms “Robinson” reflected the experience of some of the defendants in the criminal world and the precautions they took to avoid detection by the police. Some defendants questioned Mr “Wilson” and asked for the names of people who could verify his purported background. On another occasion Mr “Wilson” was asked to produce his driver’s licence so that checks could be made about him by a member of the Hell’s Angels in Auckland.
[24] Michael Tulouna5 was a prospective member of the Red Devils. He was well known to the police. He had 81 criminal convictions and had acquired a reputation
for “intimidating behaviour and stand-over tactics”.6
5 Mr Tulouna died on 19 January 2012 and is therefore no longer a defendant.
6 Application by Detective Inspector J F Winter for an interception warrant, 7 May 2010 at [27]- [28].
[25] By early 2010 Mr Tulouna was living in the Red Devils clubrooms at Natalie Street, Nelson and acted as a guard to the clubrooms. Mr Tulouna played an important role in the relationship Mr “Wilson” was able to establish with the Red Devils in Nelson.
[26] On 4 May 2010, Michael Tulouna questioned Mr “Wilson about how he earned his money. Mr Tulouna explained to Mr “Wilson” that the Red Devils “just needed to know that [Mr ‘Wilson’] was not a cop”.7
[27] Soon after this incident Mr “Wilson” asked Mr Tulouna to assist him with selling paua illegally. In this particular scenario Mr Tulouna and Mr “Wilson” met an Asian gentleman and sold approximately 100 kilograms of frozen paua meat. The purpose of this scenario was to reinforce to Mr Tulouna and other members of the Red Devils that Mr “Wilson” was genuinely involved in criminal activity and not an undercover police officer.
[28] On 21 May 2010 police learnt that “word [was] going around Motueka that there [were] two agents in town. Their names are Kasey and Mike”.8 This led the police to engage in a further scenario that involved a false search warrant and the prosecution of Mr “Wilson”.
False warrant and prosecution scenario
[29] The false warrant and prosecution scenario became the focus of the judgments of Simon France J and the Court of Appeal.
[30] The scenario involved Mr “Wilson” renting a storage unit from a person who owned and ran a storage facility in Motueka. At the time police erroneously thought the owner of the storage facility was connected to the Red Devils.
[31] The police placed apparently “stolen” laptops, ammunition and equipment
consistent with cannabis offending in the storage unit. The police then prepared a
7 Brief of evidence, J R Mackie, 29 June 2012 at [32].
8 New Zealand Police, Phase Report, Operation Holy, 21 May 2010.
fictitious search warrant that was signed by a police officer in the place on the warrant reserved for the signature of a Court Registrar/Judicial Officer.
[32] On 27 May 2010 the police showed the “search warrant” to the owner of the storage facility and persuaded the owner of the storage facility to allow them into the premises and to search the unit “rented” by Mr “Wilson”. The police seized the planted “stolen” items in the rental unit. Later that day a “warrant” to arrest Mr “Wilson” was issued by the police.
[33] On 29 May 2010, Mr “Wilson” was stopped by police leaving the Red Devils clubrooms in Nelson. Mr “Wilson” was arrested and taken to the Nelson Police Station where he was fingerprinted, photographed and released to appear in the Nelson District Court on 14 June 2010 on a charge which alleged he had committed an offence under the Misuse of Drugs Act 1975.
[34] When Mr “Wilson” appeared in the Nelson District Court on 14 June 2010 he was remanded at large without plea until 5 July 2010. He received a “disclosure package” from the police which he showed to Mr Tulouna.
[35] Mr “Wilson” appeared in the Nelson District Court on 5 July 2010 and was remanded until 20 July 2010. He was then remanded to 16 September 2010. Mr “Wilson” failed to appear in the Nelson District Court on 16 September 2010. This caused a warrant for his arrest to be issued by the District Court.
[36] Mr “Wilson” made a voluntary appearance in the Nelson District Court on
21 September 2010. He was further remanded on bail to 11 November 2010.
[37] Mr “Wilson” did not appear in the Nelson District Court on 11 November
2010. A further warrant for his arrest was issued. On 15 November 2010
Detective Senior Sergeant Olsson directed the police prosecutor to withdraw the latest warrant to arrest Mr “Wilson” for failing to appear in the Nelson District Court. Detective Senior Sergeant Olsson took this step in order to ensure Mr “Wilson” was not subjected to overly restrictive bail conditions or detained in custody. Mr “Wilson” made a further voluntary appearance in the Nelson District
Court on 19 November 2010. Mr “Wilson” appeared in the Nelson District Court on
25 January 2011 for a “status hearing”.
[38] Mr “Wilson’s multiple appearances and failures to appear in the Nelson
District Court were all designed to increase his credibility with the defendants.
[39] Ultimately the charges against Mr “Wilson” were withdrawn on 22 March
2011 after the termination of Operations Explorer and Holy.
[40] For completeness I record that on 31 May 2010 Detective Sergeant Olsson and Detective Superintendent Drew, then the most senior detective in the New Zealand Police, met with the then Chief District Court Judge. The police believed that the Chief District Court Judge approved of the scenario which involved Mr “Wilson” appearing in the Nelson District Court on charges that had been created by the police as part of the false warrant and prosecution scenario.
Termination of Operations Explorer and Holy
[41] Twenty-one members and associates of the Red Devils were arrested following the termination of Operations Explorer and Holy in March 2011. The defendants were charged with a variety of offences, many of which are linked to the possession and sale of drugs such as methamphetamine, LSD and cannabis. One defendant, Mr Thompson, was charged with possession of explosives and a firearm. Some defendants were charged with offences under the Arms Act 1983, while others were charged with conspiring to cause grievous bodily harm. Some defendants were charged with dishonesty offences. Ten of the defendants were charged with participating in an organised criminal group.
[42] Currently the defendants and charges have been divided into two groups. The first group comprises 11 defendants, who face a total of 92 charges.9 Their trials
are scheduled to commence in May 2015 (the first trial). The second group,
9 The indictment contains 95 charges. I dismissed charges 61 and 63 pursuant to s 347 of the Crimes Act 1961 on 21 July 2014. Mr Thompson pleaded guilty to charge 90 and is awaiting sentence.
comprising 10 defendants, face a total of 56 charges. Their trials are scheduled to commence in August 2015 (the second trial).
[43] The first four charges in the indictment for the first trial allege offending spanning from 12 March 2009 to 11 March 2011. Charge 5 alleges offending on
19 March 2010. Charge 6 alleges offending on 13 April 2010. The remaining charges allege offending on various dates between 15 June 2010 and 11 March 2011, that is, after the commencement of the false warrant and prosecution scenario.
Stay application
[44] In July 2012, Simon France J heard an application brought by all defendants to have all charges stayed on the grounds that the false warrant and prosecution scenario was so contrary to acceptable police practices that allowing the trial to continue would amount to an abuse of process, thereby necessitating a stay of all proceedings.
[45] Detective Superintendent Drew gave evidence before Simon France J. He explained that the false warrant and prosecution scenario was a contrived ruse to assist with the undercover officers’ infiltration of the Red Devils10 and, that the false warrant and prosecution scenario “benefitted the progression of the police inquiries”.11
[46] Simon France J found that the rights of the defendant had not been violated but that the police had engaged in improper conduct in relation to the owner of the storage facility in Motueka by presenting him with a false search warrant and in requiring him to act upon it.
[47] Simon France J concluded the police actions amounted to an abuse of the
Court’s process when using the fake search warrant and when laying a false charge. The Judge described this conduct as “a fraud … committed on the Courts”.12
10 Notes of Evidence, 10 July 2012 at 6, line 12; at 13, line 35; at 27, line 15 and at 37, line 25.
11 At 19, line 5.
12 R v Antonievic, above n 3, at [45].
[48] The High Court Judge concluded that while the police officers did not act in
bad faith, they acted with “a significant measure of recklessness”.13
[49] When evaluating whether or not he should stay the charges Simon France J
considered the seriousness of the allegations. He said that:14
The allegations against the twenty-one accused are plainly serious, but in the context of this exercise must be kept in some perspective. With the exception of Mr Jones, the drug allegations are mainly at the lower end of the scale. Many relate to sharing or selling within the clubhouse amongst each other, or to visitors. There are no charges of violence which involve injury to people, although there is an allegation of a conspiracy to do so.
The allegation of [being part of an] organised criminal group is always serious. I consider it is fair to observe here there are grounds to dispute it. That is not at all to say that it would not be proved at trial; just that from my assessment, it is legitimate to contest it.
[50] Simon France J recorded that he was “not convinced by the efforts of the defendants’ counsel to establish a connection” between the false warrant and prosecution scenario and the evidence which formed the basis of the prosecutions. Simon France J said:15
… In theory it may be that the club members might have otherwise twigged to [Mr “Wilson’s”] real occupation. However, that is very speculative, and the reality is that club members continued to suspect him anyway, notwithstanding the courtroom role play. The most that can be said is that the misconduct may have helped [Mr “Wilson”] to maintain his cover.
[51] Ultimately, Simon France J was so concerned about the police misconduct in relation to the false warrant and prosecution scenario that he believed the appropriate course was to stay the charges against all defendants.
Court of Appeal judgment
[52] The Crown successfully appealed the decision of Simon France J. The Court of Appeal agreed with the factual assessments made by Simon France J but
concluded that he had erred in law by focusing on the impugned police conduct
13 R v Antonievic, above n 3, at [32]-[33] and [50].
14 At [57]-[58].
15 R v Antonievic, above n 3 at [69].
rather than on the question of whether the trial would be an abuse of the process of the Court if it was permitted to proceed. The Court of Appeal took into account:16
… the fact that, as the Judge correctly noted, there is no strong causal link between the misconduct and the evidence underlying the charges that have been laid against the respondents. There is no “but for” element in this case…
[53] The Court of Appeal acknowledged that the case was finely balanced because of the seriousness of the police misconduct, but ultimately the Court of Appeal resolved that the appropriate outcome favoured the refusal of a stay so that the defendants would face trial for the offences with which they had been charged. In reaching this conclusion the Court of Appeal described the police misconduct in relation to the false warrant and prosecution scenario as “itself an abuse of the
Court’s process”17 and that the police misconduct was “extremely grave”.18
Objectives and consequences of the false warrant and prosecution scenario
[54] There were three objectives of the false warrant and prosecution scenario:
(1)to increase the credibility of Mr “Wilson” and Ms “Robinson” in the eyes of the defendants and to allay suspicions about their true identities;
(2) to reduce the risks to Mr “Wilson” and Ms “Robinson” that would
likely follow if the defendants knew their true identities; and
(3) to provide the opportunity for Mr “Wilson and Ms “Robinson” to
gather further evidence against the defendants.
[55] Detective Inspector Wormald gave evidence before me. He correctly explained that the first two objectives of the false warrant and prosecution scenario “dove-tailed” together.19 Detective Inspector Wormald also explained in a candid
and even-handed manner that the third objective of the false warrant and prosecution
16 R v Antonievic, above n 4, at [107].
17 R v Antonievic, above n 4, at [118].
18 At [118].
19 Notes of Evidence, 4 February 2015 at 22, line 9.
scenario enabled the police to gather further information for interception warrants and to provide eye-witness evidence that would assist the police if members of the Red Devils were charged with being members of an organised criminal group.20
[56] Detective Wormald’s acknowledgements are borne out by other sources of evidence. One source is a paragraph in an affidavit sworn by Detective Sergeant Mackie. That affidavit had not been disclosed to defence counsel and it appears not to have been provided to Simon France J or the Court of Appeal. The Court of Appeal’s file contains a brief of evidence of Detective Sergeant Mackie, which was provided to defence counsel and to Simon France J. The following paragraph, (paragraph [21]) in Detective Sergeant Mackie’s affidavit is not replicated in his brief of evidence. In his affidavit Detective Sergeant Mackie explains one
consequence of the false warrant and prosecutions’ scenario was that:21
[It] did have the initial effect of taking the suspicion away from [Mr “Wilson”] and [Ms “Robinson”] as being undercover police officers. The [Red Devils] openly speculated with the undercover police officers about who could have possibly provided information to the police to enable a search warrant to be executed on the storage unit.
[57] When preparing for the hearing before me Mr Webber, counsel for the Crown, realised that paragraph [21] of Detective Sergeant Mackie’s affidavit was relevant to the defendants’ application. Mr Webber properly brought paragraph [21] of Detective Sergeant Mackie’s affidavit to my attention prior to Court commencing on 3 February 2015. Thereafter I directed that paragraph [21] of Detective Sergeant
Mackie’s affidavit, and those parts of “phase reports”22 which paragraph [21] of
Detective Sergeant Mackie’s affidavit was based upon should be immediately
disclosed to defence counsel. This was done as soon as Court convened on
3 February 2015.
[58] These documents confirm that the false search warrant and prosecution scenario did allay suspicions about the true identities of Mr “Wilson and Ms “Robinson”. In August 2010 Mr Tulouna questioned Mr “Wilson” further about
his background. Mr “Wilson” thought Mr Tulouna was quite embarrassed about
20 At 23, line 1 to 24, line 8.
21 Affidavit of J R Mackie, 3 July 2012 at [21].
22 Phase Reports are a species of job sheet which are prepared in relation to each phase of an undercover police operation.
making further inquiries of Mr “Wilson” and that Mr Tulouna appears to have been
satisfied that Mr “Wilson” was not an undercover police officer.23
[59] There is evidence Mr Hayward asked Mr “Wilson” on 14 October 2010 which school he had attended. The police believe this question was asked as part of the Red Devils’ ongoing inquiries into Mr “Wilson’s” background. It is to be noted, however, that according to the police summary of facts, on 14 October 2010
Mr “Wilson” accompanied Mr Hayward on a trip to Christchurch during which time Mr “Wilson” saw Mr Hayward dealing in methamphetamine. Mr “Wilson’s” evidence in relation to this incident forms the basis of charge 51. It is also to be noted that throughout October 2010 Mr “Wilson” was with Mr Hayward when the police say Mr “Wilson” saw Mr Hayward commit a number of drug offences,
including the supply of methamphetamine to Mr “Wilson”.24
[60] The police summary of facts also alleges that Mr “Wilson” accompanied Mr Hayward on a trip to the North Island which commenced on 28 October 2010 during which time Mr Hayward is alleged to have told Mr “Wilson” that he was getting a gun and that he would not hesitate to put a bullet in Mr Tulouna because of the way Mr Tulouna had been behaving. This evidence forms the basis of charge 55.
[61] The police summary of facts in relation to the charges set out in the first indictment provide further information about the extent to which Mr “Wilson” had successfully embedded himself with the Red Devils following the false warrant and prosecution scenario. This information does not appear to have been placed before Simon France J or the Court of Appeal.
[62] The police summaries of facts show many of the charges between June 2010 and March 2011 are based on Mr “Wilson’s” direct participation in alleged criminal offending or upon his observations of alleged criminal offending by many of the
defendants. These alleged offences include:
23 Formal written statement of “M Wilson”, 6 August 2010 at 3. By February 2011 Mr Tulouna had gotten offside with members of the Red Devils because of attention he was attracting through offending and because of the way he was “cutting” deals in relation to drug deals. The police allege, on the basis of Mr “Wilson’s” observations that nine of the defendants met on
5 February 2011 and agreed to exclude Mr Tulouna from the Red Devils and smash his legs. It
is Mr “Wilson’s” evidence in relation to this event that forms the basis of charge 78.
24 See charges 36, 39, 40, 41, 42, 43, 44, 47, 48, 51, 52, 53, 54 and 56.
(1) instances of alleged drug dealing in which Mr “Wilson” either
participated or observed;25
(2)instances in which Mr “Wilson” either participated or had knowledge of acts of alleged dishonesty;26
(3) an instance of alleged conspiracy to commit arson in which
Mr “Wilson” appears to have participated;27
(4) instances of Mr “Wilson” observing offences under the Arms Act
1983;28 and
(5) instances of Mr “Wilson” observing alleged burglaries.29
[63] The police summary of facts in relation to Mr Hayward alleges that by March
2011 Mr “Wilson” was rostered to “watch duty” at the Red Devils clubrooms at
Natalie Street, Nelson:30
[t]his duty entailed Mr ‘Wilson’ looking after the clubrooms, staying overnight and ensuring that anyone who came to the clubhouse was someone who was either an associate of the Red Devils or could be trusted to come in if they wanted to do so.
[64] Clearly, by the end of Operations Explorer and Holy, the Red Devils trusted
and relied upon Mr “Wilson”.
[65] The police summary of facts also provide an insight into the precautions taken by some defendants to avoid detection. They often used code words when speaking or texting about their activities. Mr “Wilson” observed Mr Hayward
making hand and facial gestures in relation to some alleged drug dealing.31
25 See for example, charges 11, 12, 13, 14, 15, 16, 34, 35, 36, 39, 40, 41, 42, 43, 44, 47, 48, 51, 52,
53, 54, 56, 58, 60, 62, 75, 76, 79, 80, 81, 82, 83, 86 and 87.
26 See for example, charges 31, 32, 50 and 77.
27 See for example, charge 68.
28 See for example, charges 40, 46, 66, 71, 72, 73, and 85.
29 See for example, charges 49 and 84.
30 Police Summary of Facts, G Hayward, at 34.
31 Police of Summary of Facts, G Hayward, at 21 and 22.
[66] Mr Webber submitted that the new evidence presented to me did not advance the defendants’ case because Detective Superintendent Drew had explained to Simon France J that the false warrant and prosecution scenario “benefitted the progression” of the police inquiries into the Red Devils.32
[67] In my assessment, four key pieces of evidence that were before me significantly alter my understanding of the importance of the false warrant and prosecution scenario to the police inquiries into the Red Devils from the impression I gained when reading the judgments of Simon France J and the Court of Appeal.
[68] First, Detective Inspector Wormald’s evidence drew a link between the false warrant and prosecution scenario and the ability of the police to obtain the interception warrants for which Detective Inspector Wormald applied.
[69] Second, Detective Sergeant Mackie’s affidavit provides firm evidence that the false warrant and prosecution scenario did, at least for a period, satisfy the first objective by allaying the defendants’ suspicions about Mr “Wilson” and Ms “Robinson’s” true identities and increasing their credibility.
[70] Third, Detective Inspector Wormald’s evidence further shows that had there been continued or increased risk to Mr “Wilson” and Ms “Robinson”, the operation would be shutdown to protect them from any danger. Once suspicions were allayed, risks to Mr “Wilson” and Ms “Robinson” were also reduced.
[71] Fourth, and most importantly, it is clear from the police summaries of fact that Mr “Wilson” was able to successfully bolster the credibility of his fictitious identity as a confidante to some of the defendants after the commencement of the false warrant and prosecution scenario. That scenario dissipated the defendants’ wariness and enabled Mr “Wilson” to gather a great deal of evidence through to the conclusion of Operations Explorer and Holy. Detective Inspector Wormald also confirmed that Mr “Wilson’s” ability to gather eye-witness evidence led to a number
of charges, including the organised criminal group charges. It would have been
32 Notes of Evidence, 10 July 2012 at 19, line 5.
impossible for Mr Wilson to have gathered the evidence he acquired from June 2010 to March 2011 if the defendants had continued to suspect he was a police officer.
[72] On the information before them, Simon France J and the Court of Appeal were persuaded that the false warrant and prosecution scenario only raised a possibility that Mr “Wilson” and Ms “Robinson” were able to acquire incriminatory evidence as a result of the false warrant and prosecution scenario. The evidence which I have had the benefit of considering firmly establishes that the police achieved all three objectives of the false warrant and prosecution scenario identified by Detective Inspector Wormald. It reveals that the false warrant and prosecution scenario had a far greater impact than Simon France J and the Court of Appeal believed at the time they were considering their judgments.
[73] I am satisfied that the false warrant and prosecution scenario was a pivotal feature of the police investigation into the suspected criminal activities of the defendants and in the ability of the police to gather evidence against the defendants from June 2010 to March 2011.
[74] There are six reasons why I have reached this conclusion.
[75] First, the defendants were well organised and experienced in the world of criminal offending. They clearly were wary of “outsiders” and knew it was well within the bounds of possibility that the police might try to infiltrate their group by deploying undercover police officers.
[76] Second, the false warrant and prosecution scenario allayed the suspicions of the defendants.
[77] Third, the risks to Mr “Wilson’s” and Ms “Robinson’s” safety if their true identities were exposed were reduced upon commencement of the false warrant and prosecution scenario.
[78] Fourth, the undercover officers were able to acquire evidence after the false warrant and prosecution scenario which the police were able to use when applying for interception warrants.
[79] Fifth, the evidence by Mr “Wilson” acquired after the false warrant and prosecution scenario provided an important foundation for a number of the charges brought against the defendants. Detective Inspector Wormald drew particular attention to the organised criminal group charges. The police summaries of facts show that Mr “Wilson” was able to participate in and observe alleged criminal offending from June 2010 because the defendants no longer suspected he was an undercover police officer.
[80] Sixth, had the defendants learnt the true identities of Mr “Wilson” and Ms “Robinson” by June 2010 there can be little doubt they would have realised the police were carefully monitoring their activities. Their likely response would have been to stop or suspend any further offending and/or devise new methods of offending which would have been even harder to detect.
PART II
APPLICATIONS UNDER SECTION 30 EVIDENCE ACT 2006
[81] Section 30 of the Act replaced the rules governing the exclusion of evidence on grounds of unfairness as well as the prima facie exclusionary rule developed in relation to evidence obtained in breach of the New Zealand Bill of Rights Act 1990 (NZBORA), other enactments and common law principles.33
[82] In its report on Police Questioning, the Law Commission suggested that improperly obtained evidence should be excluded, unless the Court considered it
would be contrary to the interests of justice to exclude the evidence in question.34
33 See generally, Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Thomson Reuters, Wellington, 2014) EV at 30.01; Law Commission Evidence Vol 1 (NZLC R55, 1999) at [105].
34 Law Commission Police Questioning (NZLC R31, 1994) at [101].
[83] The Law Commission’s recommendation in its report on Police Questioning was made before the Court of Appeal delivered its judgment in R v Shaheed35 in which the prima facie evidence rule was replaced with a “balancing test” which required the Courts to balance a number of non-exhaustive factors when deciding whether exclusion of evidence was a proportionate response to the breach of the right in question.36 Section 30 of the Act is substantially modelled on R v Shaheed.37
I will set out the relevant parts of s 30 of the Act in the sequence that I will address them in this judgment.
[84] Section 30(2)(a) of the Act provides that I must:
(a) find, on the balance of probabilities, whether or not the evidence was
improperly obtained…
[85] Section 30(5) of the Act provides that for the purposes of s 30, evidence is improperly obtained if it is 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; or
(b) …
(c) unfairly.
[86] Section 30(2)(b) of the Act provides:
(b) if [I find] 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.
[87] Section 30(3) of the Act provides:
For the purposes of subsection (2), [I] may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
35 R v Shaheed [2002] 2 NZLR 377 (CA).
36 At [145].
37 Law Commission Review of the Evidence Act 2006 (NZLC R127, 2013) at [4.4].
(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.
[88] Section 30(4) of the Act provides:
[I] must exclude any improperly obtained evidence if, in accordance with subsection (2), [I determine] that its exclusion is proportionate to the impropriety.
[89] The jurisdiction to exclude improperly obtained evidence under s 30 of the
Act reflects the following policies:
(1)The vindication of breaches of a defendant’s rights. This policy recognises that excluding improperly obtained evidence vindicates the rights of a defendant because excluding improperly obtained evidence places a defendant in the position in which he or she would have been, but for the violation of their rights.
(2)Deterrence. This policy recognises that by not rejecting improperly obtained evidence there is a risk that the police may in the future act with impunity in similar circumstances.
(3)The importance of upholding the independence and integrity of the criminal justice system by excluding improperly obtained evidence in appropriate circumstances.
[90] Some decisions of the Court of Appeal suggest that staying prosecutions and excluding evidence might act as a sanction against police misconduct.38 For my part I would be hesitant to use s 30 of the Act as a tool to punish the police.39 That function is best undertaken by the Independent Policy Conduct Authority40 and/or through internal police disciplinary proceedings.41 In rare cases civil proceedings may be brought by those adversely affected by police misconduct to gain public law compensation to the way the police have improperly obtained evidence.42
Was evidence obtained improperly?
[91] In this case, there are two limbs to s 30(5) of the Act that impact on whether or not the police obtained evidence improperly as a “consequence” of the false warrant and prosecution scenario. Those limbs engage the following two questions:
(1) Did the police obtain evidence “in consequence” of a breach of any
enactment or rule of law?
(2) Did the police obtain evidence unfairly?
[92] The key issue in relation to the questions raised by s 30(5) of the Act is whether there is any genuine connection between the false warrant and prosecution scenario and the evidence which the police obtained in this case. This involves a threshold question which I shall deal with before deciding if the balance of the requirements in s 30(5)(a) and/or (c) have been established.
Causal connection
[93] In Boskell v R the Court of Appeal explained:43
Proof of a causative link between the unfair police conduct and the making of a statement is an essential element of the admissibility inquiry at the
38 R v Ahamat CA143/00, 19 June 2000 at [11], citing R v Coombs [1985] 1 NZLR 318 (CA), R v
Dally [1990] 2 NZLR 184 (HC) and R v Fahey CA94/00, 11 May 2000.
39 R v Antonievic, above n 4, at [55], citing Fox v Attorney-General [2002] 3 NZLR 62 (CA) at
[37].
40 Independent Police Conduct Authority Act 1988.
41 Policing Act 2008.
42 Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA).
43 Boskell v R [2014] NZCA 497 at [9].
threshold stage. The requirements of s 30(5)(a) and (b) are expressed in directly causative terms – the defendant must prove that the evidence was obtained “in consequence of” either a statutory breach or an inadmissible statement. The shorthand requirement in s 30(5)(c) of proof that the evidence was obtained unfairly is to the same effect. In terms of all three situations provided by s 30(5) the statement can only be obtained or come into existence as the result of a process which has an operative cause or causes, whether impropriety by the state or the defendant’s decision to speak. (footnotes omitted)
[94] Thus, although s 30(5)(c) of the Act does not expressly refer to a causal connection between “unfairness” on the part of the police and the evidence in question, I am bound to follow the Court of Appeal’s decision in Boskell and proceed on the basis that s 30(5)(c) requires proof of a causal connection between the unfair conduct and the challenged evidence.
[95] The degree to which causation must be established has proven to be a challenging question in New Zealand jurisprudence. In R v Williams44 the Court of Appeal analysed the various approaches that had previously been taken in R v Shaheed.45
[96] The Court of Appeal held:46
The issue of the effect of a breach on downstream evidence is a subset of the vexed question of causation. The test in New Zealand for causation is whether there is a real and substantial connection between the breach and the obtaining of the evidence...
[97] The Court then went on to examine the difficult issues that arise when there is a time gap between the breach and the obtaining of the evidence. Having reviewed the different judgments in Shaheed, the Court of Appeal summarised the competing points of view and concluded that the judgment of Blanchard J in which he articulated a slightly attenuated “but for” test represented the law of New Zealand. The Court of Appeal summarised Blanchard J’s test in the following way:47
... Under this test, subsequent evidence that would not have been obtained but for the breach must be considered to have a real and substantial connection to that breach. It would therefore be unreasonably obtained on
44 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.
45 R v Shaheed, above n 35.
46 R v Williams, above n 44, at [79].
47 At [98].
that basis. This test will not be met, however, where the obtaining of the evidence can be seen as being independent of the breach. It also does not apply where the link between the breach and the evidence is so remote that it cannot sensibly be seen as causative of the obtaining of the evidence.
[98] I have previously explained that Simon France J and the Court of Appeal were satisfied on the basis of the evidence presented to them that there was no causal connection between the police misconduct and the evidence subsequently obtained.
[99] However, for the reasons I have summarised in paragraphs [75] to [80], the evidence of Detective Inspector Wormald and Detective Sergeant Mackie combined with the police summaries of facts, have led me to conclude that, on the balance of probabilities, the police are unlikely to have succeeded in acquiring the evidence that they gathered from June 2010 to March 2011 if the defendants had realised in June
2010 that Mr “Wilson” and Ms “Robinson” were in reality undercover police officers. The false warrant and prosecution scenario played a significant role in persuading the defendants that Mr “Wilson” and Ms “Robinson” were not undercover police officers. Had the true identity of Mr “Wilson” and Ms “Robinson” been known to the defendants in June 2010 I am certain the defendants would have taken every precaution to ensure that Mr “Wilson” and Ms “Robinson” were not privy to any proposed criminal activities. At the very least, the police would have faced greater hurdles in gathering any further evidence of any crimes committed by the defendants. I am therefore satisfied there was in this case a causal connection between the police misconduct and the evidence they gathered between June 2010 and March 2011.
Breach of any enactment
[100] The next issue is whether or not the evidence in question was improperly obtained in consequence of a breach of any enactment or rule of law.48
[101] Simon France J suggested the police officers who signed the search warrant and information laid in the Nelson District Court as part of the false warrant and
prosecution scenario made false oaths. I agree.
48 It is accepted by the Crown that the police are included within the category of persons referred to by s 3 of the New Zealand Bill of Rights Act 1990.
[102] The police officers who forged the signature of a judicial officer on the search warrant and the officer who signed the fictitious information probably breached s 18 of the Summary Offences Act 198149 and/or s 110 of the Crimes Act 1961.50
Mr “Wilson” also probably breached what was then s 37 of the Bail Act 200051 when
he failed to answer bail on 11 November 2010.
[103] I am satisfied, on the balance of probabilities, that the false warrant and prosecution scenario involved breaches of enactments by some of the police involved in that scenario. I am also satisfied the ability of the police to obtain evidence from June 2010 to March 2011 as a consequence of the false warrant and prosecution scenario means that evidence was obtained improperly within the
meaning of s 30(5) of the Act.
49 18 Imitation of Court documents
(1) Every person is liable to a fine not exceeding $500 who sends or delivers or causes to be sent or delivered to any other person any document that is intended or is likely, by reason of its
wording or appearance or in any other manner, to cause any person to believe, contrary to the fact, that—
(a) The document has been issued by or with the authority of a Court or Judge or Justice or
Community Magistrate, or an officer of a Court; or
(b) The issue or delivery of the document has any legal effect or operation as a step or process in or preliminary to any civil or criminal proceedings.
(2) Every person is liable to a fine not exceeding $500 who prints or sells or offers for sale any printed form of document intended to be filled up and used as a document the delivery of which to any person would constitute an offence against subsection (1) of this section.
(3) It is no defence in a prosecution under this section that—
(a) The person who received the document was not actually deceived by it; or
(b) The document does not purport to be any summons, notice, or other document—(i) That any actual Court or Judge or Justice or Community Magistrate, or any officer of a Court, has authority to issue; or
(ii) The issue of which has any legal effect or operation of a kind referred to in subsection (1) of this section.
50 110 False oaths
Every one is liable to imprisonment for a term not exceeding 5 years who, being required or authorised by law to make any statement on oath or affirmation, thereupon makes a statement that would amount to perjury if made in a judicial proceeding.
51 Now s 38 of the Bail Act 2000. Section 37 of the Bail Act 2000 as it applied at the time provided:
37 Failure to answer bail
A defendant commits an offence and is liable on summary conviction to imprisonment for a term
not exceeding 1 year or a fine not exceeding $2,000 who, having been released on bail by a
District Court or Registrar,–
(a) fails without reasonable excuse to attend personally at the time and the court specified in the notice of bail; or
(b) fails without reasonable excuse to attend personally at any time and place to which during the course of the proceedings the hearing has been adjourned; or
(c) fails without reasonable excuse to comply with any condition imposed under section
39A(3).
Obtaining evidence unfairly
[104] The Act does not provide guidance for assessing whether or not evidence has been obtained unfairly. The Court of Appeal has commented on the concept of unfairness in s 30(5)(c) in the context of a confession. In M v R:52
Self-evidently fairness is a flexible standard which cannot and should not be reduced to a code. However, courts have been careful not to set the standard so low as to undermine the legislative policy behind ss 28 to 30, which allow courts to exclude evidence that is unreliable or which was obtained by oppression or by violating rights. The rights concerned are principally those conferred under the New Zealand Bill of Rights Act or under the Evidence Act and the Practice Note. Those rights, speaking very generally, are limited to police conduct after an officer decides that there is enough information to charge a suspect, or when the suspect has been arrested or is otherwise detained. The legislature has not extended the duty to caution, for example, to other things that the police may do to investigate crimes.
Accordingly, unfairness normally requires that police conduct should “undermine the justice of the trial” or otherwise violate the community’s expectations of the criminal justice system. Those expectations include propriety from state agents, but also that the guilty should be convicted. The courts reject sporting metaphors of fair play and level playing fields, and recognise that fairness does not preclude deception. In particular, it does not preclude strategems which encourage suspects to speak to undercover officers in settings in which the police have no obligation to caution them. (footnotes omitted)
[105] In R v Moresi (No 2),53 Baragwanath J suggested the test for determining unfairness in the following way:
The essential test is perhaps what a fair-minded member of the New Zealand community aware of the whole of the facts and the ramifications would make of the matter. ... It would not in my view be consistent with the meticulous and principled approach to be expected of the police for the Court to grant a dispensation from the simple standards of honesty that both institutions are both [sic] required to uphold.
[106] Section 30 involves an objective analysis of whether or not the circumstances under which evidence has been obtained can be categorised as being unfair. I have previously observed that the objective approach is open to the criticism that it is a “judicial stalking horse” in which the Judge explains his or her reasons on the basis
of what he or she perceives is fair.54 However, notwithstanding this potential
52 M v R [2014] NZCA 339, [2015] 2 NZLR 137 at [40]-[41]. This judgment is subject to an appeal to the Supreme Court.
53 R v Moresi (No 2) (1996) 14 CRNZ 322 (HC) at 332.
54 R v Wichman [2013] NZHC 3260 at [115]; Lie v R [2015] NZHC 207 at [41].
criticism, I am satisfied that the test for determining if evidence has been obtained unfairly involves an assessment of whether or not an ordinary New Zealander, fully informed of all relevant circumstances, would consider the police had acted unfairly when obtaining the evidence in question.
[107] The false warrant and prosecution scenario involved more than deception, which is often regarded as a legitimate activity in undercover police operations. In this case, the police probably engaged in conduct which constituted criminal offending when they forged the search warrant and filed in Court the false information alleging Mr “Wilson” had committed an offence under the Misuse of Drugs Act 1975.
[108] The Court of Appeal described the police actions as “grave” misconduct. I am in no doubt the community would not condone the police committing acts of grave misconduct, and that judged by the yardstick of the ordinary New Zealander, the police in this case obtained evidence in relation to most of the charges by resorting to means that were unfair. I have no hesitation in concluding that evidence which was obtained as a consequence of the false warrant and prosecution scenario falls within the category of evidence that was obtained “unfairly”, and therefore improperly, within the meaning of s 30(5) of the Act.
Applying s 30(3) and (4) of the Evidence Act 2006
[109] Having concluded that the evidence obtained by the police after the commencement of the false warrant and prosecution scenario was obtained improperly, I must now undertake the balancing exercise specified in s 30(3) of the Act to determine if the evidence in question should be excluded. I will undertake this exercise by reference to the relevant criteria in s 30(3) of the Act. Thereafter I will undertake the proportionality analysis required by s 30(2) and (4) of the Act.
The importance of the right breached and the seriousness of the intrusion on it
[110] Simon France J and the Court of Appeal have already determined that the primary “victim” of the police misconduct in this case was the owner of the storage facility in Motueka who was shown the false warrant and who gave access to the
lockup facility. They have also found that the Court’s integrity was also compromised by the police misconduct. I must accept the findings of the Court of Appeal that the rights of the defendants themselves were not violated by the police misconduct.
The nature of the impropriety, in particular whether it was deliberate, reckless or done in bad faith
[111] I also accept Simon France J’s assessment that the police did not act in bad faith. The police officers concerned appeared to have convinced themselves of the righteousness of their conduct. Simon France J, however, described the police conduct as reckless. That is an accurate assessment.
The nature and quality of the improperly obtained evidence
[112] The Crown rightly acknowledges that the evidence obtained by the police subsequent to the false warrant and prosecution scenario is “highly probative and central to the Crown case”. The Crown points out that if the evidence of the undercover officers post the false warrant and prosecution scenario is excluded many of the charges will fall. The entire case would have to be reassessed in terms of its viability.
The seriousness of the offence with which the defendants are charged
[113] This criterion is pivotal to my decision. Allowing the production of evidence of serious criminal offending, even in circumstances where that evidence has been improperly obtained, recognises the public interest of ensuring those who commit serious crimes are tried. There is a correlation between the seriousness of alleged offending and the likelihood of evidence being admissible in relation to that offending.
[114] Simon France J suggested that with one exception (Mr Jones) the allegations against the defendants are mainly at the lower end of the scale.
[115] In the hearing before me, Mr Webber submitted that:
The charges cover a range of degrees of seriousness from modest to very serious. The methamphetamine conspiracy between Jones, Stewart, Busch and others involved the regular movement of significant quantities of methamphetamine from Auckland to Nelson. The drug dealing charges faced by Mr Hayward are relatively significant. They can be characterised as “street level”, but on a reasonable scale. The multiple firearms charges faced by Mr Thompson are serious in that the factual matrix involves the alleged illegal supply of cut-down firearms to numerous persons. The bomb making charges faced by Mr Thompson are serious.
[116] I am, at this stage, satisfied that some of the charges that arise from evidence gathered after the police engaged in the false warrant and prosecution scenario are likely to be “serious”. I will, however, refrain from making a final decision on what if any charges are “serious” until after the parties have had an opportunity to make submissions to me on 6 March 2015.
Other available investigative techniques known to be available but not used
[117] The Crown submits that no other technique could have been used to obtain the evidence gathered by the undercover officers after the false warrant and prosecution scenario. The Crown suggests, however, that alternatives to the false warrant and prosecution scenario could no doubt have been devised. Convincing the defendants that Mr “Wilson” and Ms “Robinson” were genuinely sympathetic and supportive of the defendants underscores the importance of the false warrant and prosecution scenario in Operations Explorer and Holy. In my assessment, the impugned false warrant and prosecution scenario was devised by the police because no other strategies appeared to be available to convince the Red Devils that Mr “Wilson” and Ms “Robinson” were not undercover police officers. Whether or not there were other available techniques known to be available or whether there were alternatives simply not considered is entirely speculative. Therefore I do not consider this is a factor upon which I can appropriately place any weight.
Alternative remedies
[118] The Crown properly accepts that excluding improperly obtained evidence is the only remedy available in this case.
Urgency, emergency or necessity
[119] The Crown accepts that there was no urgency, emergency or necessity in this case.
Proportionality analysis
[120] Before deciding to exclude evidence under s 30 of the Act I am required to decide if excluding the evidence in question is a proportionate response to the impropriety of the police.
[121] The proportionality analysis which I must undertake is explained in s 30(2) and (4) of the Act. I am required to have regard to the relevant factors in s 30(3) (and any other relevant considerations) and then balance those considerations with the benefits of maintaining public confidence in an effective and credible system of justice.
[122] The concept of proportionality is well entrenched in civil law. Its origins can be traced to the Code of Hammurabi and the writings of Cicero who said that laws should have “the right ratio, the proper proportion”.55 Proportionality analyses can also now be found in a number of branches of common law. It has become a tool that is used in rights based jurisprudence in the United States.56 It is also a concept that is beginning to gain traction in public law in some quarters.57
[123] In this case I have concluded that the evidence obtained by the police after the commencement of the false warrant and prosecution scenario must be excluded in relation to the charges which are not serious. In reaching this conclusion I have carefully weighed the police impropriety against the relevant factors in s 30(3) of the Act, and the need to have proper regard for an effective and credible system of
justice.
55 Eric Engle “The History of the General Principle of Proportionality: An Overview” (2012) 10
Dartmouth Law Journal 1 at 5.
56 Alec Stone Sweet and Jud Mathews “Proportionality, Balancing and Global Constitutionalism”
(2008) 47 Colum J Trans Natl L 72 at 96.
57 See generally M Arden “Proportionality: The Way Ahead?” (United Kingdom Association of
European Law Annual Address, November 2012) at 3.
[124] I am satisfied, albeit by a very fine margin, that the evidence in relation to any serious charges should not be excluded. In my assessment, it is in the overall interests of society that the defendants who are charged with serious offences should be brought to justice notwithstanding the grave impropriety on the part of the police in this case. This conclusion is consistent with an effective and credible system of justice which requires those charged with serious offending to be tried, even when, as in this case, the evidence against them has been obtained improperly.
PART III
SECTION 8(1) EVIDENCE ACT 2006
[125] Section 8 of the Act is based upon the common law discretion that Judges have to exclude relevant and otherwise admissible evidence if its prejudicial effect upon a trial outweighs its probative value. The common law discretion to exclude evidence was summarised by Lord Moulton as being one that was exercisable if the possible effect of the evidence on a jury “would be out of proportion to its true evidential value”.58
[126] Section 8(1)(a) of the Act provides:
8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding…
[127] Section 8 of the Act is an overriding provision that governs the exclusion of all relevant evidence and applies to evidence that might pass the threshold for admissibility and other sections of the Act.
[128] Mr Hall QC and Mr Rollo, counsel for Messrs Bashford, Lee and Stacey, suggested that s 8(1)(a) of the Act may be engaged in this case because the task of
cross-examining police officers associated with the false warrant and prosecution
58 R v Christie [1914] AC 545.
scenario is likely to prolong the trial. Other defence counsel endorsed the submissions made by Mr Hall on this topic.
[129] I do not agree that the evidence obtained by the police as a consequence of the false warrant and prosecution scenario should be excluded under s 8(1) as suggested by defence counsel. Whilst cross-examining undercover officers will no doubt prolong the trial, I do not believe that it will unnecessarily prolong the trial. I also believe that the cross-examination of police officers associated with the false warrant and prosecution scenario is unlikely to prejudice the defendants. On the contrary, right thinking members of the jury may be very concerned about the integrity of the police associated with that scenario.
[130] The application based upon s 8(1)(a) of the Act is dismissed.
PART IV
EXCLUDING EVIDENCE UNDER THE COMMON LAW
[131] In Fan v R, the Court of Appeal confirmed that the common law jurisdiction to exclude unfairly obtained evidence survived the passing of the Act.59 The Court of Appeal in Fan said:60
It would be inconsistent with the common law and the purpose of the Evidence Act which is to promote fairness to parties, to construe s 30 as excluding the common law discretion. The continued existence of the common law discretion is consistent with the purpose of promoting fairness in s 6(c) to parties, and the Court must have regard to that purpose under s 11(2). The exclusion of evidence on unfairness grounds can be seen as dealt with only “in part” (in terms of s 12) by s 30, so that decisions on the admission of evidence can still involve a consideration of what is fair to the parties, that is, irrespective of the provisions of s 30. We conclude that the common law discretion survives the Evidence Act, although s 30 governs those cases to which the section applies.
[132] The approach taken by the Court of Appeal in Fan has been criticised in some quarters.61 I am, however, bound to follow Fan and therefore acknowledge
59 Fan v R [2012] NZCA 114, [2012] 3 NZLR 29.
60 At [31].
61 Richard Mahoney “Evidence” [2012] NZ L Rev 721; Law Commission The 2013 Review of the
Evidence Act 2006 (NZLC R127, 2013) at 2.43.
that there is a residual common law discretion to exclude evidence obtained unfairly over and above the jurisdiction contained in s 30 of the Act.
[133] Mr Stevenson, counsel for Mr Thompson, advanced the submission that if I were not satisfied evidence should be excluded under s 30 of the Act then I should exclude the evidence in question pursuant to my common law jurisdiction. In particular, Mr Stevenson submitted that the common law power to exclude evidence should be invoked if I was not satisfied there was a causal connection between the police misconduct and the evidence the police gathered after the false warrant and prosecution scenario.
[134] As is apparent from my conclusions in relation to Parts I and II of this judgment, I am satisfied there is a causal connection between the police misconduct and the evidence gathered from June 2010 to March 2011. Thus, the reasons advanced by Mr Stevenson for me to revert to the common law jurisdiction to exclude evidence in this case have evaporated.
[135] In any event, at common law, the seriousness of a charge was a relevant factor to take into account when determining whether or not evidence should be excluded on the grounds of unfairness.62
[136] As I have also endeavoured to make clear in Part II of this judgment, I am satisfied that the unfairly obtained evidence should be adduced in relation to “serious” charges in this case.
Conclusion
[137] The evidence obtained by the police from June 2010 to March 2011 in relation to charges which are not “serious” will be excluded from the defendants’ trial.
[138] All evidence obtained by the police prior to June 2010 will be admissible.
62 R v Dally [1990] 2 NZLR 184 (HC) at 192; R v Williams (1990) 7 CRNZ 378 (CA); R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 19 ALR 641 at 663; Tofilau v R [2007] HCA 39 at [112]; see also above n 38.
[139] I will hear submissions on 6 March 2015 and thereafter determine what
charges based on evidence gathered from June 2010 to March 2011 are “serious”.
D B Collins J
Solicitors:
Crown Solicitor, Nelson
Bamford Law, Nelson for Defendants Jones and Lloyd
Rout Milner Fitchett, Nelson for Defendant Rutledge
Spear Law, Nelson for Defendant HaywardZindels, Nelson for Defendants Antonievic and Smith
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