R v Briggs
[2009] NZCA 244
•12 June 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA298/2009
CA299/2009
CA300/2009
[2009] NZCA 244THE QUEEN
v
ARTHUR BRIGGS
STEFAN HOEER
ERU TE WHATAHearing:11 June 2009
Court:Arnold, Harrison and Winkelmann JJ
Counsel:M D Downs and M B Smith for Crown
G R Anson for Respondent Arthur Briggs
A B Fairley for Respondent Stefan Hoeer
C Muston for Respondent Eru Te Whata
Judgment:12 June 2009 at 10.30 am
Reasons:6 November 2009 at 4 pm
JUDGMENT OF THE COURT
We grant the Solicitor-General leave to appeal and allow the appeal. The evidence obtained from the respondents consequent upon their arrest without warrant is admissible.
REASONS OF THE COURT
(Given by Arnold J)
Table of Contents
Introduction [1]
Factual background [5]
The High Court decision [12]
Discussion [20]
Corrections legislation [21]
The need for arrest: the authorities [29]
Application to facts [66]
(i) Failure to exercise discretion [68]
(ii) Irrationality [76]
Decision [87]
Introduction
[1] The Solicitor-General applied for leave to appeal against a decision of Duffy J in which she ruled certain evidence inadmissible in the respondents’ upcoming trial: HK WHA CRI-2008-027-000660 14 May 2009. Given the proximity of the trial, we heard the application for leave to appeal and the appeal together. We granted leave and allowed the appeal, with reasons to follow. These are our reasons.
[2] The respondents were prison inmates, on remand in relation to other offending. They and three others were charged with wounding with intent to cause grievous bodily harm contrary to s 188(1) of the Crimes Act 1961. The victim was another remand prisoner, who had recently been transferred to the particular prison unit. The Crown alleged that the respondents and the other inmates systematically beat the victim, to such an extent that he spent two weeks in hospital in an intensive care unit. One of the likely issues at the trial was the identification of his assailants.
[3] The police obtained the evidence at issue after arresting the respondents without warrant at the prison and taking them to a police station for processing in terms of s 57 of the Police Act 1958 (now repealed and replaced by s 32 of the Police Act 2008). Duffy J held that although the police had good cause to suspect that the respondents had committed the offence, the arrests were unlawful because the police had not exercised their discretion whether or not to arrest. The Judge considered that the arrests were unnecessary as the respondents, being already incarcerated, could have been summonsed to appear. As the arrests were unlawful, the evidence obtained as a consequence of them was unlawfully obtained. The Judge held that it should be excluded following the balancing test provided for in s 30 of the Evidence Act 2006.
[4] The Solicitor-General wished to appeal against both aspects of the Judge’s decision. The respondents cross-appealed on grounds that we detail below.
Factual background
[5] The Crown alleged that on 8 March 2008, at the direction of a co-accused, the respondents and other remand inmates in a unit known as the Weka pod at Ngawha Prison entered the victim’s cell in pairs and assaulted him, inflicting serious injuries.
[6] On 10 March 2008, several police officers went to the prison to investigate the assault. In the course of that visit they took photographs of the respondents. Around this time another remand prisoner (the witness) made a series of statements to the police in which he identified as an assailant a person whose description matches one of the respondents, Mr Hoeer. The witness also identified another of the respondents, Mr Te Whata, as an assailant from photographs. On 12 March 2008 the police arrested both men without warrant under s 315(2)(b) of the Crimes Act and took them to the Kaikohe Police Station where they were fingerprinted and photographed under s 57(1) of the Police Act. As a result of obtaining Mr Te Whata’s fingerprints, the police were able to identify a fingerprint found in the victim’s blood at the scene of the assault as that of Mr Te Whata. This is one of the items of evidence at issue. Mr Hoeer declined to make any statement to the police. Mr Te Whata did make a statement and that also is one of the items of evidence whose admissibility is at issue.
[7] The circumstances of the arrests were as follows. The officer in charge of the investigation was Detective Senior Sergeant Ruth. Detective Sergeant Crowe oversaw the initial enquiries with the inmates in Weka Pod to identify witnesses and later oversaw the police officers dealing with the suspects. He briefed several other officers about the case at the Kaikohe Police Station around midday on 12 March 2008. Among these were Constable Dempster and Detective Howse. Following the briefing Detective Sergeant Crowe and the other officers went to the prison. The suspect inmates were brought to the Receiving Office, a facility with six glass-fronted cells. Each inmate was placed in an individual cell. Particular officers were “tasked” with dealing with particular inmates. In the course of the visit Constable Dempster arrested Mr Hoeer and Detective Howse arrested Mr Te Whata, each having been “tasked” accordingly.
[8] Two days later, on 14 March, Detective Ridgley went with Detective Sergeant Crowe to the prison. There he was “tasked” by Detective Sergeant Crowe with arresting the third respondent, Mr Briggs. (Although the witness had misidentified someone else as the offender believed to be Mr Briggs from photographs, his description of a particular tattoo on the assailant matches a tattoo that Mr Briggs has.)
[9] Following his arrest Mr Briggs also was taken to the police station and processed. He did speak to the police, acknowledging that he had played rugby with the witness. The significance of this is that in his evidence at the preliminary enquiry, the witness described a person with whom he played rugby as having a particular type of tattoo, and said that this person was one of the assailants. Mr Briggs has such a tattoo, so his admission that he played rugby with the witness tended to incriminate him. This statement is one of the items of evidence at issue.
[10] Finally we note that it appears from the evidence that Detective Sergeant Crowe discussed arresting the respondents with Detective Senior Sergeant Ruth before the arrests were made, and that Detective Senior Sergeant Ruth told him to proceed with the arrests.
[11] The respondents challenged the admissibility of the evidence obtained following their arrests. This consisted of photographs of the respondents, and in particular their tattoos, and the statement by Mr Briggs. The respondents submitted that the police had failed to follow the procedures in the Corrections Act 2004 in relation to their arrests and that the Corrections Regulations 2005, which allowed for their removal from the prison for processing under s 57, were ultra vires the Corrections Act.
The High Court decision
[12] Following a hearing pursuant to s 344A of the Crimes Act, Duffy J rejected the grounds of challenge just mentioned, but nevertheless excluded the evidence.
[13] The Judge accepted that each of the arresting officers had good cause to suspect that the relevant respondent had committed the offence even though they had relied significantly on what they were told by other officers. This, she said, reflected the realities of modern team policing: see Neilsen v Attorney-General [2001] 3 NZLR 433 at [29] (CA) and O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 (HL), especially per Lord Hope at 301 – 302 (cited at [70] below).
[14] Despite this, the Judge held that the arrests were unlawful and arbitrary and thus in breach of s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides: “[e]veryone has the right to be free from arbitrary arrest or detention”. This was because none of the officers had exercised his discretion under s 315(2)(b) in effecting the relevant arrest. That is, they had not considered whether the warrantless arrests were necessary or whether some other form of process (ie, a summons coupled with an order to produce) would have been sufficient. This was because they had simply followed the instructions of their superior officers to make arrests.
[15] In reaching this conclusion the Judge discussed a number of authorities, including Keenan v Attorney-General [1986] 1 NZLR 241 (CA), Auckland City Council v Dixon [1985] 2 NZLR 489 (CA), Attorney-General v Hewitt [2000] 2 NZLR 110 (HC) and Neilsen. She said:
[87] The authorities make it clear that the arresting officer must exercise some discretion. The development of modern policing methods may result in more senior officers making a decision to have a suspect arrested but I consider that those who carry out the task of making the arrest are left with a discretion whether to do so or not. They are the persons at the scene and they should be able to adopt a different course of action if that seems to them to be warranted. By simply accepting they have been “tasked” to carry out an arrest, the officers concerned fetter the discretion Parliament has given to them under s 315. When they do this, their exercise of the power under s 315 becomes unlawful.
[16] The police officers who made the arrests, and Detective Sergeant Crowe, had sought to justify the arrests by saying that they were necessary to enable the exercise of the s 57 powers and to give the suspects an opportunity to answer the allegations against them at a place with appropriate facilities and free from extraneous influences. The Judge did not accept that these reasons were legitimate. She said:
[88] In the alternative, I consider that the reasons the arresting officers advanced for arresting the accused are not rational reasons to support the exercise of the discretion in s 315. The circumstances of this case differ from those in the authorities I have considered. None of the other cases involved serious offences, and in the other cases the possibility of using the alternative process of issuing a summons to appear in Court was always possible in principle. With the present case, the seriousness of the offence would ordinarily lead to an arrest either with or without a warrant.
[89] However, there is one common factor among all the cases discussed, which is the absence of usual reasons for exercising an arrest without warrant. In general, where a serious offence is suspected of having been committed, the arrest without warrant of a suspect is usual. This is done to remove the suspect from the community in order to remove perceived risks of further offending, interference with witnesses or evidence, and the risk of the suspect absconding. The considerations referred to in Hewitt at [41] … are the types of considerations which, if present, are likely to result in an arrest without warrant.
[90] In Neilsen the circumstances of the offending were not serious and the usual circumstances that would invite an arrest without warrant were not present. In this case, the offending is serious. If the suspects had been at large in the community, their arrest without warrant would be expected. However, all suspects were already on remand in custody in prison for other offences. This meant the usual reasons for arrest did not apply. Insofar as the purpose of the arrest of a suspect is to protect the community from further harm and to avoid the suspect absconding or interfering with the Police case against him or her, that purpose was already being met.
[17] The Judge summarised her findings as follows:
[100] I have found that the arresting Police Officers exercised no discretion when they effected arrests without warrant of the accused. This makes the arrests unlawful. In addition, I have found that there was no “sensible” or “rational” reason for an arrest without warrant. Given that there was an alternative process available, I consider that the decision of the senior officer to instruct other Police Officers to effect arrests without warrant of the accused was an unlawful decision. This means that the arrests of the accused were unlawful.
[18] Having concluded that the arrests were unlawful and arbitrary, the Judge found that the evidence obtained as a result of the exercise of the s 57 powers was unlawfully obtained. She then conducted the balancing test contemplated by s 30 of the Evidence Act, and held that the evidence should be excluded.
[19] The Solicitor-General sought leave to appeal against this decision. The respondents cross-appealed:
(a)Mr Anson for Mr Briggs submitted that regulations 26(1)(e) and 27(v) of the Corrections Regulations 2005 were ultra vires the Corrections Act 2004.
(b)Mr Muston for Mr Te Whata submitted that the power to arrest an inmate without warrant was limited to situations referred to in ss 149 and 184 of the Corrections Act 2004. For that reason, the arrests were unlawful.
Discussion
[20] We will begin by setting out the relevant provisions of the Corrections Act and Corrections Regulations so as to deal with the issues raised by the respondents. We will then discuss the authorities on the question of the need to arrest and, following that, their application to the facts of this case.
Corrections legislation
[21] Section 62 of the Corrections Act provides for the temporary removal of inmates from prison. Relevantly it provides:
Temporary release from custody or temporary removal from prison
(1)This section applies to every prisoner who is a member of a class of prisoners specified in regulations made under this Act as a class of prisoners who may be–
(a)temporarily released from custody under this section; or
(b)temporarily removed from prison under this section while remaining in custody under the control or supervision of an officer, staff member, or probation officer during the period of removal.
(2)The chief executive may give authority for the temporary release from custody or temporary removal from prison of a prisoner to whom this section applies–
(a)for any purpose specified in regulations made under this Act that the chief executive considers will facilitate the achievement of 1 or more of the following objectives:
(i)the rehabilitation of the prisoner and his or her successful reintegration into the community (whether through release to work (including self-employment), to attend programmes or otherwise):
(ii)the compassionate or humane treatment of the prisoner or his or her family:
(iii)furthering the interests of justice; or
(b)in any circumstances that, in the opinion of the chief executive, are exceptional and that will facilitate the achievement of 1 or more of the objectives described in paragraph (a).
….
[22] Sections 200 – 204 of the Corrections Act deal with the power to make regulations under the Act. Section 202(i) allows for regulations:
[P]rescribing the classes of prisoners who may be temporarily released from custody or temporarily removed from prison under section 62, prescribing the purposes for which prisoners may be released or removed under that section, and regulating the release and removal of prisoners under that section.
[23] Regulation 26(1) of the Corrections Regulations provides:
Classes of prisoners who may be temporarily released under section 62
(1)The following classes of prisoners may be temporarily released under section 62 of the Act:
(a)every prisoner (other than a service prisoner) sentenced to imprisonment for a term exceeding 24 months who has reached his or her parole eligibility date under section 20 of the Parole Act 2002; and
(i)who is assigned a security classification that reflects the lowest level of risk category; or
(ii)who is assigned a security classification that reflects the second lowest level of risk category and who has been directed by the Parole Board to be released on parole under section 28 of the Parole Act 2002:
(b)every prisoner (other than a service prisoner) sentenced to imprisonment for a term of 24 months or less who is assigned a security classification that reflects the lowest level of risk category:
(c)every prisoner (other than a service prisoner) who, before 1 July 2002, was sentenced to imprisonment for a serious violent offence who–
(i)is not eligible for parole but whose final release date is within the next 12 months; and
(ii)is assigned a security classification that reflects the lowest level of risk category:
(d)every prisoner whose release is required for the purpose specified in regulation 27(u) and who consents to being released for that purpose:
(e)every prisoner whose release is required for the purpose specified in regulation 27(v).
(Emphasis added.)
At the relevant time, reg 27(v) permitted release “to enable the police to exercise powers under section 57 of the Police Act 1958 in connection with the laying of charges.”
[24] Mr Anson argued s 62(1) of the Corrections Act requires the identification of classes of inmates. While reg 26(1)(a), (b) and (c) do prescribe such classes, reg 26(e) does not. Rather it refers to the purpose for which release is sought. Mr Anson submitted that s 62 was intended to permit the release of inmates who posed less risk to the community and would benefit most from gradual re-integration into the community prior to release. He argued that Parliament cannot have intended that s 62 be used to enable the release of inmates so that the police could exercise their s 57 powers.
[25] Duffy J rejected this argument, rightly in our view: see [101] – [108] of her judgment. We see no reason why the class cannot be defined by reference to the purpose for which release is authorised, as is reflected in the opening words of reg 26. Further, we did not agree that s 62 is limited to cases where release has what might be described as a rehabilitative context.
[26] Mr Muston raised a further argument. He submitted that the Corrections Act deals with offences against discipline in subpart 5. Section 128(1)(g) makes it an offence against discipline for an inmate to assault or fight with any other person, and the subpart goes on to set out the procedures for dealing with such offences. The Corrections Act does contain powers of arrest (in ss 149 and 184), but they do not relate to offences against discipline. Consequently, the police were not entitled to arrest the respondents.
[27] That argument is untenable. This was a very serious assault. The procedures and penalties applicable to disciplinary offences are insufficient to deal with such conduct. In a serious case such as one involving homicide or the type of injury inflicted in this case, resort to the standards, procedures and penalties of the normal criminal justice system is plainly necessary and contemplated.
[28] We turn now to the principal issue on the appeal, namely the exercise of the power of arrest without warrant under s 315(2)(b) of the Crimes Act.
The need for arrest: the authorities
[29] We begin with s 57 of the Police Act. It relevantly provided:
(1)If any person is in lawful custody on a charge of having committed an offence, a member of the Police may, and if directed by any of his superiors shall, take or cause to be taken any particulars of that person, including his photograph, fingerprints, palm-prints, and footprints, and may use or cause to be used such reasonable force as may be necessary to secure these particulars.
(1A)Notwithstanding anything in subsection (1) of this section, no fingerprints, palm-prints, or footprints shall be taken under this section unless the person in lawful custody is at a police station, or on other premises, or in any vehicle, being used for the time being as a police station.
[30] Two relevant points emerge from this provision. First, the power to take particulars from a person under s 57 depends on that person being in lawful custody. In the present case, that depends on whether the arrests were lawful. Second, unlike the power to take photographs, the power to take fingerprints, footprints and palm-prints may only be exercised at a police station.
[31] In addition, it is important to note that this Court has held that, where a person suspected of an offence has been lawfully arrested, the police may exercise the power to take particulars for the purpose of gathering evidence against him or her: see the discussion of Keenan at [40] – [42] below.
[32] As we have said, Duffy J found that each of the arresting officers had reasonable grounds to effect the relevant arrest. There has been no challenge to those findings. Accordingly the question is whether the Judge was right to hold that the arrests were unlawful because the arresting officers did not consider alternatives to arrest. Mr Downs for the Solicitor-General accepted that the exercise by the police of the discretion to arrest is amenable to review on judicial review principles. He argued, however, that this was a case in which the only reasonable course open to the police was to arrest.
[33] The traditional view was that, provided an arrest was otherwise valid, the officer making it did not have to consider whether or not it was necessary. As Professor Glanville Williams said in an article entitled “Arrest for Felony at Common Law” [1954] Crim L R 408 at 419 – 420:
At present, there is no judicial authority for saying that an arrest, otherwise valid, is unlawful because unnecessary.
Professor Williams cited Davies v Russell (1829) 5 Bing 354; 130 ER 1098 as authority for this proposition. The question is to what extent (if any) must this view now be qualified?
[34]As we have said, the Judge relied on a number of authorities in reaching her decision. Accordingly we will consider those, beginning with the Dixon case. Before we do so, however, we should emphasise three important points that emerge from them:
(a)First, while the courts have accepted that the police have a discretion to arrest or not even where the reasonable cause to suspect requirement is met, the New Zealand cases have not recognised a blanket requirement that the police must be satisfied that the use of the power of arrest is necessary in the circumstances of the particular case.
(b)Second, while it is accepted that the courts may review the exercise of the discretion to arrest on judicial review grounds, that power is exceptional and will be exercised only in very limited circumstances. It is unlikely to be exercised in the absence of factors such as bad faith, improper purpose or improper fettering resulting from inflexible policies.
(c)Third, there is a distinction between cases where the arresting officer is unable to exercise any discretion because he or she is obliged to follow an inflexible policy and a situation where an officer is given the responsibility of making an arrest in the course of a particular investigation in which a team of officers is involved.
Against this background, we turn to the authorities.
[35]Dixon concerned the power of traffic officers to arrest under s 58C(1)(a) of the Transport Act 1962. Under s 58B of that Act an officer had the power to require a person who failed a breath test to permit a doctor to take a blood sample. Section 58C relevantly provided:
58C Refusal to provide a blood specimen
(1)Every person commits an offence and may be arrested, without warrant, by an enforcement officer, who–
(a)Having been required by an enforcement officer, under section 58B(1) of this Act, to permit a blood specimen to be taken, fails or refuses to do so;
…
[36]A traffic officer employed by the Auckland City Council had given the respondent an evidential breath test, which he failed. The officer required the respondent to permit a blood specimen to be taken. When the respondent was unco-operative, the officer, in accordance with the Council’s instructions to its officers, told him that if he did not comply, he would be arrested and taken to the Auckland Central Police Station. The respondent then agreed to give a specimen.
[37]This Court held that the statement made in accordance with the Council’s instructions was likely to give the wrong impression and to place undue pressure on drivers to consent to blood tests. This was because the right to apply for bail was not mentioned: at 492.
[38] But the Court also based its decision on a wider ground. Delivering the Court’s judgment, Cooke P said at 492:
While actions taken by officers in difficult situations should certainly not be judged harshly by the Courts, it is also true that their power of arrest without warrant should never be exercised or threatened to be exercised automatically or without substantial reason.
Later the President said at 493 – 494:
As the New Zealand legislation stands, it would be unwise for the Courts to attempt to lay down exhaustively the kind of circumstances in which an officer’s statutory power of arrest without warrant can properly be exercised in breath or blood alcohol cases. What we can say is that an officer should never exercise the power without being satisfied that it is necessary in the particular circumstances to take this serious step. If, apart from the mere refusal of a blood test, he is subsequently unable to point to features of the case which led him to make the arrest, he will be at risk of a finding of an abuse of power.
Clearly the current New Zealand legislation contains nothing to suggest that, contrary to ordinary principles, the power of arrest without warrant, or the threat of it, may be exercised to compel persons to submit to blood tests which they would otherwise refuse. They will commit offences by refusing lawful requirements and may be prosecuted in the ordinary way. But naturally the Act stops short of authorising physical compulsion to undergo these tests. Similarly, in our view, it stops short of authorising indirect compulsion to do so. Yet it is not realistically possible to explain the general practice of Auckland officers except on the footing of indirect compulsion. For this reason also we hold that, no doubt in all good faith but in a mistaken understanding of the purpose of the power of arrest, the officer in this case went too far in threatening arrest. …
(Emphasis added.)
[39] As this passage indicates, the Court was concerned with the narrow question of the use of arrest, or the threat of arrest, in drink-driving cases for an improper purpose. The improper purpose was to place pressure on drivers to give blood specimens in circumstances where they were free to refuse, albeit in doing so they committed an offence. That is the context of the Court’s observations concerning the use of arrest.
[40] We turn next to the decision of this Court in Keenan. In that case the Court rejected an argument on behalf of Mr Keenan that the s 57 powers could not be exercised after arrest in order to obtain evidence against him. Cooke P noted that the police officer concerned had good cause to suspect that Mr Keenan had committed an offence and said at 246:
The power of arrest had still to be exercised in good faith and not under the influence of irrelevant considerations: Holgate-Mohammed v Duke [1984] AC 437. But the considerations that persons charged with serious crimes are normally arrested in the first instance, and that among other consequences this enables their fingerprints to be taken, which may strengthen or weaken the police case against him, are entirely legitimate.
Cooke P noted that after their initial arrest of Mr Keenan, the police obtained information that he had been involved in further similar offending. The President said that the police could properly have re-arrested him, for the purpose of obtaining a further set of fingerprints from him: at 246. He distinguished Dixon.
[41] In his judgment in the same case McMullin J noted that the power of arrest must be exercised in good faith, referring to Holgate-Mohammed, and said at 248:
Once an arrest has been made on grounds set out in s 315(2)(b) the police may take the arrested person’s fingerprints. It does not matter that the predominant reason behind the arrest is to secure the prints for further evidence as long as there is sufficient evidence in the first place to found “good cause to suspect”. It follows that unless there are proper grounds for an arrest the taking of fingerprints cannot be justified by s 57(1).
Later he said that even if the substantial purpose of Mr Keenan’s arrest was to obtain his fingerprints, that was permissible: at 248. Casey J agreed, saying that it was “not possible to conclude that the two police officers here took into account improper or irrelevant considerations if their decision to arrest had been motivated wholly or in part by the desire to exercise the powers under s 57 in order to obtain evidence supporting their suspicions”: at 251.
[42] In Keenan the members of the Court recognised very limited restrictions on the power of the police to arrest without warrant where they have reasonable cause to suspect a person of committing a serious offence. As we have noted, Cooke P said that the power of arrest had to be exercised “in good faith and not under the influence of irrelevant considerations”, a proposition accepted by McMullin and Casey JJ. Cooke P did go on to reserve the question whether it would be a legitimate consideration in deciding to arrest without warrant that a suspect would be more likely to confess guilt if arrested and questioned at a police station, as had been accepted by the House of Lords in Holgate-Mohammed: at 246. Beyond this, however, the Court did not indicate any restrictions on the use of arrest without warrant, and accepted that it would normally be utilised in relation to serious offending. Casey J perhaps went furthest when he said at 251:
The police indicated that arrest was the general policy in all serious cases, and the Judge accepted Detective Thiele’s evidence that the prime factor motivating him was the seriousness of the charges, a voluntary court appearance being acceptable only for very minor offences. The ability to take fingerprints etc could also be a consideration, but it was not the main one. As a result, Hardie Boys J rightly concluded that the arrest was not unlawful.
[43] Next is Thomas v Attorney-General CA139/96 14 August 1997. Mr Thomas sued the Attorney-General (on behalf of the Police) and three police officers for unlawful arrest, false imprisonment, assault and malicious prosecution. He was unsuccessful at trial. On appeal, the submissions on his behalf focussed on the legality of his initial arrest.
[44] We need not go into the particular facts. It is sufficient to say that the Court considered that the arresting officer had good cause to suspect that Mr Thomas had committed an offence. The Court rejected an argument that the police should have exercised their discretion not to arrest, on both the facts and the law. As to the law, the Court said:
On the law, we were referred to Holgate-Mohammed v Duke [1984] AC 437 and in particular to the statement by Lord Diplock (at 443) that the exercise of a power of arrest could be questioned by reference to the standard of unreasonableness under Wednesbury principles. The principle that was relevant in that case was that the arresting officer “must exclude from his consideration matters which are irrelevant to what he has to consider”. That is of course not the present case where the argument rather is that there had been a failure to have regard to a relevant consideration. The exercise of a power of arrest for an improper purpose is more readily the subject of censure and review than failing to have regard to some relevant purpose. In the latter case the failure must be a failure to have regard to a mandatory purpose. We were not referred to any case in which such an argument had succeeded in respect of a power of arrest. As well, we are not aware of any requirement that that choice between arrest and other possibilities, when arrest is available, must as a matter of law always be made. While we would accept that that could well be good police practice, we see no support for it in the words of s 315 or in the relevant cases.
(Emphasis added.)
[45] This passage is consistent with Keenan in recognising the power of review for bad faith or irrelevant considerations, although the Court drew a distinction between improper purpose and failure to have regard to a relevant consideration or purpose. In addition, contrary to the approach adopted by Duffy J, the Court said that it was not aware of any requirement that the police must always consider the use of some less restrictive alternative to arrest without warrant.
[46] Next is the decision of the Full Court of the High Court in Hewitt. Mr Hewitt sued the Attorney-General (on behalf of the Police) for damages on various causes of action arising out of the actions of the police responding to a domestic incident. Mr Hewitt’s partner alleged that he had assaulted her late one evening. After one unsuccessful attempt, the police went to the couple’s flat, gained entry with a key provided by the complainant and arrested Mr Hewitt. By this time it was around 3.30 am. Mr Hewitt was then taken to the police station, and formally charged with assault (male assaults female) around 6 am. The police did not consider granting police bail. Rather, Mr Hewitt was released from custody on Court bail around 11am.
[47] After a depositions hearing, Mr Hewitt was discharged by two Justices of the Peace. He then brought an action against the police for damages, alleging trespass, wrongful arrest, false imprisonment and malicious prosecution. He succeeded in the District Court on first three causes of action, but failed on that alleging malicious prosecution. On appeal, the Full Court of the High Court held that there was no trespass at the flat and so allowed the appeal on that point. However, the Court upheld the findings of the District Court Judge on the wrongful arrest and false imprisonment claims.
[48] The High Court considered that the police had good cause to suspect that Mr Hewitt had committed an offence, even though they had not given him an opportunity to respond to his partner’s allegations before arresting him: at [34] ‑ [35]. However, the Court said that under s 315 police officers have a discretion whether to arrest and that the essential question was “on what grounds a Court will intervene to review the exercise of that discretion”: at [38]. The Court summarised the effect of the authorities (including in particular Holgate-Mohammed, Thomas and R v Chalkley [1998] 2 All ER 155 (CA)) as being that, although a decision to arrest was susceptible to review on the usual administrative law grounds, the prospects for a successful challenge were likely to be very limited: at [40].
[49] The Court considered that the decision to arrest could be challenged because, although the police had the time to do so, they did not exercise any discretion. This was because the relevant police region had a general policy that the police would make an arrest in all cases of domestic violence and would hold the arrested person in custody until a court appearance (ie, police bail would not be available): at [46] ‑ [47]. In other words, no thought was given to the possibility of a different approach in any particular case.
[50] Here, then, the Court was concerned with a different issue than the one arising in the present case. A policy of arrest was rigidly applied (that is, it did not permit of exceptions), with the result that a suspected person automatically spent time in detention (and longer than would have been the case if police bail had been considered). The particular circumstances of the case were irrelevant. Arresting in domestic violence cases in accordance with a blanket policy of this type could not be justified.
[51] Finally we come to Neilsen. Mr Neilsen was a former police officer who worked as a private investigator. After being dismissed from the police, he took a personal grievance, in which he was successful. He obtained employment with a private investigation company run by another former police officer, Mr Doherty, but was dismissed from that after about 18 months. He took a personal grievance against the company and again succeeded before the Employment Tribunal.
[52] In the course of cross-examination before the Tribunal, counsel for the company put to Mr Neilsen that, while in the company’s employment, he had carried out certain work and kept certain cash payments without authority. Mr Neilsen denied this and offered an explanation for what had happened. The Tribunal did not accept his explanation.
[53] Shortly after the Tribunal handed down its decision Mr Doherty made a complaint to the police about Mr Neilsen in relation to the matters that counsel had put to him in cross-examination before the Employment Tribunal. Mr Doherty said that about 14 months earlier, while employed by the company, Mr Neilsen had undertaken work for a client without entering the details of the work in company job book and had deposited cheques for the work, which were drawn to cash, in his personal bank account. The sums involved were $30 and $80. The police investigated and concluded that there was sufficient evidence to charge Mr Neilsen with two counts of failing to account.
[54] They went to Mr Neilsen’s home early one afternoon. Ultimately Mr Neilsen was arrested, taken to a police station, charged, photographed and fingerprinted. He was then released. He was committed for trial following depositions but ultimately the Crown Solicitor did not oppose his application for a discharge under s 347 of the Crimes Act. He then issued proceedings alleging that he had been unlawfully arrested and detained in terms of s 315 of the Crimes Act and that his arrest was arbitrary and in breach of s 22 of NZBORA. He was unsuccessful at trial.
[55] Mr Neilsen succeeded on appeal, however. The Court made two points about modern policing that are important in the present context. The first was that the police are not “independent isolates” but operate within a team environment. The Court said at [29]:
... [Police officers] belong to a command service. The Police Act [1958] itself reflects the obvious need for organisation and control and for the proper discharge of duties required of officers with disciplinary sanctions for deficient performance. Effective policing will often require the pooling of information obtained from different officers from various sources and the deployment of numbers of police officers with individual officers searching premises and arresting suspects in accordance with a predetermined plan of operations where each performs the role assigned to him or her.
(Emphasis added.)
[56] The second was that the discretion to arrest under s 315 where there is good cause to suspect is a “constrained discretion”, the constraint being “the purpose underlying s 315”: at [30]. The Court said that it followed from this that it would be an abdication of discretion, and so an improper exercise of the s 315 power, for an officer to adopt a policy of always arresting when he or she had good cause to suspect a person of committing an offence punishable by imprisonment, citing Hewitt: at [30].
[57] The Court went on to say:
[31] In its terms s 315 confers the power to arrest without warrant directly on the arresting constable. The threshold requirement is that there be good cause to suspect. Where that requirement has been satisfied the arresting officer must decide whether or not to arrest. It is at that step that the discretion he or she is considering exercising is constrained by the purposes underlying the section. How these requirements are satisfied in modern policing where large numbers of police may be involved may require consideration in other cases but that is not in issue in this case. (But see R v Grace [1989] 1 NZLR 197; and O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.)
(Emphasis added.)
[58] The Court noted that the Commissioner of Police has promulgated guidelines to assist police officers in the use of their discretion to arrest: at [37]. The Court then made three points:
(a)The fact that s 315 is neutral as to the use or non-use of arrest did not mean that Parliament intended that arrest should provide the usual means of bringing people within the criminal justice system: at [40].
(b)Equally, there is no basis for concluding that a police officer should be satisfied that arrest is necessary in the particular circumstances. The Court noted that some jurisdictions have incorporated a “necessity” requirement into their arrest without warrant powers: at [41] – [42].
(c)There is a range of serious crime where a police officer could ordinarily be expected to arrest in order to bring the arrestee publicly within the criminal justice system, where the courts would assume responsibility for matters such as bail: at [43].
[59]Turning to the facts of the case, the Court said that it was satisfied that the exercise by an officer of the discretion to arrest where the “good cause to suspect” requirement was met was reviewable in false imprisonment cases: at [44]. The Court examined the reasons which the officer gave for arresting Mr Neilsen (as opposed to using some other process). These included the fear that he might re-offend in the future, the need to have his fingerprints for evidentiary purposes and to reflect the seriousness of the charges. In rejecting these reasons the Court noted that the offending had occurred some 14 months before the arrest, there was no basis for a suggestion that the offending might continue unless an arrest was made, the police had all the evidence that they needed to prosecute and the offending could not be characterised as “serious”: at [46] – [48]. In relation to the last point, the Court noted that Mr Doherty had made the complaint belatedly and only after his company had been ordered to pay damages to Mr Neilsen. The Court held that the stated reasons for arresting were irrational and the arrest was an improper exercise of discretion. It awarded Mr Neilsen damages of $5,000.
[60] In light of the factual background, Neilsen has overtones of the use of arrest for an improper purpose. Further, the Court did not purport to introduce a “necessity” requirement into the New Zealand law of arrest, as legislatures in other jurisdictions have done: see Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005) at [19.8.25]. Most importantly, however, the Court explicitly left open the issue which arises in the present case, namely the operation of the principles relating to arrest without warrant in a team policing environment.
[61]These various cases establish that where a police officer has good cause to suspect that a person has committed an offence, the officer still has a discretion whether or not to arrest. An officer is not obliged to invoke the criminal justice process in every case (eg, the suspect may be let off with a warning), and may decide to use an alternative to arrest if he or she does decide to institute the process (eg, a summons). Further, it is clear, as Mr Downs accepted, that the exercise of the officer’s discretion to arrest is open to review on administrative law principles, although it is equally clear that the review power will be exercised rarely and on limited grounds.
[62]So, an arrest may be susceptible to review in civil proceedings where it is made in circumstances that indicate bad faith or improper purpose on the part of the police, or where the use of arrest is plainly oppressive and unnecessary, as in Neilsen. Similarly, where an officer makes an arrest in compliance with a rigid policy that prevents him or her from exercising any discretion in any circumstances (ie, considering whether the intervention of the criminal law is necessary in the particular case or whether an arrest is the appropriate way of instituting the criminal justice process), the decision to arrest may be susceptible to review in civil proceedings, as in Hewitt.
[63]However, absent factors such as these, it is difficult to envisage a situation where there could be a successful challenge to the decision to arrest, certainly in relation to serious offences of the type at issue where arrest will be the almost inevitable means of instituting the criminal justice process against suspects.
[64]Further, at least in relation to serious offending, where the “good cause to suspect” requirement is met a police officer is entitled to arrest a suspect with a view to exercising the s 57 powers in order to gather further evidence. This follows from Keenan. Counsel for the respondents drew support from [47] of this Court’s judgment in Neilsen:
Further, the fingerprinting power under s 57 of the Police Act arises only where and when the person concerned is in lawful custody on a charge of having committed an offence. The existence of that fingerprinting potential would not be a rational basis for an earlier decision to exercise the power to arrest without warrant. Accordingly, it is significant that in the instructions concerning use of the discretion under s 315 in the [Commissioner’s guidelines] there is no suggestion that the potential for fingerprinting is a relevant consideration…
But we do not see the observation in Neilsen as over-ruling this Court’s decision in Keenan. Keenan was not referred to in Neilsen. Rather, the Court in Neilsen was simply emphasising that the power to take fingerprints and such like under s 57 could not be used to legitimise an arrest that was clearly unjustified in the circumstances in which it was made. The Court did not intend, in our view, to limit the power of the police to arrest and exercise s 57 powers where they have good cause to suspect a person of serious offending.
[65]The ultimate issue in the present case is the admissibility of certain evidence in a criminal case. We were not referred to any case where it has been held that evidence obtained consequent upon arrest without warrant under s 315 for serious offending should be excluded because, although the arresting officer had “good cause to suspect”, he or she did not consider whether an alternative to arrest could be used to institute the criminal justice process. The case which comes closest is Dixon, dealing with another arrest provision, but, as we have said, that was a case of improper purpose, that is, the threat of arrest was used to place indirect pressure on motorists to accede to requests for blood specimens.
Application to facts
[66]This brings us to the facts of the present appeal, and to the two alternative grounds relied on by the Judge, namely the arresting officers’ failure to exercise their discretion and the irrationality of the justifications offered for the arrests.
[67]We should make a preliminary point. Mr Downs said that the grounds relied on by the Judge had not been clearly signalled as bases of challenge by the respondents but emerged during the course of the hearing. The respondents disputed this. Be that as it may, it does seem that the grounds on which the Judge ultimately determined the case were not the principal focus of the argument at the hearing, although they received greater attention as the hearing progressed. As a consequence, the evidence was not developed and explored as it might have been had the grounds been the principal focus of the argument from the outset.
(i) Failure to exercise discretion
[68]As to the first of the grounds, as previously noted the Judge found that the arresting officers had reasonable cause to suspect those they arrested, having been briefed at the police station and read the statement of the witness. But she held that they had effected the arrests at the direction of Detective Sergeant Crowe and did not themselves turn their minds to the question whether arrest rather than some other process was necessary. It seems that Detective Sergeant Crowe had previously discussed arresting the suspects with the officer in charge, Detective Senior Sergeant Ruth. On the face of it, as the Judge found, this offends the principle identified by Lord Steyn in O’Hara at 293 that the executive discretion to arrest or not vests in the constable who is engaged in the decision to arrest (or not) and not in his or her superior officers.
[69]However, the context in which Lord Steyn referred to the principle is important. He was concerned with a case where it was alleged that an arresting officer did not have reasonable cause to suspect the person he arrested because he had made the arrest simply at the direction of a superior officer. Lord Steyn accepted that the allegation could not be sustained because the trial Judge had found that the arresting officer attended a briefing about the case before making the arrest and was prepared to infer that sufficient details had been given at the briefing to provide reasonable grounds for suspicion: at 289 – 290. But he was concerned to emphasise the important role that the “reasonable cause” requirement plays in arrest cases and the need for the arresting officer to have reasonable cause.
[70]Further, the principal speech in the case was that given by Lord Hope. While acknowledging the importance of the reasonable cause requirement, Lord Hope did recognise the reality of modern team policing at 301 – 302:
Many other examples may be cited of cases where the action of the constable who exercises a statutory power of arrest or of search is a member of a team of police officers, or where his action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.
(Emphasis added.)
As the italicised passage shows, Lord Hope recognised that the decision to arrest may have been made by an officer other than the arresting officer. Indeed, in large investigations that may normally be the case. As we said at [55] and [57] above, this Court in Neilsen referred to O’Hara when leaving open the question of the operation of the principles relating to arrest without warrant in the context of modern team policing.
[71]In the present case each of the arresting officers had good cause to suspect the relevant respondent of participating in the assault. Against that background, we do not consider that it was necessary for each of them to consider independently whether or not to exercise their discretion to arrest before making the arrests. There are two reasons for this.
[72]First, the arrests were not simply carried out at the direction of Detective Sergeant Crowe (although given Lord Hope’s observations it may not necessarily have been fatal if they had been) but also under his immediate supervision. He was in charge of the officers dealing with the suspects and was present in the Receiving Office when Mr Te Whata was arrested on 12 March and Mr Briggs on 14 March 2008. (Mr Hoeer was not arrested until late in the afternoon on 12 March because he was the last inmate to be brought to the Receiving Office and was given his evening meal while he was there. Detective Sergeant Crowe said in evidence that he thought he had left the prison by that stage, and that he had dealt with Mr Hoeer when he was eventually brought to the police station.)
[73]It seems to us inevitable that more than one officer had to be involved in making the arrests because more than one inmate was involved. In the circumstances we think it unrealistic to say that the individual arresting officers had, before effecting the arrests, to consider not only that there was good cause to suspect the particular person but also that arrest was the appropriate response. Rather, the arresting officers were entitled to leave that assessment to Detective Sergeant Crowe, who had apparently discussed it with Detective Senior Sergeant Ruth and was present at the scene in a supervisory capacity for most of the relevant time. If circumstances arose which cast doubt on the decision to arrest, Detective Sergeant Crowe was in a position to assess those circumstances and give directions accordingly.
[74]The Judge found that Detective Sergeant Crowe had directed the officers to arrest the respondents because his superior, Detective Senior Sergeant Ruth, had directed him that the arrests should be made. Detective Senior Sergeant Ruth gave evidence, but was not asked about this aspect. But even if he did give some such direction, Detective Sergeant Crowe, as the officer in charge of the police dealing with the suspects, and on the scene when they were dealing with them, was in a position to consider matters when the arrests were made. In other words, he was in a position to exercise the discretion at the relevant time.
[75]Second, even if Detective Sergeant Crowe had not been present, we do not agree with the Judge that the position of an officer who is “tasked” with making an arrest in the context of a team operation is directly analogous to that of an officer who makes an arrest because there is an inflexible policy which he or she is obliged to follow. There was nothing in the evidence to indicate that the individual officers were committed to effecting arrests whatever the circumstances turned out to be at the prison. Put another way, saying that an officer was “tasked” to effect an arrest, and did so, is not the same thing as saying that the officer did not recognise that he or she had a discretion or would not have exercised it if circumstances required. This aspect was not explored in any detail with the witnesses, presumably as a result of the way this issue developed.
(ii) Irrationality
[76]Turning to the issue of justifications, we are satisfied that arrest was an appropriate and reasonable response in the circumstances, so that if the arresting officers had individually turned their minds to it, they would inevitably have decided to arrest. Accordingly we disagree with the Judge on the second point. Our reasons are as follows.
[77]First, the offence with which the respondents are charged is a serious one, punishable by a maximum of 14 years imprisonment. It is within the class of offences for which an arrest would ordinarily be made. As this Court has said previously, where the offending is serious, arrest will be the usual method for instituting the criminal justice process and bringing the suspect quickly within the control of the courts: see Keenan per Cooke P at 246; Neilsen at [43]. The fact that the respondents were already in custody on another charge does not create (in effect) an immunity from the use of arrest, although it may possibly be a relevant factor in some circumstances.
[78]Second, one of the reasons given by the police for the arrests was the desire to exercise s 57 powers. That was, in our view, legitimate given that identification was likely to have been an issue at trial and contemporaneous photographs of the respondents, and their tattoos in particular, would have been important given the evidence of the witness. The s 57 powers can be exercised only where a person is in lawful custody on a particular charge, and most can be exercised only at a police station. As we have said, we do not read the observations of the Court in Neilsen as overruling what was said in Keenan to the effect that a desire to exercise s 57 powers was a legitimate reason to arrest, at least in a case involving serious charges.
[79]Third, the police pointed to the difficulties of attempting to investigate the offending and deal with the respondents and the others charged in the prison. The offence at issue was a serious assault against an inmate in a pod containing approximately 30 inmates. The police had difficulty conducting their investigation, as the members of the pod were unwilling to co-operate. The following exchange took place between the Judge and Detective Sergeant Crowe:
Q.But in terms of giving the accused an opportunity to be interviewed as a matter of fairness to the accused, you could have visited them in prison and given them the opportunity leaving it up to the accused as to whether they would consent to an interview couldn’t you?
A.There’s a high amount of influence within the prison environment not to co-operate with Police or speak to Police and can I just refer to my notes during this period.
Q.Yes?
A.One of the inmates that I spoke to commented to me and I noted it down “we’ve been keeping time we know who the snitches are” which was said to let me know that, you know, other prisoners were influencing everyone who was coming in to speak with us[. T]o try and interview someone in that environment is very difficult and certainly the pressure put on them would influence whether they speak to us or not.
Q.And so for that reason did you consider that the arrest process was a way in which you would have the opportunity to ask someone if he would participate in an interview in a less pressured environment?
A.Yes it gave each of the accused the opportunity if they wished to do so without outside influences of being able to answer the allegations.
The inmates’ reluctance to co-operate is perhaps understandable given what had happened to the victim.
[80]Similarly, when the police were dealing with the suspects on 12 March, they were difficult and unruly. Detective Constable Howse described the inmates in the Receiving Office on 12 March as being “loud”, “abusive” and “banging and crashing”. There were no facilities to record interviews, or to carry them out in private. Constable Dempster gave the following evidence:
Q.Her Honour just asked you about the procedure you took and your answer was that the Police Station as opposed to the prison was the best place to deal with Mr Hoeer?
A. (Witness nods head in the affirmative.)
Q. Why do you say that?
A.As we were dealing with a large number of people on the day the defendants were very hostile towards Police – in fairness we wanted to take them back to Kaikohe Police Station and give them a chance to give us an interview where we couldn’t be interrupted. There is no interviewing facilities at the prison that I am aware of and as per the glass front cells at the prison were inadequate we returned them to the Kaikohe Police Station for that purpose.
BENCH:
Q.Is it fair for me to conclude then that given the hostility you say the defendants were expressing if they had had control of their circumstances that day they wouldn’t have come with you but for the arrest?
A.Some weren’t hostile at all Your Honour but some were but I can’t recall exactly who was and who wasn’t but I just remember the tension that was building and for the safety of all involved it was more practical to transport them back to the Kaikohe Police Station, rather than deal with them at the prison.
[81]In our view, the police were entitled to assert some control over the situation, and to mark the seriousness of what had occurred, by effecting arrests rather than proceeding in some other way. Further, we agree that conducting interviews in the prison environment was not desirable given the absence of appropriate facilities (eg, proper interview rooms and video recorders), and the tense atmosphere. Indeed, if the police had attempted to undertake the interviews at the prison and further trouble had ensued, they might well have been subject to legitimate criticism.
[82]All this illustrates the difficulties and delays that are inherent in the alternative to arrest, namely the summons procedure. Once the police had initiated the process by laying informations, a Registrar or Judge would have had to determine whether summonses should be issued. The summons process would not have allowed for the exercise of s 57 powers, nor could timely interviews have been conducted. In the circumstances, we do not regard this option as a realistic one.
[83]Before concluding the judgment we deal with two further points. First, in Holgate-Mohammed a police officer who had reasonable grounds to believe that a person had committed an offence arrested her because he considered that there was a greater likelihood that she would respond truthfully to questions about the offending than she would if questioned in her own home. The House of Lords held that the officer’s decision to arrest the suspect in order to facilitate enquiries into the case was a legitimate exercise of his discretion to arrest. As previously noted, in Keenan Cooke P said of that: “[a]rgument would be necessary before deciding whether or not on that point the House of Lords ruling is applicable in New Zealand”: at 246. We do not need to resolve that question in this case (there is new legislation in the United Kingdom addressing the point: see Austin “The New Powers of Arrest: Plus ça Change: More of the Same or Major Change?” [2007] Crim L R 459). Here the police wished to exercise their s 57 powers. That could occur only at a police station. The further consideration that they wished to interview the suspects (assuming that they agreed to be interviewed) at the police station, away from the tense atmosphere of the prison and where video-recording and other facilities were available, was in our view legitimate.
[84]Secondly, for the sake of completeness, we note that Mr Downs submitted that the fact that the respondents were already in custody awaiting trial on other charges meant that the invasion of liberty that arrest entails was not as significant for them as for persons at large in the community. The respondents’ liberty was, he said, already substantially curtailed and this was relevant to an assessment of whether the protection afforded by s 22 of NZBORA against arbitrary arrest or detention has been breached. He pointed out that this Court held in Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 at [62] that a change in the conditions of an inmate’s confinement (for example, a move from the regular prison population to segregation) does not amount to a new detention for the purposes of s 23 of NZBORA. He said the same must be true in relation to s 22.
[85]We are reluctant to place much emphasis on this point. The respondents were entitled to the protection of s 22 even though they were incarcerated. As Mr Downs acknowledged, s 22 protects human dignity and autonomy as well as liberty, and those interests are not wholly lost on incarceration. So, if the respondents had been arrested in the absence of any evidence linking them to the assault, the prohibition against arbitrary arrest would have been violated.
[86]In the result, then, we consider that there were proper grounds to arrest (rather than use an alternative), so that if the arresting officers had independently exercised their discretion, they would inevitably have determined that arrest was the appropriate response. Accordingly, we do not consider that the evidence resulting from the exercise of the s 57 powers or the statements of Mr Te Whata and Mr Briggs were unlawfully obtained. In these circumstances, it is unnecessary that we consider the application of s 30 of the Evidence Act.
Decision
[87]The Solicitor-General is granted leave to appeal and the appeal is allowed. The evidence obtained from the respondents consequent upon their arrest without warrant is admissible.
Solicitors:
Crown Law Office, Wellington
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