R v H HC Auckland CRI 2005-004-21953
[2007] NZHC 2120
•19 September 2007
This case has been anonymized
NOT TO BE PUBLISHED IN NEWS MEDIA OR INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2005-004-21953
THE QUEEN
v
H
Hearing: 11 and 16 May, 18-19 June 2007
Counsel: BH Dickey and AM Adams for Crown
GJ Newell for Accused
PE Dacre as Amicus Curiae
Judgment: 19 September 2007
JUDGMENT OF RODNEY HANSEN J
This judgment was delivered by me on 19 September 2007 at 10.00 a.m., pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Meredith Connell, P O Box 2213, Auckland for the Crown Mr GJ Newell, P O Box 105444, Auckland for the Accused Mr PE Dacre, P O Box 47963, Ponsonby, Amicus Curiae
R V H HC AK CRI 2005-004-21953 19 September 2007
Introduction
[1] On 30 October 2005 the police received information from an informant that led to a search of Ms H ’s parked car. Inside they found a cigarette packet containing 27.6 grams of methamphetamine. She faces charges of possession of methamphetamine for the purpose of supply and using methamphetamine.
[2] The defence says the search of the car was illegal and evidence of what was found in the course of the search inadmissible. The defence also challenges the admissibility of handwritten notes made by Ms H which were found by the police in a later search of her home on the grounds that they are subject to legal professional privilege. The Crown applies, under s 344A of the Crimes Act 1961, for orders that the evidence of what was found in the course of both searches is admissible.
Search of car
Informant’s evidence
[3] The informant told Sergeant Peter O’Neill and Constable Haocheng Li of the Downtown Police Station that a drug deal was likely to take place later that day in the vicinity of Hobson and Wellesley Streets and to involve a Toyota car belonging to Ms H . When, at about 7.30 p.m., Ms H parked her car in the customer carpark of a music shop in Hobson Street, close to the intersection of Hobson and Wellesley Streets, she was watched by Constable Li who was stationed nearby in plain clothes. Not far away in an unmarked police car was Sergeant Peter O’Neill.
[4] Because of the risk that disclosure of all of the information provided by the informant would risk revealing the identify of the informant, the Crown asserted public interest immunity in relation to the additional information. It was contained in affidavits of the two police officers that were not disclosed to the defence. That was in accordance with the well established principle that the Crown is entitled to
withhold information that could lead to the disclosure of the identity of an informant: R v Saifiti [1994] 2 NZLR 403 (CA), R v McNicol [1995] 1 NZLR 576 at 578. The same approach has been adopted in cases involving an application for a search warrant – see, for example, R v Holmes HC AK CRI 2003-092-36443 8 May 2006
Winkelmann J. I was concerned, however, that the defence may be disadvantaged by having to argue the application without access to the additional evidence. In accordance with the suggestion made in R v Black CA50/06 20 July 2006 at [4], I addressed that concern by appointing Mr Dacre as amicus curiae. He was provided with all relevant information, undertook his own enquiries, cross-examined witnesses and made full and helpful submissions at the conclusion of the evidence.
Subsequent events
[5] After Ms H got out of her car, Constable Li saw her walking backwards and forwards between her car and the corner, and using her cellphone, before crossing the road and entering a bar. A few minutes later he saw her get into a car driven by an Asian male. He reported to Sergeant O’Neill who followed the car.
[6] As Sergeant O’Neill followed the car, it carried out a dangerous manoeuvre before coming to a sudden halt. He parked behind the car. Sergeant O’Neill said Ms H attempted to run away from the scene but responded to his call to come back. At his request, she got into his car and allegedly admitted to him that she had recently used methamphetamine. She was then arrested and, with the driver of the car, transported to the Downtown Police Station. After being interviewed by Sergeant O’Neill and Constable Li, Sergeant O’Neill authorised Constable Li to search Ms H ’s car pursuant to s 18(2) of the Misuse of Drugs Act 1978. Constable Li gained access to the car using keys which Sergeant O’Neill said Ms H produced when asked to show him the contents of her pockets immediately after she was arrested.
[7] Constable Li found the cigarette packet on the floor on the driver’s side and
$1,440 in cash in a handbag inside the car. When questioned about the cigarette packet and asked if it belonged to her, Ms H declined to comment.
Breaches relied on
[8] Mr Newell, for Ms H , submits that the search of Ms H ’s motorcar was unlawful and unreasonable (and the evidence found, as a result, is inadmissible) as a result of earlier unlawful acts. He submits that Ms H was:
a) Unlawfully detained in breach of s 22 of the New Zealand Bill of
Rights Act 1990 (Bill of Rights).
b) Not advised of her rights in breach of s 23 of the Bill of Rights.
c) Unlawfully searched at the police station in breach of s 21 of the Bill of Rights.
[9] The determination of these issues is heavily dependent on my findings on disputed issues of fact. Sergeant O’Neill and Ms H disagree over much of what occurred after the car was stopped. It is therefore necessary to review the evidence of each in some detail.
Sergeant O’Neill’s account
[10] Sergeant O’Neill said that after he called out to Ms H she stopped and came back towards the police vehicle. Sergeant O’Neill said at this point he showed Ms H his identification and told her he wished to speak to her. He opened the front passenger door of the police vehicle and motioned for her to sit there. He then closed the door. He approached the driver of the vehicle and directed him to park his car in the nearby carpark. When the driver returned, he sat in the back of the patrol car.
[11] Sergeant O’Neill asked both to identify themselves. Ms H gave her name and date of birth and told Sergeant O’Neill where she was studying. He said he was readily able to communicate with her in English but needed her assistance to communicate with the driver. Sergeant O’Neill said he noticed that Ms H ’s eyes were very wide and her pupils dilated, she was constantly blinking and
appeared to be sleepy. She had a grey complexion, was gaunt and was constantly licking her lips. She was very fidgety. Sergeant O’Neill said he had seen these symptoms on numerous occasions. They indicated to him that the accused had recently used methamphetamine.
[12] Sergeant O’Neill said he told Ms H that her appearance led him to believe that she had recently used methamphetamine and he asked her if she had done so. In response she said that she had gone to a bar called Margarita’s the previous night and, at about 1.00 a.m., had gone into the toilets and smoked what she called “some water” with her friend. When asked what she meant by “water”, she replied, “ice or P”.
[13] At that point Sergeant O’Neill said that he advised Ms H of her rights under the Bill of Rights. He told her that she had the right to consult and instruct a lawyer without delay and in private and to refrain from making any statement, but that any statement she made could be recorded and given in evidence. Ms H then continued with her explanation, saying the two had used a glass pipe. She told him her girlfriend’s name and said she smoked the methamphetamine because she was unhappy about her boyfriend and depressed. At that point Sergeant O’Neill said he arrested Ms H for smoking methamphetamine. He asked her to show him the contents of her pockets. She produced a set of car keys and a house key and confirmed that is what they were. Sergeant O’Neill then transported Ms H and the driver of the car to the Downtown Police Station.
[14] At the police station Ms H and the driver of the car were placed in separate interview rooms. After initially telling Sergeant O’Neill that she had left her car at home, Ms H confirmed that she had parked it in Hobson Street. She was asked if there were any drugs in the car. She said “no”.
[15] Sergeant O’Neill then asked Constable Li to return to the police station and Constable Li spoke to her in Mandarin. She told him where she had parked the car. He asked her about the car keys and she told him they were on the floor outside the interview room. Constable Li described Ms H ’s physical appearance as pale with bloodshot eyes and appearing to be fidgety and nervous. He said she was
shivering. He also interpreted these as indicating that she was under the influence of methamphetamine.
[16] After Sergeant O’Neill and Constable Li had compared notes, Sergeant O’Neill authorised Constable Li to search Ms H ’s car, pursuant to s 18(2) of the Misuse of Drugs Act 1975. He said he relied on the information he had received from a person whom he believed to be a reliable informant, combined with his observations of Ms H ’s physical condition, her admission that she had recently smoked methamphetamine and what Constable Li had told him about her behaviour immediately after she had parked her car in Hobson Street.
[17] At 8.19 p.m. Constable Li searched the car and found the cigarette packet on the floor on the driver’s side. He found $1,440 in cash in a handbag that was also in the car.
[18] Sergeant O’Neill spoke to her after Constable Li reported back to him. He showed her the cigarette packet and asked her if it belonged to her. She declined to comment.
Ms H ’s account
[19] Ms H confirmed that the driver of the car she was in carried out a dangerous manoeuvre. She said this made her angry and she asked him to stop the car so she could drive. She then opened the door and walked to the driver’s side of the car. As she was opening the driver’s door to ask the driver to get out, the car driven by Sergeant O’Neill stopped behind their car. She said Sergeant O’Neill yelled at her from inside the car and said something about having a breath test. She approached the police car and noticed then inside the car an intercom and two police lights. She realised then it was a police car.
[20] Ms H said at this point Sergeant O’Neill got out of the car and asked her about doing a breath test. She told him she was not the driver of the car. She said Sergeant O’Neill then opened the passenger’s door of his car and, with his hand, gave her “a little push” into the car. After she was seated he said to her, “You have
P eyes”. Ms H said she told Sergeant O’Neill who she was and confirmed that she was then asked for identification. She could not provide a passport or driver’s licence but gave her name and date of birth.
[21] Ms H said that after her companion had got into the back of the police car, they were taken to the police station. On the way she asked why they were being taken to the police station. She said she had not done anything wrong but had some unpaid parking tickets. Ms H said Sergeant O’Neill responded that they would have to go back to the police station and check on the unpaid parking tickets. On the way, he made a call on his cellphone to say words to the effect that “I’m on the way home. Please prepare the food”.
[22] Ms H flatly denied that she admitted using methamphetamine when speaking to Sergeant O’Neill in his car. She said the conversation in which she told him she had smoked P at a bar the night before took place at the police station. She was adamant that the reason Sergeant O’Neill gave for taking her back to the police station was to check on unpaid parking tickets.
[23] Ms H said that at the police station she and her companion were asked to empty their pockets by Sergeant O’Neill. Her companion produced a key which Ms H identified as the key to her car. She said she had left her keys on the seat of the car when she left the passenger’s seat to go to the driver’s door. Ms H disputed Sergeant O’Neill’s evidence that she had shown him the keys in the police car. Ms H said that Sergeant O’Neill then felt around the collar of her jumper and said that she should have some tissues on her. After this she was directed to sit in the police interview room.
[24] Ms H said that Sergeant O’Neill came into the room and said (again) that she had P eyes. He went on to say that she had a lot of the symptoms of someone who had been using P, including dry lips, a white face, big eyes and frequent blinking. At this point (in the interview room) Ms H said she denied using any drugs. He continued to ask her questions and she said that she then made up a story that she had smoked P because she thought he would then let her go home. She also believed that the police could require her to undergo a urine test that would
disclose that she had recently used methamphetamine. She told him that after an argument with her boyfriend two days previously, she had gone to Margarita’s and seen an old friend who gave her a puff of P in the toilets. She said Sergeant O’Neill then kept asking her where her car was. She finally told him, “half an hour or an hour later”. Later on again, he came back and told her something had been found in the car.
[25] Ms H said Constable Li only spoke to her briefly at the police station. He did not talk to her about any matters of substance.
Factual findings
[26] Sergeant O’Neill’s evidence is based on a record of events he made in his notebook. That was produced in the form of a typewritten transcript setting out a lengthy note of events from the time the car stopped until much later that night after Ms H ’s home had been searched. Apart from the time at which the vehicle stopped – 7.40 p.m. – there are no times given. I am not convinced that it is an accurate record of what occurred.
[27] On the critical points of difference, I prefer Ms H ’s evidence. I am constrained from giving full reasons for my preferred view in this judgment as I have taken into account information which cannot be disclosed without risk of identifying the informant. That information and its relevance to my factual findings is recorded in a confidential memorandum which, together with the confidential evidence, will be available for search only with leave of the Court.
[28] Ms H ’s evidence was generally consistent with the handwritten notes she made in Mandarin soon after her arrest which were found by the police when they searched her home on 21 December 2005. The notes begin with damaging admissions of what she did before she got into the Asian male’s car. They provide a detailed narrative of what happened after Sergeant O’Neill intervened and then give an account of what happened after the car stopped and at the police station. The notes end in mid-sentence before completing the account of events at the police station.
[29] As a statement against interest, the entire statement, including any exculpatory parts, would be admissible at Ms H ’s trial both at common law and under s 27 of the Evidence Act 2007. It was introduced by Ms Adams for the purpose of cross-examination and I see no reason why I should not have regard to its contents in evaluating Ms H ’s evidence. Ms H said she made the notes within one month of her arrest, for her own purposes and for the assistance of her lawyer. They had not been completed when seized by the police. Ms H denied a suggestion by Ms Adams in cross-examination that the notes had been prepared to explain the loss of the drugs to the supplier.
[30] The way in which the notes have been written (including references to the name of the alleged supplier) makes it more likely, in my view, that Ms H wrote them for her own purposes, including for submission to her lawyer. Whoever’s eyes they were intended for, there is no apparent reason why they should have falsely recorded what occurred following her encounter with Sergeant O’Neill. She would have had no appreciation that the timing and order of events would have important implications for the police case against her. I believe this part of her notes to be a reliable record of what occurred.
[31] On the critical issues Ms H ’s notes are consistent with what she said in evidence. They record that Sergeant O’Neill told her to sit in the car and not to move. They indicate that his stated reason for taking Ms H and the driver to the police station was because they had failed to provide evidence of identification and Ms H had outstanding parking tickets. They record that the conversation in which Ms H admitted using methamphetamine the previous day took place at the police station and not in the car. Ms H describes in detail what happened at the police station. She notes that her car key was obtained from the driver of the car at the police station (and not at the roadside) and that, after Sergeant O’Neill had said she looked as if she had taken drugs, she admitted to smoking methamphetamine the previous day.
[32] The evidence (including the confidential information) and my assessment of the credibility of the witnesses leads me to generally prefer the version of events given by Ms H . On the critical factual issues I find:
• When Ms H left the car after it stopped, she did not attempt to run away.
She had no reason to make off. She did not know that a policeman had stopped behind. She did not realise that Sergeant O’Neill was a policeman until, when responding to his summons, she saw the police apparatus inside his car. He then ushered her into the front passenger’s seat and closed the door.
• The discussion in the car focused mainly on the issue of identification.
Ms H was not questioned about using methamphetamine and made no admissions. She was not told of her rights. She was taken to the police station for the stated purpose of checking on her identification and outstanding traffic tickets.
•The couple were searched at the police station. Ms H ’s car keys were handed to the police by the driver of the car at the police station. He had taken them from the car seat where Ms H had left them. When questioned separately, Ms H admitted using methamphetamine the previous day in response to repeated suggestions by Sergeant O’Neill that she looked as if she had recently used methamphetamine. She was not told of her rights until after she had made incriminating statements.
•Evidence that Ms H showed symptoms of recent methamphetamine use was significantly overstated. Photographs of Ms H , taken soon after she was taken into custody, were produced. She looks neither grey nor gaunt. She does not look any different from the young woman of normal appearance who gave evidence in Court. I believe the perceptions of Sergeant’ O’Neilll and Constable Li were materially affected by the information they had received beforehand. I share the view of Cooper J in Collins v Police CRI 2006-404-000152 8 November 2006 (a case in which Sergeant O’Neill’s observations were again at the forefront) that some of the symptoms relied on are “inherently weak indicators” of drug use because of the stress that innocent people can experience when being interviewed by the police in public (at [38]) or, I would add, at the police station.
Breach of Bill of Rights - findings
[33] My factual findings lead inexorably to the conclusion that Ms H ’s rights under s 22 of the Bill of Rights were breached. Section 22 provides:
Liberty of the person
Everyone has the right not to be arbitrarily arrested or detained.
[34] Argument at the hearing focused on whether Ms H had been detained when she was ushered into the car by Sergeant O’Neill. In the light of my factual findings, the question of when her detention commenced is academic. It is clear that by the time she was transported to the police station she had been deprived of her liberty. On any view of events, Sergeant O’Neill, by his words and conduct, conveyed to Ms H that she was obliged to accompany him to the police station. As a young foreign national, apprehended in the street by a senior and experienced police officer, Ms H must have felt intimidated and in no position to resist his will. I am satisfied that she had a reasonably held belief, induced by Sergeant O’Neill’s conduct, that she was not free to leave: Everitt v Attorney-General [2002]
1 NZLR 82 (CA) at [7].
[35] Sergeant O’Neill accepted that until Ms H admitted recent use of methamphetamine, he had insufficient grounds to arrest her. On my view of the evidence, that admission was not made until Ms H was questioned at the police station. I believe Ms H was taken to the police station for further questioning and to be searched. Detention for questioning on suspicion of a crime is not lawful and is arbitrary, in the absence of special circumstances – R v Goodwin (No 2) [1993] 2 NZLR 390 (CA). There are no special circumstances. Ms H was arbitrarily detained in breach of s 22 when she was taken to and held at the police station.
[36] Sergeant O’Neill said he advised Ms H of her rights when she commenced to make incriminating admissions. I have found that did not occur until she was interviewed at the station. At the time she was detained, she was not given her rights under s 23 of the Bill of Rights, which provides:
Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment— (a) Shall be informed at the time of the arrest or detention of the
reason for it; and
(b)Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
(2)Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3)Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
(4)Everyone who is— (a) Arrested; or
(b) Detained under any enactment—
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
[37] I am not persuaded that there was a breach of s 23 as a result of the failure of Sergeant O’Neill to advise Ms H of her rights at the time she was detained. Ms H was not arrested until much later; she was detained for questioning. But she was not detained under any enactment. The rights under s 23 do not apply to a de facto detention as occurred when Ms H was held in the police car and at the police station – R v Goodwin [1993] 2 NZLR 153 (CA).
[38] However, I consider a further breach of the Bill of Rights occurred when
Ms H was searched at the police station. By s 21 of the Bill of Rights:
Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[39] The Crown relied on the common law power to search upon arrest. But at the time Ms H was searched she had still not been arrested. There was no right to search her while she was being arbitrarily detained either under the Misuse of Drugs Act or at common law.
[40] Ironically, the search of Ms H yielded nothing of significance. Her car keys were produced by the car driver when he was asked at the same time to turn out his pockets. There is no suggestion that he had committed an offence and the search of him must also have been unlawful.
Effect of breaches on search of car
[41] Sergeant O’Neill instructed Constable Li to carry out a search of the car under s 18(2) of the Misuse of Drugs Act which provides:
Where any member of the Police has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in the Schedule
1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act or any precursor substance specified or described in Part 3 of Schedule 4 and
that an offence against this Act has been or is suspected of having been
committed in respect of that drug or precursor substance, he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.
[42] Sergeant O’Neill took the view that he did not have sufficient evidence to invoke s 18(2) until Ms H had admitted recent use of methamphetamine. However, as it was Constable Li who conducted the search, the issue is whether he himself had reasonable grounds for believing that a controlled drug would be found in the car: R v Taylor (1993) 10 CRNZ 393 (CA).
[43] Ms Adams submitted that what the police had been told by the informant and Constable Li’s observations of Ms H after she had parked, together provided sufficient grounds for him to act and that any breaches of the NZBORA that tainted Ms H ’s admission did not render the search unlawful.
[44] However, I think Sergeant O’Neill was right to conclude there was insufficient evidence to warrant invoking s 18(2). The informant information, while specific as to time and place, did not provide grounds for believing there were drugs in Ms H ’s car and her conduct and demeanour after parking the car was insufficient to elevate suspicion to reasonable grounds for belief.
[45] I am not sure that Ms H ’s admission that she had used methamphetamine the night before was enough to bridge the gap between suspicion and belief. But that evidence was obtained in the course of an arbitrary detention and is itself inadmissible unless the Crown can establish that the breaches did not cause or contribute to the statement being made – R v Goodwin (No 2) at 394. That evidence is tainted by the prior breaches and must be excluded when considering the validity of the search: R v Grayson and Taylor [1997] 1 NZLR 399 (CA); R v Maihi (2002) 19 CRNZ 453 (CA).
[46] As the irregularities associated with the search of the car are more than minor or technical, it was unreasonable and in breach of s 21 of the Bill of Rights – R v Williams (2007) 23 CRNZ 1 (CA) at [228]. There is, moreover, a real and substantial connection between the prior breaches and the search of the car - Williams at [79]. Had Ms H not been unlawfully detained, the search would not have occurred. In accordance with decisions such as R v Pou [2002] 3 NZLR 637 at [43] (CA) and the approach discussed in Williams at [98] – [100], the evidence obtained by the search must be regarded as unreasonably obtained.
Balancing test
[47] Since this matter was argued the Evidence Act 2006 has passed into law. The exclusion of improperly obtained evidence is covered by s 30 which provides:
Improperly obtained evidence
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was
improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2) The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court 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:
(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.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5)For the purposes of this section, 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)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
(6)Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
[48] Section 30 substantially reproduces the balancing test in R v Shaheed [2002]
2 NZLR 377 (CA) – see Williams at [149]. The objective, as stated in subs (4), is to determine whether the exclusion of the improperly obtained evidence is a proportionate response to the breach. On a finding that evidence has been improperly obtained (which includes evidence obtained in consequence of a breach of the Bill of Rights), the Judge is required by subs (2)(b) to have regard to the matters set out in subs (3).
[49] The first step in Shaheed (referred to in subs (3)(a)) is the importance of the right breached and the seriousness of the intrusion on it. The rights breached in this case were fundamental and the intrusion serious. In terms of subpara (b), the breach was deliberate. Ms H was taken to the police station for questioning because Sergeant O’Neill knew or believed he had insufficient evidence to charge her. I infer that he suspected Ms H to be in possession of drugs and that further evidence of offending could more readily be obtained at the police station. The search which took place there, compounded the overall seriousness of the intrusion.
[50] The illegal search of the car itself was much less serious. The evidence, which the police were entitled to rely on, fell short – but not far short – of permitting a reasonable belief that drugs were in the car. The privacy interest involved in searching an unoccupied car was also of a lesser order – Williams at [114]. These factors weigh in favour of admitting the evidence, as does the fact that the evidence is central to a prosecution involving serious criminal activity.
[51] However, in my judgment, these factors do not exceed the weight to be accorded the impropriety. The unlawful detention of Ms H was a breach of the most serious kind. She was taken from the street and deprived of her liberty without just cause. The fact that the police were in possession of information raising a strong suspicion of criminal offending cannot excuse the conduct. Nor, in my opinion, can the countervailing public interest in the investigation and prosecution of serious drug crimes. In a case such as this, a laudable end cannot justify the wrongful means employed to achieve it.
[52] In my view, the exclusion of both Ms H ’s admission at the station and the evidence disclosed by the search of her car is not disproportionate to the improprieties. I consider it to be an appropriate response which properly asserts the high value attached to fundamental rights that were knowingly violated.
Handwritten statement
[53] The handwritten notes made by Ms H were seized by the police during a search of her home pursuant to a search warrant. Mr Newell’s first submission was that the notes fell outside the scope of the warrant. That argument is unsustainable. The articles described in the warrant including personal and business correspondence, letters, diaries, and notebooks. The notes prepared by Ms H plainly come within the description.
[54] Mr Newell’s second submission is that the document is protected by litigation privilege, that is the privilege which applies to communications between a legal professional adviser and a third party and between a client and a third party, made with a view to obtaining information to be submitted to a legal professional adviser – Dinsdale v Commissioner of Inland Revenue (1997) 11 PRNZ 325 (CA) at 326. As the judgment of Blanchard J goes on to say, the privilege protects the process of gathering evidence for consideration by a lawyer acting for a party in civil or criminal litigation or threatened with such litigation. However, I think the Crown rightly submits that, if the document is protected by legal professional privilege, it is by solicitor/client privilege which attaches to communications between the client and legal adviser. Solicitor/client privilege covers documents prepared by a client as an
aide memoire for better communication with his or her legal adviser – Saunders v Commissioner Australian Federal Police (1998) 160 ALR 469 (FCA) and see Cross on Evidence at 10.21.
[55] The common law principles governing legal profession privilege have generally been incorporated into the Evidence Act. Solicitor/client privilege is enshrined in s 54. Subsection (1) relevantly provides:
(1)A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was –
(a) intended to be confidential; and
(b) made in the course of and for the purpose of -
(i) the person obtaining professional legal services from the legal adviser; or
(ii) the legal adviser giving such services to the person.
Section 53 sets out the effect and protection of privilege. Where a document has come into the possession of a person without the agreement or authority of the person who has privilege in respect of it, the Judge may order under s 53(4) that the document not be disclosed in the proceeding.
[56] On this issue I have no reason to doubt Ms H ’s evidence. She said that at the time the notes were prepared she was anticipating instructing a lawyer to replace the barrister who had initially represented her. On the advice of a friend who had legal training, she made a record of what happened while the events were still fresh in her mind and for the purpose of briefing replacement counsel. The document was seized before it was completed. I find that explanation entirely plausible and, as I have already indicated, I prefer it to the alternative theory put forward by the Crown, that the document was prepared for the purpose of providing an explanation to the supplier of the drugs. That thesis is not consistent with the way the document is written.
[57] It follows that the document is protected by legal professional privilege and is inadmissible at trial.
Result
[58] Evidence found by the police in the course of their search of Ms H ’s car on 30 October 2005 and the notes seized during a search of her house on
21 December 2005 are inadmissible.
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