R v Te Kahu CA492/04
[2005] NZCA 438
•28 September 2005
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA492/04
CA509/04
CA512/04
THE QUEEN
v
KENNETH ANDRE TE KAHU RANGI WAINOHU TAMATI JEREMY KEVIN HATLEY
Hearing: 29 and 30 August 2005
Court: William Young, Chambers and O'Regan JJ Counsel: A J S Snell for Appellant Te Kahu
T Ellis and S B Antunovic for Appellants Tamati and Hatley
E M Thomas and E A Gambrill for Crown
Judgment: 28 September 2005
JUDGMENT OF THE COURT
R V TE KAHU & ORS CA CA492/04 [28 September 2005]
AWe grant the appellants leave to appeal in relation to change of venue and allow their appeal with the result that their trial is to take place in the High Court at Wellington on 7 November 2005 or otherwise as directed by the High Court (confirming the result announced orally at the end of the hearing).
BWe grant the appellants leave to appeal in relation to the admissibility issues associated with the intercept evidence but dismiss the appeal.
C We dismiss the application for a stay.
D We make suppression orders as recorded above.
REASONS
(Given by William Young J)
Table of Contents
Para No
Introduction [1] The background facts [7] The arguments in this Court [20] The status of Neazor J
Non-tenured judges – general [22]
The legislative scheme as to non-tenured High Court [23]
Judges
Legislative history [24] The way the system has worked in the High Court [28] since 1981
The arguments for the appellant [30] Evaluation – general [34] Are successive appointments permissible under s 11A? [46] Are acting judges appointed under s 11A confined to [49] “non-sitting judicial functions”?
The de facto officer doctrine [55]
Other admissibility issues
General [58]
The relevant features of the legislative scheme [60]
The grounds upon which evidence collected pursuant [63]
to interception warrants may be challenged
The legitimacy of interception warrants where the targets [65]
are in custody and have been charged with offences
Whether the interception warrant was invalid as [77]
the appellants were not “suspects”?
The “failure” to interview Mr Hatley before seeking a [83]
warrant
Complaints as to conclusory and prejudicial material [85]
in the application
Complaints as to the duration of the warrant [90]
Other complaints made by the appellants [93] The change of venue application [98] A stay of proceedings? [107] Result [113]
Introduction
[1] The appellants face charges of murder and conspiracy to pervert the course of justice.
[2] They seek leave to appeal against a judgment of Laurenson J (HC GIS CRI2004-016-932 19 November 2004) which addressed four applications:
(a) By the Crown pursuant to s 344A of the Crimes Act 1961 to determine the admissibility of the intercepted conversations of the appellants;
(b)By the Crown seeking directions as to the mode of evidence to be adopted at trial in relation to a proposed Crown witness, Mr Kingi Hamlin;
(c) By all appellants for an order that the trial be heard in a city other than
Gisborne; and
(d) By the appellant Mr Rangi Tamati for a discharge under s 347 of the
Crimes Act on the murder count.
[3] There was no evidence called before Laurenson J and he was therefore required to address the applications on the basis of the depositions, the application for the warrant and, as to the change of venue application, a number of newspaper clippings and what he was told by counsel.
[4] Laurenson J ruled in favour of the admissibility of the intercept evidence, directed that Mr Hamlin give evidence via closed-circuit television link-up and dismissed both the change of venue and Mr Tamati’s s 347 applications.
[5] The applications for leave to appeal are confined to the rulings made by the Judge under s 344A (upholding the admissibility of the intercept evidence) and under s 322 (dismissing the appellants’ application for a change of venue). But Mr Ellis has also sought to persuade the members of this Court to exercise our jurisdiction as High Court Judges to stay the proceedings.
[6] At the conclusion of the hearing we announced that the application for leave to appeal in respect of the change of venue decision would be granted and the appeal allowed. We directed that the proceedings be tried in the Wellington Registry of the High Court. We reserved our decision on all other issues
The background facts
[7] On 27 November 2003, the appellant Mr Jeremy Hatley (who is associated with the Mongrel Mob) was required to appear in the District Court at Wairoa. When he attended Court he was supported by a number of other members of the Mongrel Mob (including the appellants Messrs Tamati and Kenneth Te Kahu). While the Mongrel Mob members were outside the Court, they were attacked by a large number of Black Power members. The Black Power group included people who had travelled to Wairoa from surrounding areas, including Gisborne. Up to
70 men were involved in this brawl.
[8] Later that day, a convoy of three Black Power vehicles drove along State Highway 38 on their way back from Wairoa to Frasertown (where a number of Black Power members live). The deceased, Mr Henry Waihape, was travelling in
one of these vehicles. As the vehicles went past the Mongrel Mob pad (which is near State Highway 38), the deceased was struck by a shot which appears to have been fired from a nearby paddock. On the evidence, it seems likely that the shot which killed the deceased was one of a number which were fired from this paddock.
[9] It would have been obvious to members of the Mongrel Mob that Black Power members who had been involved in the brawl outside the Wairoa District Court would be likely to drive back along State Highway 38 and thus past the paddock from which the shots appear to have been fired.
[10] The Crown case is that the appellants Messrs Te Kahu and Hatley, acting under the direction of the third appellant Mr Tamati, were responsible for the attack on the convoy.
[11] Messrs Tamati and Te Kahu were arrested on the night of 27 November 2003 on charges associated with the brawl outside the Wairoa Court. They were subsequently remanded in custody to appear again in the District Court at Gisborne on 12 December 2003. The police chose not to arrest Mr Hatley who therefore remained at large but under surveillance.
[12] Police obtained information relating to the shooting of the deceased from Mr Kingi Hamlin, a Mongrel Mob “prospect”. He told the police that he had been at the Mongrel Mob pad prior to the shooting and had overheard Mr Tamati directing Messrs Te Kahu and Hatley to take rifles and fire on the Black Power convoy as it went past.
[13] On 5 December 2003, the police sought and obtained a warrant under s 312CA of the Crimes Act authorising the use of listening devices to intercept the private communications of the three appellants and a fourth man in the cells of the Gisborne Police Station and Gisborne District Court and to enter the Gisborne District Court for the purposes of placing, servicing and retrieving an interception device. The warrant was issued by Neazor J who, at the time, held a
warrant appointing him as an acting judge of the High Court. We note that Mr Hatley was, at this stage, still at large.
[14] The intentions of the police, as indicated in the material which formed part of or accompanied the application, were as follows:
(a) To arrest Mr Hatley so that he could be held in custody with the other targets of the operation;
(b)To ensure that the targets of the operation were held at the Gisborne Police station and in the cells at the Courthouse in circumstances in which they would be able to speak to each other;
(c) To monitor their discussions;
(d)To interview the targets in a way which involved disclosing to them what Mr Hamlin had said; and
(e) To monitor their ensuing discussions which the police anticipated would revolve around this revelation.
[15] Messrs Te Kahu and Tamati were moved from Hawkes Bay Prison to the Gisborne Police Station on 9 December 2003. This was in anticipation of their appearance in Court in Gisborne on 12 December 2003. Mr Hatley was arrested late on 8 December 2003 and he too was held at the Gisborne Police Station prior to his appearance in court on 12 December 2003. The appellants were interviewed on
10 December 2003 about the account of events given by Mr Hamlin. The police monitored the ensuing discussions between the appellants.
[16] On 12 December 2003 the appellants attended at the District Court at Gisborne for bail hearings. Their conversations in the cells at the Court were monitored. Mr Tamati was granted bail shortly after 3.37pm on that day but was immediately arrested in Court and charged with murdering the deceased. Messrs Hatley and Te Kahu, who had not been bailed at this point, were also charged with the murder of the deceased.
[17] The monitoring of the conversations between the appellants continued until
15 December 2003.
[18] In the conversations recorded by the police, Messrs Hatley and Te Kahu made incriminating comments (amounting, on the Crown case, to confirmation of Mr Hamlin’s account of events as relayed to them by the police). The remarks made by Mr Tamati are far more equivocal, but, on the Crown case, he too in effect confessed to murder. As well, all three men were involved in discussions as to how they could best address the problem posed by Mr Hamlin. These discussions form the basis of the charge of conspiracy to defeat the course of justice.
[19] By way of completeness we record that when Mr Hamlin gave evidence at the preliminary hearing, his evidence-in-chief was largely in accord with the information he had given to the police. However, when he came to be cross-examined he very much recanted. Our impression is that the case against the appellants very much depends on the intercept evidence.
The arguments in this Court
[20] The challenge to the s 344A ruling in part involves a challenge to the appointment of Neazor J as an acting judge, a challenge which is quite separate from the other admissibility issues raised by the appellants.
[21] In those circumstances, we propose to deal with the case under the following headings:
(a) The status of Neazor J;
(b) Other admissibility issues;
(c) The change of venue application; and
(d) The application for a stay.
The status of Neazor J
Non-tenured judges - general
[22] The present case is concerned solely with the situation of non-tenured judges in the High Court and we will limit our focus accordingly. It is right to recognise, however, that non-tenured judges, holding either temporary or acting warrants, are used not only in the High Court (including as Associate Judges) but also in the District Courts and the Supreme Court. Further, although non-tenured appointments may not be made direct to this Court, High Court judges (including those with temporary or acting warrants) often sit in this Court.
The legislative scheme as to non-tenured High Court judges
[23] Sections 11, 11A and 11B of the Judicature Act 1908, as they stood at
December 2003, provided:
11 Temporary Judges
(1) Subject to section 11B of this Act, at any time during the illness or absence of any Judge, or for any other temporary purpose, the Governor- General may, in the name and on behalf of Her Majesty, appoint any person (including a former Judge) to be a Judge for such term, not exceeding
12 months, as the Governor-General may specify.
(2) Any person appointed a Judge under this section may be re-appointed, but no Judge shall hold office under this section for more than
2 years in the aggregate.
(3) Every person appointed a Judge under this section shall, during the term of his appointment, be paid the salary and allowances payable by law to a Judge other than the Chief Justice, the President of the Court of Appeal, or a Judge of the Court of Appeal.
11A Former Judges
(1) Subject to section 11B of this Act, the Governor-General may, in the name and on behalf of Her Majesty, appoint any former Judge to be an acting Judge for such term not exceeding 2 years or, if the former Judge
has attained the age of 72 years, not exceeding one year, as the
Governor-General may specify.
(2) During the term of his appointment, the former Judge may act as a Judge during such period or periods only and in such place or places only as the Chief Justice may determine.
(3) Every former Judge appointed under this section shall, during each period when he acts as a Judge, but not otherwise, be paid a salary at the rate for the time being payable by law to a Judge other than the Chief Justice or the President of the Court of Appeal or a Judge of the Court of Appeal and shall also be paid such travelling allowances or other incidental or minor allowances as may be fixed from time to time by the Governor-General.
(4) Every former Judge appointed under this section shall, during each period when he acts as a Judge, have all the jurisdiction, powers, protections, privileges, and immunities of a Judge.
11B Certificate by Chief Justice and 3 other Judges prerequisite
No appointment may be made under section 11 or section 11A of this Act otherwise than on a certificate signed by the Chief Justice and not less than
3 other permanent Judges to the effect that, in their opinion, it is necessary
for the due conduct of the business of the Court that one or more temporary Judges, or (as the case may require) one or more acting Judges, be appointed.
Legislative history
[24] In order to understand why ss 11 – 11B are in their present form, it is necessary to refer briefly to their legislative history.
[25] Section 11 of the Judicature Act 1908, as amended in 1923 and 1961 provided:
11 Governor-General may appoint a Judge temporarily during illness or absence of a Judge -
(1) It shall be lawful for the Governor-General in Council, in the name and on behalf of His Majesty, at any time during the illness or absence of any Judge, or for any other temporary purpose to appoint a Judge or Judges to hold office as hereinafter provided; and every such Judge shall be paid such salary, not exceeding the amount payable by law to a Judge other than the Chief Justice, as the Governor-General in Council thinks fit to direct.
(2) The power conferred by this section shall be exercised only on a certificate signed by the Chief Justice and not less than three other permanent Judges to the effect that, in their opinion, it is necessary for the due conduct of the business of the Court that one or more additional Judges should be temporarily appointed.
(3) Every Judge appointed on account of the illness or absence of a Judge shall hold office during the pleasure of the Governor-General, and every other Judge appointed for a temporary purpose shall hold office for such period not exceeding twelve months, as may be limited in his commission.
(4) A Judge appointed under this section may be re-appointed, but no Judge shall hold office under this section for more than two years in the aggregate.
[26] The appointment of temporary judges was addressed in the 1978 Report of the Royal Commission on the Courts:
666. Temporary appointments We devote a special section to temporary judicial appointments because they have been the source of considerable controversy and difficulty in the past. It is convenient to distinguish two types of temporary appointment:
(a) There is the “temporary” appointment of a High Court judge upon the basis that the appointment will duly become permanent. This practice has been followed from time to time when appointment of a permanent judge appears desirable but there is a full complement of judges in terms of the Judicature Act. Such an appointment is made permanent as soon as the number of judges falls below the maximum permitted by the Act. We recognise a constitutional issue is involved, in that it is important to have the maximum number of judges fixed by statute so there is no possibility of a Government appointing a large number of judges to “stack” the High Court Bench. Nevertheless, it is unsatisfactory that the constitutional requirement should result in a need for temporary appointments of judges who are to become permanent. This has been a source of criticism for many years, both from the judiciary and the profession. In our opinion, such appointments derogate from the office, may create the false impression with the public that the judge is appointed on a trial basis, and are inimical to the independence of the judiciary. We are of the view that every endeavour should be made to keep the permitted complement of judges, in terms of the Judicature Act, at a level sufficiently in excess of the existing Bench of judges to enable additional appointments to be made from time to time, without any need to have recourse to such temporary appointments.
(b)While it is recognised that there is need for limited power to appoint temporary High Court judges in emergency situations, we have received a number of submissions expressing concern at the way in which temporary appointments are presently made. This concern was particularly emphasised by the Auckland District Law Society (several recent temporary appointments having been made in an endeavour to deal with arrears of work in Auckland). Certain of the Auckland judges have also indicated concern. Both the profession and the judges have made it clear that their reservations reflect no personal criticism of actual individuals appointed. It is the issue of principle which is important, particularly if the temporary judge is to do only a limited class of work. The judges point out that if a
temporary judge is to hear only criminal trials, for example, he cannot do his share of circuit travelling and duties. Moreover, the difficult civil cases that occur in all areas, and the time-consuming and energy-sapping work of writing reserved judgments, fall to an even greater extent on the permanent judges.
667. The Auckland District Law Society has stressed that temporary appointments are unlikely to maintain the standing and stature of the High Court, particularly where the temporary judge does only certain types of work; he is a judge in name but not in the nature of the work allotted to him. There is then a risk that suitable lawyers will not accept the position, that the standard of judicial work will fall, and that the standing of the whole Bench will be diminished. In addition, criticism of temporary appointees tends inevitably to reflect upon the whole Bench. Although we recognise that the Attorney-General has faced a difficult problem in dealing with the arrears of work in Auckland pending this report, we are firmly of the opinion that temporary appointments are not a desirable way of coping with the situation.
668. We would prefer to see temporary appointments reserved for truly emergency situations, for example, absence of a judge through illness or chairing a Royal Commission. Even on these occasions it may be possible to make use of “supernumary judges” as they are called overseas; that is, retired judges who are prepared to accept re-appointment for a limited period. We consider that, if accepted, our recommendation that retirement age for judges should be reduced to 65 may serve to create a pool of retired judges who can be considered by the Judicial Commission for appointment as supernumary judges to meet occasional special needs. Reference of such appointments to the Judicial Commission would ensure that any supernumary judges were fully suitable to continue in office.
[27] The recommendation that a Judicial Commission be created was not acted on. But the present ss 11 - 11B (which were inserted in the Judicature Act by amendments which were passed in 1981) were obviously influenced by recommendations of the Royal Commission. Further, a perusal of the Parliamentary debates associated with the passage of the 1981 amendments make it clear that considerations of judicial independence were extremely important in shaping the current legislative scheme which is, in substance, a compromise between, on the one hand, considerations of administrative convenience and efficiency and, on the other, the concept of judicial independence.
Non-tenured appointments in the High Court since 1981
[28] Since 1981, the power to appoint temporary judges has been exercised most commonly in anticipation of a permanent appointment when the number of judges
required has exceeded the statutory cap on the number of permanent judges (ie broadly in the manner discussed in para 666(a) of the Royal Commission’s Report). We suspect (although we are not sure) that a majority of those who have been appointed as temporary judges have gone on to be appointed permanently. Nonetheless, it is right to recognise that there is scope for overlap between ss 11 and
11A. For instance some appointments made under s 11 have been genuinely temporary, eg where District Court judges have been appointed for specified periods of time. And, on two recent occasions, the s 11 power has been used in respect of retired judges.
[29] The present case concerns the appointment of acting judges and we propose to discuss the arguments advanced primarily by reference to such appointments.
The arguments for the appellant
[30] Mr Ellis advanced two key arguments.
[31] The first is that s 11A(1) permits appointment of a former judge as an acting judge for only one term which must not exceed two years or, if the former judge has attained the age of 72, one year. Neazor J was first appointed as an acting judge on
10 August 1998 and was subsequently re-appointed on several occasions so that, by December 2003, when the interception warrant was issued, he had served as an acting judge for some four and half years. So, if Mr Ellis is right, Neazor J ought not to have held office as an acting Judge in December 2003.
[32] Mr Ellis also argued that in any event acting judges appointed under s 11A should not carry out judicial functions but rather should be confined to performing what he described as “non-sitting judicial functions”. In his written submissions he suggested that these might include chairing the Law Commission or the Parole Board. In his oral submissions he recanted on the Parole Board suggestion, after it was pointed out to him that members of the Parole Board, by their decisions, affect people’s lives in like manner to judges.
[33] Underpinning both arguments is a single argument of principle: that the appointment of untenured judges under s 11A of the Judicature Act (and the exercise by such untenured judges of adjudicative powers) is inconsistent with judicial independence and thus with fair trial rights guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA) and the International Covenant on Civil and Political Rights 1966 (ICCPR). On this basis s 11A should be read in a way which limits, as far as possible, the use of such judges.
Evaluation - general
[34] The opportunity to continue working after retirement may be of much value to a judge who is nearing retirement. Likewise, a judge who holds an acting warrant may well wish to secure a renewal of that warrant. It is not altogether far-fetched to suppose that a judge who became unpopular with the government of the day would not receive appointment (or renewal of appointment) as an acting judge. It is still less far fetched to suppose that judges might come to believe that. This means that there is scope for the perception that judges who are concerned about reappointment on an annual or biennial basis, and thus may be anxious not to create any waves, are not as independent as those who have permanent tenure.
[35] As Mr Ellis pointed out, his arguments fall to be considered in a context in which judges appointed after 1992 do not have pension rights. Further the statutory retirement age for New Zealand judges (which is 68) is low by comparison to judicial retirement ages in other similar jurisdictions.
[36] NZBORA addresses independence of the judiciary primarily in s 25(a) which provides for those charged with offences to have the right to trial by “an independent and impartial court”. So courts and judges determining the fate of those charged with offences must be “independent”. NZBORA is not so explicit as to a requirement for judicial independence in respect of other judicial functions. Nonetheless, such a requirement might be thought to be implicit in s 27 (in its reference to the “principles of natural justice”) and the long title’s affirmation of New Zealand’s commitment to the ICCPR (in which the article corresponding to s 25(a) applies also to civil proceedings).
[37] Mr Ellis was able to take us to a number of judgments from other jurisdictions, particularly Scotland, in which the use of non-tenured judges or other judicial officers to hear criminal cases has been seen as inconsistent with emerging international norms as to judicial independence. Of these cases, perhaps the most significant are Starrs v Procurator Fiscal (1999) 8 BHRR 1 and Millar v Dickson [2002] 3 All ER 104 in which the use of temporary sheriffs in Scotland was held to be incompatible with the European Convention on Human Rights which has been incorporated into Scottish domestic law.
[38] The position of acting judges appointed under s 11A of the Judicature Act is not strictly comparable with the position of temporary sheriffs appointed under the system which was in issue in Starrs and Millar v Dickson. But in this context it is worth noting that the Supreme Court of Canada has held that the use of acting judges in the Ontario Provincial Court (being former judges appointed to serve “during pleasure”, ie at the will of the executive) was inconsistent with the requirement for an independent judiciary provided for in the provision of the Canadian Charter of Rights and Freedoms which corresponds to s 25(a) of NZBORA, see Valente v The Queen [1985] 2 SCR 673 at [32] – [37].
[39] There are a number of considerations which can be deployed in support of the current system of appointing acting judges.
[40] Given the possibility of judicial promotion, our judicial system cannot fully insulate judges from the accusation that they are, for this reason, tempted to favour the executive. Indeed, the same is true in all other countries that have legal systems similar to our own. Further, and importantly, any judicial system must rely ultimately on the personal integrity of the judges who serve in it and the traditions of the offices they hold. The legislation proceeds on the reasonable basis that someone who has held office as a tenured judge will be sufficiently inculcated with independence to withstand the temptations associated with the acting judge system. Indeed, those who have held judicial office are likely to react with incredulity and indignation at any suggestion that a judge would allow considerations of fear or favour to influence a judicial decision.
[41] The use of acting judges is no doubt a very convenient method of addressing the uneven work-flow in the High Court. In this regard, s 11A(3) is a safeguard.
[42] As well - and this is very important - the legislative history makes it clear that ss 11 and 11A of the Judicature Act represent a legislative compromise in which respect for judicial independence was an important consideration.
[43] In evaluating the competing arguments, it is right to recognise that there have been material developments since 1981. At that time, the reduction in the judicial retirement age from 72 to 68 had not really begun to bite (as it did not apply to judges who were appointed under the former system). As well, all judges at that time had pension entitlements. So the environment in which the 1981 compromise was enacted is appreciably different from the present environment. Further, it seems that international norms as to judicial independence as they have developed since
1981 involve decreased emphasis on the personal integrity and impartiality of judges and increased focus on structural guarantees of independence. In this context, it is right to record that that Mr Ellis expressly stated that he was not accusing Neazor J of actual bias. Indeed his argument was decidedly not ad hominem. Rather, he was attacking the legislative structure.
[44] Given the way in which the issue arose (for the first time in this Court), the reasonably limited arguments from the Crown and the absence of evidence addressed to the detail of the way in which the current system works in practice, we are reluctant to express a concluded view on the question whether the appointment of acting judges under s 11A of the Judicature Act is consistent with the concept of judicial independence which is implicit in s 25(a) of NZBORA. This is particularly so because, as will become apparent, we are satisfied that even if Mr Ellis was right on this point, it would not assist the appellants; this for reasons we are about to develop.
[45] For similar reasons, we are not inclined to enter into the question whether we should grant a declaration that the current systems associated with appointment and/or use of acting judges is incompatible with NZBORA. The evidence was not adequate to enable this question to be fairly assessed. As well, s 25(a) of NZBORA
(which addressed the trial rights of those charged with offences) was not directly engaged by Neazor J granting an interception warrant.
Are successive appointments permissible under s 11A?
[46] We deal first with the question whether successive appointments are permissible under s 11A.
[47] Section 16 of the Interpretation Act 1999 provides:
16 Exercise of powers and duties more than once
(1) A power conferred by an enactment may be exercised from time to time.
(2) A duty or function imposed by an enactment may be performed from time to time.
There is no reason why this section should not applied in accordance with its tenor, see Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) at [96]. Mr Ellis characterised the Crown’s reliance on s 16 as an “argument of desperation”. But, as Greenberg and Goodman (eds) Craies on Legislation (8ed 2004) notes at 12.3.1, the principle of interpretation that powers can be exercised from time to time “stands to reason.”
[48] The variation in language between ss 11 and 11A is also significant. Given that variation of language, it is simply not possible to credit Parliament with the intention that any individual may be appointed only once as an acting judge.
Are acting judges appointed under s 11A confined to “non-sitting judicial functions”?
[49] Mr Ellis’ other argument proceeds on the basis that the issuing of interception warrants lies outside permissible “non-sitting judicial functions”.
[50] This formulation by Mr Ellis of what might be the permissible functions of an acting judge is problematic.
[51] For a start, it might be thought that a judge considering an interception warrant application in chambers and on a purely ex parte basis is perhaps exercising a “non-sitting judicial function”. Certainly the granting of a warrant is not the sort of function which is directly subject to s 25(a) of NZBORA. This consideration suggests that the distinction between what is acceptable and unacceptable contended for by Mr Ellis might be rather murky in practice. Indeed, it is far from clear just what sort of “non-sitting judicial functions” would be permissible on this phase of Mr Ellis’ argument. The Law Commission and Parole Board examples he gave lack cogency as existing judicial status in not a prerequisite for appointment to those bodies. Indeed when pressed on this point, Mr Ellis was not able to identify in argument any “non-sitting” position for which status as High Court judge is a pre-requisite.
[52] Further, the interpretation of s 11A which Mr Ellis urged on us would render s 11B a nonsense. Acting judges can be appointed only if the Chief Justice and not less than three other permanent judges have signed a certificate to the effect that, in their opinion, “it is necessary for the due conduct of the business of the Court” that one or more temporary judges or one or more acting judges be appointed. What would be the point of such a certificate if the judges then appointed were unable to conduct the business of the Court? In any event, given the unambiguous terms of s 11A(4), it cannot seriously be argued that an acting judge does not have all the jurisdiction and powers of a permanent judge.
[53] Mr Ellis sought to side-step the impact of s 11(4) by asserting that an acting judge was not independent – in effect, presumptively biased - and that this precluded such an acting judge exercising judicial functions. This argument to some extent echoes remarks made in Millar v Dickson but it proves too much. The presumptive bias attributed by Mr Ellis to acting judges would, if Mr Ellis’ argument is correct, be attributable to every single acting judge. But, if we were to hold that someone appointed as an acting judge was, by that fact, presumptively biased and thus unable to exercise judicial functions, we would be flying in the face of the legislative scheme. Such a conclusion would be tantamount to finding that ss 11A(4) and 11B are ineffective and this would be inconsistent with s 4 of NZBORA which provides:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this
Bill of Rights.
[54] In short we have no doubt that Neazor J was validly appointed as an acting judge and likewise that, as an acting judge, he had all the powers and jurisdiction of a permanent High Court judge.
The de facto officer doctrine
[55] Further, even if we were persuaded that the appointment of Neazor J was invalid (and we are not), it would not follow that all decisions made by him should be treated as void. We say this because, if otherwise in agreement with Mr Ellis, we would see the de facto officer doctrine as an answer to the challenge to the warrant.
[56] We recognise that the consequence of Millar v Dickson included the setting aside of a very large number of convictions and sentences in Scotland. It is, however, important to recognise that the judgment of the Privy Council did not address the de facto officer doctrine. As well, the nature of the challenge (which was formally addressed to the actions of the Lord Advocate in prosecuting cases before “non-independent” judges) was seen as rendering the de facto officer doctrine irrelevant when the case was before the High Court of Justiciary, see 2000 JC 648 at [31] - [38] of the opinion of Lord Prosser and at [4] of the opinion of Lord Johnston.
[57] In concluding that the de facto officer doctrine would apply if Mr Ellis’ argument was correct, we are content to rely on one reasonably old decision, Re Aldridge (1893) 15 NZLR 361 and one recent case, Coppard v Customs and Excise Commissioners [2003] 3 All ER 351. Re Aldridge concerned a trial held before Edwards J whose appointment to the bench was later held to be invalid. This
Court upheld the conviction and sentence on the basis of the de facto officer doctrine and its decision might be thought to be directly on point in the present context. Mr Ellis criticised Re Aldridge primarily by reference to its antiquity but we note that it is seen as authoritative by Wade and Forsyth, Judicial Review (8ed 2000) at
292 - 293.
Other admissibility issues
General
[58] The arguments advanced on this part of the case were diverse and, in the main, advanced for the first time in this Court.
[59] We propose to address the arguments advanced under the following headings:
(a) The relevant features of the legislative scheme.
(b)The grounds upon which evidence collected pursuant to interception warrants may be challenged.
(c) The legitimacy of interception warrants where the targets are in custody.
(d)Whether the interception warrant was invalid as the appellants were not “suspects”.
(e) Complaints as to conclusory and prejudicial material in the application.
(f) Complaints as to the duration of the warrant. (g) Other complaints made by the appellants.
The relevant features of the legislative scheme
[60] The relevant provision of the Crimes Act are in these terms:
312CA Application by Police for warrant to intercept private communications in relation to serious violent offences
(1) An application may be made in accordance with this section to a Judge of the High Court for a warrant for any member of the Police to intercept a private communication by means of an interception device in any case where there are reasonable grounds for believing that,—
(a) a serious violent offence has been committed, or is being committed, or is about to be committed; and
(b) where that serious violent offence has yet to be committed, the use of an interception device to intercept private communications is likely to prevent the commission of the offence; and
(c) it is unlikely that the Police investigation of the case could be brought to a successful conclusion or, as the case may be, the commission of the serious violent offence prevented, without the granting of such a warrant.
(2) Every application under subsection (1) must be made by a commissioned officer of Police, in writing, and on oath, and must set out the following particulars:
(a) the facts relied on to show that there are reasonable grounds for believing that,—
(i) a serious violent offence has been committed, or is being committed, or is about to be committed; and
(ii) where that serious violent offence has yet to be committed, the use of an interception device to intercept private communications is likely to prevent the commission of the offence; and
(b) a description of the manner in which it is proposed to intercept private communications; and
(c) either,—
(i) the name and address, if known, of the suspect the interception of whose private communications there are reasonable grounds for believing will assist the Police investigation of the case or, as the case may be, prevent the commission of a serious violent offence; or
(ii) if the name and address of the suspect are not known, a general description of the premises, place, thing, or type of facility in respect of which it is proposed to intercept
private communications, being premises or a place, thing, or type of facility believed to be used for any purpose by any person—
(A) whom it is believed has committed or is committing or is about to commit a serious violent offence; or
(B) whom it is believed was involved or is involved or will be involved in the commission of a serious violent offence; and
(d) the period for which a warrant is requested; and
(e) whichever of the following is applicable:
(i) the other investigative procedures and techniques that have been tried but have failed to facilitate the successful conclusion of the Police investigation of the case or, as the case may be, to provide assistance in preventing the commission of a serious violent offence, and the reasons why they have failed in that respect; or
(ii) the reasons why it appears that other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case or, as the case may be, prevent the commission of a serious violent offence, or are likely to be too dangerous to adopt in the particular case; or
(iii) the reasons why it is considered that the case is so urgent that it would be impractical to carry out the Police investigation using only investigative procedures and techniques other than the interception of private communications.
312CB Matters on which Judge must be satisfied in respect of applications relating to serious violent offences
(1) On an application made in accordance with section 312CA, the Judge may grant an interception warrant if the Judge is satisfied that it would be in the best interests of the administration of justice to do so, and that—
(a) There are reasonable grounds for believing that,—
(i) A serious violent offence has been committed, or is being committed, or is about to be committed; and
(ii) Where that serious violent offence has yet to be committed, the use of an interception device to intercept private communications is likely to prevent the commission of the offence; and
(b) There are reasonable grounds for believing that,—
(i) Evidence relevant to the investigation of the case will be obtained through the use of an interception device to intercept private communications; or
(ii) Where the serious violent offence has yet to be committed, evidence relevant to the prevention of that offence will be obtained through the use of an interception device to intercept private communications; and
(c) Whichever of the following is applicable:
(i) Other investigative procedures and techniques have been tried but have failed to facilitate the successful conclusion of the Police investigation of the case or, as the case may be, to provide assistance in preventing the commission of a serious violent offence; or
(ii) Other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case or, as the case may be, prevent the commission of a serious violent offence, or are likely to be too dangerous to adopt in the particular case; or
(iii) The case is so urgent that it would be impractical to carry out the Police investigation using only investigative procedures and techniques other than the interception of private communications; and
(d) The private communications to be intercepted are not likely to be privileged in proceedings in a court of law by virtue of any of the provisions of Part 3 of the Evidence Amendment Act (No 2)
1980 or of any rule of law that confers privilege on communications of a professional character between a barrister or solicitor and a client.
(2) Without limiting subsection (1), in determining whether or not to issue an interception warrant under this section, the Judge must consider the extent to which the privacy of any person or persons would be likely to be interfered with by the interception, under the warrant, of private communications.
…
312M Inadmissibility of evidence of private communications unlawfully intercepted
(1) Subject to subsections (2) to (4) of this section, where a private communication intercepted by means of an interception device otherwise than in pursuance of an interception warrant or emergency permit issued under this Part of this Act or of any authority conferred by or under any other enactment has come to the knowledge of a person as a direct or indirect result of that interception or its disclosure, no evidence so acquired of that communication, or of its substance, meaning, or purport, and no other evidence obtained as a direct or indirect result of the interception or disclosure of that communication, shall be given against any person, except
in proceedings relating to the unlawful interception of a private communication by means of [an interception device] or the unlawful disclosure of a private communication unlawfully intercepted in that manner.
(2) Even though certain evidence is inadmissible in criminal proceedings by virtue of subsection (1), a Court may admit that evidence if the following conditions are satisfied:
(a) The proceedings are for—
(i) A specified offence, or a conspiracy to commit a specified offence; or
(ii) A serious violent offence, or a conspiracy to commit such an offence; and
(b) The evidence is relevant; and
(c) The evidence is inadmissible by virtue of subsection (1) merely because of a defect in form, or an irregularity in procedure, in—
(i) The application for or the granting of the interception warrant or emergency permit; or
(ii) The manner in which the evidence was obtained;
and
(d) The defect in form or irregularity in procedure— (i) Was not substantive; and
(ii) Was not the result of bad faith.
…
[61] We have emphasised the statutory language which we see as being of primary importance.
[62] We note that very similar provisions addressed to drug dealing offences appear in the Misuse of Drugs Amendment Act 1977.
The grounds upon which evidence collected pursuant to interception warrants may be challenged
[63] In R v McGinty [1983] NZLR 524 (a case which concerned the provisions of the Misuse of Drugs Amendment Act 1977 which correspond to the interception warrant provisions in the Crimes Act), Cooke P noted, at 530:
Argument was submitted to us, and was apparently earlier submitted to both Ongley J and Quilliam J, on how far the granting of a warrant can be reviewed by the trial Judge. From reading s 25(1) and (2) [which correspond to s 312M] together it is clear that evidence acquired through the interception of a private communication by means of a listening device is made prima facie inadmissible (except in a very special class of proceedings) if the interception warrant was invalid; but in criminal proceedings for a drug dealing offence the Court nevertheless has a discretion to admit the evidence if the conditions specified in s 25(2) are satisfied. It is implicit in these provisions that the Court of trial, on a challenge to admissibility, will have to rule on such questions as whether there was a defect of form or an irregularity in procedure in the application for or the granting of the warrant; or whether on the other hand there was a substantive defect or irregularity. This is consistent with the scheme of s 20, which entitles a party to require production of the documents relating to a warrant application unless the Judge orders otherwise under subs (7) on the grounds there specified. It is also consistent with s 20(11), which provides that notwithstanding anything in that section every Judge who is presiding over any proceedings in which the issue of an interception warrant is in issue shall be entitled to inspect any relevant document held under subs (1).
It is unusual for a High Court Judge to be required to adjudicate on what has been done by another High Court Judge or by himself. But, as was stressed in Menzies, this is unusual legislation and Parliament has provided special safeguards as a condition of granting exceptional powers to invade privacy. Reviews analogous to some extent, if of wider scope, can occur when Chambers or ex parte orders are reconsidered in Court under R 426 or R 426A of the Code of Civil Procedure; although not uncommonly it is arranged for two Judges to sit on such reviews. It has to be remembered that a Judge who grants a warrant under s 15 of the 1978 Act must necessarily act without hearing persons against whom evidence may thereby be obtained. That is a further reason justifying review at the stage of trial.
What s 25 contemplates is that the trial Judge will, if called upon to do so, review the application for and the granting (including any renewal) of an interception warrant so far as may be necessary to determine whether evidence is excluded from admissibility by subs (1) or may be admitted in the exercise of his discretion under subs (2). The section does not contemplate that the trial Judge will approach the matter as if hearing an appeal from the granting of the warrant. Nor that he should substitute his discretion for that of the authorising Judge. In that sense we agree with the spirit of Ongley J’s remarks already quoted. In general what will be required will be a check as to whether the procedural steps laid down by the statute were properly followed and whether there was sworn material before the authorising Judge which could reasonably be regarded as satisfying the criteria in ss 14 and 15. The jurisdiction to grant warrants under s 15 is confined to High Court Judges. For the reasons on which we have dwelt, it is likely to be very carefully exercised. So if fishing expeditions as mentioned by Ongley J are embarked upon notwithstanding the results of the present case and the Menzies case, their success seems likely to be rare indeed. In this case the attack on the warrants plainly fails.
[64] As well, it is clear that electronic surveillance involves search or seizure for the purposes of s 21 of NZBORA, see the decision of this Court in R v A
[1994] 1 NZLR 429, a case which in fact involved the recording of conversations by one of the participants (who was an undercover police officer). This brings into play the approach taken in respect of search warrants by this Court in R v McColl (1999) 5 HRNZ 256 at [18] - [20]:
[18] It is therefore logical to address first the validity of the warrant. In doing so s 204 of the Summary Proceedings Act 1957 must be kept firmly in mind. It provides, inter alia, that no warrant shall be quashed, set aside or held invalid by reason only of any defect, irregularity, omission or want of form unless the Court is satisfied that there has been a miscarriage of justice. In their joint judgment in Sanders Cooke P and Casey J said at 454:
Fisher J has provided a valuable general discussion of ss 198 and 204. We have no doubt that it will be helpful in the resolution of cases arising under those sections. Shortcomings in procedure and documentation are so various, however, that we have reservations as to how far any formula could be evolved that would provide anything in the nature of an automatic analytical answer to issues under the two sections. In the end it is always a question of the relative seriousness or otherwise of an error. If the error is so serious as to attract the description “nullity”, s 204 will not assist. Inevitably questions of degree and judgment arise.
[19] With those words in mind we turn to consider the relevant aspects of Fisher J’s judgment. He said that an applicant for a search warrant must have a qualifying belief and must articulate the grounds for that belief so that its reasonableness may be gauged by the judicial officer. Fisher J observed that while there is ordinarily no harm in the applicant stating the desired conclusion in the affidavit, the principal purpose of the affidavit is to give evidence of primary facts, not conclusions to be drawn from those facts. It is for the judicial officer alone to decide what conclusions should be drawn from the primary facts to which the applicant has deposed: see Fisher J at
460.
[20] It follows in our view that the applicant should lay before the judicial officer all facts which could reasonably be regarded as relevant to the judicial officer's task. An applicant should not present the judicial officer with a selective or edited version of the facts. There is an obligation on the applicant to be candid and to present the full picture to the judicial officer, not just the conclusion which the judicial officer is asked to draw, supported by so much of the factual background as the applicant chooses to disclose. It is for the judicial officer, on an assessment of all the relevant facts fairly presented, to decide whether the necessary conclusions can be drawn, and thus whether a warrant should issue. Clearly as Cooke P and Casey J emphasised, the consequences of any deficiency will be a matter of degree and judgment in the light of the purpose and terms of s 204. Such matters may also arise under s 21 of the New Zealand Bill of Rights Act 1990 as discussed in R v Grayson and Taylor [1997] 1 NZLR 399, 408-409 (CA).
(Emphasis added)
We note in passing that for present purposes s 204 of the Summary Proceedings Act
1957 in a sense corresponds (although far from exactly) to s 312M(2) of the Crimes
Act.
The legitimacy of interception warrants where the targets are in custody and have been charged with offences
[65] The standout features of this case are that the operation targeted suspects who were in custody and that custodial arrangements affecting the suspects were put in place with a view to facilitating electronic surveillance of their conversations.
[66] There is no statutory prohibition on electronic surveillance of people in custody and we are not persuaded that there is any principle of law which prevents evidence being given of remarks made by those who are detained in custody.
[67] This is certainly consistent with the position reached in previous decisions of this Court, see R v Ngamu (1992) 9 CRNZ 295 (HC) (where a constable had intentionally eavesdropped on a conversation in a cell by positioning himself in a nearby cell); and R v Hartley CA6/02 9 May 2002 (which concerned admissions recorded by a visitor to a suspect held in a police cell).
[68] This approach is also consistent with the judgment of the English Court of Appeal in R v Mason [2002] 2 Cr App R 628. In that case the police had placed suspects in a cell and subjected them to electronic surveillance. The operation was carried out under Home Office guidelines but not statutory authority. For this and other reasons (including the relevance of the Police and Criminal Evidence Act 1984 and the Codes which have been promulgated under it) the case is not legally on all fours with the present. But the underlying policy issues which the Court of Appeal had to address in that case seem to us to be very similar to those which confront us. We therefore think it right to cite two passages from the judgment of the Court which was delivered by Lord Woolf CJ.
[69] The first passage deals with what might be regarded, perhaps loosely, as a common law approach to the issue and incorporates earlier English authorities:
[65] … This was a situation where the police were responding reasonably and proportionately to a very serious threat to the safety of the public and law and order, and so were entitled to seek evidence not only of individual wrongdoing but of a conspiracy to commit armed robbery. Without surveillance it was sufficiently doubtful whether evidence would be forthcoming of the required quality to justify it as long as it did not result in unfairness to those being subjected to the surveillance.
[66] More difficult is the issue as to whether the surveillance in cells is inappropriate treatment of those in police custody who are intended to be protected by the safeguards contained in PACE and the Codes. Together they provide substantial protection for suspects who have been arrested. We do not need to refer to each provision which provides that protection. The protection is detailed and has proved a valuable deterrent to improper practice, and has resulted in a highly desirable improvement in standards on the part of the police. On the other hand, the surveillance is not directly in conflict with any provision of PACE or the Codes. As we have pointed out Mr Pearse Wheatley [counsel for one of the appellants] is restricted to submitting that the surveillance is contrary to the spirit of PACE and the Codes, for example, because the surveillance distorts the role of the custody officer.
[67] We have no doubt that it is highly desirable that a statutory code should be established for surveillance of the sort that occurred here if it is a practice which is to continue but our conclusion is that it is not contrary to the spirit of PACE or the Codes for there to be covert taping of what is said in the cells. It may be unattractive but the offences we are here considering are more offensive.
…
[69] Prior to [Regulation of Investigatory Powers Act 2000] this Court had considered the question of covert surveillance in cells in R. v. Bailey and Smith (1993) 97 Cr.App.R. 365. Simon Brown L.J. considered the earlier authorities. In particular he referred to R. v. Ali and Hussein (1965) 49
Cr.App.R. 230; [1966] 1 Q.B 688 and R.v. Stewart (1970) 54 Cr.App.R. 210. In both these cases evidence of covert recordings was regarded as being
admissible. The same approach was adopted in R. v. Ali (Shaukat), The
Times, February 19, 1991, to which Simon Brown L.J. also referred. As to the recording of conversations in an interview room, the Court stated:
“We are firmly of the view that the police in the most serious circumstances of the investigations being conducted, whatever views some may have against eavesdropping by bugging and so on, did not act unlawfully, although the appellant by that time had been charged. There was clearly no oppression of him and no questioning at all. Even if we had formed a contrary view, we would not rule that the learned judge’s exercise of discretion was wrong.”
[70] Simon Brown L.J. pointed out that Ali (Shaukat) was binding upon him and went on to reject the contentions which were made that the bugging, which took place in a police cell, was unlawful or resulted in any unfairness. He regarded “as mere rhetoric”, a submission that deceitful conduct of the sort which occurred there “drove a coach and horses” through the Codes to
the point where the police would in future not bother even to interview suspects. He concluded the judgment of the Court in these words:
“[W]here, as here, very serious crimes have been committed – and committed by men who have not themselves shrunk from trickery and a good deal worse – and where there has never been the least suggestion that their covertly taped confessions were oppressively obtained or were other than wholly reliable, it seems to us hardly surprising that the trial judge exercised his undoubted discretion in the manner in which he did. If contrary to our view evidence of this sort is generally to be regarded as undesirable and inadmissible, then in our judgment it is for the Codes to be extended accordingly. As the legislation and Codes presently stand, we do not think it unlawful to have obtained, nor unfair to have admitted, these taped conversations.”
[71] We find the reasoning of Simon Brown L.J. highly compelling as to the current result in a somewhat different situation here. So far as the arguments based on PACE alone are concerned we accordingly reject the arguments of the appellants.
[70] Lord Woolf CJ also referred to the human rights considerations raised by the case by reference to the European Convention on Human Rights. He accepted that the surveillance operation in question involved a breach of art 8 of that Convention (as to the suspects’ rights to privacy). This was because the operation did not have a statutory basis. Lord Woolf did not see this breach as requiring the exclusion of the evidence. He then went on to consider other arguments based on the European Convention which are perhaps of more significance in the context of the present case:
[76] We turn to the next plank in the argument. The suggestion is that the covert recording breached Article 5. We reject this argument. As long as the arrest of each of the appellants was lawful then we do no accept that they have been unlawfully deprived of their liberty. The arrests here were for a lawful purpose as well as to enable the surveillance to take place. The fact that the police were operating in accordance with a strategy designed to obtain additional evidence by covert recording does not turn lawful arrests into unlawful arrests. …
[77] Next Mr Pearse Wheatley relies upon Article 6. Article 6 for the purposes of the present case does not add anything to section 78. If there was no unfairness caused by the tapes being relied upon in evidence then there is no breach of Article 6. Mr Pearse Wheatley rightly contends that everyone charged with a criminal offence is entitled to remain silent and not to incriminate himself but this right is not contravened if a person chooses to volunteer information as to the offences which he has committed. The police did no more than arrange a situation which was likely to result in the appellants volunteering confessions. The appellants were not tricked into saying what they did even though they were placed in a position where they
were likely to do so. If evidence of a satisfactory nature could be obtained by other means, it is preferable that it is obtained by those means rather than covertly. Here, it was not unreasonably considered by the Chief Constable that the evidence would not be obtained by more conventional means. …
[71] In subsequent proceedings before the European Court of Human Rights (see Wood v The United Kingdom (Application no. 23414/02) 16 November 2004), that Court concurred in the view that there had been a breach of art 8 but concluded that a finding of violation was, in itself, sufficient just satisfaction for the breach.
[72] Also material in this context is the European Court of Human Rights decision in Allan v United Kingdom (2002) 13 BHRC 652 which concerned a factual situation broadly similar to what was involved in Mason save that an aspect of the operation directed against one of the suspects (Allan) involved a police informer being placed in his cell who, on the instructions of the police, persistently questioned him. Again the electronic surveillance of the suspects in custody was seen as infringing rights of privacy; this given the absence of a statutory regime authorising the surveillance. More significantly for present purposes, the Court saw nothing unfair in the electronic surveillance of the suspects which included recording discussions between Allan and his girlfriend. On the other hand, the police informer was seen as an agent of the state and his interrogation of the suspect was thus the functional equivalent of a police interrogation which, in the circumstances of the case (including the exercise by Allan of his right of silence when formally interviewed by the police) was unfair and a breach of art 6 of the Convention. In respect of the use of the police informer, Allan thus concerned circumstances broadly similar to those in issue in R v Hebert [1990] 2 SCR 151 and R v Barlow (1995) 14 CRNZ 9 (CA) but which are not material here.
[73] In the present case, we are content to follow the approach taken by Lord Woolf in Mason. So the admissibility of the intercept evidence in this case is not affected by either the targeting of men in custody or by the way in which the relevant custodial arrangements facilitated the implementation of the operation.
[74] We note that in this Court, Mr Ellis did seek to argue that there was impropriety on the part of the police in relation to what was required to implement the surveillance operation. He complained of what he says were inhumane
conditions in which the suspects were kept, the use of “holding charges”, the way in which the police opposed bail in relation to Mr Tamati and the circumstances associated with Mr Tamati’s arrest on the charge of murder after he had been granted bail.
[75] We will address these arguments later. The fundamental flaw in them, from our point of view, is that they were not raised in the High Court and the police were not given an opportunity to comment on the allegations against them.
[76] We should make it clear, however, that the putting in place of custodial arrangements so as to implement a surveillance operation of the type carried out here (and was likewise necessary to implement the surveillance operation carried out in the Mason case in England) is not in itself objectionable for the present purposes. So we would not see the appellants as being able to invoke successfully complaints that they were placed in the same cells or that decisions as to where they should be held were influenced by needs of the surveillance operation. Obviously different considerations might apply if the conditions in which they were held were in fact inhumane or if no lawful basis existed for their detention in custody.
Whether the interception warrant was invalid as the appellants were not
“suspects”?
[77] Mr Ellis claimed that what was said by the police in the application for the interception warrant and their later actions on 12 December 2003 made it clear that they had a sufficient basis to prosecute for murder when they sought the warrant. He maintained that this meant that the appellants were not “suspects” for the purposes of s 312C. We emphasise that this argument primarily focused on 5 December 2003, the date on which the application was filed. There was, however, an associated argument to the effect that after the appellants were charged with murder on
12 December 2003, they were defendants and not suspects and that the police, at the very least, ought to have returned to Neazor J to advise him of developments (a point addressed in [93] - [94] below).
[78] The decision of this Court in R v Aranui (1999) 16 CRNZ 304 supports, at least broadly, the arguments of Mr Ellis. There, the Court took the view that if the
evidence justifies a charge, the need to obtain additional evidence by electronic surveillance should disappear. In reaching this view, the Court did not approach the case by reference to what might be implicit in the word “suspect” but rather because of the view that “a successful conclusion” of a police “investigation” occurs at the point where the police have sufficient evidence to place a suspect on trial (which is likely to be when the suspect is charged).
[79] There are difficulties with that approach. It is plainly not the case that police investigations stop once just enough evidence is obtained to put a suspect on trial or the suspect is arrested, cf R v Barlow, R v Storrey (1990) 75 CR (3d) 1 and Dallison v Caffery [1965] 1 QB 348 at 367. Nor, indeed, is it conventional to restrict the exercise of statutory powers of investigation in this way, cf the judgment of the House of Lords in Smith v Director of Serious Fraud Office [1992] 3 All ER 456, a case which was not cited to the Court in Aranui. Also not referred to in Aranui were two earlier decisions of this Court, R v Aitken [1988] 1 NZLR 252 and R v Honan (1991) 7 CRNZ 473 in which a “successful conclusion” to a police “investigation” was seen as extending to the obtaining of “the maximum available evidence in support of a Crown case against [the suspect]”.
[80] Unsurprisingly therefore, Aranui was not followed in R v Bouwer [2002]
1 NZLR 105:
[33] Although, as Mr More pointed out, the judgment of Cooke P in Aitken preceded the Bill of Rights, we think that it gives the appropriate interpretation to the expression “a successful conclusion”, with reference to a police investigation, in the context of the statutory provision relating to interception warrants; namely, a situation in which “the maximum available evidence in support of a Crown case against [the suspect] has been obtained”.
[34] It could well be argued that an investigation of a crime cannot truly be said to be “successful” until it has resulted not only in arrest and charge but also in conviction, either on a plea of guilty or by jury verdict – where the offender is in fact able to be brought before the Court.
[35] But even if that is not the position, so that investigations should be regarded as successfully concluded, ie terminated, at an earlier point, we can see no reason why the legislature is to be taken to have intended that the words must be given a meaning so narrow that, at the latest, arrest and charging has to be treated as bringing an investigation to an end, let alone a successful end. It is to be remembered that the words in question are used in a quite detailed set of provisions which have entrusted to the High Court a
discretionary jurisdiction enabling it to issue interception warrants where the Court has been satisfied about the matters which are specified as prerequisites and the Court considers the issue of a warrant to be appropriate in all other respects. Given the protective function of the High Court, there is no reason, in our view, to give the words an unnaturally limited meaning. Whether an investigation has been concluded successfully should depend not upon the occurrence of a particular event like the laying of charges but upon the individual facts of each case.
…
[37] It seems to us that there is no necessary inconsistency between the belief of the police that they have enough evidence to justify charging someone with a crime and their considering that they still have not successfully concluded their investigation. They may well feel that they can establish a prima facie case, but also think that it is not especially strong and that there are aspects which can be strengthened if certain lines of investigation are further pursued. Although the High Court should be particularly cautious about granting a warrant authorising interception of conversations of an accused after there has been a charge, we are of the opinion that such a course is not precluded merely by the existence of the charge.
[38] Nor do we accept that the use of an interception warrant should be made unavailable to the police for the purpose of obtaining evidence of inculpatory statements from suspected persons. Most warrants are issued with that very purpose in mind. We are not moved by the suggestion that the use of a warrant in circumstances like the present, and for such a purpose, infringes rights guaranteed by the Bill of Rights. Parliament has decided that it is in the interests of justice that, under conditions prescribed by it and under the supervision of the High Court, eavesdropping techniques are to be made available to the police for the detection of serious crime. If and to the extent that such surveillance within the limits of the warrant constitutes a search and/or a seizure, what is done is rendered lawful. The Court will exclude the resulting material if it considers that what has been done is nevertheless unreasonable. In this manner the values underlying s 21 can be accommodated in accordance with s 5.
We consider that Aranui was decided per incuriam, on the basis that the Court was not referred to relevant earlier decisions. We therefore follow Aitken, Honan, and Bouwer.
[81] At the time when the warrant was sought, the murder charge had not been laid. There is nothing to suggest that there was then an intention to lay such a charge prior to the termination of the surveillance operation. Indeed, it is abundantly clear that the police investigation was nowhere near a “successful conclusion” at that date. We are also satisfied that the appellants were at that time properly regarded as suspects.
[82] We are of the view that their status as suspects did not change when they made incriminating statements or were charged with murder. We are also satisfied that the police investigation into the death of the deceased had not been brought to a successful conclusion during the surveillance operation. For the avoidance of doubt, however, we make it clear that it was their status as suspects and the state of the investigation on 5 December 2003 which are critical. It cannot be the law that the police must stop using a warrant the moment the suspect makes an incriminating statement. Were that so, large drug surveillance operations would become impossible, as the police would be drawn to arresting the suspect as soon as they intercepted an admission, thereby risking the entire operation. Electronic surveillance of the appellants after they were charged with murder was permitted by the express terms of the order and cannot fairly be regarded as unreasonable.
The “failure” to interview Mr Hatley before seeking a warrant
[83] Mr Ellis noted that at the time the warrant was applied for Mr Hatley was not in custody and had not been interviewed about his possible involvement in the death of the deceased. He maintained that in the absence of such an interview, the requirements of s 312CB(1)(c) (as to the use of other investigative techniques) could not be satisfied.
[84] We disagree. The application dealt fairly with the position of Mr Hatley. As a patched member of the Mongrel Mob it was not very likely that his response at interview would be such as to “facilitate the successful conclusion of the police investigation”. Indeed when eventually arrested, he did not say anything which was of assistance to the police.
Complaints as to conclusory and prejudicial material in the application
[85] In the course of argument, Mr Ellis expanded a complaint as to what he claimed were inappropriate conclusory remarks in the application to extend to what he also claimed was unnecessarily prejudicial material.
[86] The first limb of this argument focuses on a statement at the beginning of the narrative part of the application which records that:
4. … Police enquiries, coupled with information from informants and witnesses, have identified HATLEY, together with Kenneth Andre TE KAHU, Rangi Wainohu TAMATI, and [a fourth person], as being directly involved in the murder/shooting … .
[87] This passage of the application was treated by Mr Ellis as a statement that the men were involved in the shooting, a meaning which we accept it can bear. On the other hand the statement can also be read as merely summarising the results to date of police inquiries, in which case it is unexceptionable. More importantly, the purpose of the rule against conclusory statements, as expressed in McColl, is that Judges should rely on facts rather than police opinions. When considered in the context of the application as a whole, the impugned passage does no more than provide an introduction to the narrative of facts set out in the application which amply justified the issue of the warrant.
[88] Mr Ellis also complained that the application referred to other offending in respect of which one or more of the appellants were suspects. He suggested that this was inappropriately prejudicial.
[89] We disagree. The other offending in question related to incidents which might thought to be loosely connected with the death of the deceased (relating as they did to hostilities between Black Power and the Mongrel Mob). Further, this offending was itself part of the overall police investigations associated with the interception warrant. In that context the police had no choice but to refer to it in the warrant application.
Complaints as to the duration of the warrant
[90] Mr Ellis complained that the warrant was excessive in duration.
[91] The warrant in question was granted for 30 days which is the maximum period permissible under s 312D(3) of the Crimes Act. However the application made clear that the duration of the operation would be much less than 30 days, and
indeed probably only for two or three days. The reason why a 30 day warrant was sought was to cover the contingency that the Court hearing scheduled for
12 December 2003 might be adjourned or delayed. Further, the nature of the operation was necessarily self-limiting in terms of when the appellants would be within either the Gisborne Police Station or the cells at the Gisborne District Court.
[92] We see nothing in this complaint.
Other complaints made by the appellants
[93] Mr Ellis advanced a miscellany of other generally related complaints about the police: failure to notify the Judge of the change in circumstances associated with the arrest of the appellants on the murder charge, general lack of candour in the application, subjecting the appellants to inhumane conditions, bad faith as to the use of “holding charges”, bad faith as to the grounds on which bail was opposed and circumstances associated with the arrest of Mr Tamati after he was granted bail. These points were not raised in the High Court.
[94] The procedure provided for by the Crimes Act does not provide for (let alone require) the police to return to the issuing judge if there are developments in relation to an investigation.
[95] If misconduct is to be alleged, it is incumbent on the party making the allegation to raise it at first instance to provide a fair opportunity for explanation or response from those whose conduct is impugned.
[96] Mr Ellis sought to justify the making of these complaints in various ways. For instance, he referred to an affidavit from Mr Tamati which he filed in this Court (albeit without leave) in which Mr Tamati made complaints as to the conditions in which he was held in December 2003. Mr Ellis claimed that the absence of a response from the Crown meant that Mr Tamati’s allegations ought now to be treated as “uncontradicted”. His noted that his other allegations had been spelled out in his written submissions and that it would have been open to the Crown to respond with evidence. He referred to our continuing status as High Court judges and what he
regarded as our obligation to investigate situations in which breaches of human rights were alleged.
[97] It is not our usual role to try issues of fact, particularly those which are raised for the first time in this Court and we see no reason for departing from usual practice in this case, concerned as it is merely with applications for leave to appeal under s 379A of the Crimes Act from what is no more than a provisional admissibility ruling made under s 344A of the Crimes Act.
The change of venue application
[98] The statutory basis for the appellants’ application for a change of venue is s 322 of the Crimes Act. Under this section, the test which the Court must apply turns on expediency “for the ends of justice”.
[99] The allegations against the appellants are associated with longstanding hostility between the Black Power and Mongrel Mob gangs on the East Coast of the North Island. Arising out of this are a number of factors which are relevant to whether there should be a trial in Gisborne:
(a) The many lawless acts associated with this state of hostility must have severely tried the patience of law-abiding citizens living in the area creating a risk of prejudice towards those who have been involved, one way or another, in these events.
(b)A significant number of people have been affected. For instance, some of the Black Power members who participated in the brawl on the morning of 27 November 2003 came from outside Wairoa and some of these live in or near Gisborne. There were many participants in the brawl and likewise many observers. A significant number of people were later involved in providing assistance to those who were injured or cleaning up the mess which was left as a result of the brawl.
(c) The publicity associated with the death of the deceased and the broader history of hostility between the two gangs has been very considerable.
(d) Against this background, the limited pool of jurors available in
Gisborne is a concern.
(e) Given the high level of hostility between the two gangs it is not improbable that there will be some disruption and a risk of the proceedings miscarrying if the trial remains in Gisborne. This could involve acts of violence or intimidation directed at witnesses, police and counsel. Likewise, there must be some risk of jury tampering.
[100] In rejecting the application for a change of venue, Laurenson J observed:
[126] I am satisfied that the circumstances of this trial are no different from many other trials which have been dealt with entirely appropriately in the Gisborne High Court. Indeed, I have the impression that this Court is unfortunately, well experienced in handling trials of this nature. The jury will be asked once again to consider allegations against three specific accused arising out of inter-gang rivalries. Juries in the past have demonstrated their ability to provide verdicts which are patently in accord with the evidence and without any suggestion of prejudice. If the media publicity at the time of the incident, and at the time of the deposition hearing was such that it may have maintained public antipathy to gang activities, then, as Mr Barry submitted, at least some seven months will have elapsed prior to the trial commencing.
[127] For these reasons I have concluded that the three accused have fallen far short of providing a clear and solid foundation for their application. This is clearly a case where the trial should be heard by a jury comprised of citizens from Gisborne, this being the nearest High Court to where the offending is alleged to have occurred.
[101] Since Laurenson J gave his decision, other events have occurred which seem to us to add weight to the application for a change of venue. These include the death of a Black Power member on 4 August 2005 allegedly at the hands of members of the Mongrel Mob. The Police have found it necessary to impose night-time curfews in Gisborne and police patrols are sometimes armed. All of this has not only continued to keep issues associated with this case before the public and but also intensified security issues associated with a trial in Gisborne.
[102] Mr Snell, who argued this aspect of the case for the appellants, noted that counsel in the case themselves feel under threat. He said that the situation was the worst it had been in the 16 years he had regularly practised in Gisborne, representing members of both gangs.
[103] Mr Thomas not dispute Mr Snell’s concerns, and in particular his concerns about safety. He agreed that the Gisborne High Court was not ideally set up to ensure that counsel, jurors, and witnesses could come and go without feeling under threat. So, although the Crown opposed the appeal in relation to a change of venue the opposition was perhaps more muted than it had been in front of Laurenson J.
[104] We enquired of counsel for the Crown whether the relatives of the deceased had been consulted as to the possibility of change of venue. After making an enquiry counsel was able to confirm that such consultation had occurred and that the relatives would indeed be troubled (and understandably so) if the trial is shifted away from Gisborne.
[105] We are very conscious of their position but we must balance their interests against the factors to which we have already referred in our overall assessment of what outcome meets the interests of justice. In doing so we take into account the following considerations:
(a) Financial assistance would be available to them, if they seek it, to assist them in meeting the expenses associated with attending a trial outside Gisborne; and
(b)If the trial was held in Gisborne but was disrupted or otherwise miscarried, this in itself would bear very heavily on them.
[106] For those reasons we were satisfied that an order for change of venue ought to be made. At the conclusion of the hearing, we made an order that the appellants be tried at the High Court at Wellington on 7 November 2005 or otherwise as directed by the High Court.
A stay of proceedings?
[107] In his arguments before us, Mr Ellis sought a stay of the proceedings alleging abuse of process and delay.
[108] Such an application was not made to the High Court. Had it been made to Laurenson J and declined, we would have had no jurisdiction to entertain an appeal against such a refusal, see McGrath and Forde v R [2005] NZSC 50.
[109] In effect Mr Ellis invited us to sit as High Court judges and suggested that we should do so as the issues which he wishes to raise as to abuse of process are closely associated with issues which are legitimately before us in relation to the admissibility of evidence appeal.
[110] We decline the invitation. It is true that judges of this Court sometimes resolve jurisdictional issues which arise unexpectedly by exercising their powers as judges of the High Court. We do so, however, rarely and not in circumstances in where evidence must be heard and findings made as to disputed issues of fact.
[111] The arguments which Mr Ellis wishes to advance can only be properly evaluated in light of all the relevant evidence which would, in the ordinary course of events, be placed before the High Court in affidavits upon which there might be cross-examination. Such evidence simply is not presently before us.
[112] We might add that the arguments advanced by Mr Ellis in relation to abuse of process did not seem to us to be particularly compelling. They largely focus on delay and in part in relation to delays in this Court. The appellants, however, were offered a comparatively early fixture in relation to the present appeal which they turned down.
Result
[113] Accordingly:
(a) We grant the appellants leave to appeal in relation to change of venue and allow their appeal with the result that their trial is to take place in the High Court at Wellington on 7 November 2005 or otherwise as directed by the High Court (confirming the result announced orally at the end of the hearing).
(b)We grant the appellants leave to appeal in relation to the admissibility issues associated with the intercept evidence but dismiss the appeal.
(c) We dismiss the application for a stay.
Solicitors:
Crown Law Office, Wellington
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