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ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT, THE REASONS FOR JUDGMENT AND ANY PART OF THE PROCEEDINGS (APART FROM [8] - [153], [209] - [253], [258] - [292] AND [297] IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA372/05, CA373/05, CA374/05
CA375/05, CA376/05, CA377/05
CA378/05, CA379/05, CA380/05
CA381/05, CA382/05 [2007] NZCA 52
THE QUEEN
v
CHRISTOPHER DAVID WILLIAMS DALE ARTHUR WILLIAMS SHANE EDWARD WILLIAMS SCOTT JAMES CORLESS
JOHN IVAN SIMETI JOSEPH ABRAHAM ANAE KURA TIRINGA WILLIAMS PHILLIP ROBARTS
BRIAN SYDNEY MCLAUGHLIN JULIE KAREN NIBLET
JOHN MALCOLM TE MONI
Hearing: 18 May 2006
Court: William Young P, Glazebrook and Hammond JJ Counsel: J C Pike and M D Downs for Crown
C P Comeskey for Respondent C D Williams No appearance for Respondent D A Williams L B Cordwell for Respondent S E Williams
R M Mansfield for Respondent S J Corless
R V WILLIAMS AND ORS CA CA372/05, CA373/05, CA374/05 29 November 2006
C B Cato for Respondents J I Simeti and P Robarts
P J B Winter for Respondent J A Anae
P H H Tomlinson for Respondent K T Williams
G N Bradford for Respondents B S McLaughlin and J K Niblet
A G Speed for Respondent J M Te Moni
Judgment: 29 November 2006
Reasons for Judgment: 7 March 2007 at 12.30pm
JUDGMENT OF THE COURT
A The application of the Solicitor-General for leave to appeal is granted. B The appeal is allowed to the extent set out in C and D below.
C The determination of the High Court that the evidence gained from the
Patiki Road search not be led at trial is confirmed.
DThe evidence gained from the subsequent searches is admissible at trial, subject to this evidence being able to be given and understood without reference to the Patiki Road search and subject to any other considerations which have not been raised before this Court.
EPublication of the judgment, the reasons for judgment and any part of the proceedings (apart from [8] - [153], [209] - [253], [258] - [292] and [297] in the news media or on the internet or other publicly accessible database is prohibited until the final disposition of the trial. Publication in law reports or law digests is permitted.
REASONS
William Young P and Glazebrook J [1] Hammond J [258]
WILLIAM YOUNG P AND GLAZEBROOK J
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
What are the principles that should apply in search and
seizure cases? [8]
Overview [8] The link between unlawfulness and unreasonableness [12] When can bad faith render a warrant unlawful? [25] Who can complain about a breach of rights? [47] The effect of a breach on downstream evidence [79] How should the Shaheed balancing test be conducted? [104] NATURE OF THE RIGHT [106] EXTENT OF ILLEGALITY [110] NATURE OF PRIVACY INTEREST [113] AGGRAVATING FACTORS [116] MITIGATING FACTORS [122] NEUTRAL FACTORS [130] SYSTEMATIC ANALYSIS [132]
PUBLIC INTEREST FACTORS [134] SERIOUSNESS OF OFFENDING [135] NATURE AND QUALITY OF EVIDENCE [140] PROPORTIONALITY [142] EVIDENCE ACT 2006 [149] ADDITIONAL REMEDIES [153]
Was the Patiki Road warrant unlawfully obtained? [154] Did police bad faith render the search of Patiki Road unlawful? [167] Was the search of Patiki Road unreasonable? [182] Whose rights were breached? [185] Were subsequent searches tainted by the Patiki Road search? [188] How does Shaheed apply to the Patiki Road search? [195] How does Shaheed apply to the subsequent searches? [199]
Search warrant applications [208] General principles [209] Common errors [223] Summary of what an application should contain [224]
Summary of the principles of search and seizure dealt with in
this judgment [226]
Link between unlawfulness and unreasonableness [226] When bad faith can render a warrant unlawful [231] Claiming a personal remedy for breach [235] Effect of a breach on downstream evidence [241] Conduct of the Shaheed balancing test [245] Conclusion and result [254]
Introduction
[1] The police received information from an anonymous informant that there was a methamphetamine manufacturing operation being conducted in an industrial unit in Patiki Road, Avondale. It is common ground that this information was not sufficient to found an application for a search warrant.
[2] Two plain-clothed detectives made a preliminary reconnaissance of the precincts of what, on the basis of the information given, they assumed to be the unit. These detectives were “warned off” by individuals they encountered in the carpark which adjoins that building. In the course of that reconnoitre, the detectives had noted the registration numbers of vehicles parked in the carpark. One of the vehicles was subsequently reported stolen that day. The police sought and obtained a search warrant in relation to the stolen vehicle and the adjoining unit. An extensive police search of the premises was then mounted.
[3] Incriminating evidence was located, implicating a number of the respondents in methamphetamine manufacture. Subsequent to the initial warrant, the police accumulated further evidence of methamphetamine manufacture from the execution of further search warrants, call data warrants and an interception warrant issued by a Judge of the High Court. As a result, ten of the respondents were charged with conspiracy to manufacture methamphetamine. There were also charges against some
of the respondents for manufacturing methamphetamine and conspiracy to supply methamphetamine.
[4] At their trial, the respondents challenged the admissibility of all of the evidence against them on the basis that the Patiki Road search was unlawful and unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and that this tainted all subsequently obtained evidence. Section 21 of the Bill of Rights provides:
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[5] Heath J, in a ruling delivered on 6 September 2005 (Ruling (No. 8) in CRI-2004-404-3697), excluded the evidence of the Patiki Road search. He held that the police had acted in bad faith in obtaining the warrant with regard to the stolen car when their real purpose had been to search for drugs. In a judgment delivered on
28 September 2005, he confirmed his earlier ruling and also excluded all of the subsequent evidence. He held that the subsequent evidence had been obtained as a direct result of the Patiki Road search and it was therefore tainted by the finding of bad faith with regard to that search. Given the nature of the original breach, he did not consider that the evidence should nevertheless be admitted under the balancing test in R v Shaheed [2002] 2 NZLR 377 (CA).
[6] The Solicitor-General applies for leave to appeal against the 28 September ruling. The issues that arise are:
(a) What are the principles that should apply in search and seizure cases? (b) Did police bad faith render the search of Patiki Road unlawful?
(c) Was the warrant otherwise unlawfully obtained? (d) Was the search of Patiki Road unreasonable?
(e) Whose rights were breached?
(f) Was the subsequent evidence tainted by the Patiki Road search?
(h) How does Shaheed apply to the subsequent searches? (i) What should search warrant applications contain?
[7] At the end of the judgment, we provide a summary of the principles on search and seizure dealt with in this judgment – see at [226] - [253] below.
What are the principles that should apply in search and seizure cases?
Overview
[8] The Bill of Rights is now over 15 years old. One might think that the principles that apply in search and seizure cases would be well settled by now. That is not the case. There remain inconsistencies between the cases in some areas. There is also uncertainty about the continued applicability of a number of the cases decided before this Court introduced the balancing test in Shaheed. We were not asked to and neither would it be appropriate for us (given that it was a seven judge bench) to revisit the Shaheed test. In any event, the Evidence Act 2006 effectively enshrines Shaheed in legislation. It may nevertheless be time to refine the test in light of subsequent experience and academic commentary. Further, the issue as to the continued application of the pre-Shaheed cases needs resolution.
[9] The areas of uncertainty and inconsistency that we propose to attempt to resolve in this part of the judgment are as follows:
(a) The link between unlawfulness and unreasonableness;
(b) When bad faith can render a warrant unlawful;
(c) Who can complain about a breach of s 21 of the Bill of Rights;
(d)The effect of a breach of s 21 of the Bill of Rights on downstream evidence; and
[10] There are no doubt other areas of uncertainty and inconsistencies in relation to search and seizure cases, but we have limited our discussion to those that are relevant in this case. If issues that are dealt with in this judgment arise in the future, however, the Court is unlikely to find reference to earlier authorities helpful. Reference to this judgment would normally suffice.
[11] As indicated above, for the convenience of readers, a summary of the principles on search and seizure is provided at the end of the judgment. The relevant summaries are set out in the following paragraphs:
(a) The link between unlawfulness and unreasonableness, at
[226] - [229];
(b) When bad faith can render a warrant unlawful, at [231] - [233];
(c) Who can complain about a breach of s 21 of the Bill of Rights, at
[235] - [239];
(d)The effect of a breach of s 21 of the Bill of Rights on downstream evidence, at [241] - [243]; and
(e) How the Shaheed balancing test should be conducted, at
[245] - [252].
The link between unlawfulness and unreasonableness
[12] Since R v Jefferies [1994] 1 NZLR 290, this Court has recognised that legality and reasonableness, while related, are distinct concepts. In Jefferies, four of the judges stated that an unlawful search could nevertheless be reasonable but only where the illegality arose as a result of a technical or inconsequential procedural breach or in the case of an emergency – see Cooke P (discussing exceptionality only at 296), Casey J (at 312), Hardie Boys J (at 315) and Thomas J (at 320). Although
concurring in the result in that case, McKay J considered that an unlawful search must, by that very fact, be unreasonable (at 315 – 316).
[13] In R v Grayson and Taylor [1997] 1 NZLR 399, this Court widened the grounds for holding that an unlawful search could nevertheless be a reasonable one. The Court in that case took into account factors such as the extent of the invasion of privacy, the manner of conducting the search, the length of the search, the good faith of the officers, what type of evidence was uncovered by the search, whether the police had additional material not disclosed in the warrant application, and the fact that the search took place in the course of the investigation of possibly serious criminal activity (in that case cannabis cultivation).
[14] The next relevant development was this Court’s decision in Shaheed. Before Shaheed, this Court applied what was known as a prima facie exclusion rule. Under the rule as originally conceived, evidence obtained in breach of s 21 of the Bill of Rights was inadmissible, except where there was good reason to admit it. The rule had, however, in practice become effectively an automatic exclusion rule. The majority in Shaheed (Elias CJ dissenting) replaced the prima facie exclusion rule with a new balancing test. The purpose of that balancing test is to determine whether the exclusion of evidence is a proportionate response to the breach in question.
[15] One of the reasons for the introduction of the new balancing test was the perception that frequently a balancing exercise was carried out in the fact-finding process or in the determination of whether a search was reasonable. Blanchard J (in a judgment joined by Richardson P and Tipping J) considered that this may have led to some distortion. In Blanchard J’s view, there were cases in which it would have been preferable to mark the breach of s 21 by a statement from the Court that the search and seizure was unreasonable and then to determine, by means of a principled balancing exercise, whether the evidence ought nevertheless to be admitted – see at [141]. Of the other three concurring judges, two said that they agreed with the reasons expressed by Blanchard J (see McGrath J at [192] and Anderson J at [201]). Gault J did not expressly adopt Blanchard J’s reasoning for the introduction of the balancing test, although he did say that he had little to add on that aspect of the case – see at [169] - [170].
[16] While the Court in Shaheed did not explicitly overrule Grayson and Taylor, the reasoning in that case supports the transfer of most of the factors considered in Grayson and Taylor to the balancing phase under Shaheed – see at [106] - [131] below. These factors will be relevant to the assessment of the seriousness of the breach. In our view, the necessary implication from Shaheed therefore is that an unlawful search will normally be an unreasonable search. This is supported by the comments of this Court in R v Maihi (2002) 19 CRNZ 453 at [31]. Subsequent cases, such as R v Abraham CA253/05 30 August 2005, R v Magan CA252/03
29 September 2003 and R v Hardy CA307/02 27 November 2002, which have referred to the wider factors considered in Grayson and Taylor, in the context of assessing the reasonableness of a search or seizure, are thus, post-Shaheed, no longer to be followed.
[17] Transferring the wider Grayson and Taylor factors to the balancing phase under Shaheed has the advantage of requiring those factors to be explicitly weighed in assessing the proportionality of the remedy to the breach rather than being factors leading to automatic admissibility of evidence through a finding of reasonable search and seizure. It also has the advantage of simplifying the inquiry and eliminating the double counting that concerned the Chief Justice in Shaheed (see at [19] of that decision). In addition, it avoids the incongruity of characterising breaches of the law by those charged with the enforcement of the law as reasonable and, in cases where warrants are required, reinforces the fundamental requirement of judicial pre-authorisation.
[18] This approach to Grayson and Taylor is supported by a number of the commentators – see for example, Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005) at 575, Mahoney “Evidence” [2006] NZ Law Review
112 at 116. See also Optican “Search and Seizure in the Court of Appeal – An Essay On the Uses and Misuses of Section 21 of the Bill of Rights” (1999) 18 NZULR 411 at 419 and Optican “Lessons from Down Under: A Dialogue on Police Search and Seizure in New Zealand and the United States” (2005) 3 Ohio St J Crim L 257 at
268. We also refer to the comments of this Court in R v Savelio CA234/96 5 August
2005 at [51].
[19] The next task is to identify any remaining exceptions to the general rule that unlawfulness equates with unreasonableness. This Court in Jefferies indicated two possible exceptions. The first was where the search takes place in the context of an emergency and the second was where the error is minor or technical – see the discussion at [12] above.
[20] We do not think that the first of these exceptions should survive Shaheed. In many cases of emergency or threats to public safety, warrantless searches will be lawful (see for example s 60 of the Arms Act 1983), as will warrantless entries and arrests in certain circumstances (see s 317 of the Crimes Act 1961). Furthermore, the Court has recognised that, in some circumstances, police entry onto property will be lawful under the common law justification of necessity. Where the police have good reason to fear that public safety may be at risk, or that a person may be in need of assistance following serious physical harm, they will have authority to locate any persons in trouble, as well as any person or thing representing a danger to anyone - see R v Fraser [2005] 2 NZLR 109 (CA), at [37] especially, and R v Findlay CA410/05 14 March 2006. For the purpose of assessing the admissibility of evidence, we consider it better, outside of these situations which have been sanctioned by Parliament or by the common law, for an unlawful search to be held to be unreasonable even in the case of an emergency. The fact that a search or seizure took place in an emergency situation will, however, be relevant when assessing the magnitude of the breach under the Shaheed balancing test. This seems to be the approach envisaged by Blanchard J in Shaheed – see at [147] of that decision. See also s 30(3)(h) of the Evidence Act 2006.
[21] It is, however, appropriate that the second of the exceptions set out in Jefferies should survive Shaheed. If even minor or technical breaches lead to a finding of breach of s 21 of the Bill of Rights, this risks trivialising the right – see also Shaheed at [146]. Even where a breach is minor or technical, a search or seizure will not normally be held to be reasonable, however, if the police realised the error existed before the search or seizure was undertaken.
[22] What is minor or technical should not be given an expansive interpretation. An example of what has been seen as a minor and technical breach is R v Smith
(1996) 13 CRNZ 481 (CA), where there had been a failure to file a report after the exercise of a warrantless search under s 18(2) of the Misuse of Drugs Act 1975. By contrast, mistakes such as specifying the wrong property in a warrant would not normally be considered a minor or technical breach, even where the intended property is in fact searched. See for example R v Kappely [2001] 1 NZLR 7 (CA) and R v Te Whatu (2002) 6 HRNZ 673, the latter involving the search of a Ford camper-van when the warrant authorised a search of a Nissan vehicle with a different registration number. For completeness, we note that in neither case was the warrant able to be saved by s 204 of the Summary Proceedings Act 1957 – see Kappely at [13] and Te Whatu at [9].
[23] Further, the failure to follow the identification requirements in, for example, s 18(4) of the Misuse of Drugs Act 1975, is also unlikely to be a minor or technical breach. Section 18(4) requires police officers, when exercising powers of search under s 18(2) and (3) of the Misuse of Drugs Act, to identify himself or herself to any person searched, and to any person present on the property being searched where that person questions the right of the officer to conduct the search. As was noted in Smith at 483 – 484, the identification requirement in s 18(4) is concurrent with the exercise of the search power under s 18(2) or s 18(3). Despite what was said by some members of the Court in Jefferies, we consider that the same applies to the identification requirement in s 60(3) of the Arms Act 1983. In our view, provisions such as s 18(4) of the Misuse of Drugs Act and s 60(3) of the Arms Act are important. Requiring a person to submit his or her body or property to a search is a restraint on their freedom. Identification provisions provide the target of the search with the reason why his or her person or property is being invaded – see Perkins v Police [1988] 1 NZLR 257 at 262 (CA). If the police, however, indicate the general source of the power or permit the suspect to contact a lawyer at the time of the search, this may allow the breach to be regarded as minor or trivial – see Butler and Butler at 572.
[24] Finally on this topic, it is a necessary consequence of the fact that lawfulness and reasonableness are distinct concepts that a lawful search may nonetheless be an unreasonable search in terms of s 21 of the Bill of Rights, although this will be rare. This could occur where a lawful search is conducted in an unreasonable manner. For
example, see R v Pratt [1994] 3 NZLR 21 (CA), where a strip search conducted in public view was legal but unreasonable due to the time, place and disregard for dignity. Likewise, where a warrant was readily obtainable and there was no question of urgency (such as the threatened loss of evidence), a search conducted pursuant to a warrantless power may be lawful, but unreasonable – see R v Laugalis (1993)
10 CRNZ 350 at 355 – 356 (CA) and R v H [1994] 2 NZLR 143 at 148 (CA). Regard must be had to the practicalities of policing, including whether a property can be kept under surveillance, and the resources available to officers at that time, in assessing whether the situation faced by a police officer made it reasonable to invoke a warrantless power – see, for example, Smith at 485 and Kappely at [20].
When can bad faith render a warrant unlawful?
[25] In this case, Heath J defined bad faith (see footnote 26 of his ruling of
6 September 2005) as meaning:
[A] deliberate decision to apply for a warrant for purpose A, while intending it to be used for purpose B, when the applicant knew the evidence was insufficient to justify an application to search for purpose B.
[26] The Crown submitted that this definition is too wide. In its submission, there is nothing wrong with law enforcement officers having a dual purpose in applying for a warrant. In support of this proposition, the Crown cited R v Coveny CA351/05
11 April 2006 (CA), a case decided after Heath J’s ruling.
[27] The respondents argued that Coveny was wrongly decided and that Heath J’s formulation of the test for bad faith should be preferred. As an alternative, they argued that, if Coveny was correctly decided, it only applies where the search was genuinely conducted for the purpose for which the warrant was issued and not where that purpose was a mere ruse.
[28] This Court in Coveny held that a search pursuant to a valid warrant was not unreasonable where one of the officers had another purpose in executing that warrant, despite the fact that there was no proper basis for any search with regard to that other purpose. At issue in Coveny was the admissibility of evidence of stolen
property obtained when a fines seizure warrant was executed. The fines seizure warrant had been executed by a bailiff of the District Court accompanied by local police officers. For present purposes it suffices to say that, as well as owing money on fines, Ms Coveny had been identified as a suspect in relation to a number of burglaries and one of the police officers executing the fines seizure warrant had recently reviewed the burglary files.
[29] The District Court Judge in Coveny had ruled the search unreasonable on the basis that he had a strong suspicion that the police assistance to execute the fines seizure warrant in that case was only a ruse to get a foot in the door of Ms Coveny’s house. This Court agreed that, when the police officer in question attended the address, she was “motivated by the hope that a search of the premises would link Ms Coveny with the burglaries” – see at [31]. The Court held, however, that there was no basis for concluding (or even suspecting) that the execution of the fines seizure warrant was only a ruse to get into Ms Coveny’s house. This was because it was perfectly clear that there was a bona fide intention to execute the fines seizure warrant and indeed, property subject to that warrant was seized. The Court concluded that the officer had a dual purpose in attending at the execution of the warrant. The first was to facilitate the execution of the warrant and the other was to look for evidence linking Ms Coveny with the burglaries.
[30] The Court in Coveny had not been referred to any New Zealand cases addressing the issue of admissibility of evidence where there was such a dual purpose, but noted that evidence had been held to be admissible in such circumstances in the United States and Canada – see United States of America v Ewain 88 F 3d 689 (9th Cir 1996) and the decision of the British Columbia Court of Appeal in R v Krist (1998) 130 CCC (3d) 347. However, we note that the ulterior motive was not the focus of the decision in Krist and that a contrary decision was reached in R v Caron (1982) 31 CR (3d) 255 (Ont Dist Ct). The Court also noted
that there is no general principle applicable to the criminal law which outlaws the use of law enforcement powers for dual purposes, referring to R v Chalkley [1998] 2 All ER 155 (CA), Keenan v Attorney-General [1986] 1 NZLR 241 (CA) and R v Te Kahu [2006] 1 NZLR 459 at [76] (CA).
[31] The Court considered that there had been no appreciable adverse impact on Ms Coveny’s privacy rights as, by her non-payment of fines, she had exposed herself to the execution of a fines seizure warrant. Her privacy would have been invaded even if the sole purpose of the officer had been to execute the fines seizure warrant. The finding of the stolen items did not require a more intrusive search than was permitted by the fines seizure warrant. The Court also remarked that the victims of the burglaries warranted consideration and they could reasonably expect the police to take advantage of lawful opportunities to search in places where it was likely that property which had been stolen from them might be located. The Court was thus satisfied that the search was reasonable.
[32] Usually, the seizure of property not referred to in an authorising power (such as a warrant) will be illegal – see Barnett and Grant v Campbell (1902) 21 NZLR
484 (CA) and McFarlane v Sharp [1972] NZLR 838 (CA). Unlike Canada and the United States, New Zealand does not have a general doctrine of “plain view” seizure. However, where the property seized is stolen, as it was in Coveny, this Court has taken the view that no element of illegality in relation to the seizure arises, effectively creating a limited plain view seizure doctrine. The person in possession of stolen goods cannot have an interest in the goods entitling him or her to hold them as against the true owners – see R v Thomas CA173/05 7 July 2005.
[33] Also relevant, but not referred to in Coveny, are R v Stockdale [1995]
2 NZLR 129 (CA) and R v Gillies CA470/05 4 April 2006. In Stockdale, bags of heroin were discovered in the appellant’s excrement while he was held on remand in a prison facility. The prison superintendent then gave this heroin to the police, believing that he could not actively destroy such evidence. While the police had suspected the appellant of concealing heroin, the Court accepted that the prison authorities’ surveillance of him was for the purpose of ensuring his safety, while also preventing the introduction of heroin into the prison system. The Court (and the Crown) accepted, however, that, if the prison authorities had colluded with the police to gather evidence in an attempt to avoid the limited powers available to police in such instances, the evidence should not be admitted – at 132 and 133 – 134.
[34] In Gillies, the High Court had formed the view that the officer’s entry into the applicant’s car was unlawful for several reasons, one of which was the officer’s dual motive. The officer not only wished to enter the vehicle in order to effect its impounding, he also wished to obtain information about the vehicle’s owner (the police held the suspicion that the vehicle might be stolen). The officer smelt marijuana and after invoking s 18(2) of the Misuse of Drugs Act 1975, discovered various drugs. This Court viewed the entry as clearly lawful, being a necessary requirement of placing the vehicle into safe storage. Having focused on the clear legality of the officer’s actions, the Court’s discussion of dual motives was brief, stating at [15]:
[I]t may well be that the police had more than one motive for entering the vehicle. It does not matter whether one reason was bad and the other good; so long as one of the reasons was good and permitted lawful entry, that will suffice.
[35] As indicated above, at [27], the respondents’ first submission was that Coveny was wrongly decided and that Heath J’s approach should be preferred. Even if we considered that to be the case, there would be no grounds for overruling Coveny. It is a recent decision of this Court and followed full argument. There are no conflicting decisions of this Court of which we are aware, we have not been pointed to any academic criticism of the decision and there has been no relevant social change or contrary decisions in other jurisdictions since Coveny was decided - see R v Chilton [2006] 2 NZLR 341 at [83] – [90] (CA).
[36] In any event, we consider Coveny, Gillies and Stockdale to have been correctly decided on the dual purpose point. While we accept that in extreme cases police bad faith may render an otherwise lawful search unreasonable, merely having a dual purpose for a search is not sufficient, even where there are insufficient grounds for applying for a warrant for one of those purposes. It will not be uncommon, as the Crown pointed out, for police officers to have prior knowledge of possible offending falling short of providing proper grounds to apply for a warrant and for those officers to be aware of the possibility that evidence of this offending may come to light when conducting a search pursuant to a warrant lawfully obtained for another purpose. We accept the Crown’s submission that the police cannot be precluded from exercising a power of search in such circumstances. The key point is
that, as long as the search is not wider than would be allowable in relation to the purpose for which the warrant was obtained, the lawful invocation of alternative search powers will occur in a situation where there has been no greater infringement of privacy than would have occurred in any event. To the extent that Frost v Police [1996] 2 NZLR 716 (HC), R v Hetaraka and Thomas HC WHA CRI 2004-029-931
5 May 2005 (cited by Heath J at [111] of his 6 September 2005 ruling) and any similar cases are inconsistent with these views, they are overruled.
[37] We add a caveat. Any collateral purpose for conducting a search should be a legitimate law enforcement purpose. If a warrant were obtained or a search conducted for an illegitimate purpose, such as to harass an ex-partner or for discriminatory purposes contrary to s 19(1) of the Bill of Rights, then, where that illegitimate purpose is anything more than incidental, any resulting search would in our view be unreasonable in terms of s 21 of the Bill of Rights. We see this caveat as consistent with the principles enunciated by Lockhart J in Crowley v Murphy (1981) 34 ALR 496 at 521 (FCA), cited with approval in Wilson v Maihi (1991)
7 CRNZ 178 at 180 - 181 (CA). Lockhart J considered that, amongst other things:
[T]he power must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. If, for example, it is used to punish the person whose premises are to be entered and searched, plainly that is an ulterior purpose.
[38] We also consider that, where any collateral purpose is strong, its existence should ideally be disclosed in any warrant application and it should also be disclosed that there was not sufficient evidence to seek a warrant for that collateral purpose.
[39] The respondents’ next submission was that cases where the purpose for which the warrant was obtained is a mere ruse are not covered by Coveny. In their submission, where that is the case, the search should be held to be unreasonable. It is true that this Court in Coveny rejected the submission that the fines seizure warrant was a mere ruse. It thus did not have to decide whether it would have made any difference to the reasonableness of the search if the execution of the fines seizure warrant had been a mere pretext for the search in relation to the burglaries.
[40] On this point, Heath J had been referred to Whren v United States 517 US
806 (1996) and to the earlier Supreme Court case of Horton v California 496 US 128 (1990) on this point. In Whren, plain clothes policemen were patrolling a high drug risk area in an unmarked vehicle. They observed a traffic violation and stopped the vehicle involved, allegedly to speak to the driver about that violation. On approaching the vehicle, the officers saw plastic bags of crack cocaine in Mr Whren’s hands and he and the driver were arrested. The petitioners sought to have the evidence excluded on the basis that the asserted ground for stopping the vehicle was a mere pretext. The Supreme Court held that ulterior motives cannot invalidate police conduct which is justified on the basis of probable cause, in this case probable cause to believe that a traffic violation had occurred. Outside inventory searches or administrative inspection, the Court said that it had always held that an officer’s motive could not invalidate objectively justifiable behaviour – see, for example, United States v Villamonte-Marquez 462 US 579 (1983), United States v Robinson 414 US 218 (1973) and Gustafson v Florida 414 US 260 (1973).
[41] The Supreme Court in Whren also rejected an approach whereby an officer’s conduct would be judged on the basis of standard police practice. The petitioners had submitted that, in order to prevent police stopping cars based on an ulterior motive or pretext, the test should be whether a reasonable officer would have stopped the car for the purposes of enforcing the traffic violation at issue. The Supreme Court was concerned that there could be variations in police practice from place to place and from time to time. It also considered that it would be very difficult to ascertain such practice. There would be little of objective assistance and a court would be reduced to speculating about the hypothetical reaction of a hypothetical constable, an exercise the Court called “virtual subjectivity” - see at 815.
[42] Heath J considered that Whren did not apply when a warrant is actually sought to conduct a different type of search and not for the purpose for which the warrant was granted. We are not able to read down Whren in that manner. The very basis of the petitioners’ argument in that case was that the real purpose of stopping the vehicle was to search for drugs. It was alleged that a reasonable officer would not have stopped the car for the traffic violation and that the traffic violation was a pretext or ruse. Despite this, the Supreme Court held that, apart from in exceptional
cases, the test was whether objectively there was probable cause to stop the vehicle. The officers’ subjective purpose was irrelevant. It must follow that it did not matter whether or not the officers used the traffic violation as a pretext or ruse for stopping the vehicle.
[43] The issue is whether we should adopt the Supreme Court’s approach in New Zealand. We consider that the approach in the United States is too extreme. In our view, members of the New Zealand public would expect that their privacy would only be invaded where it was lawful to do so and where the purpose for that lawful invasion of privacy was genuine and not a mere ruse. We would, however, expect a conclusion that the purported purpose for a lawful search was a ruse to be very rarely drawn.
[44] Whether or not something is a mere ruse should be judged from the totality of the circumstances, taking into account both subjective and objective factors. It should be judged from the perspective of the operation as a whole and not just from the perspective of the individual officer who applies for the warrant or those who execute it. The words and actions of the officers at the time of applying for any warrant and in conducting the search will clearly be relevant to the assessment. We also consider that, if, in the circumstances of the case, it would be standard police practice to conduct a search, then this would be a very telling factor against a finding that the purported purpose for the search was a ruse, provided the practice is itself reasonable. New Zealand is a smaller country than the United States with one police force and so the difficulties which led the Supreme Court in Whren to reject the consideration of standard police practice do not apply with such force in this country.
[45] The cases of R v Bainbridge (1999) 5 HRNZ 317 (CA), R v Koroheke CA193/00 7 September 2000, R v Thomas (2001) 19 CRNZ 392 (CA) and Jones v Attorney-General [2004] 1 NZLR 433 (PC) are examples of cases where the purported purpose was no more than a pretext. Broadly, these cases concerned a police officer’s power to stop a driver for the purposes of exercising any powers under the Land Transport Act 1998 and to obtain the driver’s personal details – most notably s 114 of that Act. The Court was dealing with officers who had no intention of using the Land Transport Act powers. As these cases make clear, s 114 cannot be
used for a non-road transport purpose, such as a hunch that a driver possesses drugs (Koroheke at [19] and Thomas at [10]), and the officer must also always act within the scope of the authorising power (Jones at [4] and Bainbridge at [29]).
[46] In summary, we consider that the definition of bad faith used by Heath J (above at [25]) is too wide. If there is a collateral purpose (even a dominant purpose) for a search, this does not make the search unreasonable as long as the search is lawful, not unreasonably executed and does not extend further than to fulfil the lawful purpose. Any collateral purpose must be a legitimate law enforcement purpose and the lawful purpose must not be a mere ruse in the sense described above.
Who can complain about a breach of rights?
[47] It has long been established that breaches of other people’s rights under the
Bill of Rights cannot be relied upon by third parties – see R v Wilson [1994] 3 NZLR
257 at 259 (CA). This concept is often couched in terms of standing, although the term is rather inapt for this subject-area. It is more helpful to define the issue as being whether or not a person is able to claim a personal remedy (i.e. exclusion of evidence) under the Bill of Rights. The purpose of that remedy is to provide vindication of an individual’s rights. If that individual’s rights have not been breached then there is nothing to vindicate.
[48] A touchstone of s 21 of the Bill of Rights is the protection of reasonable expectations of privacy – see R v Fraser [1997] 2 NZLR 442 at 449 (CA). It is thus only where a person’s privacy interest has been breached that his or her rights under s 21 of the Bill of Rights have been breached and a personal remedy is available. The issue therefore is in what circumstances an individual’s privacy interest arises.
[49] The Supreme Court of Canada has answered this (by majority) by a test which considers the totality of the circumstances – see R v Edwards [1996] 1 SCR
128 at [45] per Cory J, drawing from United States v Gomez 16 F 3d 254 at 256 (8th Cir 1994). Factors to be considered include:
(a) presence at the time of the search;
(b) possession or control of the property or place searched; (c) ownership of the property or place;
(d) historical use of the property or item;
(e) the ability to regulate access to the property or place;
(f) the existence of a subjective expectation of privacy; and
(g) the objective reasonableness of that expectation.
[50] In Edwards drugs were found, after what was alleged to be an unlawful search in the apartment of Mr Edwards’ girlfriend. Mr Edwards was held to have no relevant privacy interest (possessory or proprietary) in the drugs in question, having, until the Supreme Court hearing, denied ownership. He was also held to have no privacy interest in his girlfriend’s apartment. Although he had a key and occasionally stayed over, he did not live there or contribute financially to the upkeep and had no right to regulate access to the apartment, the latter being seen as an especially important factor – see at [48] - [50] of the judgment. As Mr Edwards had no relevant privacy interest, he was held to have no standing to challenge the unreasonable search.
[51] The Supreme Court rejected the proposition that an accused should have automatic standing where the Crown alleges that he or she was in possession of property that was discovered and seized in the course of an unlawful search. This was because the United States Supreme Court and most State courts in the United States had resiled from an automatic standing rule of this nature and because such a rule was inconsistent with the remedy section in the Canadian Charter of Rights and Freedoms (the Charter) which applies only to those whose rights have been breached
– see at [52] – [54] of the judgment. It was, however, recognised that there could be rare cases where the invasion of the privacy of innocent third parties may be constitutionally relevant to an assessment of reasonableness (although arguably only where standing has been established). The Court gave the example of a flagrant
abuse of an individual’s right to privacy or a potentially massive invasion of third party rights as occurred in R v Thompson [1990] 2 SCR 1111.
[52] La Forest J wrote strongly in dissent. At [59], he said that the protection accorded by the Charter was not limited to searches of premises over which an accused has a personal right to privacy in the sense of some direct control or property interest. Rather, the Charter was intended to protect the public generally from unreasonable searches or seizures. Unlike the majority, he would have extended the cases where an invasion of privacy is constitutionally relevant to other situations where the public right to be secure against unreasonable search and seizure has been infringed, such as the wilful and forcible breaking into the home of a person other than the accused – see at [64]. La Forest J considered it unfortunate that the majority had decided to follow the United States approach which was the product of history and which had been the subject of stringent criticism in that country – see the discussion at [66] – [68] of his judgment.
[53] A similar result was reached in R v Belnavis [1997] 3 SCR 341, where Cory J again gave the leading majority judgment. In that case, Ms Belnavis was driving a car that she had borrowed from a friend. The car was pulled over by police. While an officer was talking to one of the passengers, a Ms Lawrence, he noticed some rubbish bags in the back seat containing garments with price tags hanging from them. A search of the car boot revealed five more such bags.
[54] The majority held that, apart from her presence at the time of the search, there were few other factors which would suggest that the passenger, Ms Lawrence, had an expectation of privacy in the vehicle. She did not own it, being merely a passenger in a car driven by a friend of the owner. There was no evidence that she had control of the vehicle or that she could regulate access to it. She had no past connection with the vehicle and had not shown any relationship with the owner or driver which would have given her some special access to or privilege in regard to the vehicle (such as marriage or as fellow travellers on an extended journey sharing expenses and the driving responsibilities). She also could not demonstrate any reasonable expectation of privacy in the seized merchandise or the rubbish bags in
which that merchandise was contained. She thus had no standing to challenge the search – see at [22] – [23] of the judgment.
[55] By contrast, the majority recognised that Ms Belnavis, driving with the apparent permission of the owner, did have a reasonable expectation of privacy in the vehicle. The evidence, however, was held admissible against Ms Belnavis as its exclusion would cause harm to the administration of justice, given that the quantity of merchandise suggested more than a random act of petty theft, the evidence was essential to the prosecution, it was reliable and any breach was not serious – see at [46] of the judgment. The car had been stopped lawfully, the officer treated the appellants politely, the breach was isolated and brief and the officer acted in good faith – see at [41] – [42]. There was also a lesser expectation of privacy in a car than in a home or office – see at [38] – [39].
[56] Again La Forest J strongly dissented. He said (at [50]) that the majority’s approach interpreted the reasonable expectation of privacy protected by the Charter, not by reference to what a citizen should expect in a free society, but by reference to legalistic property concepts. These, he went on to say, would favour the economically advantaged – see at [66] of his judgment. The majority’s approach also drew, in his view, unwarranted distinctions which depended on the personal relationships between individuals – see at [67] of his judgment. La Forest J agreed that there is a reduced expectation of privacy in a motor vehicle. However, he said (at [55] – [56]) that taking a drive with one’s spouse, friends or anyone else permitted to do so by the owner or driver, is a common and perfectly legitimate activity in a free society. It is an activity which the citizen should normally be left free to pursue in the reasonable expectation that he or she would be left alone and for their possessions in the car to be likewise left alone, except where there are legitimate public safety reasons to stop the vehicle.
[57] The approach of the majority in Edwards and Belnavis has been criticised on several grounds. For instance, commentators argue that, in relying on United States’ case law, the Canadian Supreme Court has failed to account for the difference in remedies between the two jurisdictions – see Stuart “The Unfortunate Dilution of Section 8 Protection: Some Teeth Remain” (1999) 25 Queen’s LJ 65 at 70 and Lawn
and Bernstein “Primacy to Privacy? The Supreme Court and the Privacy Threshold in Edwards” (1997) 55 U Toronto Fac L Rev 341 at 345. While the Canadian jurisdiction provides for the exclusion of evidence in the interests of justice (s 24(2) of the Charter), the United States Supreme Court has adopted an automatic rule of exclusion to evidence obtained in breach of an accused’s rights – Weeks v United States 232 US 383 (1914). The United States Supreme Court’s cases concerning standing are fundamentally driven by the desire to avoid the “social costs” of the exclusionary rule – see Rakas v Illinois 439 US 128 at 137 (1978) per Rehnquist J. The individualistic bias of the United States approach to Fourth Amendment standing, adopted in Canada, has also been criticised for its focus on property rights and the individual’s ability to regulate access and exclude not just governmental incursion, but the world at large – see, for example, Dawe “Standing to Challenge Searches and Seizures under the Charter: the Lessons of the American Experience and their Application to Canadian Law” (1993 - 1994) 52(1) U Toronto Fac L Rev
39 at 54.
[58] We now come to the position in New Zealand. This is an area where there have been inconsistent decisions by this Court. In R v Pointon (1998) 5 HRNZ 242 at 248, this Court left open the question of whether the approach to standing in Belnavis should be adopted because the question did not arise in the particular circumstances of the case. The Court said that, in a case where it did arise, it would be necessary to consider the minority opinions in Belnavis and similar United States Supreme Court cases in order to decide what connection, in the absence of any proprietary interest in the vehicle or property contained in it, is sufficient to give a passenger standing to complain of unreasonable search and whether physical presence at the time of the search by the person claiming standing is required.
[59] The next case is R v Anderson (2005) 21 CRNZ 393 (CA). In Anderson the police stopped a vehicle that they suspected had been involved in a hit and run in the area. After examining the car and ruling out its involvement, the police nevertheless decided to search the vehicle because the occupants fitted the description of a group of males dressed in dark clothing who had been acting suspiciously in the vicinity of a car parked outside a cinema. The cinema was some distance away from where the
car was stopped. In the course of the search, the police found burglary instruments, offensive weapons and drugs which led them to invoke warrantless search powers.
[60] The Court held that the search of the vehicle was clearly unlawful. The police officers in question, purporting to rely on s 225 of the Crimes Act 1961, had no reason to believe that the car contained stolen goods. The Crown had, however, submitted, on the basis of Belnavis, that only the driver of the car had standing to complain about the search – see [44] of the judgment. The Court rejected that submission. It held that there was a clear inference that the passenger was in the vehicle with the consent of the driver, who in turn had the permission of the owner to drive the car. The Court said that there was nothing to suggest that the passenger’s right to be in the vehicle was any different from that of the driver and there was no basis for distinguishing between them as to a reasonable right to privacy when neither was unlawfully within the vehicle. In the circumstances of the case, the Court considered that there would be a perversion of justice if the driver had standing for the purpose of s 21 of the Bill of Rights but the passenger did not – see at [45] – [46] of the judgment.
[61] This Court in Savelio, without referring to Anderson, took a different approach. There had been an armed robbery of a bank and Mr Savelio was a suspect. A police officer had seen Mr Savelio going into his father’s house a few hours after the robbery. A search warrant was obtained and incriminating items were found in the garage, including a pencil case hidden under a couch containing substantial amounts of money, a black jersey with one sleeve missing (matching a balaclava found earlier in the abandoned getaway car) and a sawn-off shotgun under the floorboards.
[62] The Court held, following the approach of the majority in Edwards, that Mr Savelio had no standing to argue that the search breached s 21 of the Bill of Rights. Although there was evidence that Mr Savelio used the garage to “bunk up” on occasions, there was no evidence that he had permission to use the garage for any other purpose, let alone the concealment of a weapon. There was also nothing to show that he had any authority to prevent anyone entering the garage and he had not shown any proprietorial or possessory interest in the pencil case in which the money
was found. Savelio was applied in R v Williams CA63/05 9 December 2005 and R v
Sua CA365/05 9 December 2005.
[63] In our view, the approach in Anderson is to be preferred over that in Savelio, Edwards and Belnavis. It was, in any event, decided before Savelio. The Court in Savelio took a formal proprietary approach to the inquiry, which we consider inappropriate for the reasons outlined by La Forest J in Belnavis. The Bill of Rights should not become dominated by formal proprietary notions given the universal nature of the rights it protects. The Court also focused on the criminal activity being undertaken in assessing the privacy interest involved. Section 21 provides protection of the rights of the general public. Privacy interests in premises should thus be assessed objectively without any concentration on property rights, or the activities of the accused.
[64] The fact that any licence terms have been breached (for example, by engaging in illegal activity) should have no bearing on whether there is a legitimate privacy interest. The words of La Forest J in R v Wong [1990] 3 SCR 36 at 50 are apposite:
[I]t would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.
[65] As Mahoney points out, in “Evidence” [2006] NZ Law Review 105 at 115, taking into account the use to which the property is put would leave little room for anybody but the property owner to be granted standing. The only lease or licence holders to have standing might be those who have been granted a lease or licence to use the premises as a base for criminal activity which, as Mahoney points out, is an ironic choice for the beneficiary of the protection of the Bill of Rights.
[66] Further, the concentration on criminal activity at this point in the analysis is in our view akin to saying that the end will, in all cases, justify the means. Taking account of the seriousness of the offence as a factor in the Shaheed analysis – see at [135] – [139] below acknowledges that sometimes the end cannot be ignored but this
is only after a proper balancing of all relevant factors. Having “standing” as an “all or nothing” concept risks encouraging unlawful behaviour on the part of the police - see Pointon at 249, Bainbridge at [36], R v Thomas (2001) 19 CRNZ 392 at [18] - [20] (CA), Shaheed at [24] per Elias CJ, and Anderson at [33]. In a civilised society, it is vital that those entrusted with the enforcement of the law be required to follow it themselves.
[67] We have rejected the totality of the circumstances approach of the majority in Edwards. Despite this, we consider that the factors identified in Edwards - (see at [49]) above are useful factors to be considered individually and disjunctively. This means that everyone actually present at premises which are the subject of a search must be taken to have a reasonable expectation of privacy if they can be seen to be there with the acquiescence of anyone having any sort of licence to be present at the property.
[68] The “gatecrasher”, not expressly invited to a social occasion, would, on the view we have adopted, be able to raise a breach of s 21. Whether this extends to a pure trespasser on the premises for unlawful purposes, such as a burglar, has been raised in the United States context. For instance, in Rakas v Illinois, Rehnquist J for the majority considered that such a trespasser could not be said to have a legitimate expectation of privacy. The burglar’s expectation of privacy is, in the United States, variously described as “wrongful” and not “one that society is prepared to recognize as ‘reasonable’”, especially given that the burglar does not have the right to exclude others from the property – see Rakas v Illinois at 142 n 12. We consider that the same approach is likely to apply here.
[69] For those not present at a search, any type of licence to occupy the premises, however bare, and any type of possessory or proprietorial interest in any property searched or seized would give rise to an expectation of privacy. Although Jones v United States 362 US 257 (1960) has been overruled by subsequent cases (see below at [73]), we agree with the Supreme Court’s statement at 266 of that case:
[I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body
of private property law … . Distinctions such as those between ‘lessee’,
‘licensee’, ‘invitee’ and ‘guest’, often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.
[70] The next question is whether the accused must prove a connection with the property or at least be able to point to an evidential basis for such connection. As it was not the subject of full argument, we leave this question open. In Canada at least, the accused, in order to persuade a judge to hold a voir dire as to the admissibility of evidence, bears the burden of providing an evidentiary basis for a claim that his or her Charter right was violated – see R v Pugliese (1992) 8 OR (3d) 259 at 267 (Ont CA) and Edwards at [43] and [45]. This requires, in most instances, positive evidence (see R v Khuc (2000) 142 CCC (3d) 276 (BCCA)), unless the accused adopts the Crown’s position that he or she was connected to the property in a way which gives rise to a claim for standing – see R v Chan [2003] OJ No 188 (Ont SCJ) at [24] - [34].
[71] The argument that an accused must provide an evidential basis for a relevant connection to the property before being able to claim a personal remedy may be in line with the approach in R v Te Kira [1993] 3 NZLR 257 per Cooke P. In that case, it was held (in a different context) that it was up to the accused to point to an evidential foundation for a breach of the Bill of Rights and then for the Crown to disprove that breach on the balance of probabilities – see Te Kira at 261 per Cooke P. Also, in R v Mallinson [1993] 1 NZLR 528 at 531 (CA) the Court considered that, where admissibility of a statement following a breach of s 23(1)(b) of the Bill of Rights is put in issue by the accused, the burden of establishing admissibility rests with the Crown– see also Attorney-General v Udompun [2005] 3 NZLR 204 at [119] - [120] (CA). In that case it was said that, where a claimant at the time in question acknowledged an understanding of their right to consult and instruct a lawyer (s 23(1)(b)), they must put forward an evidential basis other than mere assertion when claiming that they in fact did not understand the right at the time. Once an evidential basis is established, it is for the Crown to prove understanding. For the position under the new Evidence Act, see s 30(1)(a) and (b).
[72] The other possible approach is to give automatic “standing” where it is part of the Crown case that property seized has a connection to the accused or alternatively that the accused has a connection to the premises where the items seized were found. The argument in favour of that approach is that the Crown should not be able to have it both ways, by asserting a connection but requiring the accused effectively to accept that part of the Crown case before being able to claim a remedy. This may be seen as an unjustified intrusion into the accused’s right to remain silent – see R v Gaston [2003] AJ No 295 (Alta CA) at [2] and Luther “Of Excision, Amplification and Standing: Making Sense of the Law of Evidence in the Context of Challenges to Warranted Searches” (2006) 11 Can Crim LR 1 at 20 – 21.
[73] Concerned about this problem, the United States Supreme Court had originally adopted a rule of automatic standing for anyone charged with crimes of possession – see Jones v United States at 263 – 264. In United States v Salvucci
448 US 83 at 85 (1980), the Supreme Court overruled its decision in Jones. However, the Court’s analysis in Salvucci has been criticised by commentators – see, for example, Doernberg “‘The Right of the People’: Reconciling Collective and Individual Interests Under the Fourth Amendment” (1983) 58 NYU L Rev 259 at
264 n 26 and 268 – 269 and MacDonald “Standing to Challenge Searches and
Seizures: A Small Group of States Chart their Own Course” (1990) 63 Temp L Rev
559 at 585 - 586 and 589 – 590.
[74] While we have defined privacy interests broadly, the strength of any privacy interest is a factor to be taken into account under the Shaheed balancing test in assessing the seriousness of the breach. This will depend both on the strength of a person’s links to the property and also on the type of property being searched (with a greater privacy interest in a residential as against a commercial property for example). Moving these considerations to the Shaheed balancing phase has the support of Mahoney – see “Evidence” [2006] NZ Law Review 112 at 116.
[75] Finally on this topic, we discuss the position of a person with no personal claim under the Bill of Rights. The common law jurisdiction to exclude evidence on the basis of unfairness and/or abuse of process runs parallel to the Bill of Rights – see Shaheed at [62] - [65]. Although those with no reasonable expectation of
privacy may not be able to claim a personal remedy under the Bill of Rights, he or she could avail himself or herself of the common law jurisdiction (or, when it comes into force, the Evidence Act 2006, which incorporates and modifies the common law jurisdiction – see below at [77]. This Court recognised in R v Wilson [1994]
3 NZLR 257 at 259 that whether someone else’s rights have been infringed under the Bill of Rights may be a material factor in exercising that common law jurisdiction. This is appropriate, given that the rights and freedoms enshrined in the Bill of Rights are fundamental ones that underpin our society, as Gault J said at [171] of Shaheed.
[76] We consider that it would be a highly relevant factor, when undertaking the common law analysis, if an accused were jointly charged with a person able to claim a personal remedy under the Bill of Rights. It would not seem either fair or readily comprehensible to a jury for evidence to be inadmissible in those circumstances against the person who would usually have the strongest connection to that evidence but admissible in respect of the other accused. This applies with even greater force where the charge is one of conspiracy. We note that in Wilson the persons whose rights had allegedly been breached were not complaining about the breach and they were not jointly charged – see at 259.
[77] The new Evidence Act, codifying much of Shaheed (see below at [149] - [152]), provides for the possible exclusion of “improperly obtained evidence”. As well as evidence obtained in breach of any enactment by a person to whom s 3 of the Bill of Rights Act applies, (see s 30(5)(a) of the Act), “improperly obtained evidence” is defined in s 30(5)(c) as evidence that was obtained “unfairly”. This must encompass the common law jurisdiction to exclude evidence on that ground. It seems to us, therefore, that a defendant who wishes to raise the breach of a third party’s right would still, under the new Evidence Act, be able to argue that the evidence was obtained unfairly because it was obtained in breach of another person’s rights.
[78] In any event, it is arguable that the new Evidence Act abolishes any question of “standing”. Section 30(1)(a) states that the issue of improperly obtained evidence can be raised by “the defendant against whom the evidence is offered”. Section
30(5)(a) states that improperly obtained evidence includes evidence obtained in
breach of any enactment or rule of law by a person to whom s 3 of the Bill of Rights applies. Neither subsection requires that the defendant personally be the victim of any breach. However, the degree of connection of a defendant to the property searched or the objects seized would remain relevant to the determination of the seriousness of the breach – see s 30(3)(a) of the Evidence Act and below at [124].
The effect of a breach on downstream evidence
[79] The issue of the effect of a breach on downstream evidence is a subset of the vexed question of causation. The test in New Zealand for causation is whether there is a real and substantial connection between the breach and the obtaining of the evidence – see R v Te Kira [1993] 3 NZLR 257 at 261 (per Cooke P), 272 (per Richardson J, Casey J concurring), 277 (per Hardie Boys J) and 281 (per Thomas J) (CA). It is clear that where the evidence is obtained in the course of a single transaction which includes an unreasonable search, there will be a sufficient connection between the breach and the evidence for the evidence to be excluded. For examples of this principle, see Bainbridge, R v Thomas (2001) 19 CRNZ 392 (CA), R v Ratima (1999) 5 HRNZ 495 (CA) and R v Pou [2002] 3 NZLR 637 at [43] (CA).
[80] More difficult issues arise when there is a time gap between the breach and the obtaining of the evidence. This was the situation in Shaheed and it caused major division in this Court. In that case, the admissibility of two pieces of evidence was challenged: evidence obtained from DNA profiling of the accused (after a compulsion order had been made by the High Court for the taking of a fresh blood sample) and the complainant’s identification of the accused from a photo-montage. Both pieces of evidence would not have been obtained but for Mr Shaheed having been identified as the possible attacker through an unlawful and unreasonable search - the taking of his blood other than in conformity with s 30 of the Criminal Investigations (Blood Samples) Act 1995 (now the Criminal Investigations (Bodily Samples) Act 1995). The crime at issue was the abduction and rape of a 14 year old schoolgirl on her way to school. The unlawful blood sample was taken a year later
when he was arrested for accosting a 16 year old schoolgirl walking to the same school.
[81] There were five judgments in Shaheed. Four of these were individual judgments (Elias CJ, Gault , McGrath and Anderson JJ) and one a joint judgment of Richardson P, Blanchard and Tipping JJ, delivered by Blanchard J. We start with that joint judgment.
[82] The Judges subscribing to the joint judgment would have excluded both the DNA and the photo-montage evidence. Blanchard J said at [163] that, although the High Court in making the compulsion order had relied on evidence other than the databank sample, that evidence had come to light only because of the matching of the unlawfully gained sample and the identification by the complainant which followed. He accepted that the identification was based on the complainant’s own memory but Mr Shaheed’s photograph would not have appeared in the photo -montage used for identification “were it not for the DNA match derived from the databank sample.” There was therefore a real and substantial connection between the breach and the evidence, notwithstanding the intervening compulsion order.
[83] Blanchard J considered that the breach did more than merely provide an opportunity for testimony which could be said to be truly independent of the breach, as happened in United States v Ceccolini 435 US 268 (1978) and R v Hearne-Smith CA104/01 23 July 2001. In Ceccolini, (discussed in more detail in Shaheed at [75] - [77]) the evidence of a witness interviewed the day following an unlawful search was ruled admissible. This was because the witness was already known to the police, she was not referred in the interview to anything seen in the unlawful search and she was completely willing to offer evidence. Furthermore, in the context of the United States exclusionary rule, the search did not exhibit any form of bad faith. The case of Hearne-Smith (discussed in Shaheed at [130] – [132]) was slightly different in that the witness was unlikely to have been interviewed had it not been for the unlawful search. The witness’s evidence about the subject matter of the unlawful search was held inadmissible as the accused’s rights could not be properly vindicated if, by a route really and substantially connected, the witness’s evidence could be
tendered in substitution for the product of the unreasonable search. The witness was also, however, able to give independent evidence of other offending by the accused. That evidence was held admissible as having no substantial connection to the breach. The Court in that case noted, at [27], that it was a step removed both in terms of connection and vindication.
[84] Blanchard J’s approach was thus to consider whether the evidence would not have been obtained but for the breach. This is subject to the qualification that evidence will be admissible if it is from a witness who can give evidence without taking advantage of the material gleaned from the unlawful and unreasonable search (such as occurred in Ceccolini) or if the evidence relates to offending independent of that uncovered by the breach (such as in Hearne-Smith).
[85] Blanchard J recognised too that there may be situations where the connection between the breach and the evidence is so attenuated that it cannot be seen as causative of the evidence being obtained – see at [146] of his judgment. Blanchard J also said in that paragraph that there will be no relevant link between a breach and evidence where the discovery of the evidence by legitimate means was bound to have occurred. We consider that Blanchard J had in mind the situation where the downstream evidence could be said to be independent of the breach, such as in Ceccolini, rather than a general doctrine of inevitability of discovery. See below at [126] - [129] for our discussion of the inevitability doctrine and why it should be treated as a balancing factor in the Shaheed analysis.
[86] The other Judges took a different view on admissibility from that in the joint judgment delivered by Blanchard J. Elias CJ, Gault and Anderson JJ would have held both the DNA evidence and the photo montage evidence admissible. McGrath J regarded the photo montage evidence as admissible but agreed with Blanchard J that the DNA evidence was inadmissible. We now examine their reasoning in more detail.
[87] Elias CJ considered, at [9] - [10], that a real and substantial connection between the breach and the challenged evidence is not difficult to discern where the evidence is seized during the course of a single transaction. Indirectly obtained
evidence may also be so connected with a breach that its acquisition would effectively perfect the breach of right. However, in her view, a real and substantial connection is not established simply because the evidence came to light through a sequence of events which included an earlier breach. If that were so, the knowledge would become “sacred and inaccessible”, a result which would undermine the public interest in the detection and prosecution of crime and “would be disproportionate to the affirmation and protection of the right” – see at [10].
[88] The Chief Justice went on to state that sufficiency of connection is a matter of degree. She articulated a twofold test. Subsequent lawfully obtained evidence will not have a sufficient connection with a breach where it is not dependent for its proof or cogency on the admissibility of the earlier evidence obtained in breach of a right, and where it has not been obtained through bad faith in exploitation of the original breach. The Chief Justice also considered that remoteness from the breach achieved by lapse of time or by intervening events was significant – see at [11] of her judgment.
[89] Gault J doubted that it was possible to lay down a test for the kind or degree of connection that would so link a suspect’s rights with an earlier breach that the balancing test should be invoked – see at [179]. However, he said that there “should be a point of remoteness beyond which the issue of balancing does not arise.” Even where the balancing test is reached, however, the nature of the link and its relationship to the evidence must be taken into account. He continued, at [180], to say that he saw an analogy in the civil context in which a distinction is drawn between causing loss and creating the opportunity for loss to be suffered. In a criminal investigation, it is one thing to cause evidence to be obtained. It is another to provide a line of inquiry which presents an opportunity to obtain evidence. In the first situation, the evidence itself (its content) flows from the breach. In the second situation, the content of the evidence may be independently volunteered. Such evidence would be the same whether or not the earlier breach had occurred. Gault J noted that the position would be different if the probative value of the evidence could be realised only by adducing evidence of the product of the earlier breach. If this were the case, the balancing test should be applied to determine admissibility – see at [181].
[90] Applying these arguments to the case, Gault J considered that the compulsion order had been obtained on the basis of independent evidence which, in his view, sufficiently severed it from the breach. The only link was that the independent evidence would not have been assembled had there not been the earlier breach. Even were he wrong on that point he would have admitted the evidence under the balancing test, given its extremely high apparent reliability. In his view, the exclusion of the evidence would be disproportionate to the breach, although, like Elias CJ, he considered that the situation would have been different had there been bad faith or deliberate abuse of Mr Shaheed’s rights by the police – see at [185] - [190].
[91] McGrath J distinguished between the DNA evidence and the photo montage evidence, excluding the former and admitting the latter. With regard to the DNA profile, the crucial factor for McGrath J (set out at [193]) was the fact that the subsequent compulsion order was sought by the police only after they had breached Mr Shaheed’s rights and become aware that the unlawfully obtained DNA sample matched that earlier found on the complainant. In those circumstances, he considered that, in reality, the evidence was derived from the breach even though the order itself was ultimately made by the Judge on the basis of other material and in particular the identification evidence. The balancing test was therefore required. He agreed that the outcome of the balancing approach should be to exclude that evidence, primarily because of the policy of the Criminal Investigations (Bodily Samples) Act – see at [194].
[92] McGrath J, however, held (at [195]) that the complainant’s identification evidence was not so sufficiently connected with the breach of Mr Shaheed’s rights as to require application of the balancing process to determine its admissibility. He said that a distinction must be drawn between the identification evidence given by the complainant and the opportunity that arose for her to give it. The complainant’s capacity to give evidence of the offending, including that relating to the identity of the alleged perpetrator, arose at the time of the assault. Her mental awareness existed prior to the breach of the accused’s rights when the first blood sample was taken. Likewise, the awareness of the police of the complainant’s version of events and her availability as a potential witness existed prior to the breach of the accused’s
rights. To this extent, the evidence the complainant could give was independent of the breach of the accused’s rights under s 21 of the Bill of Rights. The only connection between the breach of rights and the complainant’s identification evidence was that the breach resulted in the accused becoming the suspect of the police so that they knew to ascertain whether the complainant could identify him - see at [197]. In McGrath J’s view, such a connection was too remote.
[93] If a balancing exercise had been necessary McGrath J would have admitted the identification evidence – see at [198]. Significantly for him, the admission of such evidence would not offend against the policy of the Criminal Investigations (Bodily Samples) Act. To exclude the identification evidence would, in his view, have serious implications as it would effectively give an immunity in cases where a breach of rights does no more than lead to the suspect. He considered this to be a disproportionate outcome in a case where the police have been acting in good faith.
[94] Anderson J said that whether a link is sufficient and, if it is, how its nature and relationship to the evidence should be weighed in the balance, will depend on the facts of a particular case – see at [200]. In his view, if there is no logical connection of a real and substantial kind, the exclusion of evidence would be unreasonable as it would tend to accord permanent immunity from prosecution. He agreed with Gault J that the evidence sought to be adduced in the instant case was not obtained in breach of Mr Shaheed’s rights – see at [206].
[95] If there were a sufficient link so as to call for a balancing exercise, Anderson J considered that the unlawful nature of the first sample was outweighed by the attenuation of the link and public interest factors such as the gravity of the crimes, their relevance to public safety and the crucial nature and cogency of the evidence that Mr Shaheed was the offender – see at [213]. He also considered that our system of justice risked its credibility if it allowed such compelling evidence of guilt of such serious crimes to be excluded – see at [215]. He had, however, earlier said that, if a violation of the right was deliberate, cynical or gross, that would weigh heavily on the balancing process as that process should not depreciate rights or lend encouragement to official abuse of them – see at [203].
[96] In summary, Elias CJ, Gault and Anderson JJ, although expressing the point in slightly different ways, were agreed that evidence is not considered “sufficiently connected” to a breach where:
(a) there is some break in causation through time or intervening events;
and
(b)the cogency of the subsequent evidence is not dependent on the earlier breach; and
(c) there is no bad faith on the part of the police.
[97] Gault and Anderson JJ did, however, leave open the possibility that the balancing test may need to be applied in some cases. If that were the case, the extent of the link of the downstream evidence to the breach would be a relevant factor. Elias CJ of course did not consider the balancing test as it was her view that the prima facie exclusion rule should remain.
[98] Blanchard J (joined by Richardson P and Tipping J) used a slightly attenuated “but for” test to hold that subsequent evidence was obtained in breach of s 21 of the Bill of Rights. Under this test, subsequent evidence that would not have been obtained but for the breach must be considered to have a real and substantial connection to that breach. It would therefore be unreasonably obtained on that basis. This test will not be met, however, where the obtaining of the evidence can be seen as being independent of the breach. It also does not apply where the link between the breach and the evidence is so remote that it cannot sensibly be seen as causative of the obtaining of the evidence.
[234] For a more detailed discussion, see above at [25] – [46].
Claiming a personal remedy for breach
[235] Breaches of other people’s rights under the Bill of Rights cannot be relied upon by third parties to claim the personal remedy of exclusion of evidence under the Bill of Rights see at [47] above.
[236] The main aim of s 21 of the Bill of Rights is to protect privacy interests. It is only where a person’s reasonable expectations of privacy have been breached that a personal remedy under the Bill of Rights (i.e. exclusion of evidence) is available. The reasonable expectation of privacy enjoyed by a person is to be judged largely
objectively. A broad view of privacy interests should be taken – see at [48] and [63]
above.
[237] Everyone actually present at a search of private property has a reasonable expectation of privacy, with the likely exception of pure trespassers on a property for unlawful purposes such as burglars. For those not present at a search, any type of licence to occupy the premises searched (however bare) and any type of proprietary or possessory interest in property searched or seized would give an expectation of privacy – see at [67] - [69] above. The fact that any lease or licence terms have been breached (e.g. by engaging in illegal activity) has no bearing on whether there is an expectation of privacy – see at [64] - [66] above.
[238] The strength of the privacy interest is a factor to be taken into account under the Shaheed balancing test. This will depend both on the strength of the links of the person to the property involved and on the type of property being searched. For example, there is a greater privacy interest in a residential property as against a commercial one – see at [74] above.
[239] The common law exclusion rules survive where the Bill of Rights is not engaged. Whether there have been breaches of other parties’ rights that have led to evidence being obtained against a person will be relevant to the application of the common law test for the exclusion of evidence. This is particularly the case where a person is jointly charged with another who has the right to claim a personal remedy under the Bill of Rights for the relevant breach. – see at [75] - [76] above.
[240] Our complete discussion on this topic is at [47] - [78] above.
Effect of a breach on downstream evidence
[241] Where evidence is obtained in the course of a single transaction which includes an unreasonable search in breach of the Bill of Rights, there will be a sufficient connection between the breach and the evidence for that evidence to be tainted by the breach – see at [79] above.
[242] In cases where there is a gap in time between the breach and the gathering of the evidence, if that evidence would not have been obtained but for the breach, then the subsequent downstream evidence is tainted by the original breach – see at [98] and [100] above. Any subsequent searches are unreasonable on that basis, except:
(a)where the evidence can be seen to be independent of an earlier breach as in Hearne-Smith (a known witness offering evidence of unrelated offending) and Ceccolini (a witness offering unprompted evidence based on independent recollection); or
(b)where the connection between the breach and the evidence is so attenuated that the breach cannot sensibly be considered as having caused the evidence to be obtained.
[243] The strength of the links of the subsequent evidence to the breach is taken into account when assessing the seriousness of the breach under the Shaheed balancing test. Factors to be taken into account include (see at [96], [102] and [125] above):
(a)whether the evidence can be given without referring to the earlier breach;
(b)the length of time between the breach and the obtaining of the evidence;
(c) the existence of intervening events (including fresh illegalities);
(d)whether the evidence was brought into existence as a result of the breach or merely brought to light; and
(e) any other factors that attenuate causation.
[244] Our complete discussion on this topic is found at [79] - [103] above.
Conduct of the Shaheed balancing test
[245] The first step in the Shaheed balancing test is to assess the magnitude of the breach – see at [115] above. This involves assessing (in combination):
(a) the extent of the illegality – see above at [110] - [112];
(b) the nature of the privacy interest considered objectively – see above at
[113] - [114];
(c) any aggravating or mitigating factors. [246] Factors that can aggravate a breach include:
(a) a substantive breach of a specific statutory code – see above at [117];
(b) conducting a search in an unreasonable manner – see above at [118];
and
(c) police misconduct – see above at [116] and [119] - [121]. [247] The main factors mitigating the seriousness of a breach are:
(a) where the search takes place in a situation of urgency – see above at
[123];
(b)where the strength of the connection between the person and the property searched or seized is weak – see above at [124]; and
(c) where there has been attenuation of the link between the breach and the evidence – see above at [125] and [243];
(d)where there is inevitability of discovery, the onus being on the Crown to prove this. It must also be shown that the police did not undertake a deliberate (or reckless or grossly careless) course of conduct in
contravention of the rights of the accused, which, in the balancing exercise, would aggravate any breach and result in a finding of police misconduct. The inevitability factor should be used with caution and would primarily be relevant to downstream evidence – see above at [126] - [129].
[248] Police good faith, the courtesy with which a search is conducted and the fact that the unlawful or unreasonable search takes place in the context of the investigation of serious criminal activity are all neutral factors – see above at [130] - [131].
[249] The assessment of the seriousness of the breach should be conducted in a systematic manner. The extent of the illegality, the nature of the privacy interest and any aggravating and mitigating factors should be considered in turn and then in combination to reach an overall conclusion on seriousness – see at [132] - [133] above.
[250] Having assessed the seriousness of the breach, the next stage is to balance the breach against the public interest factors pointing away from the exclusion of the evidence. These factors are considered in combination and not in isolation – see at [134] above. They are:
(a)The seriousness of the crime. A crime is considered serious if the starting point of any sentence is likely to be in the vicinity of four years or more or where there are elements of a threat to public safety involved, such as the carrying of a loaded weapon in public. The more serious the crime the more weight this factor is accorded. Crimes involving a serious incursion into the personal bodily integrity of the victim, particularly where there is a significant risk of there being further victims, are regarded as particularly serious – see above at [135] – [139].
(b)The nature and quality of the evidence. The more probative, reliable and crucial the evidence is, the more likely it is that the public interest
in the conviction of criminals might outweigh the breach of rights. Conversely, where there is a significant issue of unreliability because of the breach, the balancing test would come down in favour of exclusion – see above at [140] – [141].
[251] The aim of the balancing exercise is to assess whether the remedy of exclusion of evidence is proportionate to the breach. The fact that there has been a breach of a quasi-constitutional right and the seriousness of the particular breach in question must be given due weight. Strict rules cannot be laid down. The exclusion of evidence under the Shaheed balancing test must be tailored to the circumstances of each case and it remains an evaluative decision for the individual judge – see above at [134], [142], [147] and [148].
[252] Generalisations can be made, however. The reliability and probative value of the evidence will often outweigh a minor breach where the crime is of a serious nature – see above at [144]. When the illegality or unreasonableness is serious, however, and supported by a strong privacy interest, then, in the absence of any mitigating factors such as attenuation of causation or a weak personal connection to the property searched or seized, any balancing exercise would normally lead to the exclusion of the evidence, even where the crime was serious. This result would be almost inevitable where the breach was deliberate, reckless or grossly careless on the part of the police – see above at [145] – [146].
[253] Our complete discussion of the Shaheed balancing test is at [104] - [153]
above.
Conclusion and result
[254] On 29 November 2006 the application of the Solicitor-General for leave to appeal was allowed. The appeal was also allowed to the extent set out below.
[255] The determination of the High Court Judge that the evidence gained from the
Patiki Road search be excluded at trial is confirmed.
[256] The evidence gained from the subsequent searches is admissible. This is subject to the subsequent evidence being able to be given and understood without reference to the Patiki Road search and to any other considerations which have not been raised before this Court.
[257] The publication of the judgment, the reasons for judgment and any part of the proceedings (apart from [8] – [153], [209] - [253], [258] - [292] and [297]) in the news media or on the internet or other publicly accessible database is prohibited until the final disposition of the trial. Publication in law reports or law digests is permitted.
HAMMOND J
Table of Contents
Para No
Introduction [258]
The central problems in the law of search and seizure
Introduction [260]
The norm of judicial pre-authorisation [261] But what if the law as to search warrants is not observed? [271] Some field problems [280] The importance of process [290] Police misconduct and the exclusion of evidence [292]
Introduction
[258] I agree with the outcome of the application of the R v Shaheed [2002]
2 NZLR 377 (CA) test to these particular appeals. I therefore support the result in these appeals propounded by Glazebrook J and set out in points C to E inclusive of the judgment of the Court. I also agree with the discussion of the law set out in the judgment of Glazebrook J, which I have read in draft, and commented on.
[259] However, given the importance of the issues raised in this case I propose to add some short observations of my own. This is because I consider that the difficulties in cases of this kind in New Zealand repose more in their “operational”
aspects, than the doctrinal state of the law, and a failure to adhere firmly to the necessity for, and requirements of, a norm of judicial pre-authorisation for a search.
The central problems in the law of search and seizure
Introduction
[260] The law of search and seizure has generated a vast amount of case law and commentary in all the common-law jurisdictions. However, the essential concepts are not complex, and tend to get lost sight of somewhat in the myriad of cases. It may be useful, therefore, to restate what I think are the bedrock principles.
The norm of judicial pre-authorisation
[261] For centuries there has been a tension between the rights of individuals to have the privacy of their own “home” respected and the abilities of the state and its agencies to “intrude” into that home to search for incriminating evidence related to crime.
[262] Search warrants seem to have been unknown in the early common law, but they crept in, in particular to permit searches for stolen property. Then, in a dark chapter of English legal history, the Star Chamber gave rise to the practice of issuing general warrants to search for libellous matter. The famous cases of Wilkes v Wood (1765) 19 St Tr 1153; Lofft 1; 98 ER 489 and Entick v Carrington (1765) 19 St Tr
1030; 2 Wils KB 275; 95 ER 807 held these general warrants to be illegal. Lord Camden ruled that for a search to be valid, a warrant must be issued by a judicial officer having jurisdiction, and it must be a special warrant on probable cause, distinctly describing the individual or place to be searched and things to be seized.
[263] What occurred thereafter in the western world to protect the individual, but at the same time recognise the need to repress crime, was the furtherance of this concept of judicial pre-authorisation. The recognition was that what was required
was a prophylactic device against unjustified state intrusion before a search takes place. And meaningful judicial pre-authorisation necessarily requires a neutral third party, capable of acting as a true intermediary between the rights of the individual and the interests of the state. This concept subsequently found its way into legislation around the western world (for instance, in New Zealand, what is now s 198 of the Summary Proceedings Act 1957).
[264] It is true that a particularly nasty form of general warrant - the Writ of Assistance - has lived on, particularly in North America. This open-ended warrant, which required all parties to support the officer to whom it was issued, was a device particularly used in custom and excise inspections. It authorises an officer to search any person or place, and generally does not expire. Ultimately the use of such writs had much to do with the loss to Great Britain of the American colonies. They remain something of a controversy today in some countries (for instance, attempts have been made in recent times to utilise them in relation to customs and RCMP officers who are enforcing drug and import laws at the Canadian border).
[265] It is also true that New Zealand law - as in other countries - has statutes granting police and sometimes other officials the power to search without a warrant. It was inevitable that, in some circumstances, warrantless searches would have to be countenanced, but they should not be the norm in practice, or indeed anything like it. Both the history of the development of the concept of judicial pre-authorisation, and the terms of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) itself point unerringly, in my view, to that conclusion. And it is extremely difficult to make out policy arguments for an expansive view of the ability to resort to warrantless searches, other than in such obvious areas as exigent searches.
[266] Where there is a warrantless search, s 21 of the Bill of Rights applies. As was said, forcefully and unanimously, by the Judicial Committee of the Privy Council in P F Sugrue Ltd v Attorney-General [2006] 3 NZLR 464 at [23] per Lord Carswell:
Constitutional provisions such as s 21 of the Bill of Rights Act are primarily directed towards preventing the invasion of personal freedom and privacy. (Emphasis added).
[267] It is not necessary, for the purposes of this case, to consider where the limits of warrantless searches are. My short points are the simple ones that the route of judicial pre-authorisation is preferable; and, where the law enforcement agency takes that route, the task must be undertaken with proper care.
[268] At the very heart of the requirements of the concept of judicial pre-authorisation is a recognition by Parliament and the courts that a Justice or a Judge should be placed in a position to independently determine how persuasive the evidence already gathered is. That is why the search warrant applicant must set out the officer’s sources of evidence and information. And in those cases where the source cannot be named (as in the case of tipsters and confidential informers) the requisite affidavit must put the judicial officer in a position to make an assessment of the source before any weight can be given to that evidence.
[269] The Federal Court of Australia has captured this critical role in Parker v Churchill (1985) 9 FCR 316 at 322. The process is “not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by an inevitable signature”. The judicial officer must:
[S]tand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.
(per Burchett J).
[270] These things are of the utmost importance to the development and administration of our law. The rights of citizens to be free from unjustifiable government intrusion are predicted on a system of prior authorisation, not subsequent validation. And there must inevitably be elements of caprice, uncertainty, and variation in the balancing process between citizen and state where the enforcement authorities are themselves permitted a large licence to conduct warrantless searches. The states’ interest in detecting and preventing crime only begins to prevail over the individual’s right in being left alone at a point where a soundly based probability assessment overtakes suspicion. This is an objective assessment, and the legal process would not normally leave such a decision in the hands of the “suspecter”, who, to quote Jackson J in Johnson v United States 333 US
10 at 14 (1948) is “engaged in the often competitive enterprise of ferreting out crime”. This, in and of itself, offends the usual norms of legal decision-making.
But what if the law as to search warrants is not observed?
[271] There is then a difficult problem as to what is to be done if the application for a search warrant is deficient, for some reason or another. The dilemma was well stated by Cardozo J in People v Defoe 150 NE 585 at 589 (1926):
No doubt the protection of the [search warrant] statute would be greater from the point of view of the individual whose privacy had been invaded if the government were required to ignore what it had learned through the invasion. The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flaunted by the insolence of office. There are dangers in any choice.
[272] The range of choices is relatively obvious. The law could take the attitude that if the warrant and the search were not in all respects lawful, then any evidence gained thereby is not admissible in court. This was essentially the position taken under the Fourth Amendment in the United States of America in Weeks v United States 232 US 383 (1914) and Mapp v Ohio 367 US 643 (1961).
[273] In more recent decisions, the United States Supreme Court has stripped this “exclusionary” rule of its constitutional underpinnings by turning it into a court-created discretionary remedy. And at least the majority of the Justices of the United States Supreme Court in recent years have proceeded to define how a court should exercise its discretion by reducing the purpose of the rule to the single one of deterrence of future police misconduct (see Elkins v United States 364 US 206 (1960). That is, they have rejected any consideration of the rule as, more broadly, vindicating the constitutional right of the individual, or as essential to preserve judicial integrity by not having courts condone police illegality by letting police benefit from the fruits of their unlawful conduct. (I am also here thinking of cases such as United States v Calandra 414 US 338 (1974) and United States v Janis 428
US 433 (1976)).
[274] The exclusionary rule has been rejected in Canada (see s 24(2) of the Canadian Charter of Rights and Freedoms and R v Collins [1987] 1 SCR 265). As the matter was concisely put by Dickson CJ a year or so later in R v Simmons [1988]
2 SCR 495 at [60]:
Section 24(2) [which is the remedy provision of the Canadian Charter] rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights: see, for example, Weeks v US, 232 US 383 (1914), and Mapp v Ohio, 367 US 643 (1961). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained: see R. v Wray, [1970] 4 CCC 1, 11 DLR (3d) 673, [1971] SCR
272. Evidence may be excluded under s 24(2) if, having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute.
[275] In New Zealand, as is carefully set out by Glazebrook J, the approach to the exclusion of evidence is now governed by a “balancing test” under Shaheed which has been endorsed by Parliament in the Evidence Act 2006. The essential purpose of that approach is to ascertain whether the exclusion of the evidence would be proportionate to the breach of the right.
[276] There still continues to be, from time to time, strong protests by senior jurists against the disappearance of the exclusionary rule, and its cousin, a prima facie exclusionary rule.
[277] For instance, Justice Brennan, dissenting in United States v Leon 468 US 897 at 928 - 929 (1984), pronounced the following epitaph to the exclusionary rule in the United States:
Ten years ago in United States v. Calandra … I expressed the fear that the Court’s decision “may signal that a majority of my colleagues have positioned themselves to reopen the door [to evidence secured by official lawlessness] still further and abandon altogether the exclusionary rule in search and seizure cases.” … Since then, in case after case, I have witnessed the Court’s gradual but determined strangulation of the rule. It now appears that the Court’s victory over the Fourth Amendment is complete. That today’s decision represents the pièce de résistance of the Court’s past efforts cannot be doubted, for today, the Court sanctions the use in the prosecution’s case-in-chief of illegally obtained evidence against an individual whose rights have been violated - a result that had previously been thought to be foreclosed.
[278] In New Zealand, Elias CJ in Shaheed argued for the merits of a “rule certain”, in supporting the continuation of a prima facie exclusionary rule.
[279] That said, a Full Court of this Court (comprising Judges who now make up the Supreme Court of this country) and the Parliament of New Zealand have endorsed the discretionary approach in Shaheed. The real problems are now therefore, how best to make Shaheed work, in the field; and even more fundamentally, how to avoid the necessity to have to resort to that formula.
Some field problems
[280] Unfortunately, as is routinely the case in New Zealand, we have very little information in the way of systematic empirical studies as to how things are working out in the field with search warrants.
[281] A survey conducted by the New Zealand police indicated that at least three-quarters of search warrant applications are presently made to District Court Registrars - see New Zealand Police, A short study on the search warrant application process (2006) at 4. Of these, the police survey showed that registrars declined 7 per cent of applications made in Wellington - see at 3.
[282] Records of the number of warrants issued by Justices of the Peace are apparently not kept, but a survey conducted in 2005 reported that in a 12-month period 91 Justices of the Peace had presented to them 1,031 warrants in the Auckland metropolitan area - see Auckland Justices of the Peace Association (Inc) Report on a Survey of Search Warrant Trained JPs conducted in January and February 2005 (2005). Of those, 1,023 were presented by the police, one was from the Department of Conservation, one from Maritime, and six were presented by the Serious Fraud Office. There is a “preferred” list of JPs to deal with search warrants, with 100 names on it.
[283] Judicial experience as to what happens in real life may not be entirely without value. It strikes me that in this subject area there are some unfortunate features
which are contributing to the ongoing run of cases in the trial courts, and in this
Court.
[284] The first issue appears to be an insufficient appreciation by some police officers of the fundamental importance of the concept of and requirements for judicial pre-authorisation which I have endeavoured to outline earlier in this judgment. There are too many inadequately or badly drafted warrants, and Crown counsel are too often put in the invidious position of having to defend, as best they can, the indefensible. Inappropriate cutting and pasting is endemic. The present case provides an unfortunate example.
[285] Several points can be made here. It is obvious from other areas of “search” law, that the police are capable of doing quality work. For instance, in my years on the High Court bench I never had a warrant application for an interception warrant under Part 11A of the Crimes Act 1961 which was not immaculately prepared. Sometimes questions had to be asked going to (say) the extent of the intrusion sought in the warrant, but overall the work was exemplary.
[286] Of course, interception warrants are in a different category. Almost invariably they arise in relation to quite serious crime, usually under very careful consideration by a metropolitan unit, and under the direct control of a senior police officer. More commonplace search warrants usually arise in a different context altogether. There may be a sole police officer in a remote part of New Zealand who finds it necessary to make an application (often with limited administrative resources) to a Justice of the Peace who rarely sees such applications. It would be surprising if errors did not sometimes occur in such circumstances.
[287] Overall however, it appears to be the case that there are more errors than there should be. This in turn gives rise to forensic difficulties, and considerable expense to the public purse in resolving the arguments as to whether the evidence gained should or should not then be admissible.
[288] This leads to the second main area of contemporary concern. There is a tendency on the part of some members of the defence bar to overreach in objections
to the admissibility of evidence in search warrant cases. It is easy to understand their dilemma. Faced with a distinctly problematic “defence”, which may have little merit, counsel endeavour to clear away, and understandably so, any evidence they can. That said, the present rule is not an exclusionary one. This Court went to considerable pains in Shaheed to outline the factors which ought to be taken into account. In most cases, when those factors are faithfully applied, there is not a lot of room for debate about where a particular case ought to come out. Yet trials have been badly delayed and courts tied up in unnecessary and extensive arguments under this head, as for instance, in the present case. Given the prevalence of drug manufacturing offences in New Zealand such arguments have exacerbated the delay in the disposal of a significant number of cases.
[289] The short point here is that these police errors have a significant ripple effect on the day to day administration of justice.
The importance of process
[290] The New Zealand Law Commission has this subject area under consideration, and is understood to be nearing at least a draft report. In case it should be of assistance in relation to the future development of New Zealand law, it strikes me that the process involved in obtaining warrants may be every bit as important as the substantive law in this subject area. For instance, one of the reasons that the procedure relating to interception warrants has been successful is that there is a limitation on the range of personnel who are involved in that process. There may be something to be said for restricting the range of personnel who can issue general search warrants, and for some degree of “specialisation”. For instance, the issuance of warrants in suspected drug manufacturing cases raises other concerns. And it seems plain enough that a substantial number of the search warrants issued in New Zealand emanate from the signature of a District Court Registrar (which includes an Assistant Registrar), which may be thought to be a matter for concern.
[291] In any event, I have said enough to indicate that I have a real degree of hesitation as to whether further refinement of the substantive law relating to searches is going to achieve all that much, given that the basic framework has been adjudged
to be sound. Closer consideration of the actual process by which warrants issue, with input from the police, the Crown, the defence bar, the District Court and the like as to improved processes may produce sounder long-term operational effects.
Police misconduct and the exclusion of evidence
[292] A decision to exclude or not exclude evidence under the Shaheed test is the exercise of a judicial discretion. In accordance with the usual rules pertaining to appeals, the exercise of a discretion of that character will not be interfered with unless it can be demonstrated that the Judge was plainly wrong, in the sense of that term as understood in appellate courts.
[293] In this instance, an experienced High Court Judge took a very dim view indeed of Detective Reardon’s conduct. He held that although the warrant sought was to authorise the search for and seizure of a stolen car and associated documentation, “the true [and seemingly the Judge thought “the only”?] purpose for which that warrant was obtained was to search for equipment relating to the manufacturing of methamphetamine” (at [6] of Heath J’s No 8 Ruling). And further, the detective “deliberately used information received fortuitously about a report of a missing car to procure a search warrant … to search for drugs. That conduct is unacceptable. The ends did not justify the means” (at [8]). The Judge went on to say that he was “not prepared to exercise a residual discretion in favour of admission of the evidence. Exclusion is required to mark serious misconduct on the part of the police” (at [7]). Later the Judge said (at [109]):
Although there are significant factors in favour of admission of the evidence, I am not prepared to countenance admission of evidence when a warrant to conduct the search has been procured cynically for an ulterior purpose. This is one of those rare cases in which the credibility of the criminal justice system depends upon exclusion of evidence of this nature both to mark the Court’s disapproval of the conduct of the police and to ensure the conduct is not repeated.
[294] Like my colleagues I have great difficulty in seeing that the conduct of the police officer in this instance amounted to “bad faith”, as that term is commonly used for legal purposes, even if that was a relevant factor.
[295] But even assuming, solely for the purpose of argument, that there was relevant police misconduct in this case, in my view the Judge misapprehended - as a matter of principle - the appropriate approach to the balancing test under Shaheed. The issue of police conduct in the search and seizure process does not exist in a vacuum as a sort of single determinative factor which is capable in and of itself of turning the outcome one way or the other. Police conduct must surely be examined within the totality of the circumstances disclosed on the evidence before the Court in any given case. Its value in the judicial determination of a s 21 case is the effect that it will have when assessing the factor of the “seriousness" of the violation.
[296] It seems to me that what the Judge did in this case - after coming to the conclusion that there were in fact substantial reasons to admit the evidence - was to say that he thought there was police misconduct which was, in and of itself, dis-entitling. The overall evaluation which was needed had to be broader, and more nuanced, than that.
[297] This leads to a final point. Sometimes counsel try to turn exercises of the present kind into a full scale review of what the police did, and urge the “disciplining” of the police. That is not what these cases are about. The master of evidence, Henry Wigmore, rightly reminded us that “[t]he judicial rules of evidence were never meant to be used as an indirect method of punishment” (Wigmore on Evidence (Chadbourn rev 1970) at Vol 8 §2183.) Instead, the overarching issue to be resolved in an allegation of an unreasonable search is a balancing of interests: once determined to be a breach of s 21, the court must consider whether exclusion of evidence as a vindication of the accused’s right would be a proportionate response to the breach. As has been stated, this includes assessing the individual’s privacy interest, the manner in which it was intruded on, and the government interest in adducing the evidence in question.
Solicitors:
Crown Law Office, Wellington
- AGLC
- R v Williams [2007] NZCA 52
- Case
- [2007] NZCA 52
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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