R v Yeh HC Auckland CRI-2006-004-22722
[2007] NZHC 2092
•31 August 2007
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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 HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-004-22722
THE QUEEN
v
CHU-WANG YEH JUNWEI REN
LU JING WANG CHU HENG CHENG ZHI TONG ZHAN
Hearing: 13 June 2007
Appearances: M T Davies for Crown
S J Bonnar for Respondent (Ren)
S J Lance for Respondent (Cheng)
R M Mansfield for Respondent (Wang)P F Wicks and J Cheng for Respondents (Yeh and Zhan) Judgment: 31 August 2007 at 10:30 am
RESERVED JUDGMENT OF COURTNEY J ON S 344A APPLICATION
This judgment was delivered by Justice Courtney on 31 August 2007 at 10:30 am
pursuantto Rule 540(4) of the High Court Rules
Registrar / Deputy Registrar
Date……………………….
R V CHU-WANG YEH AND ORS HC AK CRI-2006-004-22722 31 August 2007
Tableof Contents
Para No.
Introduction [1] Issues / relevant principles [6] Power to search [7] Reasonableness of search [13]
Search of motor vehicle
Circumstances leading up to search [18]
Search of the vehicle [26] Power to stop vehicle [31] Did the police have “reasonable grounds for believing” that
there were drugs in the car? [34]
Reasonableness of search and the balancing exercise [43]
Entry into Shed 19 – was there an implied licence to enter?
Circumstances of entry into Shed 19 [51]
Was there an implied licence to enter? [54]
Was the entry nevertheless reasonable? [64]
Search of Mr Ren
Circumstances of search [68]
Were there reasonable grounds for believing under s 18(2)? [71]
Reasonableness and the balancing test [77]
Search of Apartment 8
Circumstances of search [83]
Were there reasonable grounds for believing for the purposes of
s 18(2)? [87]
Reasonableness of the search and the balancing test [89]
Result [95]
Introduction
[1] In the early hours of 11 February 2006 the police stopped Messrs Cheng and Zhan in a car outside the Palace Bar in Federal Street. They searched the car and found capsules that appeared to be pseudoephedrine, a cell phone, a swipe card to an apartment building known as Shed 19 and keys to Apartment 8 in that building.
[2] A short time later, police officers used the swipe card to enter Shed 19. They proceeded to the fourth floor where Apartment 8 was located and encountered Mr Ren in the corridor. They searched him and found snaplock bags containing pink and yellow granules and vacuum cleaner waste containing granules. They then used the key to enter Apartment 8 where Mr Yeh and Ms Wang were present. They searched the apartment and found snaplock bags, gloves, capsules, methamphetamine, scales and cash.
[3] As a result of these events the accused face trial on the following counts:
a) Messrs Cheng and Zhan: possession of a Class C controlled drug (pseudoephedrine) for the purpose of supply and conspiracy to supply pseudoephedrine;
b)Messrs Yeh and Ren and Ms Wang: possession of a Class A drug (methamphetamine) for the purpose of supply, possession of a Class C drug (pseudoephedrine) for the purpose of supply and conspiracy to supply pseudoephedrine;
c) Messrs Yeh and Ren: permitting a premises to be used for the purpose of supplying a Class A drug (methamphetamine) and permitting a premises to be used for the supply of a Class C controlled drug (pseudoephedrine);
d)Mr Yeh: supplying a Class A drug (methamphetamine) and laundering the proceeds of a specified drug offence.
[4] The respondents have indicated their intention to challenge the admissibility of this evidence and the Crown seeks an order pursuant to s 344A Crimes Act 1961.
[5] Notwithstanding the coming into force of the Evidence Act 2006 1 August
2007, this application falls to be determined under the law as it existed in May 2007 when the application was filed.
Issues / relevant principles
[6] There are effectively three separate searches in issue, namely of the car, Mr Ren and the apartment. The searches were undertaken pursuant to s 18(2) Misuse of Drugs Act 1975 (MDA) (in the case of the car and the apartment) and s 18(3) MDA (in the case of Mr Ren). Issues arise over the legality and reasonableness of each search.
Power to search
[7] Section 18 MDA permits a police officer to search a place or a vehicle (s 18(2)) or a person (s 18(3)) without a warrant if there are reasonable grounds for believing that a person is in possession of a controlled drug or that a controlled drug is present in a vehicle and that an offence against the MDA has been or is suspected of having been committed in respect of that drug. A controlled drug for the purposes of s 18(2) and (3) is one specified in Schedule 1 or Part I of Schedule 2 or Part I of Schedule 3 to the MDA. Methamphetamine is specified in Schedule 1.
[8] Section 18(2) and (3) provide:
18 Search and seizure
(2)Where any member of the Police has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in the Schedule 1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act [or any precursor substance specified or described in Part 3 of Schedule 4] and that an offence against this Act has been or is suspected of having been committed in respect of that drug [or precursor substance], he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.
(3)Where any member of the Police has reasonable ground for believing that any person is in possession of any controlled drug specified or described in the Schedule 1 or in Part 1 of the Schedule
2 or in Part 1 of the Schedule 3 to this Act [or any precursor
substance specified or described in Part 3 of Schedule 4] and that an offence against this Act has been or is suspected of having been committed in respect of that drug [or precursor substance], he may search and detain that person for the purpose of search and may take possession of any controlled drug [or precursor substance] found. Nothing in this subsection shall limit the provisions of subsections (1) and (2) of this section or authorise any member of the Police to enter and search any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place otherwise than in accordance with the provisions of those subsections.
[9] The power under s 18(2) is intended to enable the police to intercept drugs before they can be disposed of. It was referred to in Laugalis1 as being a power that is of particular importance where the drugs are believed to be in a motor vehicle, since it would be absurd to require a warrant if, in the meantime, the vehicle could simply be driven away.
[10] The prerequisite for a search under s 18(2) is “a reasonable ground for believing” that there is present a controlled drug or precursor substance and that an offence against the MDA has been or is suspected of having been committed in respect of that drug or precursor substance. In considering this prerequisite the Court of Appeal observed in Laugalis at 354 that:
The qualifier “on reasonable grounds” introduces an objective element which somewhat confines the relevant dictionary meaning of “believe” namely “to have confidence or faith in, and consequently to rely upon…to give credence to” (Shorter Oxford English Dictionary).
[11] As to what might constitute “reasonable grounds for believing”, the Court of
Appeal said in Hill v Attorney-General2:
In s 18 itself the Legislature has clearly limited the application of the provision to situations where some only of the total range of controlled drugs are involved and has then built in safeguards governing its use. Far from being a provision available for use on an everyday basis, s 18(2) is intended to be available only in confined circumstances. The subsection may be invoked where through other evidence, such as of other transactions, or overheard conversations, or a tip-off, there is a reasonable ground for belief as to the identity of the drug or at least that it comes within the statutory prescription. Other circumstances may themselves provide a sufficient pointer – for example where the packaging or other observed details of an apparent drug deal are referable in current practice only to dealing in drugs such as heroin, cocaine, and morphine, which are within the statutory prescription.
1 R v Laugalis (1993) 10 CRNZ 350, 355 and 356
2 (1990) 6 CRNZ 219,222 per Richardson J
[12] In short, the position is as described by Smellie J in Hill at 231:
The right to search without warrant is triggered only when there is an objective belief that one of the drugs expressly included in the First Schedule or in Part I of the other Schedules is present.
Reasonableness of search
[13] Under s 21 of the New Zealand Bill of Rights Act 1990 (BORA) every person has the right to be secure against unreasonable search or seizure, whether of person, property, correspondence or otherwise. Although unlawfulness and unreasonableness are distinct concepts, an unlawful search will normally also be
unreasonable for purposes of s 213. There are exceptions for minor or technical
breaches, though what is regarded as minor or technical is not to be given an expansive interpretation4. The failure to file a report after the exercise of a warrantless search under s 18(2) MDA could, for example, be regarded as a technical breach5.
[14] In the event of an unreasonable search the Court must decide whether exclusion of the evidence obtained would be a proportionate response to the breach. This is to be determined by reference to the Shaheed balancing test applied in the manner described in R v Williams, by which the proportionality of the exclusion to the breach can be assessed. The starting point in that exercise is the nature of the right that has been breached and the seriousness of the breach itself. In R v Williams the Court of Appeal observed that:
The more fundamental the right and the more serious the breach, the less likely it is that the balancing test will result in the evidence being admitted.6
[15] There are public interest factors that are also to be considered. This aspect of the balancing exercise was described by Blanchard J in Shaheed7 at [143] as follows:
Importantly, a prima facie rule does not have the appearance of adequately addressing the interest of the community that those who are guilty of serious crimes should not go unpunished. That societal interest, in which any victim’s interest is subsumed, rather than being treated as a separate interest, will not normally outweigh an egregious breach of rights, particularly one
3 R v Williams [2007] NZCA 52 at [16]
4 R v Williams at [22]
5 R v Smith (1996) 13 CRNZ 481 (CA) (cited in R v Williams at [22])
6 at [106]
7 R v Shaheed (2002) 19 CRNZ 165
which is deliberate or reckless on the part of law enforcement officers. But where the disputed evidence is strongly probative of guilt of a serious crime, that factor too must be given due weight. A system of justice will not command the respect of the community if each and every substantial breach of an accused’s rights leads almost inevitably to the exclusion of crucial evidence which is reliable and probative of a serious crime. The vindication will probably be seen as unbalanced and disproportionate to the circumstances of the breach.
[16] In this case one of the issues arises is the connection between the evidence obtained during the search of the motor vehicle and the evidence obtained during the later searches of Mr Ren and Apartment 8. In R v Williams the Court of Appeal noted that where evidence is obtained in the course of a single transaction which includes an unreasonable search there will be sufficient connection between the
breach and the evidence for the evidence to be excluded8. However, the Court then
went on to consider the problem created where there is a delay between the breach and the subsequent gathering of evidence. If the evidence would not have been obtained but for the breach then that evidence is tainted by the breach9. As a result subsequent searches will be unreasonable unless the evidence can be seen to be independent of an earlier breach or 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 obtained10.
[17] 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. Relevant factors would include whether the evidence can be given without referring to the earlier breach, the length of time between the breach and the obtaining of the evidence, the existence of intervening events, whether the evidence
was brought into existence as a result of the breach or merely brought to light11.
Search of motor vehicle
Circumstances leading up to search
[18] At about 3:55 am on Saturday, 11 February 2006, Sergeant O’Neill, and
8 at [29]
9 at [98] and [100]
10 at [242]
11 at [243]
Constable Fischer were proceeding on foot and Constable Arapai was proceeding in a police van to the Palace Bar on the corner of Victoria and Federal Street for the purposes of making a licensing check. Evidence was given that this bar was known to police as a location at which drug-dealing, particularly in methamphetamine, went on. Constable O’Neil also gave evidence as to his experience in drug-related crime in Auckland. This includes numerous drug operations over the last three years involving Asian organised crime syndicates.
[19] As Sergeant O’Neill and Constable Fischer approached the Palace Bar from Victoria Street Constable Fischer observed a white Mitsubishi Legnum vehicle registration number DBS153 pull into Federal Street and remain with its engine running. Sergeant O’Neill’s first sight of the car appeared to be after it had come to a stop. They could see an Asian man in the driver’s seat. Sergeant O’Neill later identified the driver as Mr Cheng.
[20] Constable Fischer noticed another Asian man (later identified as Zhan) standing near the entrance to the Palace Bar alone looking very nervous. When he saw the police officers approach he looked increasingly nervous. Sergeant O’Neill and Constable Fischer then saw Mr Zhan run towards the car and open the passenger door. They both overheard him say to the driver “go, go” several times. Their suspicions were aroused by this and they ran to the vehicle, Sergeant O’Neill to the driver’s door and Constable Fischer to the passenger side.
[21] There is some discrepancy, with Sergeant O’Neill saying the man ran from the direction of the casino and Constable Fischer saying that he ran from where he was standing outside the Palace Bar. Since Constable Fischer appears to have seen Mr Zhan first it is most likely that his account is correct.
[22] Sergeant O’Neill spoke to the driver, Mr Cheng, and asked him to get out, which he did. Sergeant O’Neill noticed that Mr Cheng seemed very nervous and fidgety. He asked Mr Cheng for his name and to produce his drivers licence, which he did. Sergeant O’Neill says that he was aware of information about Mr Cheng to the effect that he was a member of a Taiwanese gang which was involved in drug dealing. By this stage Constable Arapai had arrived and Sergeant O’Neill tasked him to record Mr Cheng’s details.
[23] Before taking Mr Cheng’s details Constable Arapai removed the car keys from the ignition and put them on the roof of the car. He then asked for Mr Cheng’s driver’s licence and recorded the details in his notebook. He observed that Mr Cheng was very nervous, anxious and fidgety and that his eyes were glazed and wide open. He was apprehensive when questioned about who the car belonged to.
[24] While Constable Arapai was talking to Mr Cheng, Sergeant O’Neill joined Constable Fischer who was speaking to Mr Zhan, seeking to obtain his name and address. Constable Fischer observed that Mr Zhan was very fidgety, constantly looked around nervously, his eyes were glazed and he was constantly licking his lips. The constable believed that Mr Zhan was under the influence of methamphetamine and that a search pursuant to s 18(2) & (3) MDA would reveal further offences.
[25] Sergeant O’Neill also observed that his eyes were wide and dilated, that he was of thin build with gaunt facial features. He had difficulty standing and appeared nervous when any mention was made of the vehicle. Sergeant O’Neill believed that both men had recently used methamphetamine.
Search of the vehicle
[26] Sergeant O’Neill decided to invoke the search power under s 18(2) and (3) MDA. In evidence before me Sergeant O’Neill was asked what the factors were that led him to believe that he had sufficient material to properly invoke the powers of search under s 18(2) and (3) in relation to the vehicle. He said that it was a combination of factors including the time of night, the location, the actions of Mr Zhan as the police officers had approached, the intelligence he was aware of linking Mr Cheng to a gang known to be involved in dealing and the physical characteristics of Mr Zhan being consistent with a long time methamphetamine user.
[27] Sergeant O’Neill then advised Mr Cheng and Mr Zhan that he was intending to invoke a search of the vehicle and their person pursuant to s 18(2) and (3) MDA. He introduced himself, Constable Arapai and Constable Fischer and explained the reason for the search and explained their rights under the BORA.
[28] Sergeant O’Neill then undertook a search of the vehicle. Next to the passenger door on the road he observed what appeared to be a crushed glass P pipe.
His search of the passenger side of the vehicle yielded a brown paper bag inside which was a parcel wrapped in newspaper. Inside the newspaper wrapped parcel was a ziplock bag containing a large quantity of pink and yellow granules. Also in the bag was a cellphone, a “swipe” access card and a key. On the access card was the number 8, L4 Shed 19.
[29] Based on previous experience Sergeant O’Neil believed the granules to be pseudoephedrine, the base ingredient used in the manufacture of methamphetamine. He estimated that the quantity contained in the bag was about 450-500 grams. This, in his experience, could be used to manufacture 90-120 grams of methamphetamine with a street value of approximately $100,000.
[30] During the search of the vehicle, which took about five minutes, Sergeant O’Neill was aware of five or six calls to a cellphone located in the driver’s door compartment. Sergeant O’Neill attributed some significance to this because, in his experience, dealers usually have a plan in place to confirm either that the deal had been completed successfully or that the drugs had been intercepted. He considered the constant ringing of the cellphone at that time of the morning was probably a pre- arranged phone call for that purpose. It made him concerned that, in the absence of confirmation, the caller would immediately dispose of any other drugs in his or her possession.
Power to stop vehicle
[31] There was some debate over the initial circumstances in which Mr Cheng came to be out of the car and talking to the officers. Although Sergeant O’Neill gave evidence that he had requested Mr Cheng to get out and talk to him, it was suggested in cross-examination that this had not been the case. However, the evidence of Sergeant O’Neill and Constable Fischer, which I accept, was consistent that Mr Cheng was not required to remain but instead requested to get out, which he did voluntarily. The car keys were not removed from the vehicle and placed on the roof until after he had got out of the car.
[32] The Crown submission was that the police officers did not require a statutory power to make enquiries of the occupants of the vehicle. It was stationary throughout and Sergeant O’Neill simply requested that Mr Cheng get out, which
Mr Cheng did voluntarily. If a statutory power were required then the Crown says that s 114 Land Transport Act 1998 provides that power. However, Mr Lance, for Mr Cheng, submitted that Sergeant O’Neill had no power to stop the vehicle under the LTA under these circumstances and the introduction of s 114 LTA into the argument was a red herring.
[33] The power to stop under the LTA is one that is limited to the purposes of enforcement of that Act12. Although there was evidence that the car was double- parked there was no suggestion that the request for the driver to get out of the car was based on any LTA reason. It was clear that the only reason for seeking to speak to the driver was suspicion of offending under the MDA. I therefore agree with Mr Lance that there was no power under the LTA in this case to stop or prevent the
car from departing. However, the police officers did not need to invoke any statutory power to approach Mr Cheng and ask that he get out of the vehicle. They made a request, not a command and Mr Cheng chose to accede to that request.
Did the police have “reasonable grounds for believing” that there were drugs in the car?
[34] What constitutes reasonable grounds for the purposes of s 18(2) is a question of fact to be determined in each case. The Crown submits that the following facts, taken cumulatively, provided reasonable grounds on which Sergeant O’Neill could believe that the car contained controlled drugs and that a search was necessary in order to prevent the car from being driven away before a warrant to search could be obtained:
•The vehicle was in the vicinity of Palace Bar at an early hour in the morning and the Palace Bar was a known location for drug-dealing.
•Mr Zhan’s physical appearance was consistent with that of a long- time methamphetamine user.
12 R v Fletcher[(2002) 10 CRNZ 399 (CA); Jones v Attorney-General [2004] 1 NZLR 433 at 437 (PC)
•Mr Zhan’s body language suggested that he was nervous about speaking with the police and that he was fidgety and had dry lips, both signs of recent methamphetamine use.
•Mr Cheng, the driver, was known to Sergeant O’Neill as an associate of a person of interest to the police in connection with drug-related activities.
•Mr Zhan acted suspiciously on seeing the police officers in uniform, running to the car and urging the driver to “Go, go, go”.
[35] The physical appearance and demeanor of those who have recently used methamphetamine are typically described as dry lips, wide glazed eyes, sweating, nervousness and difficulty remaining still. Although such symptoms are consistent with methamphetamine use, they can also be associated with some prescription medicine. So while they may certainly justify suspicion that an accused has been recently using the drugs, it can be no more than that. Further, the purpose of s 18(2) is directed towards the presence of drugs in a vehicle or premises; even if there were grounds on which to suspect that an accused found in or near a car had been using methamphetamine, that fact could not, in itself, provide any objective basis for believing that there were drugs in the car.
[36] There have been three recent cases13 involving searches under s 18(2) and (3), which exhibit some factual similarity to the present case. In each case the predominant feature was the accused showing the physical symptoms of recent methamphetamine use. In these cases the consistent approach taken, and one with which I agree, is that physical symptoms of recent methamphetamine use cannot in themselves amount to a reasonable ground for belief that would satisfy s 18(2).
[37] In two of the cases to which I have referred (Gray and Carroll), where the search was found to have been lawful there was, in addition to the accused’s physical appearance, actual conduct which elevated the suspicion of the presence of drugs to a belief based on reasonable grounds. In Carroll the conduct was the apparent attempt
13 R v Carroll HC AK CRI-2003-004-041192 Rodney Hansen J 21 May 2004; Collins v Police HC AK CRI-2006-404-000151 Cooper J 8 November 2006; R v Gray & Ors HC AK CRI-2006-004-3200
Allan J 22 May 2007
to avoid the police by turning and walking the other way coupled with the attempt to hide a cigarette packet (such packets being commonly used to store methamphetamine). In Gray the conduct was the action of the accused in attempting to move an object on the floor of the car with his feet so that it could not be seen. In comparison, in Collins, Cooper J noted the absence of any such conduct. The grounds for belief there were limited to demeanour and appearance and the Judge held that this was insufficient.
[38] In the present case the Crown has urged that the other factors that it has identified together provided a reasonable ground for belief. I therefore turn to consider these. The first is the location at which the incident occurred which was an area well known to the police for drug dealing. This factor could never, alone, even form the basis for suspicion. While demeanour coupled with location might together be regarded as giving rise to suspicion, even strong suspicion, that Mr Chen and Mr Zhang had recently used methamphetamine I do not consider that they could elevate such suspicion to a reasonable ground for believing that there were drugs contained in the vehicle.
[39] The next factor is Sergeant O’Neill’s prior knowledge of Mr Chen. I do not consider that what Sergeant O’Neill knew about Mr Chen could in itself provide a reasonable ground for belief. Similar (but much stronger) information coupled with typical symptoms of methamphetamine use together were not sufficient in Gray to elevate suspicion to a reasonable ground for belief.
[40] The final factor I consider (though first in time) is Mr Zhang’s suspicious conduct on seeing the police officers approaching i.e. moving from a standing position near the Palace Bar to running to the car and urging the driver to “Go, go”. This is, I think, the only aspect of the narrative that could come close to elevating suspicion to reasonable ground for belief. Whilst running from police could not in itself amount to a reasonable ground for belief, one might reasonably think that there were grounds on which to believe that Mr Zhan, standing in an area known for methamphetamine-dealing, exhibiting signs of methamphetamine use and then anxiously departing when police approached was likely to have a reason for wanting to depart in such a rush that was connected with the drug. Arguably this hasty exit might be viewed as an attempt to remove the car from the scene.
[41] As against that, however, Mr Zhan was not near the car when he first saw the police officers and there was nothing connected with the car that might have given grounds for thinking that there were drugs in the car. This compares, for example with Carroll and Gray, in which there was specific conduct characterised as an attempt to conceal something. The fact that there was apparent anxiety on the part of the men when the car was mentioned is not sufficiently concrete.
[42] While the various factors relied on by the Crown certainly justified suspicion, I conclude that they did not amount to reasonable grounds for belief that would satisfy s 18(2). The search of the car was therefore unlawful.
Reasonableness of search and the balancing exercise
[43] The warrantless search of the car without reasonable grounds for belief as required by s 18(2) could not be categorised as minor or technical. The search was clearly an unreasonable one. The question is whether exclusion of the evidence obtained during the search would be a balanced and proportionate response to the breach.
[44] The breach in this case involved a breach of the privacy interest in relation to the motor vehicle. The fact that an accused is not the owner of a vehicle does not preclude him or her from having a legitimate expectation of privacy. However, in terms of the gradation of interests the privacy interest associated with a vehicle is not to be regarded with the same degree of seriousness as, for example, the intrusion into
a private dwelling. I note the Court’s observation in R v Maihi14 that there is a lesser
expectation of privacy in vehicles.
[45] Neither Mr Zhan nor Mr Cheng owned the vehicle. Mr Cheng presumably had the permission of the owner to use it and could reasonably expect some level of privacy commensurate with that interest although on the available evidence it would be at a low level. But on the evidence, Mr Zhan was only in the car momentarily before being asked to get out. The evidence would not justify any expectation of privacy on his part. So the privacy interest in this case was at a low level.
14 (2002) 19 CRNZ 453 at [34]
[46] I do not consider there to have been police misconduct. While I have found that reasonable grounds for belief did not exist as required by s 18(2), it was a borderline situation. Sergeant O’Neill did turn his mind to the need for reasonable grounds before he invoked his search power under s 18(2). The circumstances undoubtedly justified the strongest suspicion that Mr Zhan and Mr Cheng were in Federal Street that night for the purposes of dealing in drugs. I consider that the circumstances fell short of sufficient grounds by a fairly narrow margin.
[47] The Crown also relied in relation to this and the later searches on the perceived urgency of the situation. Clearly, if the police did not carry out a search there was not likely to be any opportunity later. This circumstance is, of course, the kind of situation that s 18(2) is directed towards. On the other hand, there was not urgency of the kind in which there is an issue of safety to any person. In the circumstances I do not accord this factor great weight.
[48] I therefore turn to the relevant public interest factors to be taken into account, namely the nature and quality of the evidence obtained, the importance of it to the Crown case and the seriousness of the alleged offending. The search of the vehicle yielded granules containing pseudoephedrine and weighing 439.7 grams. The evidence was that the granules were consistent with ContacNT capsules. There was evidence at depositions that 450 grams of ContacNT can produce 181 grams of pseudoephedrine and from that between 90-126 grams of methamphetamine can be manufactured. This evidence is obviously reliable; it existed independently of the search and there is no suggestion of it having been compromised by the unlawful search and seizure. It is central to the case against Messrs Cheng and Zhan.
[49] However, the alleged offending cannot really be regarded as serious for the purposes of the balancing exercise. In R v Williams the Court of Appeal offered, as a guideline, that an offence could be regarded as serious if the sentencing starting point (as used in R v Taueki15) was likely to be in the vicinity of four years imprisonment or more. On the basis of recent cases16 it seems unlikely that a starting point in the
15 [2005] 3 NZLR 372 at [8]
16 R v Lu & Guo HC AK CRI 2005-004-018884 9 February 2007 Keane J; R v Ho HC AK CRI 2005-
092-000567 12 April 2005 Winkelmann J.
event of conviction for these accused would be more than about three years imprisonment.
[50] Overall, I would regard the seriousness of the breach in terms of the unlawful conduct balanced against the nature of the interest breached as moderate. While the quality of the evidence and the importance of it to the Crown case is clear, the alleged offending is not so serious that the exclusion of the evidence would be disproportionate. I therefore hold that the evidence obtained from the car is to be excluded.
Entry into Shed 19 – was there an implied licence to enter?
Circumstances of entry into Shed 19
[51] After completion of the vehicle search Mr Zhan and Mr Cheng agreed to accompany the police to Mr Zhan’s apartment in Whittaker Place. The apartment was searched pursuant to s 18(2) MDA then both men were taken to the Downtown Police Station. Having been cautioned as to their rights under BORA they were asked if they knew anyone who resided at Shed 19, Apartment 8. Both denied knowledge of anyone living at that apartment. At about this time Sergeant O’Neill conducted a registration check of the vehicle that he had previously searched. The registered owner was Daniel Hsu, whom he knew to be a dealer. He asked Mr Zhan and Mr Cheng about the brown bag located in the vehicle and they both denied any knowledge of it.
[52] By that stage Sergeant O’Neill had formed the view that the occupants of Apartment 8, Shed 19, were likely to have either methamphetamine or pseudoephedrine in the apartment. Mindful of the fact that he had heard the cellphone ringing several times during the search Sergeant O’Neill was concerned that the occupants of the apartment would be aware that the pseudoephedrine had not been delivered and that efforts would be made to dispose of the drugs.
[53] Sergeant O’Neill and Constable Arapai therefore proceeded to Shed 19 with the intention of speaking to the occupants of Apartment 8. At that stage they did not have any intention of invoking s 18(2) MDA but did harbour suspicions. They accessed the public foyer area using the swipe card that they had obtained from the
brown paper bag in the car. They got into the lift and went to Level 4, where
Apartment 8 was situated. This also required the use of the swipe card.
Was there an implied licence to enter?
[54] The police have no general right of entry on to private property. Entry without justification is a trespass17. One of the legal justifications is the existence of an implied licence to enter. A police officer may, like anyone else, go onto private property in pursuit of his or her business for the purpose of communicating with the occupier. This is the doctrine of implied licence stemming from the decision in Robson v Hallett18 in which Lord Parker CJ said:
…I am quite satisfied that these three police officers, like any other members of the public, had implied leave and licence to walk through that gate, up those steps and to knock on the door of the house. We are not considering for this purpose the entering of private premises in the form of a dwelling house, but the position between the gate and the front door. There, as it seems to me, the occupier of any dwelling house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps and knock on the door of the house.
and Diplock LJ (as he then was) at p953-954:
When a householder lives in a dwelling house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to enquire whether he may be admitted and to conduct his lawful business. Such an implied licence can be rebutted by express refusal of it, as in this case the Robsons could no doubt have rebutted the implied licence to the police officers by putting up a notice on their front gate “No admittance to police officers”; but that was not done in this case.
[55] The Crown submits that entry into Shed 19 and use of the lifts to reach the fourth floor by use of the swipe card was neither illegal nor improper because the doctrine of implied licence conferred a right of entry. Mr Davies relied on the Court of Appeal decision in R v Bradley 19 in which police officers had entered a property by clambering onto a terrace which was clearly not a usual means of egress and then requesting permission from an occupant of the house to search it.
17 R v Fraser [2005] 2 NZLR 109 (CA)
18 [1967] 2 QB 939; [1967] 2 All ER 407
19 (1997) 15 PRNZ 363
[56] However, it is clear from Bradley20 that the right to proceed onto private property is both limited and capable of being revoked:
Such an implied invitation, however, extends no further than is required to permit communication with the occupant of the premises, and it can be negated by express reference or revoked altogether. Where the police act in accordance with this implied permission their action is not regarded as an intrusion upon the privacy of the occupier. The implied licence effectively waives the privacy interest which the occupier might otherwise have in his or her home.
The essence of this concept, as we apprehend it, is to permit any member of the public, including a police officer, on legitimate business to come on to a property for the purpose of communicating with the occupier. This purpose was recognised by Sopinka J delivering the judgment of the majority of the Supreme Court of Canada in R v Evans. The effect that the purpose of the implied leave is “to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant”. Thus the Supreme Court held (at pp217, 218) that the implied invitation to knock extends no further than is required to “permit convenient communication with the occupant of the dwelling”. Only those activities that are “reasonably associated with the purpose of communicating with the occupant” are authorised by the implied licence.
[57] Although there was some suggestion in Bradley that the scope of the implied licence was greater for police than for ordinary members of the public, the Court of Appeal made it clear in R v Pou21 that this is not the case:
A police officer has no greater rights to enter premises under an implied licence than a member of the public and we are satisfied that the licence does not extend to entering inside a private dwelling.
[58] The Crown submitted that a barrier to entry that is secured or locked does not necessarily vitiate an implied licence. It relied on R v Findlay22 where the police officer had climbed over a padlocked gate in order to check the security of a house, the front door of which was ajar. However, this case is readily distinguishable. The Court considered that the circumstances fell within the doctrine of necessity and should be treated in the same way as entry pursuant to an emergency 111 call of the
kind that occurred in Fraser.
[59] Most modern apartment buildings, including Shed 19, require an electronic
20 at 368
21 [2002] 3 NZLR 637 at [15]
22 CA 410/05 14 March 2006 Glazebook Wild & Venning JJ
access (swipe) card in order to gain entry to the common areas of the building and to access any particular floor. Anyone wishing to communicate with an occupier can do so by use of an intercom system located at the main entrance. A visitor can only access the building with the consent of the occupier, who must release the main door for that purpose. The obvious issue that arises is whether an intercom system that allows communication with an occupier effectively replaces the traditional front door so that access to such a system is all that the law permits pursuant to the doctrine of implied licence.
[60] In Pierce v R23 Williams J held that there was nothing unlawful about two police officers going to an apartment building and gaining access through a front door left open by someone coming out of the building. However, although the applicant had submitted that there was no implied licence the existence and limitations of an implied licence in these circumstances were not specifically discussed.
[61] The Provincial Court of Alberta briefly considered this problem in R v Hale- Matthews24 where police officers were invited into an apartment block by the building manager rather than using the buzzer system to speak to the occupants of the apartment they intended to visit. Because of the invitation from the apartment manager the Judge was not required to consider whether entry without use of the buzzer security system would have been lawful but nevertheless made the following obiter comments:
While not necessary to decide in this case, there is legal argument to be made that the buzzer identification and entry system constitutes the proper and least intrusive method the police should have used to initiate communication with the accused. It may also be that the buzzer identification and entry system revoked any implied licence for the police to utilise another form of entry to reach the accused’s door.
[62] In my view locked main doors to an apartment building coupled with an intercom system must be regarded analogously to the locked garden gate referred to by Diplock L J in Robson v Hallett. There could be no clearer sign that the occupants of an apartment building, collectively and individually, have revoked any
23 HC AK CRI-2004-004-024268 21 June 2005
24 [2002] ABPC 26
implied licence that would see visitors permitted access as far as the door of a particular apartment. An implied licence clearly exists which permits visitors to communicate with occupants by way of the intercom system.
[63] The purpose of the doctrine of implied licence is to facilitate communication, no more. The Police were clearly (and, it turns out, justifiably) concerned that alerting the occupants of Apartment 8 would result in evidence being destroyed or disposed of before they could gain access. The law, as I have found it to be, would force the police officers to wait on the street until they are invited to enter, assuming that they ever are invited to do so. Clearly, this situation is very unsatisfactory from the point of view of the police. However, unsatisfactory as the situation may be I cannot see any grounds for applying the doctrine more widely. The fact that the main doors are locked as a matter of course and an intercom system can be readily accessed makes it absolutely clear that individual occupants have not granted any licence beyond the use of the intercom system. There was, therefore, no implied licence that permitted the police to enter Shed 19 using the swipe card. Entry to Shed 19 was unlawful.
Was the entry nevertheless reasonable?
[64] Although the Crown submitted that if the entry to Shed 19 did constitute a search it was, nevertheless, reasonable as being a minor or technical breach, and no argument was developed as to whether entry, in itself, constituted a search. Given the physical intrusion onto private property motivated by suspicion that drugs would be found in the building, I intend to treat the entry itself as a search and to consider the reasonableness of it separately from the search of Mr Ren and the apartment because, although no seizure resulted directly from the entry to the building itself, that act led to the subsequent searches and will form part of my consideration of them.
[65] In support of its submission that entry was reasonable, the Crown pointed first to the fact that the police had not realised that they were not entitled to use the card. Sergeant O’Neill said in evidence that he considered that this was the means by which any member of the public might enter the building and saw nothing wrong in it. This belief is perplexing; there was no basis on which the police officers could
reasonably have believed that they were entitled to use the swipe card to gain entry. Even if the search of the vehicle in which the card was discovered had been lawful, there would have been no basis on which the police could have viewed mere possession of the card as conferring a right to use it.
[66] Secondly, the Crown submitted that use of the card accessed only common areas and the privacy interest must have been minimal. However, while the privacy expectation must certainly be lower in common areas than in areas of exclusive use, the fact that there was a method of limiting those permitted in the common areas unquestionably gives rise to a moderate expectation of privacy. Whilst it is unlikely that occupiers would leave valuable belongings in the common areas or behave as they would behind the closed doors of their apartments they would nevertheless be entitled to feel a greater degree of privacy and security than they would on the street.
[67] I regard the unlawful entry into Shed 19 as serious, more so than the unlawful search of the car. Overall I would describe it in R v Williams terms as moderately serious.
Search of Mr Ren
Circumstances of search
[68] It was about 4:55 am in the morning when the officers reached the fourth floor. As they got out of the lift they saw an Asian man (later identified as Mr Ren) come out of a doorway leading to the apartments and walk past the lift. According to Sergeant O’Neill and Constable Arapai he was carrying a cardboard box under his right arm. When asked where he had come from he indicated that he had come from Apartment 8.
[69] Sergeant O’Neill observed Mr Ren’s behaviour as he came out of the doorway. He appeared nervous and attempted to conceal the box from Sergeant O’Neill. Sergeant O’Neill could see a number of ziplock bags of a similar kind to those containing the pseudoephedrine which had been located in the brown paper bag in the car. He gave evidence that Mr Ren seemed to move his position so as to prevent Sergeant O’Neill seeing inside the box.
[70] Sergeant O’Neill formed the view that the box contained pseudoephedrine and methamphetamine. He introduced himself and Constable Arapai to Mr Ren, explained his belief and advised that he was intending to undertake a search of the box and Mr Ren’s person pursuant to s 18(3) MDA. He also advised Mr Ren of his rights under BORA. Sergeant O’Neill then conducted a search of the box that Mr Ren had been carrying and located eight ziplock bags containing granules of pseudoephedrine, unused ziplock bags, a screwed up piece of paper, a set of keys, some vacuum cleaner waste material, a number of pink pseudoephedrine granules and a glass pipe.
Were there reasonable grounds for believing under s 18(2)?
[71] The Crown submitted that there were reasonable grounds on which to invoke s 18(2) and that the search of Mr Ren was therefore lawful, even if the entry into Shed 19 was not. It was further submitted that Mr Ren did not revoke any implied licence when approached by the officers. The Crown submitted, by analogy with Bradley, that any unlawful entry into Shed 19 was excused or condoned by the reasonable grounds of a search under s 18(2).
[72] I do not accept that this case is to be viewed analogously with Bradley. In Bradley there was freely given consent to a search, notwithstanding the initial unlawful entry, which had the effect of condoning the method of entry. However, there was no such consent in this case. The subsequent invocation of powers under s 18(3), even assuming there were reasonable grounds on which to do so, could not have the effect of condoning the unlawful entry.
[73] The closer decision, factually, is R v Maihi25, where the police purported to invoke s 18 following an initial search undertaken pursuant to s 202B(1) Crimes Act
1961. The initial search was held to be invalid and at [19] the Court commented that:
We should mention the invocation of s 18 of the Misuse of Drugs Act 1975 upon which the officers relied to search the vehicle further after the initial s
202B(1) search. In a case where it is the initial invalid search which gives rise to the invocation of the Misuse of Drugs Act provisions, we do not
consider it right to hold that a subsequent search on the basis of those
25 (2002) 19 CRNZ 453
provisions, is a legally justified search. The unlawful opportunity to invoke s 18 cannot in our view give a lawful foundation for its invocation.
[74] However, there is a further difficulty for the Crown. There was no mention in the evidence of Mr Ren exhibiting the signs of recent methamphetamine use observed in Mr Zhan and Mr Cheng. The only aspects about Mr Ren’s appearance and conduct that contributed to the basis for invoking s 18(3) were the facts that he was very nervous, that he was carrying a box in which there were snaplock bags visible and that he attempted to hide the box from the gaze of the officers. Quite plainly these factors alone were insufficient on which to invoke s 18(3). They barely constituted grounds for suspicion let alone belief for the purposes of s 18(3).
[75] It was the additional information obtained as a result of the search of the vehicle that put Mr Ren’s behaviour in context for the officers. Mr Ren’s presence on the fourth floor at 4:55 am would not have been significant were it not for the fact that, as a result of the search of the vehicle, the police suspected that the occupants of Apartment 8 which was located on that floor were very likely to be in the process of attempting to dispose of incriminating material. I note here that the dispute between Mr Ren and the officers as to whether Mr Ren actually told them he had come from Apartment 8 or just indicated that he had come from “over there” does not make much difference; because of the information the officers had Mr Ren would have been under suspicion even if he had said nothing.
[76] While all of the information known to the police at that point (the results of the search of the car and Mr Ren’s presence with the box which he was trying to conceal) could have constituted reasonable grounds for belief for the purposes of s 18(3) the information obtained from the search of the car must, I think, be excluded on the basis that it is tainted by the previous breach26. Without that evidence and information the police did not have the reasonable grounds for belief required to invoke s 18(3).
Reasonableness and the balancing test
[77] I turn therefore to the question of whether the illegal search of Mr Ren’s person and the box he was carrying should nevertheless be regarded as reasonable
26 R v Williams at [98] and [100]
and, if so, whether the evidence should be excluded. I cannot view this search as anything other then unreasonable. The police were only in the building as a result of a serious misjudgement regarding the use to which the swipe card could be put. It could not be regarded as a minor or technical breach by any means.
[78] I have already held that there was a certain expectation of privacy that occupants of the apartments had in respect of the common areas of the building. However, the expectation of privacy in respect of the common areas of the building must be less than in respect of the apartments themselves and still less than in respect of one’s person. The seriousness of the breach must be judged accordingly.
[79] The seriousness of the breach must also be viewed in light of the connection with the unlawful search of the vehicle. The swipe card had been obtained and used as a result of the moderately serious breach in entering the apartment building. The grounds for the search of Mr Ren were substantially dependent on the information obtained through the illegal search of the vehicle. For the reasons I have discussed the illegality of the search of the car meant that the police lacked the requisite grounds under s 18(3). Without the information implicating the occupants of Apartment 8 it seems unlikely that Mr Ren would have even been the subject of suspicion.
[80] The Crown does point to the perceived urgency of the situation, the fact that there was no other practical means of conducting this investigation and the real concern that drugs would be disposed of before there could be an opportunity to obtain a warrant. Sergeant O’Neill was aware of the practice of drug dealers in using one cellphone for each deal and discarding the phone once the deal was completed. He was concerned that the absence of any call from the phone found in the car confirming the deal would alert the group to something being amiss. That the cellphone was connected to a specific drug transaction was all the more likely given that it was found in the bag along with the keys and pseudoephedrine. The fact that Zhan’s personal cellphone rang repeatedly during the search made it likely that his associates would be alerted to the fact that something had gone wrong. These points are fairly made and I accord them some weight.
[81] Finally, I note that the evidence obtained was, as in the search of the vehicle, a Class C drug. There is no issue as to the reliability of the evidence and clearly it is central to the Crown case. Again, however, as with Messrs Zhan and Cheng, the level of offending seems unlikely to attract a term of imprisonment of more than about three-and-a-half years. I therefore do not regard this offending as serious offending as envisaged in R v Williams27.
[82] Overall I view the breach relating to the search of Mr Ren as being moderately serious and in view of the relatively low level of offending evidenced by the results of the search I find that exclusion of the evidence seized from Mr Ren would not be a disproportionate response to the breach in question.
Search of Apartment 8
Circumstances of search
[83] Following the search of Mr Ren Sergeant O’Neill and Constable Arapai proceeded to Apartment 8 and let themselves in using the key found in the car. They did not give any indication prior to entering that they were about to do so.
[84] From the door of the apartment Sergeant O’Neill could see into the lounge area. He saw two women seated on a couch and the accused Mr Yeh also seated in the lounge area. One of the women was the accused, Ms Wang. Sergeant O’Neill said that the officers introduced themselves, explained the reason for their presence, and their intention to conduct a search pursuant to s 18(2) MDA and advised the occupants of their rights under BORA. I note here that Mr Ren maintains no advice of their rights was given until the police had been in the apartment for about half an hour. However, I accept that the appropriate advice was given.
[85] A search of the master bedroom produced three snaplock bags containing a white crystal substance, plastic funnels, a ziplock bag containing pink and yellow granules. In the kitchen area was found a bag containing ziplock bags, rubber gloves and small zipper bags. Also in the bedroom was found a laptop bag containing snaplock bags with bundles of smaller snaplock bags inside, latex gloves and more snaplock bags of the same size as those containing the white crystals. On the bed
27 [113]
was a handbag containing cash estimated to be about $30,000 and a set of electronic pocket scales, a snaplock bag containing white powder and ID in the name of Lu Jing Wang. Ms Wang volunteered that the handbag found was hers and offered to accompany the police to her own apartment; she had said that she was a visitor to the apartment.
[86] In a cupboard was a vacuum cleaner and the dust bag was found to contain pink and yellow pseudoephedrine particles. In the kitchen there were two mobile phones and in the dining room four more mobile phones. All but one were identified by Mr Yeh and Mr Ren as belonging to them.
Were there reasonable grounds for believing that there were drugs in Apartment 8?
[87] The search of the apartment raises the same issues as the search of Mr Ren. The police had gained entry to both the apartment building and the apartment itself using the swipe card and key seized during the unlawful search of the car. Further, without the evidence and information obtained as a result of the search of the car, there was no reason to consider that there might have been drugs in that particular apartment. Although the officers did not form the view that they had sufficient grounds on which to invoke s 18(2) until after they had searched Mr Ren, it is quite clear that any belief that the officers held depended substantially on the evidence obtained from the car and the search of Mr Ren only took place because of this information.
[88] I have already found that the search of both the car and Mr Ren were illegal and unreasonable given the relatively close timing of those searches with the search of the apartment and the fact that no grounds existed independently of that obtained from those searches. The only basis they had for invoking s 18(2) was the evidence found in the car and the capsules found in Mr Ren’s box. It is clear that without this evidence there would not have been reasonable grounds for considering that there were drugs in Apartment 8. For the reasons discussed above I consider that this evidence must be disregarded in determining whether the police had reasonable grounds for believing that there were drugs in the apartment. It follows from what I have said that the search of the apartment was unlawful.
Reasonableness of the search and the balancing test
[89] The nature of the illegality connected with the search is such that, absent compelling factors, it should be regarded as unreasonable. It will be clear from what I have already said that I do not regard the breach as being of a minor or technical nature. The use of the swipe card and key were serious matters. The only question is whether exclusion of the evidence obtained during the search would be a balanced and proportionate response to the breach.
[90] The expectation of privacy that Mr Ren and Mr Yeh had as occupiers of the the apartment was high. Although Ms Wang could not, as a visitor, have had the same expectation she certainly was entitled to have such a reasonably high level of expectation in relation to her handbag. So the search of the apartment involved a significant intrusion into the privacy of these accused. Entry was gained unlawfully. There was no discussion or request for permission to search the apartment. Sergeant O’Neill immediately invoked s 18(2) and conducted a search without further ado.
[91] While the Crown relies on the perceived urgency of the situation as giving some justification. However, I think that a more accurate characterisation is that the officers were over-zealous and allowed their perception of the urgency of the situation to obscure what were obvious flaws in their course of action. Overall I would categorise the breach as a serious one.
[92] There are slightly stronger public interest factors in relation to this search that arose in relation to the searches of the car and Mr Ren. Whilst there was a relatively small amount of methamphetamine and pseudoephedrine found in the apartment, the presence of the numerous snaplock bags, gloves, scales, cellphones and cash are indicative of a commercial operation. The evidence is reliable and crucial to the Crown case. The alleged offending is serious; I accept the Crown submission that the starting point for these offences is likely to be four or more years imprisonment. This would be consistent with similar cases involving small amounts of drugs in the
context of an obvious commercial operation28.
28 R v Convery CA 235/06 11 December 2006, Chambers, Randerson, Potter JJ; R v Grey HC AK CRI-2006-004-017997 16 February 2007 Randerson J
[93] However, while the alleged offending is of a serious nature, the circumstances of the search of the apartment are of the type described at [145] of R v Williams:
….if the illegality or unreasonableness is serious, the nature of the privacy interest strong, and the seriousness of the breach has not been diminished by any mitigating factors such as attenuation of causation or a weak personal connection to the property search or seized, then 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 Shaheed at [148] – [149].
[94] I consider that the nature of the breach in this case, which involved an unlawful entry into both the building and the apartment and the search of all areas of the apartment and Ms Wang’s handbag was a very serious intrusion into the accuseds’ privacy. There were no mitigating factors and, although serious, the alleged offending is not of the most serious type of offending by any means. When balanced against the seriousness of the breach I find that exclusion of evidence seized in Apartment 8 would not be disproportionate to the breaches.
Result
[95] All of the evidence obtained as a result of the search of the vehicle, Mr Ren and the apartment is excluded because:
a) The police did not have reasonable grounds on which to invoke s 18(2) prior to the search of the motor vehicle. That search was unreasonable. Overall the seriousness of the breach was moderate and, while the quality of the evidence is not in question and it is central to the Crown case, the alleged offending cannot be regarded as serious. Exclusion of the evidence would not be a disproportionate response.
b)There was no implied entry into Shed 19 and the use of the swipe card to gain access was both unlawful and unreasonable.
c) In considering the legality of the search of Mr Ren’s person the information and evidence obtained during the search of the vehicle must be disregarded. Without that information and evidence reasonable grounds did not exist on which to invoke s 18(3). The search was neither lawful nor reasonable and overall the breach must be regarded as a serious one. Balanced against the level of alleged offending exclusion of the evidence seized from Mr Ren would not be a disproportionate response.
d) The search of the apartment was also both unlawful and unreasonable.
The police had no justification for using the swipe card and the key. In considering whether reasonable grounds existed on which to invoke s 18 the information and evidence obtained from the search of the car is to be disregarded. In the absence of that information and evidence reasonable grounds did not exist on which to invoke s 18(2). The intrusion into the privacy of the accused was serious. Even allowing for the apparent commercial nature of the dealing evidenced by the objects seized and the probable starting point for the alleged offending the seriousness of the breach means that exclusion of the evidence
would not be disproportionate.
P Courtney J
Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629
Counsel: S J Bonnar, P O Box 2674, Shortland Street, Auckland
Fax: (09) 379-5066
S J Lance, P O Box 308, AucklandFax: (09) 357-0590
R M Mansfield, P O Box 2674, Shortland Street, Auckland
Fax: (09) 379-5066
P Wicks, P O Box 1614, Shortland Street, Auckland
Fax: (09) 357-0590
J Cheng, P O Box 1103, Shortland Street, AucklandFax: (09) 337-0821
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