Renson v Police
[2021] NZHC 2342
•8 September 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-000023
[2021] NZHC 2342
RICHARD RENSON v
NEW ZEALAND POLICE
Hearing: 1 September 2021 Appearances:
A Greaves and R Che Ismail for the Appellant B Harris for the Respondent
Judgment:
8 September 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 8 September 2021 at 3 pm Registrar/Deputy Registrar
RENSON v NEW ZEALAND POLICE [2021] NZHC 2342 [8 September 2021]
Introduction
[1] Mr Renson was convicted of one charge of cultivation of cannabis following a Judge alone trial in the Taumarunui District Court.1 The only issue in this appeal is the admissibility of evidence obtained by police during a warrantless search of his property. He argues that the search of his home was unlawful, and the District Court Judge should not have admitted the evidence. He contends there has been a miscarriage of justice because of this asserted error.
Background facts
[2] Two police officers were conducting enquiries in Ongarue, a small rural township about 20 kilometres from Taumarunui on 21 April 2020. It was early evening. They wished to speak to Mr Renson as part of their enquiry. The officers knew that Mr Renson lived at the address in question. The officers had already been making enquiries at other addresses in the small township. They were traveling in a police vehicle. Both were in police uniform.
[3] Detective Chapman had been a member of the police for about 21 years but has since retired. He had returned to uniform that day as a result of the COVID-19 pandemic response. During his long police career, he spent 18 years working in the Criminal Investigation Branch (CIB). He has considerable experience in major investigations into serious crime, including drug related offending. He was involved in the cannabis recovery programme targeting the commercial cultivation of cannabis, often on large scale but also seizing identified cannabis growing in the police district of Ruapehu.
[4] The second police officer was Senior Constable Tito. Constable Tito has been in the police force for over 22 years and has been part of the drug recovery operation for the past 18 years. He is a rural liaison or response officer for the Taumarunui region and so familiar with policing in that area.
1 Police v Renson [2021] NZDC 4883.
[5] The property in question consisted of an old post office building and an associated dwelling adjacent to it. There were other sheds and structures on the property. The police knocked at the old post office. When there was no answer, Detective Chapman went onto the adjacent property and knocked on the side door. This appeared to be the dwelling entrance. He then moved to the rear of the dwelling and knocked. On returning, he noticed an open door at the back of the old post office with a light on. He made his way up to that rear door, knocked and called out repeatedly. It was while he was there that he heard what he described in evidence as “a familiar sound of an extractor fan operating.”
[6] Senior Constable Tito’s evidence is that he could smell the odour of cannabis coming from the old post office building. He told Detective Chapman. There was no discussion between the officers about invoking the Search and Surveillance Act 2012 (the Act). Senior Constable Tito made the decision to conduct a search without a warrant. He informed police communications that he was invoking s 20 of the Act to search for cannabis.
[7] Senior Constable Tito explained in evidence at trial that he invoked the power because of the possibility of destruction of evidence if they had left the property to get a warrant to return later that night or the following day. They had only one vehicle between them and by the time they returned to Taumarunui, typed out a warrant and got to a judicial officer, it would have been two to two and a half hours given limited staff. 2 When it was put to the officer that he did not try to get a warrant, his response was “No, because under Search and Surveillance, I had the power to go and investigate”.
[8] They entered the old post office through the back open door. There they discovered 94 cannabis seedlings growing under lights in a side room. In another room, they found a hydroponics growing operation with an additional 38 seedlings growing under lights. They also found an air extraction system with an extractor fan. They took evidential photographs and set about dismantling the operation and removing the evidence.
2 While Detective Chapman’s evidence is that it would take two to two and a half hours, at [17] the Judge records the likely time as “between one and a half hours (sic)”.
[9] Mr Renson then arrived at the address. He confirmed this was his dwelling and he was the only occupant.
District Court decision
[10] The evidence at issue was critical to the prosecution. The sole issue at trial was whether the warrantless search was unlawful, and the evidence uncovered as a result was inadmissible.
[11] Judge Northwood identified the stated reasons for invoking a warrantless search under the Act. First that the officers had concluded it was not practical to obtain a search warrant and that a controlled drug was present. He described the issues of practicality being the distance from Taumarunui and the late afternoon hour meaning there would be no judges available. He recognised it was possible that a Justice of the Peace may be available.
[12] Second, the officers anticipated a small number of police staff available overnight and that it would possibly take “between one and a half hours (sic)” to achieve the obtaining of a search warrant.3 I interpolate to observe that there is an obvious typographical error here. I read this as intending to refer to between one and one and a half hours. The Judge accepted that the officers would well know about the staffing of their own station.
[13] Third the police had argued there were reasonable grounds to suspect cannabis offending, namely the combined effect of the odour detected by one officer and the sound of the extractor fan by the other. As he put it, the combination brought that possibility into focus.
[14] Next, the Judge referred to the belief of the officers that if the property was not entered and searched immediately, evidential material relating to the suspected offence would be destroyed, concealed or damaged. There were only two police officers, in uniform and in a marked car. They were at least 20 kilometres away from other police staff. They anticipated their presence in a small community would be easily reported
3 At [17].
to others, and possibly the person responsible for any cultivation. It would be reasonable to expect the occupier to take steps to destroy, remove, conceal, or damage the evidence of cultivation.
[15] It is clear that the Judge was influenced by the practical realities of policing in the locality. The Court of Appeal has repeatedly acknowledged this to be a relevant factor. Referring to Wilkins v Police4 and Alamoti v R5 as examples of how the practicalities of police work sit aside the evaluative process in s 20, he said:6
Sometimes, the careful analysis of a situation involving other police officers is not practical. Yet, an intuitive assessment of a situation can accurately follow and result in compliance in s 20. In this case, the police officers were entitled to rely upon their police experience and judgment of situations when deciding whether to trigger a warrant to search.
This matter was uncomplicated, and, in my judgment, not finely balanced. The conclusions expressed in the evidence were easily understandable and did not require careful analysis... There were no difficulties in assessing the situation and, in my conclusion, all three limbs of s 20 of the Act had been made out.
…
Before parting with this topic, I think it is fair to say that this was a clear case. Police however are unable to conclude that just because the s 20 power is available it can be used. It may only be used if the three limbs within the section are satisfied.
[16] Having concluded that the search was lawful, the Judge did not examine whether it was unreasonable. Neither was he required to turn to s 30 of the Evidence Act 2006.
Approach to appeal
[17] Mr Renson has a right to appeal his conviction to the High Court. Section 232 (2)(b) of the Criminal Procedure Act 2011 provides that an appeal must be allowed if the court is satisfied that the trial judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that
4 Wilkins v Police [2016] NZHC 328.
5 Alamoti v R [2016] NZCA 402.
6 Police v Renson, above n 1, at [36]-[39].
has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.7 Here it is argued that there was a miscarriage of justice as a result of admitting evidence obtained by an unlawful search.
Relevant legal principles
[18] The parties agree that the approach to be followed is that set out by the Court of Appeal in R v Williams.8 There are three steps:
(a)Was the search unlawful?9
(b)Was the search unreasonable? This is a different concept to lawfulness. A search conducted pursuant to a warrantless power may be lawful but exercised unreasonably. An unlawful search will generally but not always be unreasonable and in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) except where the error is minor or technical and the error is not noticed before the search or seizure is undertaken.10
(c)Is the evidence nonetheless admissible? If the search is unlawful and unreasonable then any evidence obtained by the search has been ‘tainted by the breach’.11 The third stage of the assessment is to conduct a balancing test under s 30 of the Evidence Act 2006. That test requires the court to exclude any improperly obtained evidence if, in accordance with the balancing process, the court determines that its exclusion is proportionate to the impropriety.
Was the search unlawful?
[19] The search of Mr Renson’s property was carried out under the search power in s 20 of the Act.
7 Criminal Procedure Act, s 232(4).
8 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.
9 At [12]-[46], [226] and [231]-233].
10 At [12]-[24] and [228] and Hall v R [2018] NZHC 270 at [50].
11 At [79] and [241].
[20] The Act reformed the law to provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights.12 The grounds on which a search warrant may be issued are set out in s 6 of the Act. Provision is made for warrants to be obtained orally, electronically or by phone under s 100 of the Act.
[21] Warrantless searches are authorised by the Act in certain circumstances. One of those circumstances is s 20 of the Act which provides:
20 Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences
A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—
(a)to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i)a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii)a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii)a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv)a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b)to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c)to believe that, if the entry and search is not carried out
immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.
[22] Although warrantless searches are provided for under the Act, a search should be authorised by a warrant in the absence of exceptional circumstances. This is known as the ‘warrant preference’ rule. The commentators in Adams on Criminal Law describe the warrant preference rule in these terms: 13
12 Search and Surveillance Bill 2009 (45-1) (explanatory note) at 1.
13 Simon France (ed) Adams on Criminal Law – Search and Surveillance (online ed, Thomson Reuters) at [SS6.01].
The principle underpinning the powers contained in this Act is that a search for law enforcement purposes of any place, vehicle or thing that would otherwise be prohibited by law or impact on a reasonable expectation of privacy should, in the absence of exceptional circumstances recognised by statute, be authorised beforehand by way of a warrant issued by an independent officer acting judicially.
[23] In short, if it is possible to obtain a warrant without prejudicing the purpose of a search, a warrant is to be preferred even when a warrantless power is available.14
[24] As Cull J summarised in Lethbridge v Police, the Court of Appeal adopted the warrant preference rule as best practice in SF v R.15 The subsequent Court of Appeal decision of Kalekale v R acknowledged those comments, reiterating that although the warrant preference rule is best practice where it can be followed, a “realistic and practical approach is, however, required.”16
[25] There are a number of features of the Act which support the warrant preference principle. Section 117 provides for a scene to be secured while a warrant is being applied for and pending. Section 100 provides that a warrant may be obtained orally and extends the range of judicial officers able to issue warrants. It is apparent both from the statutory framework and the authorities that the warrant preference principle has not been diluted.
Did the police have reasonable grounds to believe that there was a controlled drug in the dwelling?
[26] The appellant concedes that the first requirement of s 20 is satisfied. Senior Constable Tito had reasonable grounds to believe that cannabis was at the address. He therefore had reasonable grounds to suspect that an offence involving cannabis had been or was being committed at the address at the time.
Did the police have reasonable grounds to believe (a) that it was not practicable to obtain a warrant to search the dwelling; and (b) that evidence would be destroyed, concealed, altered or damaged if a search was not carried out immediately?
14 Smith v Police [2019] NZHC 2371 at [25].
15 Lethbridge v Police [2018] NZHC 2240 at [23] citing SF v R [2014] NZCA 313 at [46].
16 Kalekale v R [2016] NZCA 259 at [44]-[45].
[27]I deal with these interrelated issues together.
[28]Mr Greaves advances five related arguments on behalf of the appellant:
(a)The police officers did not turn their mind to whether it was practicable or not to obtain a warrant.
(b)The practical issues relied on by the trial judge - the relevance of time of day, limited police resources, physical distance and the lack of availability of judges - are inconsistent with the warrant preference rule because s 100 of the Act allows for warrants to be applied for orally, electronically or by phone.
(c)While there is nothing to suggest that the police acted in bad faith, there was an opportunity to explore alternative modes of obtaining a warrant. One of the officers could have secured the property while the other called a judicial officer to obtain an urgent warrant. Alternatively, as they had access to radio communications, obtaining a search warrant would have been even more practicable.
(d)The cases relied on by the Judge are distinguishable. The officers here were not engaged in active policing of a serious nature. Nor were the circumstances fleeting, dynamic or fluid. There was sufficient time to make a more rigorous assessment of the situation and consider options.
(e)Any reasonable belief in an immediate need to conduct a warrantless search would have evaporated as soon as it was apparent there were no signs of life at the address. In any event, with one officer being able to stand guard while the other obtained a search warrant by phone, the risk of evidence being destroyed or concealed or damaged was sufficiently mitigated.
[29] The respondent supports the reasoning of the court below. Mr Harris submits that the police formed a belief that it would not be practicable to obtain a search
warrant in the circumstances that confronted them. He submits this was reasonable having regard to the practicalities of policing and the need to move with haste considering limited police resources, the time of the day and the potential for someone to return to the address. He refers to the Court of Appeal observation in Hughes v R:17
Police investigation work would become impracticable if, whenever a police officer acquired sufficient information to justify the issue of a warrant, he or she was bound to obtain one, or risk losing the power to invoke s 18(2) of the Act.
[30] Mr Harris refers to the cross examination of Detective Chapman which demonstrates the level of resourcing available and how that informed a belief about the practicalities. He emphasises that the Judge well recognised that the power under the Act is not unfettered and may only be relied on if the prerequisites of s 20 of the Act are met. It is apparent that the Judge was satisfied by a clear margin.
[31] The core issue is whether it was practicable to obtain a search warrant in the particular circumstances at hand having regard to the realities of policing. One needs to be cautious to exclude hindsight from the assessment. The grounds for belief must be those existing at the time when the situation is inevitably more fluid. Some policing situations will be more dynamic and unpredictable than others but all front line policing involves risk. Situations can change in an instant and police officers do not necessarily have the time to reflect and consider. This is particularly so where for reasons of remoteness back-up support is not available.
[32] However, even with that observation, I respectfully depart from the Judge’s conclusion on the lawfulness of the search. There are three reasons.
[33] First, I am not satisfied that either officer turned their mind to the practicability of obtaining a search warrant from a Justice of the Peace by telephone. Both officers gave candid and honest evidence on the point, as appears from the following passages
17 Hughes v R [2011] NZCA 661 at [33].
from the evidence. Asked why he made the decision to invoke the Act, Senior Constable Tito answered:
A: Because it’s a power that we have.
Q: Okay and when you say: “It’s a power we have”, what power are you talking about?
A: We’ve smelt the cannabis, so then we have the power to search.
…
Q: Why not get a warrant?
A: The power was invoked and because of the possibility of, if we’d left the address, if someone had observed us or if someone had been at the address and was hiding, if we had left the address, because there was only two of us on, if we’d gone and got a warrant and then come back the following day or later on that night, there’s a possibility that everything would have been ripped out and taken away.
Q: How long do you think it would have taken to get a warrant?
A: If we could have – because like we only had one vehicle there, so we would have left the place, you know to its own device, so I would’ve thought – it’s actually about 23, 24 ks back to Taumarunui by the time we’d typed out a warrant and if we could’ve got to a JP, you know, we would’ve been looking at two hours before we could have returned, two and a half hours with limited staff.
[34] Detective Chapman, asked whether he believed they had the right to go into the property said in evidence:
Q: So no thought was really given to whether or not [a] warrant should be obtained at all probably was it?
A: We had the power to go in, there was a need for it, given that there was potential….I believe we needed to act with a degree of haste.
Q: Why did you think you needed to act with haste?
A: It was 5 o’clock at night, Taumarunui doesn’t have judges available, it would have meant finding a JP. Not that I took these things into consideration. I believe, you know, [as] we had good cause to suspect or believe that there was an illegal operation within the address, we had the powers of entry to do what we did.
Q: You agree it would have been possible to get a search warrant at that time if you had decided to do that?
A: It’s always possible, whether it be through phone calls to Hamilton or whatever, yes it’s possible.
[35] I accept that Senior Constable Tito genuinely believed he had the authority to conduct a warrantless search. But if the warrant preference principle is to be ‘best practice’ in practice rather than academic, then there needs to be a cogent reason why consideration of alternatives is unrealistic. None existed here, at least on the evidence presented.
[36] Second, and related to the first point, I am not satisfied that there was not an opportunity in this situation to consider alternatives to a warrantless search when the evidence was that there was no one present at the time they entered the property. I pause to note that clearly each case of warrantless search is highly fact and context dependent but the degree of urgency fell well short of the circumstances in Khalifa v Police.18 There the situation was unpredictable because there were other occupants in the house and police were attending in response to a domestic disturbance call out unaware of whether or not there were firearms present. The context is also different from Wilkins where there was a legitimate expectation that other occupants of the house would be present and able to conceal or destroy evidence when the defendant had been detained by police. It was held to be reasonable to conclude that an immediate search was necessary.19
[37] In Alamoti the Court of Appeal regarded the need to arrange a scene guard in respect of a vehicle and the impracticability of doing so in a remote location late on a Friday afternoon as a critical matter justifying a belief in the impracticability of obtaining a warrant.20 In that case the officers were busy dealing with four offenders. They gave evidence about the difficulty in obtaining a warrant in a timely fashion. As to a belief that evidential material would be destroyed, concealed, altered or damaged in the absence of an immediate entry and search, the Court of Appeal held it was not satisfied that the officer did turn his mind to this point. In that respect only, the District Court judge’s finding that the searches of the vehicle were lawful was an error.21
18 Khalifa v Police [2021] NZHC 746. Leave to appeal dismissed in Khalifa v Police [2021] NZCA 409.
19 Wilkins v Police, above n 4, at [38].
20 Alamoti v R, above n 5, at [38].
21 At [51].
[38] Third, I accept the proposition that once it was established that there was no one in the dwelling, the prospect of destruction, concealment, alteration of evidence fell away if the officers did not have to leave the premises to obtain a search warrant. It is not sufficient to believe that evidence could be lost or concealed; there must be a belief that it will be in the sense there is a substantial likelihood.22 I note that there was no evidence about past practical difficulties obtaining search warrants by telephone or limitations on communication. On the contrary, the evidence was that the officers were in communication and the possibility of obtaining a warrant by phone was acknowledged by Detective Chapman.
[39] I conclude therefore that the warrantless search did not meet the requirements of s 20 of the Act.
Was the search unreasonable and in breach of s 21 NZBORA?
[40] This question is separate from the question of legality. Section 21 of the NZBOR affirms the “right to be secure against unreasonable search or seizure.” Mr Greaves relies on the principle in Williams that an unlawful search is unreasonable.
[41] Mr Harris submits the search was reasonable having regard to the subject- matter, the circumstances and the police officer’s belief that it was not practicable to obtain a search warrant.
[42] I accept that, having found this search unlawful, the search breached s 21 of the NZBORA.
Admission of improperly obtained evidence
[43]Section 30 of the Evidence Act 2006 reads:
30 Improperly obtained evidence
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
22 R v Young [2015] NZHC 3337 at [43]-[44].
(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2)The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the
evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the
impropriety and takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c)the nature and quality of the improperly obtained evidence:
(d)the seriousness of the offence with which the defendant is charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be
available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:
(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5)For the purposes of this section, evidence is improperly obtained if it is obtained—
(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c)unfairly.
(6)Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
[44] The key part of the section is that if a judge finds that evidence has been improperly obtained, the judge must decide:23
Whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
[45] This is assessed by balancing the matters set out in s 30(3). I set out the matters relied on by the appellant.
The importance of any right breached by the impropriety and the seriousness of the intrusion on it
[46] Mr Che Ismail for the appellant submits that the breach is serious since residential property has the highest expectation of privacy attaching to it and the warrantless search was based on a flawed analysis in circumstances where there is no evidence of apprehended physical danger to the police. He acknowledges that there was no bad faith on the part of the officers but suggests that the failure to turn their mind to alternative options is at least reckless.
[47] Mr Harris responsibly acknowledges that a person’s home has long been recognised as a special place where a person’s right to privacy is protected.24
23 Evidence Act 2006, s 30(2)(b).
24 F v R [2014] NZCA 313 at [23].
However, he urges the Court to take into account the reasonable belief that criminal offending was occurring.
[48] I consider the evidence falls short of demonstrating recklessness. At its highest, the officer’s failure to obtain a warrant was inadvertent in that he failed to turn his mind to the strict requirements of the Act. But the fact that the search was of the appellant’s home elevates the significance and consequence of that inadvertence. The interference with privacy weighs heavily in favour of excluding the evidence. 25
Nature and quality of the evidence
[49] The evidence of 139 cannabis plants is central to the conviction. The appellant would have made an application under s 147 of the Criminal Procedure Act 2011 had the evidence been ruled inadmissible. On the other hand it is inherently reliable and probative evidence as tends to be the case with material obtained pursuant to a search.
Seriousness of the offending and any alternative remedies to exclusion which may adequately provide redress?
[50] It is common ground that there is no alternative redress. The maximum penalty for cultivating cannabis is 7 year’s imprisonment. On its face, this is serious offending.26 I am told by counsel however that the sentence imposed on Mr Renson was a community based sentence. This suggests that the actual offending for which Mr Renson was convicted was at the low end of the spectrum. The seriousness of the offending can cut both ways. In this instance, it is relatively neutral but only because the offending was at the low end of the spectrum of cannabis offending.
Were other investigatory techniques available?
[51] Mr Che Ismail points to the option of obtaining an oral search warrant which had not been explored. There is no evidence about how long that may have taken or whether experience showed how difficult that process might be.
25 Cf search of a vehicle in a rapidly developing situation such as in Alamoti v R, above n 5.
26 Misuse of Drug Act 1975, section 9(1).
Was there any urgency in obtaining the improperly obtained evidence?
[52] Mr Che Ismail submits there was none. I agree that the evidence presented does not show a high degree of urgency at the time of the decision to invoke s 20 of the Act. It was expedient to search in the absence of Mr Renson and reasonable to expect him to return at any stage, but this does not equate with urgency.
Conclusion on the s 30(2) balancing exercise
[53] The right breached involved intrusion into a private dwelling. I balance that against my conclusion that there was no deliberate, reckless or bad faith conduct. I characterise the conduct as an omission to truly turn one’s mind to the alternative of obtaining a search warrant by telephone. The circumstances described in the evidence would have permitted that consideration in my assessment even taking into account the realities of policing in rural areas. My conclusion on the balancing exercise is that exclusion of the evidence is proportionate to the impropriety because an effective and credible system of justice requires that the police comply with the laws relating to warrantless searches. This interest outweighs the interest in the admissibility of the evidence in this particular case, despite the consequences.
[54] Having found that the evidence should have been excluded, it must follow that there has been a miscarriage of justice. I allow the appeal and quash Mr Renson’s conviction accordingly.
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Walker J
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