Smith v Police
[2019] NZHC 2371
•19 September 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-11
[2019] NZHC 2371
BETWEEN ROSS HENRY SMITH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 June 2019
2 July 2019
7 August 2019 – further documents receivedAppearances:
M J Phelps for the Appellant
M J M Mitchell for the Respondent
Judgment:
19 September 2019
JUDGMENT OF CULL J
[1] The police undertook a warrantless search of Mr Smith’s property under ss 18 and 20 of the Search and Surveillance Act 2012 (SASA), to seize unlawful firearms in circumstances where the officers believed they could not obtain a warrant under s 6 of the Act. The District Court ruled that the police search of Mr Smith’s property was lawful and the evidence seized during the search was admissible.1
[2] Mr Smith now seeks leave to appeal against the pre-trial ruling in the District Court. The evidence seized consisted of two military-style semi-automatic firearms and 39 cannabis plants and dried cannabis material.
1 New Zealand Police v Smith [2019] NZDC 2111.
SMITH v NEW ZEALAND POLICE [2019] NZHC 2371 [19 September 2019]
[3] Mr Smith submits the search was unlawful and the evidence was improperly obtained in breach of his rights. He argues the evidence should be excluded under s 30 of the Evidence Act 2006. He faces two charges of being unlawfully in possession of military-style semi-automatic firearms,2 a charge of cultivation of cannabis,3 and a charge of possession of cannabis.4 He challenges the District Court Judge’s factual finding that the police officer had reasonable grounds to suspect that Mr Smith was incapable of having proper control of firearms in his possession or under his control due to his mental condition under s 18(2)(b) of SASA.
[4]The Crown opposes the appeal.
[5] I adjourned the first hearing of this appeal to allow counsel to file further submissions on the requirements of s 6 of SASA which provides for the issue of search warrants, the ambit of ss 18 and 20 of SASA which provide for warrantless searches, and the Court of Appeal decision on the warrant preference rule.5
[6] During the second hearing, Mr Phelps for Mr Smith pointed to the similarity of the grounds for obtaining a production order under s 72 of SASA, which the police obtained in these circumstances, with the grounds under s 6 of SASA. He submits there is an inconsistency in the police applying for a production order, but not a warrant in these circumstances. As the application and order for production of Vodafone records were not available to the Court, those documents were supplied by the Police following the second hearing.
[7]The issues to be determined are:
(a)did the Judge err in finding the search of Mr Smith’s property was lawful and reasonable in respect of the unlawful firearms under s 18 of SASA?
2 Arms Act 1983, s 50(1)(c); maximum penalty is three years’ imprisonment or a fine of $4,000.
3 Misuse of Drugs Act 1975, s 9(1); maximum penalty is seven years’ imprisonment.
4 Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty is three months’ imprisonment or a fine of $500.
5 Hall v R [2018] NZCA 279.
(b)did the Judge err in ruling the evidence of the unlawful firearms and the cannabis plants was admissible?
Factual Background
[8] On 17 December 2017, the Te Haroto community held its annual Christmas Party at Glen Falls beside the Mohaka River in Te Haroto. During the party, an incident occurred between Mr Smith’s partner and a local woman. Mr Smith’s partner allegedly hit the woman in the face, who allegedly smacked Mr Smith’s partner across the face in return. Mr Smith became aware of the incident, smashed a beer bottle and allegedly threatened to kill the local woman to ward off further attack on his partner.
[9]What followed is succinctly summarised in the District Court decision:6
[9] After the incident at approximately 2100 hours he [Mr Smith] sent a text to Police Constable John Bruce a local constable saying among other things:
“I had to leave before I stepped in and broke the law by assaulting her in retaliation.”
[10] He was not satisfied with the police response which effectively was to send someone around to take his statement the next day and subsequently sent a further text to John Bruce as 22.53 hours saying
“Hi John what a joke not police responded to the 111 call. Some constable coming around once his shift starts afte 2pm tomorrow to take a statement. Rego of assailant […] and the other bitch is […] which I believe is Lloyd’s daughter. If these guys want war no
problem! What are we supposed to do in NZ? Just let people assault us” (emphasis added).
[11] The same night the Defendant sent the following test messages to his neighbour [ML] expressing his anger at the lack of back up from him and others at the party including threats such as:
“the whole valley can fucking burn for all I care now”. “Zero water access to you mate because of you taking the other side tonight. You fucking hillbillies. You maggot that drinks with the woman who assaults my wife let me tell you if I come across your wife and kids in a burning car wreck in the road I would stop.”
[12] The next day the defendant bulldozed the water pipes on his property that provided water to [ML’s] property.
6 New Zealand Police v Smith, above n 1.
[13] The defendant, Mr Smith, was throughout liaising with ultimately Constable Catley and Detective Kemsley and at all times.
[14] On the 19th December 2018 Detective Kemsley commences an investigation which involves talking to members of the local community and taking statements in relation to the Glen Falls incident. It is fair to say that the members of the local community had become concerned about the behaviour and actions of the defendant, Mr Smith, over the preceding few days.
[15] Concerns were raised by the locals as to the defendant’s suitability to have firearms. The police widened their investigation to include not just statements from the locals about the incident and what had happened in and around the 17th of December but also, articles from the internet, text message data and information from Australia about Mr Smith’s criminal history.
[16] They did not this for the purpose of assessing the risk posed to the community by the defendant due to what would appear on the face of it to be his overactive, erratic and antagonistic behaviour in the neighbourhood. Having assessed all the information the police then decided to revoke his firearms licence and undertake a warrantless search to seize the firearms.
[17] Detective Kemsley then arranged for the defendant and his partner to come to the Napier Police Station on 22nd of December. At 12.50pm the defendant was served with a notice of revocation of the firearms licence which included a demand for him to surrender any firearms in his possession. He was not actually given the option of doing that because at about 3pm that day Snr Sergeant Fleming (whose decision it was to execute the warrantless search) led a team of nearly 20 officers including members of the AOS (Armed Defenders Squad) to the defendant’s address searched it and seized firearms and discovered the cannabis.
[10] Consequently, Mr Smith was charged with the four above-mentioned charges. Mr Smith pleaded not guilty to the charges and challenges the admissibility of the evidence seized during the warrantless search at his property.
District Court decision
[11] Mr Smith entered not guilty pleas to the four charges and challenged the admissibility of the evidence obtained from the warrantless search for firearms and cannabis.
[12] The Judge detailed the sequence of events from the 17 December 2017, when Mr Smith bragged at the Christmas barbecue that he had been in the Israeli Army and enjoyed killing people, to his unpredictable behaviour at the barbecue and his actions over the ensuing four days. The Judge was satisfied that Senior Sergeant Fleming, the police officer in charge of the search, had reasonable grounds to suspect that Mr Smith
was in control of firearms at his address, and that Mr Smith had a mental or physical condition rendering him incapable of having proper control of firearms.7
[13] In making her finding, the Judge accepted that Mr Smith did not have any diagnosed psychiatric condition and that he was not personally assessed by Senior Sergeant Fleming. However, from the totality of Mr Smith’s historical and current information, particularly in relation to his behaviour at the barbecue, his revenge on his neighbour and his text messages, the Judge found that all of the information showed signs of “an elevated, irrational, antagonistic, angry and vengeful state of mind” which Mr Smith had against his neighbours.8 The Judge found that the prerequisites for a warrantless search under s 18 of SASA was met and the warrantless search for firearms was lawful.
[14] The Judge then considered the warrantless search for drugs under s 20 of SASA. The Judge noted that the defence accepted there were reasonable grounds to believe that cannabis was at Mr Smith’s address and had reasonable grounds to suspect that an offence involving cannabis had been permitted at Mr Smith’s address, but the issue was whether the police had turned their mind to whether or not it was practicable to obtain a warrant.
[15] The Judge found that the police “basically stumbled” into the cannabis during the course of their search for firearms, and because it was secondary to the search for firearms the issue turned largely on whether the s 18 firearms search was conducted lawfully or unlawfully.9 The Judge accepted that time was a factor in this case and that it was impracticable for the police to obtain a warrant for the cannabis.10 The Judge was then satisfied that the search for cannabis was also lawful, and the evidence was admissible.
[16]Mr Smith appeals against those pre-trial rulings.
7 Search and Surveillance Act 2012, s 18.
8 At [43].
9 At [48].
10 At [49]–[50].
Leave to appeal
[17] As this is an appeal against a pre-trial ruling from the District Court under s 79 of the Criminal Procedure Act 2011, a defendant or prosecutor may, with leave from the appellate court, appeal to that court against a decision making or refusing to make a pre-trial order about admissibility of evidence.11
[18] The relevant factors for determining a leave application are specified in R v Leonard and affirmed in Hohipa v R.12 In those cases the Court of Appeal held that leave should be granted if the application involves the admissibility of evidence that is important to one of the parties. The Court cautioned that leave should not be granted if the issue will need to be revisited at trial or is best dealt with in the context of the trial, or where the application involves the admissibility of evidence that would not make a significant difference to the course of the trial and is unlikely to lead to post- conviction appeal success.13
[19] This application involves the admissibility of evidence that is critical to the prosecution case against Mr Smith in relation to all of the charges he faces, being the unlawful possession of the firearms and the cultivation and possession of cannabis.14 Therefore, determining this issue will make a significant difference to the course of the trial in relation to those charges, and may completely obviate the need for trial.
[20]I grant leave to appeal the pre-trial ruling accordingly.
Principles applying to warrantless search and seizure
[21] Section 18 is the relevant provision of SASA governing the power to search for a firearm without a warrant. The section provides:
18 Warrantless searches associated with arms
11 Criminal Procedure Act 2011, s 215(2)(a).
12 R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13]–[14]; and Hohipa v R [2015] NZCA
73, [2018] 2 NZLR 1 at [25]-[27].
13 Lethbridge v New Zealand Police [2018] NZHC 2240 at [14].
14 Mr Smith was also charged with assault with a weapon. This charge has been resolved. Mr Smith has now pleaded guilty to an amended charge of threatening behaviour pursuant to s 21 of the Summary Offences Act 1981.
(1)A constable who has reasonable grounds to suspect that any 1 or more of the circumstance in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:
(a)search the person:
(b)search any thing in the person’s possession or under his or he control (including a vehicle):
(c)enter a place or vehicle to carry out any activity under paragraph (a) or (b):
(d)seize and detain any arms found:
(e)seize and detain any licence under the Arms Act 1983 that is found.
(2)The circumstances are that the person is carrying arms, or is in possession of them, or has them under his or her control, and –
(a)he or she is in breach of the Arms Act 1983; or
(b)he or she, by reason of his or her physical or mental condition (however caused), –
(i)is incapable of having proper control of the arms; or
(ii)may kill or cause bodily injury to any person; or
…
(3)A constable may, without a warrant, enter a place or vehicle, search it, seize any arms or any licence under the Arms Act 1983 found there, and detail the arms or licence if he or she has reasonable grounds to suspect that there are arms in the place or vehicle –
(a)in respect of which a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; or
(b)that may be evidential material in relation to a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983.
[22] In the present case, the police exercised the warrantless search power for firearms under s 18(2)(b)(i) of the Act on 22 December, five days after the original incident. In the course of their search, the police found cannabis and relied on the warrantless search power for drugs under s 20 of SASA.
[23] The Court of Appeal in R v Williams set out the approach when dealing with the admissibility of evidence in search and seizure cases.15 This approach was adopted by the District Court Judge in this case,16 and contains the following steps:
(a)Was the search unlawful?
(b)Was the search unreasonable? If the search was unlawful it will be unreasonable and in breach of s 21 of the New Zealand Bill of Rights Act 1990 except where:
(i)the error is minor or technical; and
(ii)the error is not noticed before the search or seizure is undertaken.
(c)Is the evidence nonetheless admissible? If the search is unlawful and unreasonable then any evidence obtained therein has been tainted by the breach. The admissibility of evidence of this kind, which has been “improperly obtained”, falls to be assessed under s 30 of the Evidence Act 2006.
[24] Before canvassing the Judge’s approach on the lawfulness of the search, I address below the courts’ preference for warrants to be obtained where possible, particularly following the legislative enactment of SASA.
The “warrant preference rule”
[25] The enactment of SASA introduced a number of changes to searches for law enforcement purposes, including warrantless search provisions. Underpinning SASA, the preferred approach is to obtain a search warrant where possible, even when the warrantless power is available. This has been termed the “warrant preference rule” and SASA contains provisions to enable warrants to be applied for orally,
15 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207. A similar approach was also adopted by the Supreme Court in Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [16] and [174].
16 At [6].
electronically or by phone. The commentators in Adams on Criminal Law said of the warrant principle:17
The principle underpinning the powers contained in [the 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. … This principle clearly applies to the search of private property.
…
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: R v Laugalis (1993) 10 CRNZ 350, 1 HRNZ 466 (CA); R v Williams [2007]
NZCA 52, [2007] 3 NZLE 207, (2007) 23 CRNZ 1 at [24]. The fact that
warrants can be applied for electronically or orally in specified circumstances, and that warrants themselves can be transmitted electronically or dictated over the phone to the applicant, means that it is now more difficult to justify the use of a warrantless power than it was before the passage of the Act. [Emphasis added]
[26] The Court of Appeal in R v Collins considered the ambit of warrantless search powers under the former s 61 of the Arms Act 1983 which was repealed and replaced with s 18(2)(a) of SASA.18 The Court restated that the “law places a high value on the related interests of dignity and privacy” and that, by reference to R v Williams, “residential property will have the highest expectation of privacy attached to it.”19
[27] Noting that “reason to believe” provides a higher test than “reason to suspect” under s 61(1) of the Arms Act 1983, the Court cautioned that, like any statutory power, s 61 must be used reasonably.20 Although the point was not before it, the Court said that an officer who could readily secure a search warrant could well face the same result as in R v Laugalis if an attempt were made to resort to s 61.21 In R v Laugalis, the Court of Appeal held that the power of search without warrant conferred by s 18(2) of the Misuse of Drugs Act 1975 was exercisable only if there was justification for not
17 Simon France (ed) Adams on Criminal Law – Search and Surveillance (online ed, Thomson Reuters) at [SS6.01]; and Simon France (ed) Adams on Criminal Law: Rights and Powers (online ed, Thomson Reuters) at [SS3.17.01].
18 R v Collins [2009] NZCA 388. The difference between s 18 of SASA and the former s 61 of the Arms Act 1983 is that s 61 enabled the search of land or buildings for firearms on the written authorisation of a commissioned police officer.
19 At [20].
20 At [22].
21 At [22].
applying to the District Court for a warrant under s 198 of the Summary Proceedings Act 1981.22
[28] Subsequently the Court of Appeal in SF v R, which postdates SASA, adopted the “warrant preference rule” as best practice.23 The following Court of Appeal decision of Kalekale v R acknowledged the comments in SF v R, reiterating that although the warrant preference rule is best practice where it can be followed, a “realistic and practical approach is, however, required.”24
[29] The Court of Appeal has more recently reconsidered the ambit of a warrantless search under s 20 of SASA in Hall v R.25 In that decision, the Court examined the scope of an implied licence that permits anyone, including police officers, to go onto a property for the purpose of speaking to the occupant. The majority reinforced that:26
The principle underpinning the [Act] is that a search for law enforcement purposes should, in the absence of exceptional circumstances recognised by the Act, be authorised by way of a warrant issued by a judicial officer.
[30] Mallon J, in her separate judgment, further said that the warrant preference rule is undermined regardless of whether the omission to obtain a warrant is deliberate or unintentional. The fact that it was unintentional in Hall v R was relevant only to the balancing exercise of admissibility under s 30 of the Evidence Act 2006.27
[31] As part of the assessment, the courts have also addressed the practical realities of investigation. Whether it is practicable to obtain a search warrant involves an assessment of the realities of policing in the circumstances.28
[32] In the context of this appeal then, the conditions for obtaining a warrant under s 6 of SASA are relevant:
6 Issuing officer may issue search warrant
22 R v Laugalis (1993) 10 CRNZ 350 (CA) at 359; and R v Collins, above n 18, at [21].
23 SF v R [2014] NZCA 313 at [46].
24 Kalekale v R [2016] NZCA 259 at [44]-[45].
25 Hall v R, above n 5.
26 At [56].
27 At [84].
28 R v Dobson [2008] NZCA 359 at [38]; and McGarrett v R [2017] NZCA 204 at [21].
An issuing officer may issue a search warrant, in relation to a place, vehicle, or other thing, on application by a constable if the issuing officer is satisfied that there are reasonable grounds –
(a)to suspect that an offence specified in the application and punishable by imprisonment has been committed, or is being committed, or will be committed; and
(b)to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application.
[33]The term “evidential material” is defined in s 3 as:
evidential material, in relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence
[34] As defined, the term “evidential material” is broad, and the material does not have to be admissible; the critical element is its relevance to the investigation of a specific offence.29 It is not confined to items that are to be presented as evidence in court.
[35] I will deal with this appeal in two parts. First, I will examine the Judge’s approach to the s 18 search for firearms, then consider the approach to the s 20 search for drugs.
[36] I now turn to assess the first step in R v Williams, whether the Judge erred in finding the search of Mr Smith’s property was lawful under s 18 of SASA.
Was the search under s 18 for firearms unlawful?
[37] The Judge approached this step by looking at the requirements of s 18, stating that the Court needed to be satisfied that there were reasonable grounds to suspect that Mr Smith was in control of the firearms, and that his mental condition rendered him incapable of having proper control of them.
[38] The Judge helpfully drew from a number of authorities the meaning to be attributed to the term “reasonable ground to suspect”, and I adopt the Judge’s
29 Adams on Criminal Law: Rights and Powers, above n 17, at [SS3.17.01].
summation.30 It amounts to a ground of suspicion upon which a reasonable person may act;31 that something is “possible” or likely or “inherently likely”.32 It is an objective standard.33 Circumstances giving rise to speculation or concern are not enough to constitute reasonable suspicion.34 In considering whether there is a reasonable cause to suspect, the Court is entitled to take into account all relevant factors, which are to be considered cumulatively rather than by way of individual dissection of particular matters.35 Finally, the term imports a lesser standard than “reasonable grounds to believe”.36
[39] There was no dispute that Mr Smith was a licensed firearms holder and he had possession of firearms, so the Judge was satisfied that the first prerequisite for the search was met. That is, Senior Sergeant Fleming had reasonable grounds to suspect that Mr Smith was in possession and control of firearms at his address.
[40] The second question the Judge addressed was whether Mr Smith had a mental condition rendering him incapable of having proper control of firearms. Mr Phelps submitted that to satisfy this ground a separate consideration of whether Mr Smith has a “mental condition” is required. Mr Phelps pointed to the definition of “mental condition” in s 16 of the Evidence Act 2006, submitting that the definition is applicable here. The High Court in R v Alovili has held that the term “mental condition” can be defined thus:37
[26] There must be a high threshold before it can be said that a person is unavailable as a witness because of a mental condition. Mental condition can embrace a wide range of conditions from somebody who is simply distressed or depressed, to somebody who is in a catatonic stupor. The former would not render a person unavailable; the latter would clearly do so. Of itself mental condition does not suffice to render a person unavailable as a witness.
[41] The Judge rejected this submission, holding that the threshold in the Evidence Act for unavailability as a witness is very high because a defendant’s right to a fair
30 New Zealand Police v Smith, above n 1, at [24].
31 Police v Anderson [1972] NZLR 233 (CA) at 242.
32 R v Sanders [1994] 3 NZLR 450 (CA) at 461.
33 Police v Anderson, above n 31, at 243.
34 Rimine v R [2010] NZCA 462 at [22].
35 Steeman v R [2011] NZCA 553 at [9].
36 Collins v R [2010] NZSC 3 at [2]; and Britten v R [2012] NZCA 81 at [15].
37 R v Alovili HC Auckland CRI-2007-404-162, 27 June 2008.
trial must be maintained, and a defendant has a fundamental right to cross-examine a witness.38 The Judge found that this is a much higher threshold than the “reasonable grounds to suspect” that needs to be met in s 18 warrantless searches.39 I concur with the District Court Judge’s assessment.
[42] The decision in R v Alovili above also lends support to the view that “mental condition” in s 18 of SASA does not mean that a person needs to have a diagnosable mental illness; rather, their mental condition must be simply of such a state that it renders them incapable of being properly in control of arms: it “embrace[s] a wide range of conditions”. As the Crown submits, the defence submission misreads the relevant terms of the section. Section 18(2)(b) does not require a finding that Mr Smith had “a mental condition” in the form of some discrete, identifiable syndrome or issue, but rather simply requires an assessment of his mental condition, in the more general sense of his state of mind.
[43] I accept the Crown’s submission that the intention of s 18(2)(b) is to allow for the urgent intervention of the police to prevent those suspected of being incapable of having proper control of firearms from having access to such. It would be contrary to that purpose to either require a police officer with no medical training to form a belief as to whether a subject is suffering from a mental illness, or to obtain a medical opinion regarding such, before the police can employ the search powers under this section.
[44] Clearly, Senior Sergeant Fleming did not personally make any assessment of Mr Smith’s state of mind and, contrary to the defence submission, I do not consider that was necessary in these circumstances. He relied on the information uncovered during the course of the investigation. Much of that information relied on the observations of neighbours with an “axe to grind” against Mr Smith. It was accepted Mr Smith did not have a diagnosed psychiatric condition or psychological condition: there was no evidence to suggest that Mr Smith was on any anti-depressant or anti- psychotic medication.40 It was also clear on the evidence that Mr Smith had been
38 New Zealand Police v Smith, above n 1, at [29].
39 At [29].
40 At [30].
compliant with the police and there was no suggestion that he was mentally unfit to engage in the interview process.41
[45] The relevant question is whether Mr Smith’s mental condition rendered him incapable of having proper control of the arms. On appeal, Mr Phelps submits that Mr Smith had been cooperative in his dealings with the police and that he was mentally fit for an interview, as the Judge recognised. He submits that despite Mr Smith’s antagonistic behaviour, there was no evidence which indicated that Mr Smith was incapable of having proper control of his firearms. None of the allegations against Mr Smith involved the suggested use or misuse of a firearm, and none of the alleged threats made by Mr Smith involved the use of a firearm. Further, the Australian previous history involved spent convictions and did not include any convictions for violence against others, let alone violence which involved the use of a firearm.
[46] Mr Smith’s history discloses that he was the subject of a restraining order. A standard condition of a restraining order is that a firearm is not to be used. Mr Phelps submits that previous alerts on the police system which relate to Mr Smith’s use of firearms had been closed and/or lifted, and they did not bear on Mr Smith’s ability to have proper control of his firearms in December 2017. Mr Phelps therefore submits there was no urgency for conducting a warrantless search and the police should have obtained a search warrant.
[47] In the District Court, the Judge rejected Mr Phelps submission and accepted the following reasons justified Senior Sergeant Fleming forming a reasonable suspicion that Mr Smith was incapable of being properly in control of his firearms:42
(a)Mr Smith bragging at the barbecue on 17 December about being in the Israeli army and enjoying killing people.
(b)Mr Smith’s unpredictable behaviour in getting involved in a relatively minor altercation and elevating it by overreacting and smashing a bottle, threatening to kill the victim with a broken bottle.
41 New Zealand Police v Smith, above n 1, at [30].
42 At [42].
(c)Mr Smith’s revenge against a neighbour because he would not back him up at the barbecue, by bulldozing the waterpipe that provides water to the neighbour’s property. This was described by the Judge as “erratic, vengeful and antagonistic”.
(d)Mr Smith sending aggressive and antagonistic texts messages to another neighbour about watching his family burn in a motor vehicle.
(e)Mr Smith installed bulletproof glass in his residence and upgraded his security system.
(f)Internet articles about Mr Smith’s past found by the police. In 2007 he drove a tractor through the front door of the Colonial Brewing Pub in Margaret River that he co-founded, in a dispute with its new owners. In an article from February 2015, there is a reference to Mr Smith tracking down a person “paying them a visit and my friends are very very good at what they do”, and a picture of him with a rifle stating, “someone once said that violence doesn’t solve problems I think not just ask the founding fathers of Hiroshima and Nagasaki”.
(g)Enquiries made of Western Australia police records, which show previous criminal convictions relating to Mr Smith’s cannabis-related offending, and other records show that at times he has had issues with firearms licences in the past and restraining orders.
[48] After traversing all the information available to Senior Sergeant Fleming, the Judge concluded that objectively Senior Sergeant Fleming had reasonable grounds to suspect under s 18(2)(b), that Mr Smith had a mental condition rendering him incapable of having proper control of his firearms and on that basis, upheld the search as lawful.43
[49] I consider that the Judge’s assessment in focussing only on the wording of s 18 of SASA, reflecting as it did the way in which the matter was argued before the Judge,
43 New Zealand Police v Smith, above n 1, at [43].
was too limited. It did not take into account an assessment of urgency if any, including the timing of the information received by the police, or the s 6 considerations for a search warrant and the warrant preference rule. The authorities are less than clear on whether these circumstances ought to be considered in assessing the lawfulness of the use of the warrantless power, or the reasonableness of its use.44 I have addressed them in relation to both.
[50] I turn, then, to consider the wider factual and legal framework under each of the above factors.
Were the circumstances here exceptional or urgent?
[51] The Law Commission’s introductory remarks in its Report on Search and Surveillance Powers on the rationale for warrantless search powers emphasise that recourse to such powers is to occur in exceptional and urgent circumstances:45
5.4 As we noted …the importance of the warrant requirement is such that departures from it can be justified in only exceptional circumstances. Nevertheless, whilst the warrant process is the primary means of authorising and justifying an entry, search and seizure, many Commonwealth jurisdictions accept that in urgent circumstances, such a process may be too time- consuming and detrimental to the end result; in such situations the public interest may better be served if the police act without a warrant. Thus, in certain circumstances, police officers have statutory authority to enter a place without a warrant to make an arrest, to protect life and property, to preserve evidence, or to search for evidence of specific offences, and the common law (and in some jurisdictions, statute) has provided authority to search a place incidental to arrest.
5.5 The exceptional nature of such powers makes it essential to codify their existence and their scope. …
…
5.7 …Although it is generally accepted that reasonable expectations of privacy are lower for some types of property than others, we do not think that the nature of the place to be searched should dictate the approach to police warrantless search powers. That is because exceptions to the warrant requirement for search powers vested in police officers are justified only in circumstances of urgency or where the obtaining of a warrant would be likely to jeopardise the objective of a search for which there is an overriding public interest.
44 R v Laugalis, above n 22, at 355-360; and R v Williams, above n 15, at [24].
45 Law Commission Search and Surveillance Power (NZLC R 97, 2007) (footnotes omitted).
[52] The Law Commission’s discussion as to whether the warrantless power to search for firearms ought to be retained is also instructive as to the scope and intended application of the current s 18 warrantless search power.46 The Law Commission accepted that there was a need to retain the warrantless search power in respect of both drugs and firearms searches. However, in relation to drug-related searches, the Commission noted there should be a specific statutory provision that proscribes the use of warrantless powers unless the police officer exercising the power believes on reasonable grounds that it is not practicable to obtain a warrant.47
[53] The Commission recommended that such a requirement should not extend to the warrantless powers under the Arms Act, for two reasons. First, the “rapidly evolving nature of the circumstances means that the basis for exercising the power can change in a matter of minutes; they do not crystallise in a way that is conducive to accurate presentation to, or timely judicial assessment by, an issuing officer.”48 Secondly, the decision often needs to be made in an instant; its timing cannot be anticipated.49 Safety would be compromised if the entry decision were predicated on the availability of a warrant.50 The Commission concluded:
5.67 We accept that, consistent with the public safety rationale for the existence of the Arms Act powers, it is most unlikely to be practicable for a warrant to be obtained before the power of entry and search can or should be exercised.
[54] Mr Phelps submits that the clear intention behind retaining a warrantless search power for firearms was that it would be exercised in exceptional and urgent situations, and this was not such a situation.
[55] Here, the Crown says there was urgency. It says the decision-making process proceeded until Mr Smith was present in the police station. While the incident at the Christmas function occurred on 17 December, the Crown says the bulk of the relevant information, including the witness statements, text data, and material publicly available on the internet, was not received until 21 December. The information from
46 Law Commission Report, above n 45, at [5.64]-[5.70].
47 At [5.65].
48 At [5.66].
49 At [5.66].
50 At [5.66].
Australian police, the information about the fortification of the house, and the text message about “deaths in the valley” was not received until 22 December, the day that the decision was made to execute the search.
[56] The Crown submits that the circumstances, in which the decision to uplift the firearms was made, were precisely the type of “rapidly evolving” situation anticipated by the Law Commission, right down to the “effectively snap decision,” made when Mr Smith was at the police station, to exercise the warrantless search power under s 18 when the circumstances indicated that entry could be effected “with an optimal degree of safety”. It submits the search was undertaken in good faith and without anticipating the detection of criminal offences.
[57] There were five days from the time of the Glen Falls incident to the search of Mr Smith’s house. In a document entitled “Information utilised in decision making,” the police collated the timing of information received about Mr Smith from 9.05 pm on 17 December 2017 to 10.14 am on 22 December, the day of the search. The information received was timed as follows:
Date Received
Time Received
Synopsis
17.12.2017 2105 hours Report of assault at Glen Falls 19.12.2017 Texts D/Sgt Moorhouse informing him of community concerns regarding Smith
Gun safe installed. H&K UMC .45 rifle. FN 7.62
rifle. H&K SL8 .223 rifle. Remington 770 .243 rifle. Remington M887 12 gauge shotgun. Akkar Silah 12 gauge shotgun
Records telephone conversations with [H] family, [PW], [ML], & [KH]
Photographs of Smith using a bulldozer to destroy water supply on 17.12.17 at 2306 hours
20.12.2017 1126 hours Quote from Mr Smith in an email: “ … he could get a couple of 21 year old militants from Israel that would come over and take the fat Maori bitch out …”
Quotes from Mr Smith in Sydney Morning Herald: “Missing my FN TAC 7.62mm Sniper Rifle at present. 800m practice rounds in target. It makes for a clean head shot to create red mist.” “Someone once said once that violence doesn’t solve problems. I think not, just ask the founding fathers of Hiroshima and
Nagasaki.”
21.12.2017 Quotes from Mr Smith in the West Australian: “… The great thing about living in Israel is I have special
forces bodyguards that love me…” “We will be
paying you a visit and my friends are very, very good at what they do…” “… In 2007 he drove a tractor
through the front door of the Colonial Brewing pub in
1107 hours
1200 hours
1207 hours
1625 hours
1556 hours
Margaret River he co-founded in a dispute with its new owners…”.
Arrested for cultivation of cannabis some years prior Quotes from witness statements: “… He said to me “your Grandad is a big cunt…”. “… He smashed the bottom off the bottle of the BBQ…” “… He said I’m going to stab you, no one hits my woman…”. “…
asked him if he had a gun. He said yes in my truck…” “… Ross starts talking about how he was in the Israeli Army and how 2014 was the best year of his life being in the army and killing people…”. “… if you have 100 people turn up to your farm to kill you, ring me up and I will come and kill them all. Not a problem.” Breaks bottle and threatens to kill [KH]. Smith claims he has a firearm in his vehicle. States he carries one
all the time.
“…Ross said he was in the Israeli Army and talked himself up…” [KH] was assaulted by Smith’s partner. “… He held the bottle in his right hand and was staring at me. He was holding the bottle by his side with the jagged edge pointing towards me…” “…Ross was
standing there waiting. He said there you are you fucking bitch…”
“…He was telling me he knew people in the Israeli Special Forces and how he told them to kill the kids
first and then the man.” He smashed a bottle and held it up towards [KH]. He later sent me texts that I gave to police.Mr Smith’s call and text data: “...The whole valley can fucking burn for all I care now…” “You
fucking hillbillies.” “There some maori’s there spoiled it.” “Hate the black cunts.”
22.12.2017 0721 hours
0906 hours
1014 hours
Mr Smith’s text data: “I could negotiate to buy your debt from the bank and then forclose on you all!” “…and in the Mohaka River valley there will be some more deaths. I will lift a glass to celebrate!”
Australian police records and personal file: Warnings entered not to issue firearms in 2007 & 2008. Warrant to Arrest for dangerous driving and failing to stop.Previously convicted for cultivating cannabis and possession of cannabis for supply. Violence Order issued in 2000 prohibiting him from being in
possession of firearms or obtaining a firearms licence. Restraining Order issued in 2007 prohibiting him from being in possession of firearms or obtaining a firearms licence.
Other government agencies staff report Smith has fortified his address with bulletproof glass and doors hunt to open outwards to hinder forced entry to the property.
[58] Senior Sergeant Fleming relied on the cumulative effect of the above combination of historic and current information in his decision-making process. Although the decision to search Mr Smith’s property was not made until the afternoon of 22 December, it is clear that Senior Sergeant Fleming had days to consider whether to use a warrantless search power or obtain a warrant for the search. He stated:
Oh, we went through every scenario we could think of. We thought of doing nothing, what would that mean for the community, what would that mean for Mr Smith, what risks would that bring? Yeah, we tried to canvass everything we could of and any option we could think of, but at the end of the day we believed that the community was at risk from Mr Smith’s behaviours…
…
Yes, so the period between the 17th when the incident at Glenfalls happened and the execution of the search warrant – execution of the search without warrant was filled with taking statements, gathering intelligence data, seeking information from overseas policing agencies, telco as you – production orders, discussions around our tactical planning for the execution of the search should we decide to go ahead with it. There was a lot of time, energy and effort that went into that process.
…
Do we do the course you are probably going to suggest we should have used, which was to issue him with a revocation notice and give him some weeks to surrender his firearms voluntarily under that process? We decided that was not an adequate response to the concerns the community had raised. Which left us with our position where we decided to execute the searchless – the warrantless search on his address to seize the firearms. And as I have indicated in my evidence earlier, that process was ongoing right up until the time decision made was made on that Friday to go and do it.
[59] Mr Phelps directed the Court’s attention to the material contained in the jobsheet of Detective Kemsley dated 19 December 2017. Three days before the execution of the warrantless search power, the police had the following evidence:
(a)Information from neighbour SH expressing concerns for the safety of the community. This included Mr Smith threatening a couple of his neighbours which was made worse by the fact he was known to possess firearms.
(b)Information from neighbour LH confirming the fears that the community had regarding Mr Smith’s behaviour. In particular, the community was feeling traumatised by Mr Smith who had told them he was an ex-Israeli army soldier and was in possession of semi-automatic weapons.
(c)Information from neighbour PW confirming that recently he had fallen out with Mr Smith and he had received a text message from Mr Smith
which said “if you’re wife and children are in a car accident and it catches alight I will stand there and watch them burn”.
(d)Information from neighbour ML that Mr Smith had behaved threateningly at the Christmas function, that Mr Smith had sought revenge on ML for not sticking up for him by cutting off his water supply and texting him a photo to gloat about it. Mr Smith had sent ML a message saying “2014 was the best year for killing people”. ML believed Mr Smith was a psychopath and would not hesitate to harm someone who got on the wrong side of him. ML also knew about Mr Smith’s firearms.
(e)Information from the victim about the nature of the assault.
[60] After the incident on 17 December, the police communicated with the Commander of the Armed Offenders Squad. Senior Sergeant Fleming said in cross- examination in the District Court that the Commander “had been involved in the process from the beginning” and was involved in several discussions over the ensuing days with Senior Sergeant Fleming leading up to the search of Mr Smith’s property, where 18 officers, including Armed Offenders Squad members, undertook the search.
[61] On 21 December, the police applied under ss 71 of SASA for a production order from Vodafone New Zealand for all phone data from Mr Smith’s phone from 17 to 21 December 2017. In making the application, the police relied on the information they had obtained from 17 December to 21 December.51 The order was granted by a commissioned police officer and is dated 21 December at 1.22 pm.
[62] Relevantly, the conditions for making a production order mirror the conditions in s 6 of SASA for obtaining a search warrant.52 In the production order application, the police stated there were reasonable grounds to suspect that four offences had been committed and that the phone data and documents sought constituted evidential
51 See [57] of this judgment.
52 Search and Surveillance Act 2012, s 6(a) and (b) and s 72(a) and (b).
material in respect of those offences. Those offences were all punishable by imprisonment and were set out in the application as follows:
(a)Wilful damage under section 11 of the Summary Offences Act 1981 in respect of which section 6 of the Search and Surveillance Act 2012 authorises an application for a search warrant has been committed.
(b)Unlawful possession of firearm under section 45 of the Arms Act 1983 in respect of which section 6 of the Search and Surveillance Act 2012 authorises an application for a search warrant has been committed.
(c)Common assault under section 9 of the Summary Offences Act 1981 in respect of which section 6 of the Search and Surveillance Act 2012 authorises an application for a search warrant has been committed.
(d)Threats under section 307 of the Crimes Act 1981 in respect of which section 6 of the Search and Surveillance Act 2012 authorises an application for a search warrant has been committed.
[63] Over the five days therefore between the barbecue on 17 December and the search on 22 December, the police clearly had reasonable grounds to suspect the above offences had been committed. On the fourth day, the police obtained a production order on the strength of those suspicions. I draw the inevitable inference that there was more than adequate time for the police to have obtained a search warrant.
[64] Instead, the police commenced the Arms Act process of revoking Mr Smith’s firearm licence by serving him with a notice of revocation when he came to the police station as requested, and carried out the warrantless search while he was being interviewed. It appears Mr Smith was entirely cooperative with the police over this time.
[65] I consider that it is plain from the Law Commission’s report, to which both counsel referred, that in recommending the warrantless search power for firearms the Commission intended that it would be exercised sparingly, in circumstances requiring
an urgent response in the interests of public safety. I am satisfied that the circumstances in this case did not require an urgent response.
[66] Over the period of four days, the police had conducted a thorough investigation and obtained sufficient information on 21 December to apply for and obtain a production warrant, on the very grounds that are required under s 6 of SASA. Ironically, in setting out the reasonable grounds to suspect offences had been committed in the application for the production warrant, the police specifically referenced s 6 of SASA.
[67] I am satisfied that this was not a situation where immediate action was needed to stop Mr Smith from unlawfully using firearms on an urgent basis. The police had obtained information which met the threshold of s 18 of SASA on its face, namely, that Mr Smith had a mental condition which rendered him incapable of having proper control of the firearms. However, the resort to a warrantless search power of Mr Smith’s home did not end there. There had to be an assessment of whether the situation was exceptional or urgent, such that 18 officers should undertake a search of Mr Smith’s home without a warrant.
[68] I do not accept that these circumstances were urgent or exceptional. In the same way that the police applied for a production order under ss 71 and 72 of SASA, there was more than adequate time for an application for a search warrant under s 6 of SASA, and there were no exceptional or urgent circumstances overriding such an application being made.
[69] I now turn to the s 6 considerations, and whether evidential material related to a specific offence would be found at the search location.53
Section 6 considerations
[70] Despite the information about Mr Smith showing signs of “an elevated, irrational, antagonistic, angry and vengeful state of mind against his neighbours”,54 with a history of making extreme statements and threats involving violence and
53 Search and Surveillance Act 2012, s 6(b).
54 New Zealand Police v Smith, above n 1, at [43].
firearms, of posting a photograph on his Facebook page holding an automatic rifle “with a scope and night vision”, of damaging property in a dramatic and vengeful manner, and who, as of only days prior, saw himself as being “at war” with his neighbours and the wider community, the police did not consider there was a sufficient basis to obtain a search warrant under s 6 of SASA.
[71] The Crown submits that there was no proper basis on which a search warrant could have been obtained, either before or on 22 December, because s 6 requires an identification of a specific offence punishable by imprisonment, and a belief that evidential material related to that specific offence will be found at the location they wish to search. The item which constitutes that anticipated evidence must, so far as possible, be specified.55 Further, they say that while a number of offences could have formed a basis for a search warrant application, it is not clear what specific evidential material relating to those offences the police could have had any genuine grounds to believe would be located at the address. Rather, evidence of the suggested offences would be found, if anywhere, on the cell phone records of the respondent, for which the police did properly apply for a production order. In these circumstances, if a search warrant had been sought here, the Crown says, it would have been artificial or a “mere ruse.”
[72] The Crown says Parliament intended that where firearms are in the hands of people not capable of having proper control of such, barriers to uplift those guns should be minimised. They say this interpretation is reinforced by the Law Commission report that informed the final scope of the Act,56 the key passages of which are set out above at [52]–[53].
[73] I am unable to uphold the Crown’s submission that there was no legitimate basis for the police to obtain a search warrant in these circumstances for two reasons. The first is that the police had already made an application, explicitly stating that there were reasonable grounds to suspect that offences had been committed. One of those offences was the offence of unlawful possession of a firearm under s 45 of the Arms Act 1983. In setting out the detail in the production application, the police specifically
55 R v Williams, above n 15, at [212].
56 Law Commission Report, above n 45, at [5.64]-[5.67].
refer to s 6 of SASA, which “authorises an application for a search warrant”. If the police could make such an application for one purpose, it follows that they could also make such an application under s 6.
[74] Second, the second limb of s 6, which required the belief that evidential material related to a specific offence would be found, would have been easily satisfied here. To prove an unlawful possession of a firearm, the obvious evidential requirement is proof of the firearm. Here, the police believed unlawfully possessed firearms were at Mr Smith’s residence, as evidenced by the grounds of suspicion in the production order, and they wanted to seize them. As Senior Sergeant Fleming stated, the prime focus of undertaking the search was to seize Mr Smith’s firearms. I consider there would have been no impediment to the police obtaining a search warrant under s 6, just as they obtained a production order under ss 71 and 72 of SASA.
[75] A further concern for the police, and underlying the police process and investigation, was the public safety concern that Mr Smith may carry out his threats by unlawfully using his licensed firearms. The police were satisfied, as the Judge upheld, that Mr Smith had a mental condition in that he was not in proper control of the firearms. The purpose in the police contacting the Armed Offenders Squad Commander and focusing their attention on seizing Mr Smith’s firearms was driven by their public safety concern, giving them grounds to suspect that Mr Smith would use firearms unlawfully, namely, to use his licensed firearms to commit offences of violence or to intentionally threaten others. In my view, the grounds under s 6 would have been met more than adequately in this case.
[76] The real nub of this case is that the police believed that they did not need a warrant if s 18 was satisfied. I accept Mr Phelps’ submission that the police interpretation of the s 18 powers and the Law Commission’s report overlooks the reference to the requirement of urgency or the need for a prompt response. The Commission’s wording is that “there is a strong public interest in the police being able to respond to the threat promptly”.57 On this basis, and because of the “rapidly evolving” nature of the circumstances which means that the basis for exercising the
57 Law Commission Report, above n 45, at [5.64].
power can change in a matter of minutes, the Commission considered that there are justifiable exceptions to the warrant requirement in respect of firearms.58 The very wording used by the Commission reinforces that warrantless powers should only be exercised when there are exceptional, rapidly evolving circumstances, and where there is a need for urgent response. As I have found, that was not the situation here.
[77] The courts have emphasised the need for urgency in the use of warrantless powers and that the warrant preference rule must be considered. Where there is no question of urgency, as the Court found in R v Laugalis and in R v Collins,59 a warrant is to be preferred even when a warrantless power is available.
[78] I find that the police could have, and so should have, obtained a search warrant under s 6 of SASA. The question then is, does this make the exercise of the warrantless search powers under s 18 in these circumstances unlawful?
[79] In R v Laugalis, the Court of Appeal found the detective’s belief about the reporting requirement for a warrantless search was “quite wrong”.60 However, as it was more of an administrative matter, the Court left open the question of whether the search was unlawful, and went on to find it was unreasonable.61 Counsel referred me to Lethbridge v New Zealand Police, where I held the search was unlawful, because the police did not turn their minds to obtaining a search warrant before entering Mr Lethbridge’s home in circumstances which were not urgent.62
[80] Here, the police did turn their minds to obtaining a warrant, but concluded they had met the requirements of s 18 even though there was no urgency on 22 December. In addition, they mistakenly believed they could not have obtained a warrant under s 6. They interpreted the s 18 warrantless search power on its legislative wording only, without regard to the common law authorities. This is also the way it was argued before the Judge and initially before me.
58 Law Commission Report, above n 45, at [5.67].
59 R v Laugalis, above n 22, at 359; and R v Collins, above n 18, at [22].
60 At 357.
61 Compare R v Jefferies [1994] 1 NZLR 290 (CA).
62 Lethbridge v New Zealand Police, above n 13, at [33]–[62].
[81] In the circumstances, I am drawn to the same conclusion as the Court of Appeal in R v Laugalis and the Court’s analysis in R v Williams.63 Where a warrant was readily obtainable, which I have found, and there was no question of urgency, such as threatened loss of evidence or here, an imminent act of violence by an unlawful use of firearms, “a search conducted pursuant to a warrantless power may be lawful, but unreasonable”.64 It is therefore arguable that the search was lawful because the requirements of s 18 of SASA were met, despite the fact that it did not comply with the pre-condition of urgency or comply with the warrant preference rule. As in R v Laugalis, it is unnecessary to decide the point, because even if the search were lawful, the next question is whether it was reasonable.
Was the search unreasonable?
[82] Because the Judge found the search to be lawful, there was no finding on whether the search was reasonable. However, a search, even if lawful, can be exercised unreasonably.65 The Court of Appeal in R v Williams has recognised that legality and reasonableness, while related, are distinct concepts.66
[83]Section 21 of the New Zealand Bill of Rights Act provides:
21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search and seizure, whether of the person, property, or correspondence or otherwise.
[84]As the Court in R v Laugalis emphasised:67
A prime purpose of s 21 is to ensure that lawful power is not exercised unreasonably. Any search is an intrusion on freedom or privacy. Whether it is unreasonable involves weighing all consideration of public and private interest relevant to the particular circumstances.
[85] In addition to the urgency/exceptional circumstances and s 6 considerations which I have canvassed above, I find that the search is unreasonable for the following reasons:
63 R v Williams, above n 15.
64 At [24].
65 R v Williams, above n 15, at [24].
66 At [12].
67 R v Laugalis, above n 22, at 358.
(a)Mr Smith was liaising with the police by text message during the five- day period and was cooperative when they requested him to attend at the police station.
(b)The exercise of the warrantless search powers was undertaken when Mr Smith was present at the police station for an interview about the revocation of his firearms licence.
(c)The police had already commenced the process of the Arms Act revocation by serving him a notice of revocation.
(d)The police had applied for a production order on 21 December, referencing s 6 of SASA and stating that they had reasonable grounds to suspect that four offences had been committed, one of which was the unlawful possession of a firearm.
(e)There was no exigency or need to respond promptly to any threat posed by Mr Smith on Friday 22 December 2017.
(f)There were more than adequate grounds to apply for a warrant under s 6 of SASA.
[86] I find for all the reasons above and the considerations I have already canvassed under urgency and s 6 considerations, that the s 18 warrantless search for firearms in these circumstances was unreasonable.
Should the evidence be excluded under s 30 of the Evidence Act?
[87] I have found the s 18 search to be unreasonable in breach of s 21 of the New Zealand Bill of Rights Act. The evidence, therefore, has been “improperly obtained” under s 30 of the Evidence Act 2006.
[88] I now turn to consider 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.68
[89]I weigh the following factors in the balancing exercise under s 30(3) as follows:
(a)The breach was serious: searches of residential property attract a high expectation of privacy. In this instance, there was forced entry of Mr Smith’s home by 18 police officers including the Armed Offenders Squad.
(b)The nature of the impropriety: Senior Sergeant Fleming’s decision was premised on a flawed legal basis that there was no legitimate basis for obtaining a search warrant under s 6 of SASA. It was not made in bad faith, or deliberate or reckless. Because he considered the elements of s 18(2)(b) had been met, that was sufficient to execute the warrantless search. The search, however, was undertaken after a thorough investigation to obtain a significant quantity of information from a number of sources regarding Mr Smith’s state of mind and background.
(c)The nature and quality of the evidence: the evidence is highly probative of the firearms offending. It forms the basis of the charges Mr Smith presently faces.
(d)The seriousness of the offences: the offences are punishable by imprisonment, and serious in that the two military-style semi-automatic weapons were unlawfully possessed, were obtained contrary to Mr Smith’s gun licence and pose a potential risk to public safety.
(e)Availability of other investigatory techniques: the police could have obtained a warrant or, having served the notice of revocation on Mr Smith, they could have given him the opportunity to surrender his firearms. Thus far, he had been cooperative with the police. Whether that would have resulted in the unlawful firearms being found is another
68 Evidence Act 2006, s 30(2)(b).
question. I accept the Crown’s submission that the latter course of action posed a safety risk. There was a clear risk that a request to surrender his firearms may have enhanced Mr Smith’s threatening behaviour and provoked him further.
(f)Alternative remedies to exclusion of evidence: there are none.
(g)Apprehended physical danger to the police or others: I reject the defence submission that there was none. I consider that there was some risk for the police but more particularly to the neighbours involved, particularly ML given the type of threats he received and the actions taken by Mr Smith to implement his threats, such as bulldozing ML’s water supply.
(h)Urgency in obtaining the improperly obtained evidence: I have found that there was no urgency. Mr Smith was continuing to behave erratically and was sending irate text messages up to 21 December, the day prior to the search, but no search was undertaken until 22 December, when Mr Smith agreed to come to the police station.
[90] The evidence was improperly obtained as the result of a serious breach of Mr Smith’s right to privacy in his home. The nature of the impropriety was deliberate but misguided and therefore was low in terms of seriousness. The arms offences are serious, however, and that factor must be balanced against whether the impropriety was necessary in the interests of public safety, to avoid potential physical danger to Mr Smith’s neighbouring community.
[91] Weighing the above factors, I consider the seizure of the firearms in the circumstances was necessary in the interests of public safety. The police acted on the information from neighbours that Mr Smith, acting as he did and in possession of firearms, may be a danger to others. As a result of the search, the police found that Mr Smith possessed two military style semi-automatic weapons in breach of his licence. This latter fact exacerbates the safety concerns, particularly in light of Mr
Smith’s threats to his neighbours and the concern that he may resort to the use of unlawfully possessed firearms.
[92] In the circumstances, I am satisfied that exclusion of the firearms evidence would be a disproportionate response to Mr Smith’s breach of his firearms licence and the firearms offences he now faces. As events in New Zealand have subsequently shown, the police ought to be concerned about the possession of unlawful, and now prohibited, military-style weapons.
[93] I find the evidence in relation to the firearms is admissible as it is in the interests of public safety that evidence of unlawfully possessed firearms, in breach of the Arms Act 1983 and Mr Smith’s firearms licence, is admissible.
Was the search under s 20 for drugs unlawful or unreasonable?
[94] I now turn to consider the warrantless search for drugs. While approaching Mr Smith’s property to search for firearms, the police officers came across cannabis plants growing outside the house that were not hidden and were in plain view. The police did not seek a warrant but invoked the s 20 SASA warrantless search power and seized the cannabis plants. Additional loose cannabis was subsequently located inside the house.
[95] The relevant provision of SASA governing the power to search for drug offences without a warrant is s 20, which provides that a warrantless search may be lawful in certain limited circumstances. The section provides:
20Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences
(1)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.
[96] Before the power of search can be exercised, the police officer must have reasonable grounds:
(a)to believe that is it is not practicable to obtain a warrant under s 6;
(b)to believe that in or on the place there is a controlled drug or precursor substance specified or described in the Misuse of Drugs Act 1975;
(c)to suspect that in or on the place an offence against the Misuse of Drugs Act 1975 has been committed or is being committed (or about to be committed) in respect of that controlled drug or precursor substance; and
(d)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.
[97] Mr Phelps for Mr Smith accepts that Senior Sergeant Fleming had reasonable grounds to believe that cannabis was at the address, given that police located the cannabis early in the course of the warrantless search for firearms, and so had reasonable grounds to suspect that an offence involving cannabis had been permitted at the address. Mr Phelps submits, however, that the remaining two prerequisites were not met, and therefore the warrant could not be lawful under s 20. I deal with each below.
Reasonable grounds to believe the evidence would be compromised (s 20(c)).
[98] First, Mr Phelps submits that the Judge made no finding as to whether there were reasonable grounds to believe that the evidence would be compromised if the search was not conducted immediately. He submits that in any event, the Judge could not have been so satisfied as Senior Sergeant Fleming accepted in cross examination in the District Court that once police got to the address there was no reason to think any evidence to be found would be compromised:
Mr Phelps: And once you actually got to the address, there was no reason to think that any of the evidence that you would find would be compromised, correct?
Snr Sergeant Fleming: Yes.
[99] Mr Phelps submits that because of this acknowledgment, a fundamental pre- requisite for the execution of the s 20 search power was non-existent, and therefore the Court cannot find that the s 20 search was lawful, and the Judge erred in so finding.
[100] The authorities have held that it is necessary for the officer to turn his or her mind to the likelihood of disposal or destruction of the evidence for which the warrantless search is conducted; in the absence of such consideration, the search will be unlawful.69 It is not sufficient to believe that evidence could be lost or concealed; there must be a belief that it will be (i.e. that there is substantial likelihood).70
[101] On the evidence, there is nothing to suggest that Senior Sergeant Fleming turned his mind to whether the cannabis evidence would be likely to have been compromised had the search not taken place immediately. As there is no evidence to suggest that the officers turned their minds to the concealing of the evidence, I therefore find s 20(c) of SASA was not satisfied.
Reasonable grounds to believe it was not practicable to obtain a warrant (s 20(1)(a)).
[102] Second, Mr Phelps submits that Senior Sergeant Fleming did not turn his mind to whether it was practicable or not to obtain a warrant, as required under s 20(1)(a).
69 Alamoti v R [2016] NZCA 402 at [51].
70 R v Young [2015] NZHC 3337 at [43]-[44].
He points to the tenor of Senior Sergeant Fleming’s evidence that he did not turn his mind to the possibility of obtaining a search warrant, let alone whether it was practicable to obtain one. Although Mr Phelps refers to police policy that police do not normally apply for a search warrant for a small cannabis plot, I do not make any finding on that issue, because those matters are not properly before me.
[103] I do accept, however, that Senior Sergeant Fleming did not turn his mind to obtaining a search warrant and I disagree with the Judge’s finding that he had reasonable grounds to believe it was not practical to obtain a warrant. Mr Smith was not at his address at the time, having been asked to attend the police station. The police were fully aware of this, having designed his absence as part of their strategy, as the Crown submits is open to the police in undertaking such an operation. There was no impediment to the police obtaining a warrant by phone under s 100(3) of SASA, if necessary, once they had located the cannabis plants and material. Applications for search warrants should be the rule of thumb for frontline police officers when there is no pressing urgency and issuing officers are readily available within the community, as SASA provides. Doing so maintains the warrant preference rule under SASA and ensures an effective and credible system of justice.
[104] I find the search under s 20 was unlawful and, in the circumstances, consistent with the authorities,71 it is also unreasonable.
Should the evidence be excluded under s 30 of the Evidence Act?
[105] In the event the Judge was wrong in finding the s 20 search was lawful, she undertook a brief s 30 Evidence Act analysis. She considered five out of the eight factors in s 30(3). Mr Phelps submits, therefore, that her analysis of the balancing exercise was in error and considered only a handful of the matters necessary. It will be noted that s 30(3) provides that for the purposes of determining whether or not the exclusion of the evidence is proportionate to the impropriety, the Court may, among other matters, have regard to the s 30(3) factors. I consider the Judge did not err in her approach simply by not addressing all the factors; it was a discretion open to her.
71 R v Williams, above n 15, at [12] and [16]–[18].
[106] However, I depart from her analysis in weighing the s 30(3) factors to be considered in the balancing exercise. I consider the balance weighs against admitting the evidence:
(a)Seriousness of the breach: This involves entry into an area that the Courts have determined will have a high expectation of privacy in circumstances where a warrant could have been obtained. I have already found the unwarranted initial search to be unlawful. I consider this taints the subsequent s 20 search.
(b)Nature of impropriety: Although there was no deliberate, reckless or bad faith on the part of the police officer in conducting the warrantless search, he failed to have regard to the practicality of obtaining a warrant and did not apply for a search warrant.
(c)The nature and quality of the improperly-obtained evidence is probative of the cannabis offending.
(d)Although cannabis cultivation is a relatively serious offence (punishable by maximum penalty of seven years’ imprisonment), this was not a commercial situation and there is no suggestion the firearms were possessed as a means of protecting the plot. I assess it as low to moderate offending.
(e)Other investigatory techniques were available. It was open to the police to obtain a warrant as I have addressed.
(f)There were alternative remedies available to redress the impropriety, namely, obtaining a warrant.
(g)There was no apprehended physical danger to the police: Mr Smith and his partner were not at home. They were at the police station.
(h)There was no urgency in obtaining the evidence: It was unlikely to have been compromised had it not been seized.
[107] I find on balance that the evidence of cannabis should be excluded under s 30 of the Evidence Act 2006.
Result
[108]Mr Smith’s appeal succeeds in part.
[109] The search of Mr Smith’s property under s 18 of the Search and Surveillance Act 2012 was unreasonable.
[110] Under s 30 of the Evidence Act 2006, I rule the evidence of unlawful firearms seized in Mr Smith’s property is admissible.
[111] The search of Mr Smith’s property under s 20 of the Misuse of Drugs Act 1975 was unlawful and unreasonable.
[112]Under s 30, I rule the evidence of cannabis to be inadmissible.
Cull J
Solicitors:
Elvidge & Partners, Napier for the Respondent
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