Tait v Police

[2022] NZHC 1482

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-55

[2022] NZHC 1482

BETWEEN

JORDAN JAMES TAIT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 June 2022
Appearances:	N Wham and M Starling for Appellant C Hallaway for Respondent
Judgment:	22 June 2022

ORAL JUDGMENT OF OSBORNE J

This judgment was delivered by me on 23 June 2022 at 3 pm

Registrar/Deputy Registrar Date:

TAIT v NEW ZEALAND POLICE [2022] NZHC 1482 [22 June 2022]

Introduction

[1]    Jordan Tait was convicted of failing without reasonable excuse to assist a constable exercising a search power when requested to do so1 by Judge Ruth after a brief Judge-alone trial.2 He appeals that conviction.

The offence

[2]The offence is created by s 178 Search and Surveillance Act 2012.

[3]    In particular, it is an offence to fail, without reasonable excuse, to assist a person exercising a search power when requested to do so under s 130(1) of the Act. The issue at trial was whether the police were entitled to search Mr Tait and thereby require him to provide the PIN number to his phone. It was incumbent on the prosecution to demonstrate what circumstances empowered police to search Mr Tait.

Background

[4]    Most of the facts were not in dispute. At around 9:30 am police executed a search warrant at Mr Tait’s home address in Bromley, Christchurch (the address). The warrant recorded there were reasonable grounds to suspect the offence of supplying methamphetamine had been or was being committed and there were reasonable grounds to believe the search of the property would uncover evidential material relating to that offence. An appendix to the warrant indicated that evidential material was suspected to be methamphetamine itself; equipment, instruments, correspondence and cash relating to the offence; cell phones, including SIM cards; and records, documents or correspondence held manually or electronically on any digital storage device.

[5]    The search was carried out by a police search team with assistance from the armed offenders squad (AOS). AOS attended because of the assessed risk of the property and because methamphetamine was the subject of the search. The AOS vehicle was parked nose into the property such that it was partly inside the private

1      Search and Surveillance Act 2012, s 178.

2      Police v Tait [2022] NZDC 6077.

property and partly on the council footpath, occupying the gate area. This was done to prevent other vehicles entering the property. An armed AOS officer was situated beside the vehicle at the entrance to the address to deal with any persons approaching the property.

[6]    After about an hour Mr Tait approached the property. He was detained by a police constable and given his rights. His cell phone was seized under the warrant and his PIN code required. Mr Tait refused to provide his PIN code. He was subsequently arrested. He explained he did not want to give his PIN code as he did not want people to think he had co-operated with police.

[7]    At trial the issue was whether the constable had authority to require Mr Tait provide his PIN code. The warrant recorded constables were authorised:

4.5to detain any person at the address, for the purpose of determining whether there is any connection between that person and the object of the search, if that person:

…       is at the place at the commencement of the search; or

…       arrives at the place while the search is being carried out. (cl 4.5) (emphasis added)

[8]The warrant also authorised constables:

4.6to search any person found at the place for the specified evidential material relating to the offence(s) under the Misuse of Drugs Act 1975.

(cl 4.6) (emphasis added)

[9]Clause 4.5 mirrored s 118 of the Act, which states:

118 Powers of detention incidental to powers to search places and vehicles

(1)If any constable or other person, or a person assisting any constable or other person, exercises a search power in relation to a place or vehicle, that constable or other person may, for the purposes of determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search, detain any person—

(a)who is at the place or in or on the vehicle at the commencement of the search; or

(b)who arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.

(2)A person may be detained under subsection (1) for any period that is reasonable, but not for longer than the duration of the search.

(3)A detention of any person commences under subsection (1) when the constable or other person exercising the search power directs that person to remain at the place or in or on the vehicle and ends when that person is told by the constable or other person, or a person assisting the constable or other person, exercising the search power that he or she is free to leave the place or vehicle.

…

(emphasis added)

[10]The commentary in Adams on Criminal Law in relation to s 118 states:3

SS118.03        “arrives at”

The power to detain applies to anyone at the place when the search commences and to any person who “arrives at” the place during the search. Whether a person “arrives at” the place depends on the circumstances. Proximity to the search scene will be significant and a connection with the place will be relevant. A person who knocks at the front door of a house or apartment that is being searched could be said to have arrived at the place. On the other hand, the power is less likely to extend to a person who enters the front gate of a property but does not approach the front door of the house that is being searched. A person who approaches the front gate of the property, and then turns away before entering, is unlikely to have “arrived at” the place.

[11]Clause 4.6 is based on s 19 of the Act, which states:

19Search of persons in relation to Misuse of Drugs Act 1975 offence search warrants

A constable may search any person found in or on a place or vehicle, in relation to which a search warrant is issued under section 6, if the offence that was specified in the application for the search warrant is an offence against the Misuse of Drugs Act 1975.

(emphasis added)

3      Simon France (ed) Adams on Criminal Law: Rights and Powers (online ed, Thomson Reuters) at [SS118.03].

[12]   Clause 4.6 is not a direct mirroring of the s 19 wording, however, as the statutory words “in or on a place” have been altered in the warrant to “at the place”.

[13]   In the discussion which follows, the difference in wording between “at the place” (s 118(1)(a) and in the warrant) and “in or on a place” (s 19) assumes significance.

Principles on appeal

[14]   Section 232 Criminal Procedure Act 2011 provides that the High Court may allow an appeal against conviction only if satisfied the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk the outcome of the trial was affected, or has resulted in an unfair trial.4 In this section, a trial includes a proceeding in which the appellant pleaded guilty.5

District Court decision

[15]   The Judge exhaustively considered the evidence of the constable (the sole witness), including his response to the contention in cross-examination that Mr Tait had not crossed the boundary of the property. The Judge accepted it was not clear whether he had done so. The Judge considered the focus of the case to be whether Mr Tait was required to have entered the property before he could become subject to the search warrant. The question was whether it could be said Mr Tait had “arrived at” the place at which the search was being undertaken.

[16]The Judge considered the Adams commentary on s 118 of the Act set out at

[10] above. He found the important aspects of that commentary were that whether a person arrives “at” a place depends on the circumstances, and that proximity and connection to the place will be relevant. The Judge determined the question was

4      Criminal Procedure Act 2011, s 232(4).

5      Section 232(5).

whether Mr Tait could be said to have arrived at the place by stopping at, entering or trying to enter that place.

[17]   The Judge determined the relevant place was the address rather than a specific dwelling on the property such as the house. The Judge found the reality was Mr Tait’s intention was to return to his house regardless of whether he actually set foot on the property or not. The Judge took that from the fact the constable said Mr Tait had something of a determination about him and the fact Mr Tait questioned the officer who stopped him about what was going on at the property. The Judge concluded that had Mr Tait not been stopped by the armed officer he would have gone further into the property. The Judge also considered the fact Mr Tait was known to police as the occupier of the property. The Judge was satisfied Mr Tait was proximate to the property.

[18]   The Judge accordingly determined Mr Tait was a person who arrived at the place the search was being carried out and therefore that his refusal to provide his PIN amounted to an offence.

Submissions

Appellant’s submissions

[19]   Ms Wham, in submissions for Mr Tait, submitted police already knew Mr Tait’s identity, his connection to the place being searched under the warrant and what he looked like before he walked to the address. She submitted they did not therefore need to further determine whether there was any connection between him and the object of the search nor detain him for such. She therefore maintained s 118 of the search warrant did not apply to Mr Tait.

[20]   Ms Wham submitted Mr Tait was not found in, on or at the address during the search. She submitted Mr Tait made himself known to police and was prevented from entering the property after police had been on the  property for  nearly two hours.  Ms Wham argued, as Mr Tait was not found, neither s 19 of the Act nor cl 4.6 of the warrant could apply.

[21]   Ms Wham further argued that Mr Tait, even if he was found by police, was not on or in the address. She submitted real property has ascertained legal boundaries which are subject to only infrequent change. She submitted the warrant applied only to the space within the boundary of the address. Ms Wham submitted that extending the purview of search warrants beyond the boundaries of the places specified in them would undermine judicial oversight over the search warrant process and the purpose of warrants themselves. She submitted certainty on the limits of a search power is desirable.

Respondent’s submissions

[22]   Ms Hallaway, for the Crown, submitted the Judge’s analysis was correct. She argued it would be nonsensical for police to have to allow a person full access to a property before their powers under the warrant to detain persons could be executed. Therefore, she submitted, the test must be concerned with the proximity of the person to the property as opposed to whether they are physically on the property. She submitted the expression “in or on the place” and “at the place” are not significantly different and on their plain meaning are largely interchangeable, with no material difference in meaning or application. Ms Hallaway submitted Mr Tait’s connection to the property was appropriately considered by the Judge. She submitted Mr Tait was sufficiently proximate to the address to be found in or on it.

Analysis

[23]    In the District Court Mr Starling for the defendant took issue with some aspects of the prosecutions’ disclosure and the way police had run the prosecution. These issues were considered by the Judge and are not pursued on this appeal.

[24]   The issue on this appeal is whether the Judge was incorrect to find that the constable had power to conduct a search of Mr Tait. If they could not there has been a miscarriage of justice and the appeal ought to be allowed.

[25]The Judge found the relevant power to have existed under s 118 of the Act.

[26]   Section 118 of the Act (mirrored in cl 4.5 of the warrant) on a plain reading empowers police to detain an individual for a defined purpose of establishing whether they are connected to the object of the search. It does not grant a power to search. The fact s 118 does not itself authorise a search does not appear to have been addressed at trial. Instead, following the Judge’s conclusion Mr Tait was, in terms of s 118, a person who arrived at the place while the search was being carried out, the Judge concluded his detention was pursuant to the search warrant. The Judge then stated he was satisfied the constable explained to Mr Tait what would happen if he refused to comply with the request for the PIN number and the charge was proved. That did not address the requirement for a validly executed power to search (as against a power to detain).

[27]   Given that, Ms Wham submitted it was instead the search power under s 19 of the Act (and cl 4.6 of the search warrant) that required consideration. Section 19 would have empowered the constable to search Mr Tait if Mr Tait was a person found in or on the address. I note the search warrant recorded the constable was permitted to search a person found “at” the address, rather than “in or on” the address.

[28]   I refer also to a third provision — s 103(4)(m)(i) of the Act (relating to the form and content of a search warrant) — that section provides that where a search warrant relates to offences under the Misuse of Drugs Act, the warrant must contain a statement that “any person found in the place or vehicle may also be searched”.

[29]Thus, the statutory prerequisites are:

(a)s 118 (power of detention) — that the person is at the place;

(b)s 19 (power of search) — that the person is found in or on the place;

(c)s 103 (content of warrant) — stating the person may be searched if

found in the place.

[30]   The constable’s evidence was that, when he first spoke to Mr Tait, Mr Tait was “in the entrance of the driveway”, “on the footpath but in the driveway” at the address.

A police car was parked partly inside the property with the rear on the (council) footpath. Most of the vehicle was parked on the footpath. An armed police officer was standing beside the car on the property boundary. The constable said, in response to a question about Mr Tait’s movements:

A.    He was determined.  Walked straight up to the officer that was there  and spoke to him. I was reasonably close as you can see by the markings on the map and I immediately approached him along with letting some other officers know that Mr Tait had arrived back at the address. He was only there for a matter of seconds before I got to him and spoke to him.

[31]   Under cross-examination, the constable accepted he could not say whether Mr Tait had crossed the boundary into the property and that he could not be sure where the boundary to the property was. The following exchange is illustrative:

Q.And do you accept that for him to have actually walked onto the  property would have required him to walk, to get past an armed police officer whose only job at that point was to stop people walking onto the property.

A.I’m sorry, I can’t answer that, because you’re wanting a definitive line where the property is and all that sort of thing.

Q.       Yea.

A. And like where is that. I can’t answer that, I’m sorry.

Q.But do you accept that the person who was standing on the boundary of the property by the police car with a firearm …

…

Q… his job at that point was to stop people entering the property.  So   for Mr Tait to have actually got onto the property, that officer would have had to have not be doing his job?

A        Yeah.

Q. But that person would now definitively at what point Mr Tait crossed wouldn’t he, because he was right next to him?

A. Not my evidence to give.

[32]   In re-examination the constable said Mr Tait had been within arm’s length of the armed officer who was standing by the nose of the vehicle. The Constable also elaborated what he meant by his evidence that Mr Tait was “determined”. He said people can carry themselves in a determined manner or a passive manner and what

that meant in terms of Mr Tait’s demeanour was that he walked straight up to the police officer at the boundary.

[33]   The constable said he then asked Mr Tait to step out of the property and away from the end of the cul-de-sac. When taking the cell phone, the Constable informed Mr Tait that it was included in the search warrant.

[34]   There are two issues. First, was Mr Tait “found”? Ms Wham submits Mr Tait arrived outside the boundary and made himself known to police. It is perhaps arguable Mr Tait was not found by police in the sense that they came across him, instead he could be said to have found them. It appears there may be a distinction in the Act between powers that arise when someone is “found” as against when, someone “arrives”, evidenced by the different wording in ss 19, 118 and 119. Mr Tait’s situation may most intuitively be viewed as an arrival. However, this is not Ms Wham’s best point. Ms Hallaway referred to case law in relation to the offence of being unlawfully found in an enclosed yard6 — the cases there focus on whether the offender is “seen, discovered or perceived by someone else to be on the premises”.7

[35]   The second issue is whether Mr Tait was “in or on” the place or vehicle in respect of which the warrant was issued. This is different wording to that triggering the detention power under s 118, which empowers police to detain a person who is “at the place” or “arrives at the place”. The natural meaning of “in or on”, in relation to real property, is within the defined boundaries of the property. “At the place”, as reflected in the Adams commentary (at [10] above) covers broader circumstances. It may be inferred that the fact the warrant in relation to search stated “at the place” instead of “in the place” (as required by s 103) or “in or on the place” (as in s 19) may have misled the constable. In terms of the statute, the search power recorded in the warrant was too broadly stated.

[36]   Section 118 is a broader section providing detention powers in relation to all warrants. Section 19 is limited to suspected Misuse of Drugs Act offending. A practical justification for the difference between powers to detain and search is that

6      Summary Offences Act 1981, s 29(1)(b).

7      See e.g. Palmer-Brown v Police [1985] 1 NZLR 365 (CA) at 368.

the broader power to detain prevented Mr Tait fleeing the address once he became aware police were searching it. Similarly, a broader power to detain gives effect to the practicalities of policing by enabling police to manage occupants at the place or vehicle they are searching. These points address Ms Hallaway’s arguments in opposition.

[37]A useful comparison may be drawn with s 119(1)–(2) which provide:

119     Powers of search by person who has power of arrest

(1)If any person who may exercise a power of arrest is searching a place or vehicle, he or she may search any person found at the place or in or on the vehicle, or who arrives at the place or stops at, or enters, or tries to enter or get onto the vehicle, if the person conducting the search has reasonable grounds to believe that evidential material that is the object of the search is on that person.

(2)If any person who may exercise a power of arrest is searching a place or vehicle, he or she may search any person found at the place or in or on the vehicle, or who arrives at the place or stops at, or enters, or tries to enter or get into or onto the vehicle, if the person conducting the search—

(a)has reasonable grounds to suspect that the person is in possession of a dangerous item that poses a threat to safety; and

(b)believes that immediate action is needed to address that threat.

…

[38]   The fact these powers (under both subsections) which allow police to search a person who arrives at an address, are restricted by the threshold “reasonable grounds to believe” indicates the police are not intended to be able to rely on s 118 to search any person they can detain. Similarly, the fact wider wording is used in s 119 (“at” as opposed to “in or on” and “arrives at” in addition to “found”) indicates the power to search is intended to arise only when the specific prerequisites identified in that section

— reasonable grounds for believing that a person possesses evidential material or a dangerous item — are established.

[39]   Powers to search require clear definition. They are traditionally approached on the principle that such powers should be construed strictly and narrowly as personal

privacy is at stake.8 Such powers operate in balance with the right to be secure against unreasonable search and seizure and are necessarily a check on personal freedoms. As identified in the Adams commentary, s 19 is an otherwise broad power in that there is no requirement the constable has any grounds for suspicion before the power to search arises.9 The only restriction is that it is a locational power arising after a warrant has been issued.

[40]   The Judge found the prosecution had failed to prove Mr Tait crossed the boundary of the property. As Mr Tait’s presence in or on the property was necessary to justify a search under s 19, the constable did not have a power of search under s 19.

[41]   It does not appear the constable purported to exercise any other power of search. There may have been scope for a warrantless search power under s 88 of the Act. That section permits the warrantless search of an arrested or detained person if the searcher has reasonable grounds to believe there is anything on or carried by a person who is arrested or detained that is evidential material relating to the offence in respect of which they are detained. But the prosecution at the trial did not lead evidence to establish the requirement for a warrantless search.

Conclusion

[42]   The constable was not exercising a lawful search power when Mr Tait was searched. Therefore Mr Tait could not be convicted of the offence of failing to assist. A miscarriage of justice has occurred. The appeal will be allowed.

[43]   It would be appropriate that the Police review the drafting of their warrants in cases such as this to ensure the wording conforms with the words used in the empowering sections of the Act.

8      Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 914 citing Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA) at 737 and 742; and Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [145].

9      Simon France, above n 2, at [SS19.01].

Orders

[44]I order:

(a)the appeal is allowed; and

(b)the conviction on the charge under s 178 Search and Surveillance Act 2012 is quashed.

Osborne J

Solicitors:
Crown Solicitor, Christchurch

Copy to: M Starling, Barrister, Christchurch