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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tait v Police

Details

AGLC: Tait v Police [2022] NZHC 1482
Case: [2022] NZHC 1482
Decision Date: 22 June 2022

CaseChat Overview and Summary

The case of Tait v Police involves an appeal by Jordan Tait against his conviction for failing to assist a police officer with a search warrant. The conviction was handed down by Judge Ruth after a trial in the District Court. The central issue in the appeal was whether the police officer had the lawful authority to search Mr Tait and request his phone's PIN number. The appeal hinged on the interpretation of sections of the Search and Surveillance Act 2012, particularly sections 118 and 19, and the specific wording in the search warrant.

The court had to determine whether Mr Tait was lawfully subject to a search under the warrant. The prosecution argued that Mr Tait's proximity to the property was sufficient to justify the search, while the defence contended that Mr Tait had not physically entered the property and was therefore not subject to the search warrant's provisions. The key legal issue was whether Mr Tait's presence on the property boundary or his approach towards the police officer constituted an "arrival" or "finding" that would trigger the search powers under the Act.

The High Court found that the police officer did not have a lawful search power when he requested Mr Tait's PIN number. The court emphasized the need for strict interpretation of search powers due to the implications for personal privacy. The court highlighted discrepancies in the wording of the warrant and the statutory provisions, particularly the difference between "at the place" and "in or on the place." This discrepancy meant the warrant's search power was too broadly stated. Consequently, the court concluded that Mr Tait could not be convicted of failing to assist with the search, as the search was not lawful. This led to a finding of a miscarriage of justice, and the appeal was allowed. The conviction was quashed, and the case was sent back for further consideration.

Orders