Warren v Attorney-General - [2019] NZHC 1690

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-32

[2019] NZHC 1690

BETWEEN
JASON JOHN WARREN

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing: 12 June 2019

Counsel:

D A Ewen and S J Fraser for Appellant M J McKillop for Respondent

Judgment:

18 July 2019

JUDGMENT OF THOMAS J

Table of contents

Introduction[1]

Background[7]

Notices of bail[22]

Wrong defendant[27]

Judgment under appeal[31]

The appeal[34]

The evidence[36]

Mr Warren[36]

Sergeant McCormick[41]

Senior Sergeant Chapman[49]

Legal framework[54]

The Bail Act 2000[55]

What constitutes a search?[64]

Implied licence to enter private property[74]
What is the legal basis for police bail checks?[79]

Did the bail checks constitute a search?[85]

What was the nature of the police activity?[86]

Was there a reasonable expectation of privacy?[95]

Reasonableness[103]

Remedy[107]

Result[108]

WARREN v ATTORNEY-GENERAL [2019] NZHC 1690 [18 July 2019]

Introduction

[1] While on electronically monitored bail (EM bail) for around seven months in 2017, John Warren was subject to 75 bail checks by the police. These involved police officers knocking on the door of his EM bail address, requiring Mr Warren to present himself in accordance with his bail conditions. The bail checks occurred mainly late at night and in the early hours of the morning. Mr Warren claims these put a strain on his relationship with his partner, forcing him to relocate to his mother’s address. Mr Warren’s mother then lost the tenancy of her home following the bail checks.

[2] Mr Warren claims the bail checks constituted a search and were unreasonable in the context of his being on EM bail. Mr Warren brought proceedings in the District Court claiming, first, his right to be secure against unreasonable search pursuant to s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) had been breached. Secondly, he claimed his right to be treated with humanity and respect pursuant to s 23(5) of NZBORA had been breached. Thirdly, he claimed the bail checks occurred as a result of an administrative error and continued even after the error had been admitted, thereby interfering with the comfort and enjoyment of the property he was lawfully occupying, and constituting a nuisance.

[3] Mr Warren sought declarations in respect of the three causes of action, public law compensation of $10,000, a further $10,000 in compensation “to affirm the importance of the rights violated” and costs.

[4] Judge Tompkins, in the District Court, dismissed all three causes of action.1 Mr Warren now appeals in respect of the first cause of action only, breach of s 21 of NZBORA.

[5] The appeal is opposed on the basis that the bail checks were lawful and anticipated by Mr Warren’s conditions of bail. The checks did not amount to searches because they were permitted by implied licence, Mr Warren had no reasonable expectation of privacy and there was no allegation or evidence suggesting any particular check was unreasonable. Furthermore, it was submitted that the claim was

1 Warren v Commissioner of Police [2018] NZDC 25620.

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 Warren v Attorney-General

Details

AGLC: Warren v Attorney-General [2019] NZHC 1690
Case: [2019] NZHC 1690
Decision Date: 18 July 2019

CaseChat Overview and Summary

The appellant, Mr Warren, brought an appeal against the decision of the District Court dismissing his claims under the New Zealand Bill of Rights Act 1990 (NZBORA). The central issue in the appeal was whether the bail checks conducted by police amounted to a search within the meaning of s 21 of NZBORA. The court found that the bail checks did not constitute a search as they involved no more than ascertaining Mr Warren's presence at his bail address by looking at him when he presented himself at the door. The court also concluded that Mr Warren did not have a reasonable expectation of privacy in relation to the police activity in question, given his extensive criminal history and the fact that he was on electronically monitored bail. The appeal was dismissed. The court observed that, while police are entitled to conduct bail checks, the nature and extent of such checks may be subject to review in appropriate cases.

Orders