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.

an abuse of process because restrictive conditions of EM bail are a mandatory consideration in sentencing, providing a remedy should there have been any breach of s 21.

[6]The issues on appeal are:

(a)Did the bail checks constitute a search?

(b)If so, were the searches reasonable in the context of EM bail?

(c)If so, what remedy ought to be granted?

Background

[7]                 On 10 August 2016, Mr Warren was charged with receiving a stolen trailer and possession of methamphetamine. He was remanded on bail with an overnight curfew. Mr Warren was subject to three bail checks at the Wellington address to which he was bailed.

[8]                 On 13 August 2016, Mr Warren was further charged with receiving stolen power tools and attempted burglary. He was bailed on 15 August 2016 to a Porirua address, with a 24-hour curfew and a condition to present at the door when called upon by police.

[9]                 Mr Warren was regularly subject to bail checks at the Porirua address. Between 15 August 2016 and 3 January 2017 (a period of 142 days), police conducted 83 bail checks on Mr Warren.

[10]              Mr Warren was checked at approximately 2.08 am on 15 October 2016 but could not be located at the address. He was subsequently arrested for breach of bail and readmitted to bail on 17 October 2016. On 13 December 2016, Mr Warren could not be located at the Porirua address.

[11]              Mr Warren moved to a Wellington Central address in mid-December 2016. He breached bail three times at this address. The first breach, on 23 December 2016, arose

from the need for Mr Warren to seek emergency medical treatment. Two subsequent breaches were recorded on  25  December  2016  and  26  December  2016  when  Mr Warren could not be located at the Wellington address. On 3 January 2017, the police were informed that Mr Warren had returned to the Porirua address. Mr Warren was subsequently arrested and remanded in custody.

[12]              Mr Warren was released on EM bail to the Porirua address on 7 February 2017. A police employee verified the curfew condition in the Police Bail Management Application (BMA), which meant Mr Warren was added to the list of offenders requiring bail checks.

[13]              Between 7 February 2017 and 12 September 2017 (a period of 218 days), police conducted 88 bail checks.

[14]              Mr Warren was arrested again on 24 February 2017 after he had posted three TradeMe listings of bicycles stolen between November and December 2016. A search warrant was obtained and executed at the Porirua address on 24 February 2017, and the three stolen bicycles recovered. This resulted in two charges of receiving stolen property.

[15]              Mr Warren was granted EM bail to the Porirua address again on 27 February 2017, with a 24-hour curfew and a requirement to present at the door if called upon by police.

[16]              A third receiving charge was laid on 19 April 2017, in respect of a bicycle frame found in Mr Warren’s garage.

[17]              On 12 July 2017, Mr Warren was relocated from the Porirua address to his mother’s address in Kapiti. On 26 July 2017, Mr Warren’s bail conditions were varied to change his address to the Kapiti address and to implement EM bail at that address. Between 12 July 2017 and 26 July 2017, he was subject to six bail checks.

[18]              When Mr Warren’s mother was given notice to  vacate the Kapiti address by 1 September 2017, Mr Warren sought a variation to bail to permit him to live at his

mother’s new Raumati address but be bailed to the Porirua address on a 24-hour curfew in the  meantime.  Between  1  September  2017  and  15 September  2017, Mr Warren was not subject to EM bail and was subject to seven bail checks.

[19]              Mr Warren was granted EM bail to the Porirua address on 15 September 2017. His last bail check in relation to these charges was carried out on 12 September 2017. However, Mr Warren remained on a curfew until sentencing and, between October 2017 and April 2018, attended an addiction treatment service.

[20]              The three receiving charges relating to the bicycles were consolidated into one representative charge. On 19 April 2018, Mr Warren pleaded guilty to all five charges and was ordered to come up for sentencing if called upon within nine months. The time he had spent on EM bail was taken into account by the sentencing Judge.2

[21]              On 14 September 2018, Mr Warren was arrested and charged with burglary and careless driving. On 28 November 2018, Mr Warren was sentenced on those charges and re-sentenced on the  earlier charges to  six  months’ community detention and  12 months’ supervision.3

Notices of bail

[22]              Mr Warren was first admitted to EM bail on 7 February 2017 to his partner’s property at the Porirua address on the terms and conditions in the EM bail suitability report. That report described both Mr Warren’s partner and the address as suitable and confirmed that she was made aware of the conditions of bail.   The assessment of   Mr Warren’s suitability for EM bail included the following comments:

Suitability of Defendant

Mr Warrant has been made aware of and understands his obligations should he be granted EM Bail and has agreed to comply with the requirements of EM Bail. He was subject to an electronically monitored sentence in 2011 while on Home Detention and breached his conditions on two occasions which resulted in Mr Warren receiving Community  work  which  he  completed. Mr Warren has 60 convictions from 2003 to the present day consisting mainly of dishonesty and Methamphetamine convictions. Since Mr Warren was released from prison in February 2015 he has complied with his sentence and

2      Police v Warren [2018] NZDC 7781.

3      Police v Warren [2018] NZDC 27452.

special conditions, completing Alcohol and Drug counselling and a maintenance programme receiving positive feedback from the providers and Probation.

…

Mr Warren is assessed as being at a medium risk of reoffending taking in to account his extensive criminal history. This is also evidenced by him reoffending while on bail 32 times most of which are historic. EM Bail with special conditions is considered sufficient to mitigate the risk of Mr Warren reoffending taking into consideration his compliance and changes to his personal situation since his release from prison in February 2015. Mr Warren is therefore assessed as a suitable candidate for EM Bail.

[23]The possible EM related bail conditions included a condition:

Present self at door if called upon by Police or Security Guard.

[24]              Mr Warren’s Notice of Bail dated 27 February 2017 contained a 24-hour curfew with the requirement “to present self at door if called upon by Police”. It included conditions not to consume or possess alcohol or non-prescription drugs and not to associate with the victims of the alleged offending.

[25]              The Notice of Bail also included the “Standard Conditions of EM bail”, specified “[t]o accompany the Notice of Bail where electronic monitoring of curfew applies”, one of which read:

You must present yourself at the door if called upon by a member or employee of NZ Police (on provision of Police Identification).

[26]              The various Notices of Bail throughout the period were in substantially similar form.

Wrong defendant

[27]              First, a procedural point needs to be addressed. The proceedings in the District Court were brought against the Commissioner of Police.   As was pointed out by   Mr McKillop, for the respondent, the Commissioner of Police had no duty to avoid or prevent Mr Warren having a bail record created in the BMA (the allegation that formed the basis of the claim). The only claim in reality was against the actions of the constables who conducted the bail checks. Constables are officers of the Crown appointed to perform policing functions in service of the Queen, and the

Commissioner of Police is not directly or vicariously responsible for their acts or omissions.4 The appropriate defendant in a claim under NZBORA is either the person whose public functions are in question or the Attorney-General, who represents the Crown’s direct liability for breaches of NZBORA.5

[28]              Mr Ewen, for Mr Warren, accepted the Attorney-General would be the better defendant noting that, in any event, the nature of the claim was not in dispute.

[29]              Mr McKillop responsibly acknowledged that the Attorney-General could be substituted as the defendant/respondent without any prejudice and that would allow Mr Warren to pursue the s 21 claim on the basis of the evidence adduced in the District Court.

[30]              Accordingly, the Attorney-General is substituted for the Commissioner of Police as respondent in this appeal.

Judgment under appeal

[31]              The Judge described a search as involving an examination of a person or property to investigate or uncover,6 and that a value judgment was involved in determining whether the actions at issue involved a search.7

[32]              The Judge concluded that, in the circumstances, the act of knocking on a person’s door to ascertain if the person is physically present does not amount to a search. He held that the police bail checks were for the purpose of checking whether Mr Warren was at home and complying with his bail conditions. That involved no more examination or investigation than the average person has the right to conduct through implied licence.

4      Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 (CA) at 726-727 per Hardie Boys J.

5      Crown Proceedings Act 1950, s 14(2); and Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case].

6      Relying on R v Fraser [1997] 2 NZLR 442 (CA) at 449.

7      Referring to Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48 at [111].

[33]              The Judge held that, even if the actions of the police constituted a search, then the police actions were expressly authorised and anticipated by s 30L of the Bail Act 2000. He rejected the proposition that, if there were a search, it was unreasonable, on the basis Mr Warren was a recidivist offender who had repeatedly breached his bail conditions. In those circumstances, police checks every night or every second night were not unreasonable. He said the asserted redundancy of the police checks, given EM bail, had no impact on their legality and, in any event, Mr Warren could have applied to vary his bail conditions so as to be taken off 24-hour curfew but did not do so. The Judge noted Mr Warren’s acknowledgement that the effect of the police checks on him were minor and any more significant effects were felt by his partner and mother.

The appeal

[34]              The grounds of the appeal are that the Judge erred in finding the bail checks were not searches within the meaning of s 21 of NZBORA and that they were not unreasonable.

[35]              Mr Ewen criticised the Judge for failing to make express findings of fact. As the appeal hearing involved some discussion of the evidence in the District Court, I will traverse it in some detail.

The evidence

Mr Warren

[36]In his affidavit Mr Warren said:

4.For some reason, the Police conducted regular  ‘bail checks’ on me.  They came and knocked on my door in the middle of the night on a regular basis right from the start. I didn’t know that they were doing this by mistake. I didn’t know that they were not supposed to be doing this.

[37]              Mr Warren said he did not breach his bail conditions and felt like he was being harassed. He referred to the reaction of Judge Hobbs before whom Mr Warren appeared on 15 September 2017 and who described ongoing bail checks as

“unfortunate”.8 He readmitted Mr Warren to EM bail on the assumption police checks would stop.9 The bail checks continued. Mr Warren referred to Senior Sergeant Chapman’s email to his then lawyer dated 16 August 2017, which included the following comment:

Unfortunately Kapiti police checking him seems to have stemmed from an administrative error. Porirua SSO’s enter bailees (?) into a management app which street staff then use to conduct curfew checks. This has been incorrectly entered however we have corrected it now and curfew checks of Mr Warren will end.

[38]Mr Warren said, despite this, the bail checks continued.

[39]              When he gave evidence, Mr Warren confirmed that he had signed the Notice of Bail, which specifically stated he had received a copy of it and understood the conditions, and that the second condition of his EM bail was a 24-hour curfew with a requirement to present at the door if called on by the police. This condition was in addition to the Standard Conditions of EM bail attached to the Bail Notice. Mr Warren said it was his understanding that the reason for the conditions was to allow maintenance of equipment or the police to respond to queries.

[40]              Mr Warren accepted he had used methamphetamine on one occasion between August 2016 and October 2017, in breach of his bail condition not to use non-prescription drugs.10 He also confirmed that stolen bicycles were found by the police at the Porirua address on 24 February 2017, while he was on EM bail, and that he was selling the bicycles from his home on TradeMe. He was asked about prior bail breaches and accepted that on 3 January 2017, while subject to a 24-hour curfew, he was absent from the address at 1.56 am. He also accepted that the charges he was facing at the time of the District Court hearing in 2018 included crashing his car at around 4.00 am.

8      Police v Warren [2017] NZDC 20847 at [2].

9 At [5].

10     Because of the date range, it cannot be said this breach occurred while on EM bail.

Sergeant McCormick

[41]              Sergeant McCormick is the Station Sergeant at Porirua Police Station. He supervises the Station Support Officers (SSO) who operate the BMA. In his affidavit, he explained that the BMA interfaces with the courts’ management system so that, when a person is bailed, their bail record is automatically sent to the BMA at the local police station. SSOs log into the BMA regularly to check whether there are bail records that have been created by the local court. The BMA lists all bail conditions. If no curfew condition has been set, the SSO ticks a box that says, “no check required”. If there is a curfew condition (including a requirement to present at the door if called on by the police) then the SSO will prepare a BMA bail record by assigning the defendant to the police station nearest to the bail address, verifying the bail address, and selecting the policing shifts that overlap with the hours of curfew.

[42]              The result is that the defendants’ names appear in curfew check lists, which can be accessed from a mobile application that constables use while performing their policing duties. Sergeant McCormick said:

9.Sometimes offenders will have curfew conditions and electronically monitored bail (EM bail) conditions. There are no Police rules or guidelines about whether offenders with curfew and EM bail conditions ought to receive bail checks. But because Police have limited resources, unless there is some good reason to perform checks of someone on EM bail other than checking curfew compliance, generally we would prioritise checking other offenders. Lately in the Kapiti Mana area a practice has developed where we tend not to prepare bail records for people with curfew and EM bail conditions, unless there are particular concerns that would justify checking. In 2017 there was no uniform approach to this issue.

10.There are situations where Police would want to check people despite their EM bail conditions, for example to monitor compliance with other bail conditions (such as drug and alcohol-related conditions) and if we suspect further criminal offending while on bail.

[43]              Sergeant McCormick explained that Mr Warren had been denoted a “priority offender”, meaning he appeared at the top of the bail check lists with other priority offenders. The reason for this was because of his high risk rating, which is automatically derived from a range of factors including age, seriousness of charges, offending history and bail breach/bail  offending  history.  Any score  greater  than  45 points makes a person a priority offender. Mr Warren’s score was 62. More

specific reasons also applied to Mr Warren resulting from concerns (prior to EM bail commencing) that he was continuing to offend (breaching his bail conditions) and using bail to his advantage. In December 2016, a Wellington district-wide warning had been issued about Mr Warren.

[44]Sergeant McCormick said:

15.Mr Warren  was bailed  on 7 February 2017  with a curfew condition and  a  new  EM  bail  condition.   A  bail  record  was  created  on   9 February 2017 day by Porirua staff in the usual way. A subsequent bail record generated in the BMA on 27 February 2017 was approved by me for curfew checking. I have no memory of a specific discussion at that time about whether Mr Warren ought to receive bail checks. However I do not consider that the creation the bail records was an “error”. At that time we tended to create records for all offenders with curfew conditions, regardless of whether they had EM bail conditions, and leave the decision of whether to check him over to the constables conducting bail checks.

[45]              Sergeant  McCormick  noted  that  bail  checks  continued  even  after   Senior Sergeant Chapman indicated they would come to an end on 16 August 2017. He said another bail record was generated on 25 August 2017 and approved by him on  30 August  2017.  This  occurred  because  Mr Warren  appeared  in  Court  on 25 August 2017 resulting in him assigning and approving a new bail record to the Kapiti Police Station, meaning Mr Warren was again added to the list of defendants requiring checks. Mr Ewen pointed out this explanation was undermined by the record of checks undertaken on 22 and 23 August 2017.

[46]              When he gave evidence, Sergeant McCormick said the expectation was that someone on a curfew check would be checked at least once a day and sometimes up to two times a day.

[47]              In cross-examination, Sergeant McCormick was asked about a booklet on EM bail produced by the police in conjunction with the Department of Corrections, presumably for defendants subject to EM bail. It advises them they are to wear an electronically monitored anklet 24 hours a day and live at an agreed address at all times unless there is permission to leave for an approved purpose. It states the anklet is monitored by a security company. Sergeant McCormick was then asked about the purpose of bail checks given a security company was already monitoring a defendant

through electronic monitoring. He replied that there were other conditions of bail, for example, non-consumption of alcohol or drugs and non-association, and that the checks were not simply to see if a defendant was present but also to ensure other conditions were complied with. He said the police would be able to detect whether the person presented as being under the influence of drugs or alcohol.

[48]              Sergeant McCormick said he  probably  made  a  conscious  decision  that  Mr Warren could be checked but this did not indicate that he should be checked. The decision itself was taken by the officers undertaking curfew checks.

Senior Sergeant Chapman

[49]              Senior Sergeant Chapman is the officer in charge at Kapiti Police Station. She became aware of Mr Warren around 15 August 2017 when a local probation officer emailed her about Mr Warren receiving bail checks despite being on EM bail, saying “I presume he does not require nightly visits”.11 Senior Sergeant Chapman forwarded this email to the sergeants in charge of each shift.

[50]Senior Sergeant Chapman said in her affidavit:

5.… Bail checks are less likely to be conducted if an offender has an    EM bail condition, because any breach of curfew will be notified to us by the Department of Corrections (although, if this occurs at night, we may not be notified until the following morning). Police may still conduct bail checks despite an EM bail condition, particularly if there is another bail condition that can be checked at the same time as the curfew check. For example, a person may be compliant with their curfew, but in breach of a condition to refrain from using alcohol or drugs. I left it up to the sergeants to decide how to prioritise bail checks for Mr Warren in light of this information.

[51]              On  16 August  2017,  Mr  Warren’s  then  lawyer  contacted   Senior Sergeant Chapman asking  why  the  police  were  conducting  bail  checks  when  Mr Warren was on EM bail. Senior Sergeant Chapman discussed this with the SSO at Kapiti responsible for the BMA and considered Mr Warren’s records. She decided it would be appropriate to stop Mr Warren’s bail checks because she had been advised by the Community Probation Service that no concerns were held, and a check of his

11     Mr Warren was relocated from Porirua to his mother’s Raumati address in July 2017.

bail records showed there were no recent breaches. She said, “I was pretty happy that we could do him a favour and stop checking him”.

[52]              Although Senior Sergeant Chapman advised Mr Warren’s then lawyer that the checks were as a result of an administrative error, she subsequently revised that opinion. She said she had limited understanding of how the BMA worked and was unaware of any policies or guidelines about when an EM bailee was to be subject to bail checks. She said:

12. In my view, whether to conduct bail checks is a decision for front-line staff and their supervisors, who can make decisions based on their assessment of risk and the best way to use Police resources. Bail checks are intended to prevent repeat offending and victimisation, and can be a useful intelligence gathering exercise to detect crime. I have attached national good practice advice on bail checks from June 2015 as exhibit CC-3.

[53]              The Good Practice Index, which Senior Sergeant Chapman described as an indicator and not policy, provides (inter alia):

Context

The aim of Bail Checks is to help prevent and deter repeat offending and victimisation. In New Zealand, Bail Checks are used to target offenders whose criminal activity may emerge from any of the drivers of crime – families, youth, road policing, alcohol and organised crime.

…

The tactic

A Bail Check should include: communicating with the bailee in person about their conditions, gathering intelligence and entering a noting about any information that could be useful in detecting and preventing further crime. Information gathered (collecting information such as the bailee’s car details, associates and activities) from contact with the bailee can assist with broader preventative policing activities, for example, it may help with preventing or detecting crime such as burglaries, drug dealing and gang violence.

…

Works best if

The time, quantity and reporting of Bail Checks should be customized to each individual offender to make it a quality check. The bail conditions should be considered and aligned to the specific modus operandi of the offender early on. A quality Bail Check must be intelligence led.

Ensure rapport is built with the bailee. This can be used then to gather information about the bailee’s activities, connections and prospective plans…

Legal framework

[54]              Before considering whether the curfew checks constituted a search, it is necessary to consider the legal framework. This involves a consideration of, first, the Bail Act, secondly, the law as to what constitutes a search and, thirdly, the law on implied licence.

The Bail Act 2000

[55]              Consistent with the presumption of innocence, the Bail Act provides that a defendant charged with an offence that is not punishable by imprisonment, or where the maximum punishment is less than three years imprisonment, is bailable as of right.12 Otherwise, subject to ss 9 to 17 of the Bail Act, a defendant who is not bailable as of right must be released on reasonable terms and conditions unless the Court is satisfied that there is just cause for continued detention.

[56]              The Bail Act then provides four mandatory considerations in considering whether there is just cause for continued detention:13

(a)the risk of failing to appear in Court on the date to which the defendant has been remanded;

(b)the risk of interference with witnesses or evidence;

(c)the risk of offending while on bail; and

(d)any matter that would make it unjust to detain the defendant.

12   Bail Act 2000, s 7(1) and (2).  Section 7(2) is subject to exceptions if the offence is against either s 194 of the Crimes Act 1961 or s 49 of the Domestic Violence Act 1995. A defendant charged with an offence punishable by imprisonment is also not bailable as of right if the defendant has previously been convicted of an offence punishable by death or imprisonment (s 7(4)).

13 Section 8(1).

[57]              The Bail Act sets out other matters that the Court may take into account, as well as making specific provisions about alleged family violence offences, views of the victim and assistance to the police.

[58]              The onus shifts to a defendant when, amongst other matters, he or she has been charged with specified offences while having previous convictions for those offences, and in certain circumstances involving a combination of the charge and the defendant’s conviction and/or bail history.14

[59]              The Bail Act also addresses conditions of bail, providing for mandatory conditions that the defendant personally attend as required and:15

(4)… any other condition that the judicial officer or Registrar considers reasonably necessary to ensure that the defendant—

(a)appears in court on the date to which the defendant has been remanded; and

(b)does not interfere with any witness or any evidence against the defendant; and

(c)does not commit any offence while on bail.

[60]              When EM bail is granted, EM bail conditions are also prescribed. The purpose of an EM condition is:

30A     Purpose of EM condition

The purpose of an EM condition is to restrict and monitor a defendant’s movements to ensure that the defendant—

(a)appears in court on the date to which the defendant has been remanded; and

(b)does not interfere with any witnesses or any evidence against the defendant; and

(c)does not commit any offence while on bail.

[61]              A court cannot grant EM bail unless it is satisfied of certain matters, including that the defendant has been made aware of and understands the obligations under the EM conditions and agrees to comply with them, and that every occupier of the

14     Sections 10 and 12.

15     Section 30(4).

proposed bail address has consented to the defendant remaining at the address while on EM bail.16

[62]A defendant’s obligations under EM bail are:

30L     Defendant’s obligations under EM condition

(1)A defendant who is on bail with an EM condition must—

(a)submit to the electronic monitoring of his or her compliance with the restrictions placed on his or her movements under paragraphs (b) and (c); and

(b)not leave the EM address at any time except—

(i)as authorised under section 30M; or

(ii)to attend his or her scheduled court appearances; or

(iii)to seek urgent medical or dental treatment; or

(iv)to avoid or minimise a serious risk of death or injury to the defendant or any other person; or

(v)to surrender himself or herself to Police custody; and

(c)remain in the area of the EM address that has been defined by an EM assessor under section 30K, except when leaving the EM address as permitted under paragraph (b)(i) to (v); and

(d)co-operate with, and comply with any lawful direction given by, an EM assessor; and

(e)present himself or herself at the door of the EM address when required to do so by any member of the Police or an EM assessor; and

(f)keep the notice of bail in his or her possession at the EM address and present it when required to do so by any member of the Police; and

(g)allow an EM assessor access to the EM address for the purpose of speaking to another occupant of the EM address at the request of that occupant; and

(h)not tamper with or damage the electronic monitoring equipment or do anything with the intention of interfering with the functioning of that equipment.

(2)A breach by a defendant of an obligation under subsection (1) is a breach of the EM condition.

16     Section 30I.

[63]              Finally, and relevant to this decision, s 30O provides for the use of information obtained from electronic monitoring as follows:

30O     Use of information obtained from electronic monitoring

Information that is obtained from the electronic monitoring of a defendant on bail with an EM condition may be used for the purpose set out in section 30A and for any of the following purposes:

(a)verifying compliance by the defendant with bail conditions:

(b)detecting non-compliance by the defendant with bail conditions and providing evidence of that non-compliance:

(c)detecting the commission by the defendant of an offence and providing evidence of that offence:

(d)verifying that the defendant has not tampered with or otherwise interfered with the electronic monitoring equipment.

What constitutes a search?

[64]              The Supreme Court decision in R v Ngan involved the question of whether any breach of s 21 of NZBORA occurred when the police opened a zipped pouch found in a crashed car belonging to, and driven by, Mr Ngan.17 A quantity of methamphetamine was discovered, resulting in Mr Ngan’s conviction for possessing methamphetamine for supply. He argued that, because the drugs were discovered as a consequence of a breach of s 21 by the police searching the pouch, the evidence should have been ruled inadmissible. The Supreme Court was unanimous that the opening of the pouch was lawful as an exercise of common law police powers,18 or under the residual freedom to act in a way that is not unlawful.19 The majority held the opening of the pouch was a search under s 21 and, in any event, the Court was unanimous that the police had acted reasonably and justifiably in the circumstances. The police action had not been for the purpose of investigating a crime and had not been more extensive than reasonable. The evidence was, therefore, admissible.

17     Ngan v R, above n 7.

18     Per Elias CJ, Blanchard and Anderson JJ.

19     Per Tipping and McGrath JJ.

[65]              The Court made some useful observations about what constitutes a search. In his judgment, in which he reserved the question of whether a search had occurred, Tipping J said:

[41]   By taking possession of the pouch, the police officers seized it and,   by unzipping it to examine its contents, they searched it. In saying that I am assuming, because the contrary was not argued, that the actions of the police constituted a search within the meaning of s 21. I would reserve my position on that point. For example, Andrew and Petra Butler argue that if there is no law enforcement focus (usually deliberate evidence-gathering in a criminal context), conduct which might otherwise be described as a search does not fall within s 21. I also leave open whether this proposition has merit. It is, in any event, relevant that the (assumed) search in this case was not of the conventional kind whereby a police officer or some other law enforcement officer is looking for evidence of offending.

(Footnotes omitted)

[66]              McGrath J discussed the fact that, in its ordinary meaning, search describes an activity “in the nature of seeking or looking carefully and the end is to find something not readily at hand, usually because it is concealed or lost”.20 He said, however, that, for the purposes of the case, it was necessary to ascertain the meaning of search in its context and in light of the purpose of the provision and NZBORA. He noted that in interpreting s 21, it was important to bear in mind that no general guarantee of privacy was intended or given in NZBORA. He said:21

The role of s 21 of the Bill of Rights Act is to regulate state acts involving search and seizure against a yardstick of reasonableness. Such protection from improper search and seizure on behalf of the state is founded of course on a well-established common law principle. Application of s 21 will set the point at which privacy rights are limited to accommodate community rights, particularly the public interest in proper law enforcement, including the detection and prosecution of criminal behaviour. An important aspect of this exercise is determining what forms of state activity are covered by the terms “search” and “seizure”.

[67]              McGrath J, who did not consider the opening of the pouch was a search, explained his reasoning as follows:

[110]          In the context of an enactment that protects fundamental rights, the limitation of the term “search” to official examinations and investigations that have the purpose of gathering evidence or are incidental to law enforcement would be too confining. It would exclude situations where the state

20 At [103].

21     At [104] (footnotes omitted).

undertakes examinations and investigative activities of a kind that significantly intrude physically on private zones albeit for purposes other than gathering evidence. It is not in accordance with the purpose of the Bill of Rights Act that individuals and their property should only be protected where someone is being investigated for possible criminal behaviour. On the other hand, the wider of the two meanings would cover official activities of a kind which are highly unlikely to engage the values which s 21 protects. That may lead to the general guarantee of privacy entering New Zealand law, via the Bill of Rights Act, when that was not Parliament’s purpose in its enactment.

[111]          Whether or not in any case a particular activity falls within that meaning of “search” must ultimately turn on a value judgment that considers the nature of the particular examination or investigation by government officials and its impact on the privacy and security of the person subjected to it. This will allow the Court to decide whether that type of activity should or should not be exposed to assessment in light of Bill of Rights Act restraints. A finding that official actions amount to a search entails no judgment on whether in the particular circumstances the search is reasonable. That aspect must be the subject of further inquiry.

(Footnotes omitted)

[68]              Although McGrath J considered the activities the police undertook were capable of falling within the meaning of a search, given the circumstances, he considered expectations of privacy and protection of property interests were such that recognising the police actions as a search did not serve the purpose of s 21.22

[69]              The question of what constitutes a search was again before the Supreme Court in Hamed v R.23 In his judgment, Blanchard J noted that, while the touchstone of s 21 is the protection of reasonable expectations of privacy, it is not, however, a guarantee of it. Nor is it a source of power for the state — that is, s 21 does not empower the state to make reasonable searches. The lawfulness of the search must be established elsewhere, either by warrant, a statutory provision or an express or implied licence justifying what was done.24

[70]              Hamed v R suggests a two-step process is required. The court must first ask if what occurred was a search; and then, if so, whether the search was unreasonable.25 Blanchard J said that, if both questions are answered in the affirmative, then there has

22 At [112].

23     Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

24 At [161].

25 At [162]. The same questions apply in relation to seizure.

been a breach of s 21 and no further analysis under s 5 of NZBORA is required. If the search was unreasonable, it cannot be justified under s 5.26

[71]              The majority approach in Hamed v R was that a claimant’s reasonable expectation of privacy influences both the finding of a search and whether the search was reasonable. Blanchard J said:27

An expectation of privacy will not be reasonable unless, first, the person complaining of the breach of s 21 did subjectively have such an expectation at the time of the police activity and, secondly, that expectation was one that society is prepared to recognise as reasonable.

[72]              The learned authors of The New Zealand Bill of Rights Act: A Commentary appear to be of the opinion that there is no burden on the Crown to prove a search was reasonable.28 Whether a search was reasonable is an evaluative exercise for the Court.

[73]              What all this means, therefore, is that a particular activity is a search if the police activity is in the nature of an examination and invades a reasonable expectation of privacy. The expectation will not be reasonable unless the person complaining subjectively had such an expectation and it was one society is prepared to recognise as reasonable. It is a value judgment to be made in the particular circumstances.

Implied licence to enter private property

[74]              The case of Tararo v R involved the admissibility of evidence obtained by a police officer who had entered private property carrying a concealed video camera and purchased cannabis while recording the incident.29 The one issue before the Supreme Court was the contention that the police officer was trespassing, and the evidence was improperly obtained and should not have been admitted.30 Of interest to the present case are the Court’s observations about s 21 and its consideration of the doctrine of implied licence.

26 At [162].

27     At [163], citing Katz v United States 389 US 347 (1967) at 361.

28     Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [18.15.8].

29     Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.

30     Evidence Act 2006, s 30(5)(a) and (2)(b).

[75]              As to s 21, although Mr Tararo did not contend that the officer was conducting an unreasonable search, Tipping J, writing for the majority, observed that, if the officer was conducting a search, it was a reasonable one in the circumstances of the case.  He said:31

The same values as are inherent in s 21 are reflected in the trespasser/implied licence jurisprudence addressed below.

[76]As far as the question of implied licence was concerned, Tipping J said:

[12]      A more satisfactory legal basis for this kind of licence is to say that it is implied by law rather than on a quasi-contractual basis. The common law modifies the absoluteness of the ordinary law of trespass by permitting entry onto private premises for the purpose of reasonable enquiry. The common law recognises, however, that a landowner is entitled to deny or terminate the licence, either in advance of its being invoked or in the course of its being invoked.

[13]      The landowner may do this in advance by such means as locking a gate or putting up a notice making it clear that members of the public are not permitted to enter. Termination during the course of the exercise of the licence can be achieved by making it clear to the person concerned that they may no longer remain on the property. If that person does not comply with a request to leave within an appropriate time frame, they become a trespasser. Of course, contractually-based inter partes licences and their incidents continue to exist and to be governed by the law of contract. They are different in kind from the licence which the law gives to all members of the public under consideration in this case.

(Footnotes omitted)

[77]Given that background, Tipping J described the licence as follows:32

… Members of the public, including police officers, may go to the door of a private premises in order to make inquiry of an occupier for any reasonable purpose. In the course of doing so they may take photographs, if to do so is reasonable in order to accomplish that purpose. Police officers may avail themselves of this licence for law enforcement purposes. But they cannot invoke the licence to do anything that by law requires a warrant. Making a photographic record of what the police officer does or sees while exercising the licence will ordinarily be reasonable to enable the police officer thereby to support the evidence which he or she can give of what was done and seen while on the premises. Making such a record does not turn the officer into a trespasser.

31     Tararo v R, above n 29, at [7].

32 At [14].

[78]              Tipping J explained the reason for the common law was because it reflected the reasonable requirements of society, saying it would be unsatisfactory, as a matter of both social and legal policy, if someone going onto premises in the contemplated circumstances were considered to be a trespasser.33

What is the legal basis for police bail checks?

[79]              Before turning to the search issue, it is necessary to address the legal basis upon which police conduct bail checks, a matter that received some attention in the parties’ submissions. The Judge offered two alternatives: the common law of implied licence; and s 30(L)(1)(e) of the Bail Act. Ultimately, it does not matter which of these views is correct as the conduct in question is the same, including both whether it constitutes a search and whether it is unreasonable. I incline to the view that both justifications provide police with authority to carry out bail checks.

[80]              In the usual course, police officers may rely on implied licence when entering a property and going to the front door, provided they do not invoke the licence when in fact a warrant is required. What is different in the case of a bail check is that a bailee is usually obliged by the conditions of bail to present him or herself at the door when the police call to check. If a bailee chooses not to comply with the bail condition (or the occupier of the property withdraws the implied licence), then he or she is liable to be arrested for breach and brought to Court for the breach to be assessed and potentially for bail to be revoked.

[81]              The Supreme Court made clear in Tararo v R that a reasonable purpose is an essential element of an implied licence – it will therefore be person and context specific.34 As such, lawful entry onto a property pursuant to an implied licence can become a search if the actions in fact amount to a search. Police actions in the present case demonstrate the distinction. When it was discovered that Mr Warren was advertising stolen bikes on TradeMe, the police applied for a warrant to search his property.

33 At [15].

34 At [14].

[82]              While occupants are required, in order for EM bail to be granted, to understand the conditions of EM bail and to consent to the bailee residing at the property on EM bail, there is no provision imposing any obligation on an occupant to assist the bailee in complying with his or her obligations (such as by allowing police to carry out bail checks pursuant to an implied licence).35

[83]              Arguably, s 30L(1)(e) of the Bail Act impliedly authorises the police to carry out bail checks of bailees subject to an EM condition.36 While that section is undoubtedly focused on the obligations of the bailee, as the heading to the section suggests, the relevant obligation is to present at the door “when required to do so by any member of the Police” (emphasis added). The use of the word required suggests that police have some power to require the bailee to present. That power must be provided by the section. Incidental to that power, police must be able to enter a property in order to require the bailee to present at the door.

[84]              Mr Ewen submitted that this power could only be exercised on receipt of information giving rise to suspicion of some sort of breach because EM bail is a “comprehensive statutory scheme” whereby compliance with bail conditions is monitored electronically. In that regard he noted the power under s 30L(1)(e) vests not only in the police but also in EM assessors who have the management role under s 30E. I disagree that the scope of that purpose is limited to situations of equipment malfunction or where a monitoring alert indicates the bailee’s absence from the property. The power is limited to checking compliance with bail conditions, consistent with the statutory purpose of the EM condition as set out above.

Did the bail checks constitute a search?

[85]              I will approach the question of whether the bail checks constituted a search by considering two factors. First, whether the nature of the police activity in this case fits within the natural meaning of the word “search”. Secondly, whether Mr Warren had  a reasonable expectation of privacy in relation to police activity of that kind such that it is appropriate for his bail checks to be subject to s 21 of NZBORA.

35     See Bail Act 2000, s 30I.

36     It is unnecessary to consider whether the same can be said of bail checks carried out pursuant to conditions imposed under s 30(2)(b) of the Bail Act 2000.

What was the nature of the police activity?

[86]              In Mr Ewen’s submission, the police purpose in entering the EM bail address must mean that their actions were a search. He characterised the police checks as a search because Mr Warren was not in plain view but concealed behind a closed door, and the object of the bail checks was to find Mr Warren. Furthermore, he said the evidence of Sergeant McCormick made it clear that the police used bail checks to establish both the bailee’s presence on the premises (which he accepted was permissible) and as an opportunity to assess whether other conditions had been breached. The later could only be done by an “examination” or inspection of the bailee and was therefore a search, he submitted. Mr Ewen referred to the Police Good Practice Index, which in his submission makes it clear that bail checks are seen by the police as an intelligence gathering exercise.

[87]              Mr Ewen criticised the Judge for failing to make findings of fact on whether the checks were justified and why they did not stop, despite Senior Sergeant Chapman saying they would. I suspect that what both counsel might see as evidential deficiencies in the case reflects the way in which the claim was brought. The statement of claim was predicated on the basis that Mr Warren’s details were wrongly entered into the BMA. It was claimed that the police checks at issue were carried out as a result of an administrative error. The evidence makes it clear this was not so. While Senior Sergeant Chapman might have told Mr Warren’s former lawyer that there had been a mistake, her evidence was that she was wrong to have said that. That must be the case. The evidence about the BMA confirms that Mr Warren’s details were appropriately entered onto the BMA both when he was not subject to electronic monitoring and when he was.

[88]              There was no pleaded challenge to the merits of any particular bail check. This impacted on the evidence.

[89]              Sergeant McCormick’s evidence was that bail checks (generally) are not only to check for the presence of the bailee but also to ensure other conditions, such as not to consume alcohol or non-prescription drugs, are complied with. He acknowledged it is not possible to screen for alcohol or drugs but said it is something police officers are reasonably attuned to.

[90]              I accept that the EM condition requiring a bailee to present would allow the police to assess for compliance with other conditions. The purpose of the EM conditions repeats the mandatory considerations of bail and the primary risks bail is designed to guard against.37 The police are entitled, and indeed expected, to check bail compliance.

[91]              I do, however, share Mr Ewen’s reservations about the Good Practice Index because it suggests that bail checks are for the purpose of intelligence gathering. The purpose of bail conditions is to address the risks in the Bail Act. Bail conditions do not, in my view, allow the police, under the pretext of checking compliance with bail conditions, effectively to undertake covert surveillance. A police officer, in carrying out a bail check, might notice matters of concern or which contribute to police intelligence. It is a matter of emphasis. The purpose of the bail check must be just that – to check for compliance with bail conditions. It does not, however, preclude there being incidental advantages.

[92]              I regard the Police Good Practice Index as something of a red herring because the issue was the bail checks undertaken in respect of Mr Warren. In that regard, the best evidence is the police records in respect of Mr Warren. They record the time and location of each bail check and any notes made by the constables performing those checks. They all refer only to the curfew condition and simply note “comply” as the result (or “breach” on one occasion). The records suggest that the checks involved no more than ascertaining Mr Warren’s presence at the EM bail address by looking at him when he presented himself at the door, that is, checking he was present at the address. This might have entailed very general observations about Mr Warren’s physical appearance and demeanour, from which police may have made assumptions about his compliance with other bail conditions, such as not to consume alcohol. However, I doubt that even amounts to an “examination”. Those observations are little more than could be obtained by strangers passing each other in the street.

[93]              Tararo v R is the most analogous case in this respect since it also involved police officers meeting the occupants at the door but not entering the house. The

37     Bail Act 2000, s 30A.

Supreme Court did not address whether the police conduct amounted to a search, with the majority merely observing that it would have been a reasonable search if it was one.38 The Court of Appeal, however, held that it was not a search:39

In our view the expectation of privacy of the appellant in this case is minimal. The appellant was prepared to engage in cannabis trading from his front door with strangers. We would have seen the case in quite a different light if the police officer had entered the house, but that did not occur. In our view the mere recording of a transaction freely entered into is not properly characterised as a search in the circumstances of this case.

[94]              I accept Mr McKillop’s submission that, in the absence of any challenge to the merits of any particular bail check, there was no need for the respondent to adduce detailed evidence from the constables involved in those bail checks. For these reasons, I decline to draw the adverse inferences Mr Ewen suggests I should. There is simply not the evidence to enable me to evaluate whether the police checks amounted to any greater intrusion on Mr Warren’s privacy than I have described, either individually or collectively.

Was there a reasonable expectation of privacy?

[95]              The second issue identified by the Supreme Court in considering whether behaviour constitutes a search is whether the behaviour intruded into a reasonable expectation of privacy. As already explained, this requires both a subjective expectation and an expectation society recognises as reasonable.

[96]              In Mr Ewen’s submission, Mr Warren had a reasonable expectation of privacy given the intrusion was to his home. Section 30L(1)(e) was not intended, he suggested, to allow intrusion into a person’s private sphere unless there were grounds to do so. Any reduction in the expectation of privacy did not justify unreasonable intrusion.

[97]              Mr McKillop pointed to the fact Mr Warren signed the Notice of Bail, which contained the condition to present himself at the door for police. I accept Mr Ewen’s submission that a person’s reasonable expectation of privacy needs to be considered

38     Tararo v R, above n 29, at [7].

39     Tararo v R [2010] NZCA 287, 1 NZLR 145, at [63].

in context. As Mr Ewen said, acquiescence does not preclude a breach of rights and there will be cases where the person concerned might not have been aware his or her rights were breached.

[98]              That said, the starting point is that Mr Warren was subject to s 12 of the Bail Act, meaning the onus was on him to satisfy a Judge on the balance of probabilities that, if granted bail, he would not commit any burglary or other serious property offence. On 15 August 2006, Judge Davidson referred to Mr Warren’s extensive previous history over a 10-year period from 2003 to 2013 and his “fairly extensive history” of offending on bail, including a substantial number of burglaries.40 He was eventually admitted to bail with EM monitoring, which included a condition requiring him to present at the door when the police called.

[99]              Simply because a defendant is on EM bail does not mean police checks should not take place, as Mr Warren himself conceded. Mr Warren accepted the potential for police to visit his property – both by signing the Notice of Bail and also when he gave evidence. Mr Warren acknowledged the reality that he would be subject to some bail checks. His complaint, it seems, was the extent of those bail checks.

[100]          I would not go so far as Mr McKillop suggested and say that Parliament, by enacting s 30L, has clearly indicated that a defendant can have no expectation of privacy from bail checks while on EM bail. It is, however, fair to say that a person on EM bail (or bail with a curfew and condition to present at the door) must have a reduced expectation of privacy, given they have signed a Notice of Bail with conditions and given that such checks are a necessary part of the bail regime. Society would recognise that as reasonable.

[101]          Standing back and undertaking a value judgment, I am not satisfied that the police checks in this case amounted to a search. I reach that conclusion because there is no evidential basis to  conclude  that  the  police  did  any  more  than  ascertain  Mr Warren’s presence at his bail address and potentially observe his physical appearance. That low level of interference with Mr Warren’s privacy was surely contemplated by Parliament in enacting s 30L. Even if Mr Warren might have

40     Police v Warren [2016] NZDC 15697 at [4].

expected privacy in that regard, society would not recognise his expectation as reasonable.

[102]          I would also venture to suggest that, in a wider context, police bail checks of this kind would not constitute a search. The nature of police bail checks and the limitations on a bailee’s reasonable expectation of privacy leads me to conclude that bail checks should not prima facie be subject to s 21 of NZBORA. That does not mean that police bail checks can never constitute a search. I readily accept that if police go beyond merely greeting the bailee at the door, then their conduct may fit more naturally with the ordinary meaning of search and may infringe on the more limited reasonable expectation of privacy enjoyed by bailees. That would be a matter for determination in the particular circumstances of each case.

Reasonableness

[103]          Mr Ewen began his submissions by saying the principal question for the Court was whether the power to undertake a bail check was reasonably exercised. However, as this is a claim under s 21 of NZBORA, the first question is whether the actions complained of amounted to a search. It is not possible in the circumstances to conclude they did. Notwithstanding that, however, it is appropriate in my view to make some limited observations.

[104]          Mr McKillop pointed out that when Mr Warren was on bail without electronic monitoring, he was subject to one bail check every 1.7 days over a 142-day period. However, over the 192 days of EM bail, he was checked 75 times, once every 2.6 days.

[105]          There are two factors that supported Mr Warren’s bail checks. First, Mr Warren was a priority offender with a history of bail breaches, recently having breached his bail several times in December 2016. Secondly, while Mr Warren’s charges of receiving the stolen bicycles alleged he received them prior to 7 February, he was clearly still storing them while on EM bail.41

41     Mr Warren was arrested on 24 February 2017. EM bail began on 7 February 2017.

[106]          As discussed above, I have no doubt that the police are entitled to conduct bail checks notwithstanding EM bail. There is also, however, no doubt that compliance with a curfew is achieved by electronic monitoring. There may therefore be a legitimate question in an appropriate case as to whether the nature and extent of EM bail checks should be subject to review.

Remedy

[107]          Given my decision, I need not address remedy. I will simply observe that the lengthy period Mr Warren spent on restrictive bail and EM bail was taken into account by the sentencing Judge.42

Result

[108]For the reasons given, the appeal is dismissed.

[109]As Mr Warren was legally aided, there is no issue as to costs.

Thomas J

Solicitors:

Ord Legal, Wellington for Appellant Crown Law, Wellington for Respondent

42 In Beckham v R [2015] NZSC 98, [2016] 1 NZLR 505, the Supreme Court accepted that a reduction in sentence can be a remedy for breaches of NZBORA in appropriate cases where the misconduct relates to the circumstances of the offence or the offender. The Supreme Court considered that appropriate and consistent with the approach taken in relation to other remedies for breaches of NZBORA such as the exclusion of evidence (at [155] and [156]).