Wing v Police

[2022] NZHC 2126

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CRI-2022-435-1

[2022] NZHC 2126

BETWEEN

MATTHEW JOHN WING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (by VMR):	23 August 2022
Counsel:	A Mobberley for the Appellant A Brosnan for the Respondent
Judgment:	25 August 2022

JUDGMENT OF GWYN J

Summary

[1]                 On 21 May 2020 Mr Matthew Wing was charged with cultivating a prohibited plant (cannabis)1 and supplying a Class C controlled drug (cannabis).2 The charges were laid as a result of warrantless searches of the appellant’s property, including an aerial search and a ground search.

[2]                 The appellant sought an order under s 30 of the Criminal Disclosure Act 2008 (Act) for disclosure of information relating to those searches, including the costs of the aerial search. The District Court denied the applications on the basis that the information sought was not relevant.3

[3]Mr Wing now appeals that decision.

1      Misuse of Drugs Act 1961, s 9 carries a maximum penalty of seven years’ imprisonment.

2      Section 7 carries a maximum penalty of three months’ imprisonment and a fine of $500.

3      Police v Wing [2022] NZDC 9316.

WING v NEW ZEALAND POLICE [2022] NZHC 2126 [25 August 2022]

Facts

[4]                 New Zealand Police runs an annual cannabis and crime operation. For 2020, the operation, entitled “Operation Piano”, began in the Wellington District. The first phase included flying an aeroplane over rural areas to spot cannabis plantations. On 11 February 2020, cannabis plants were identified growing on the appellant’s property in South Wairarapa.

[5]                 As a result, police entered the property to conduct a warrantless search under the Search and Surveillance Act 2012 and located 14 well-tended and healthy cannabis plants on the property, including four budding ones. The police estimate the potential yield of the plants would be 14 pounds, equivalent to $56,000. These facts constitute the basis of the cultivation of cannabis charge.

[6]                 The supply of cannabis charge arises from text messages between the appellant and an associate during the period 17 July to23 July 2019. The police allege that the text messages show the appellant providing the associate with cannabis.

[7]                 In explanation, the appellant told police that he suffered from tinnitus and had been growing cannabis for personal use for two years to help with the condition.

[8]                 The appellant has elected a Judge-alone trial which will be heard in the Masterton District Court. A trial date has not yet been set.

District Court’s decision

[9]                 Prior to a pre-trial hearing on the admissibility of the evidence obtained through warrantless searches, Mr Wing sought information under s 30:

(a)Aircraft costs: the costs of chartering the fixed wing aircraft, the pilot and all incidental costs incurred by the police for Operation Piano from 10-12 February 2020; and

(b)Copies of the Warrantless Search Notifications4 in relation to searches carried out during 10-12 February 2020 as part of Operation Piano.

[10]             The information was said to be relevant to the s 30 balancing exercise under the Evidence Act 2006 (Evidence Act) for Mr Wing’s challenge of the warrantless searches.

[11]             Judge Large, on 26 May 2022,  in  the  Masterton  District  Court  declined Mr Wing’s application for disclosure on the basis that the information was not relevant.

[12]             The Judge considered that the question he was required to determine was whether the information sought was relevant to the lawfulness of the warrantless searches conducted on Mr Wing’s property.

[13]             The Judge concluded that the cost of the police operation was not a relevant factor for assessing the legality of the warrantless searches. The circumstances of the search decisions were explained by Detective Sergeant Van Woerkhom and cost was not mentioned as being a factor considered.

[14]             Similarly, the Judge did not consider that the Warrantless Search Notifications for searches conducted from 10-12 February 2020 would be relevant to assessing the specific search conducted at Mr Wing’s property. Each search would have been based on the unique factual circumstances it presented and as perceived by the police officer at the relevant time. Those circumstances were not relevant to the decision to conduct a warrantless search of Mr Wing’s property.

[15]             Accordingly, neither set of information was relevant to the lawfulness of the searches conducted on Mr Wing’s property and the Judge declined to order disclosure.

4      Warrantless Search Notifications are a mandatory reporting requirement for police officers when they invoke a warrantless search power: s 169 Search and Surveillance Act 2012.

Grounds of appeal

[16]             Mr Wing appeals on the ground that Judge Large made an error of fact and law by considering the relevance of the information sought only in relation to the ground search, and not to the aerial search. The relevance of the information sought relates particularly to the aerial search, which led to the subsequent ground search.

[17]This is an appeal under s 33 of the Act.

Leave to appeal out of time

[18]             First, the appellant seeks leave to appeal out of time. Counsel acknowledges that the delay in filing the appeal was counsel’s fault. The Police oppose leave being granted, noting that the merits of the proposed appeal are a relevant consideration and the District Court Judge has already held that the information sought lacks relevance.

[19]             The Police did not point to any prejudice arising from leave being granted. Unless the appeal was plainly devoid of merit – which it is not – the District Court judgment is not definitive of the question. I conclude it is in the interests of justice to grant leave to appeal out of time.

Submissions

For the appellant

[20]             As to the substantive appeal, Ms Mobberley, for the appellant, submits that the District Court Judge erred as a matter of fact and law by applying the test of relevance to the wrong issue.

[21]             Counsel submits that the aircraft costs are directly relevant to whether the police knowingly decided to conduct an aerial search of Mr Wing’s property, at the planning stage of Operation Piano and before the aircraft flew over Mr Wing’s property. The Judge erred by assessing the relevance of the information solely in relation to the subsequent ground search.

[22]             The appellant says that the aerial search was a ‘search’ for the purposes of the Search and Surveillance Act and the New Zealand Bill of Rights Act 1990. And the aerial search is separate from the subsequent ground search conducted on Mr Wing’s property.

[23]             Ms Mobberley submits that the aircraft costs information would be relevant in cross-examining police witnesses as to their failure to obtain a warrant to search    Mr Wing’s property when there is evidence to suggest that police suspected prior to the flyover operation that Mr Wing was a person of interest. Counsel says that the cost of the flyover operation would have been a further consideration for the police when setting flight paths to ensure resources were being used efficiently. Counsel submits that an inference can be drawn that it was not coincidental that the flight path happened to cover Mr Wing’s remote property and the search was therefore unlawful. The police should have obtained a search warrant to lawfully conduct  a  search of Mr Wing’s property when they suspected him of criminal conduct.

[24]             In support of the appellant’s submissions Ms Mobberley referred to an email dated 22 January 2020 from Sergeant Matheson to Detective Senior Sergeant Bysouth. The email is headed ‘Op Piano – Fly over considerations: prepared by Sergeant Tony MATHESON …’(the POI email). Counsel says Sergeant Matheson is the police officer who sits next to and directs the pilot where to fly on the flyover operation. Detective Senior Sergeant Bysouth was the officer in charge of Operation Piano in 2016 to 2020. The unredacted portion of the email sets out the appellant’s details, including his address. It appears from the shape of the redacted portions that they are likely to be similar details in relation to other individuals.

[25]             Ms Mobberley says the email clearly indicates that the appellant was on Sergeant Matheson’s radar as at 22 January 2020, that is, three weeks before the flyover. The factors that went into determining the flightpath (including costs) and what was in contemplation for the overall search will plainly be a legitimate – indeed necessary – inquiry and line of cross-examination for the defendant.

[26]             Similarly, counsel submits that the information sought about the Warrantless Search Notifications was wrongly assessed for relevance to the ground search only.

Instead, it was sought to establish the ongoing nature of the police practice of assuming warrantless searches would take place during flyover drug recovery operations when such a practice had been ruled unlawful in Elley v Police.5 (While Ms Mobberley says the lawfulness of the aerial surveillance is not directly in issue in this pre-trial appeal, it will be at a later stage). Warrantless Search Notifications, which must set out the reason for the warrantless search, would help determine whether the unlawful practice is continuing and was applied in the present case.

[27]             Counsel further submits that the information sought is relevant to the gravity of any breach of the Search and Surveillance Act and, therefore to the balancing exercise to be undertaken to determine the admissibility of the evidence under s 30 of the Evidence Act.

[28]             Finally, Ms Mobberley notes that the information sought is confined in scope and can be readily retrieved by the Police. There are no confidentiality issues and undertakings will be provided.

For the respondent

[29]             Mrs Brosnan, for the respondent, submits that Judge Large was correct in finding that the aircraft costs would not be relevant in assessing the lawfulness of the search of Mr Wing’s property. Counsel submits that police witnesses can be cross- examined on their failure to obtain a search warrant for Mr Wing’s property without disclosure of the information sought.

[30]             On the issue of Warrantless Search Notifications, the respondent submits that the police have already disclosed the number of warrantless searches that took place during the operation and the number of warrants issued. Disclosing the information sought would involve redacting the personal information contained in it. And it would be of no relevance to the specific search that took place at Mr Wing’s property. Further, the respondent says that it is not conceded that the aerial search constitutes a ‘search’.

5      Elley v Police [2021] NZHC 2097.

[31]             The respondent submits that there is no real connection between the information sought and whether Operation Piano was a continuation of the practice deemed unlawful in Elley v Police. The lawfulness of the search of Mr Wing’s property depended on the case-specific circumstances and these did not include the information being sought.

Relevant law

[32]             The starting point for disclosure by a prosecutor is ss 13(1) and (2) of the Act which provide:

13 Full disclosure

(1)The prosecutor must disclose to the defendant the information described in subsection (2) as soon as is reasonably practicable after a defendant has pleaded not guilty.

(2)The information referred to in subsection (1) is—

(a)any relevant information, including, without limitation, the information (standard information) described in subsection (3); and

(b)a list of any relevant information that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant together with—

(i)the reason for the refusal; and

(ii)if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 16, 17, or 18 and (in the case of the interests protected by section 18) there is no overriding public interest.

…

[33]“Relevant information” is defined in s 8 as:

8    Meaning of relevant

In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.

[34]             The rationale for disclosure is the right to a fair trial so a defendant can fully understand the case to be answered, and have access to information in the possession of the prosecutor that may assist the defence.6 Full disclosure will help ensure that

6      Hutton v R [2018] NZCA 419 at [27].

proper procedures are followed by prosecuting bodies by disclosing the detail of the investigation to defence scrutiny. In R v Sullivan the High Court observed that the Crown is to approach its disclosure obligations not as an adversary to secure a conviction, but to ensure that justice is done.7

[35]             However, as the Act provides, there can be limitations to disclosure when other more powerful matters in the public interest outweigh the disclosure obligation. Where there is such a competing interest a court will endeavour to balance that competing interest fairly, and to remove or minimise any detriment to a defendant arising from limitations on disclosure. The principles of open justice and the right to receive information in the New Zealand Bill of Rights Act 1990 point to disclosure.8

[36]             A prosecutor may withhold disclosure for a number of reasons, as set out in   s 16, which provides:

16 Reasons for withholding information

(1)A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if—

(a)disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(b)disclosure of the information is likely to endanger the safety of any person; or

(c)the information is—

(i)material that is prepared by or for the prosecutor to assist the conduct of the hearing or trial; or

(ii)a communication dealing with matters relating to the conduct of the prosecution and is between—

(A)the prosecutor and another person employed by the same person or agency that employs the prosecutor; or

(B)the prosecutor and any adviser to the prosecutor; or

(iii)analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor; or

7      R v Sullivan [2014] NZHC 1105 at [34].

8      New Zealand Bill of Rights Act 1990, ss 14 and 25(a); and see Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 (CA) at [41], recognising the importance of the rights in that Act to disclosure.

(d)the information is subject to sections 108 and 109 of the Evidence Act 2006 (which relates to information about undercover police officers); or

(e)the information is subject to a pre-trial witness anonymity order under section 110 of the Evidence Act 2006 or a witness anonymity order under section 112 of the Evidence Act 2006; or

(f)the information is subject to section 16 of the Victims Rights Act 2002 (which relates to information about witnesses’ addresses); or

(g)the disclosure of the information would be likely to prejudice—

(i)the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(ii)the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation; or

(h)disclosure of the information would be likely to facilitate the commission of another offence; or

(i)disclosure of the information would constitute contempt of court or contempt of the House of Representatives; or

(j)the information could be withheld under any privilege applicable under the rules of evidence; or

(k)disclosure of the information would be contrary to the provisions of any other enactment; or

(l)the information is publicly available and it is reasonably practicable for the defendant to obtain the information from another source; or

(m)the information has previously been made available to the defendant; or

(n)the information does not exist or cannot be found; or

(o)the information—

(i)reflects on the credibility of a witness who is not to be called by the prosecutor to give evidence but who may be called by the defendant to give evidence; and

(ii)is not for any other reason relevant.

(2)If part only of the information may be withheld, the prosecutor must make the remainder of the information available if it is possible to protect the withheld information by deletion, summary, or otherwise.

(3)If the prosecutor becomes aware that there has ceased to be any justification for withholding all or part of any information that has been withheld under this Act, the prosecutor must, if the criminal proceedings have not yet been completed, disclose that information to the defendant as soon as reasonably practicable.

[37]Section 16 is subject to s 30:

30 Court order for disclosure of information

(1)The defendant may apply to the court for an order that a particular item of information or type of information in the possession or control of the prosecutor be disclosed on the grounds that—

(a)the defendant is entitled to the information under section 12, 13, or 14, as the case may be, and—

(i)the prosecutor failed to disclose the information; or

(ii)the prosecutor refused under section 14, 16, 17, or 18 to disclose the information, and—

(A)none of the reasons described in section 16, 17, or 18 for which information could be withheld applies to the information; or

(B)in the case of a refusal under section 17, the information ought to have been disclosed under section 17(3); or

(C)in the case of a refusal under section 18, the information ought to have been disclosed under section 18(2); or

(b)even though the information may be withheld under this Act, the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information.

(2)If the court is satisfied, on an application made under this section, that the defendant is entitled to the disclosure of any particular item of information or type of information, or that any particular item of information or type of information should be disclosed to the defendant under subsection (1)(b), the court may order that the item or type of information be disclosed to the defendant.

(3)An order made under this section may be made subject to any conditions that the court considers appropriate.

[38]             Under s 30(2) the court must be “satisfied” that the applicant is entitled to disclosure before it will make an order that a document be disclosed. In considering whether it is “satisfied”, the court will take into account the context in which ss 16 and 30 arise, including the purpose of the Act to promote fair, effective, and efficient disclosure of relevant information, as well as the right to receive information. In carrying out the balancing, the purpose of the proposed disclosure, and its potential helpfulness to the defence as best that can be discerned, will be relevant to assessing the public interest.9

9      Hutton v R, above n 6, at [35].

[39]             The court retains a residual discretion to decline to order disclosure even if none of the withholding grounds apply. The discretion should, however, be exercised cautiously.10

Analysis

[40]             The issue is whether the information sought is relevant to the lawfulness of the warrantless searches conducted of Mr Wing’s property. The lawfulness of the particular searches will be determined in the context of the broader Operation Piano.

[41]             The POI email indicates that the police considered Mr Wing to be a person of interest prior to the flyover and the aerial surveillance of his property. I accept that information about the planning of the overall operation is information that is necessary for the conduct of the defence. Information about the costs of the operation may be linked to the determination of the flight path for the flyover.

[42]             Similarly, the information sought from the Warrantless Search Notifications may be relevant to the broader question of how the police determined that warrantless searches were appropriate and lawful. Under s 169(3)(a) of the Search and Surveillance Act, the notifications must provide a short summary of the circumstances surrounding the particular search. Ms Mobberley says the reasons given will be relevant to the broader question of the lawfulness of the overall operation.

[43]             The prosecution has not provided any compelling reason for refusing disclosure. No s 16 factors are raised. In contrast, in Hutton v R, the reasons for non- disclosure included compromising an important investigative tool and compromising ongoing and future investigations.11 Here, the only reason police cite in their opposition to disclosure is that making the information available to Mr Wing would involve having to redact the personal information of others who were subject to warrantless searches. Ms Mobberley confirmed at the hearing of the appeal that she sought this information only for 11 February 2020. This is not an onerous obligation.

10     Tarrant v R [2019] NZHC 2187 at [11]-[13].

11     Hutton v R, above n 6, at [52].

[44]             In conclusion, I am satisfied that the appellant has established a sufficient basis for the relevance of the information sought. A convincing case is not made out for withholding the information. I am not satisfied that the interests of withholding the information outweigh other considerations that make it desirable, in the public interest, to disclose the information.12 Even if I had concluded that the competing considerations weighing for and against disclosure in the public interest were evenly balanced, I would have upheld the appeal. In that situation the information should be released unless there is good reason to withhold it.13

Result

[45]Leave to appeal is granted.

[46]             The appeal is allowed and I make an order for disclosure in the following terms:

(a)Aircraft costs: the costs of chartering the fixed wing aircraft, the pilot and all incidental costs incurred by the police for Operation Piano from 10-12 February 2020; and

(b)Copies of the Warrantless Search Notifications in relation to searches carried out on 11 February 2020 as part of Operation Piano.

Gwyn J

Solicitors:

Crown Solicitor, Wellington

Copy to:

A Mobberley, Masterton

12     Criminal Disclosure Act, s 30(1)(b).

13     Liev v R [2017] NZHC 1352 at [43], citing Kelsey v Minister of Trade [2015] NZHC 2497.