R v Savelio CA234/96 [2005] NZCA 356 (5 August 2005)

Last Updated: 20 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA234/96

THE QUEEN

v

_{OSA SAVELIO}

Hearing: 3 February 2005

Court: Anderson P, Hammond and William Young JJ Counsel: T Ellis for Appellant

D J Boldt for Crown

Judgment: 5 August 2005

_{JUDGMENT OF THE COURT}

_{The appeal against conviction is dismissed.}

REASONS

_{(Given by Anderson P)}

Introduction

[1] This appeal against conviction for aggravated robbery is being reheard in consequence of the judgment of the Privy Council in R v Taito [2003] 3 NZLR 577.

R V SAVELIO CA CA234/96 5 August 2005

The principal issues are the validity of a search warrant, the standing of the appellant to complain that the search conducted pursuant to that warrant was unreasonable, and whether that search was unreasonable.

The factual background

[2] At around 10 am on 7 March 1995, Matthew Solomon Thompson entered the Trustbank situated in Queen Street, Wainuiomata. He was armed with a sawn-off shotgun and disguised with a balaclava. He ordered the bank’s customers to drop to the floor and then demanded money from bank staff.

[3] Outside the bank, Thompson’s getaway vehicle was waiting with the passenger door open and engine running. That vehicle – a stolen Mazda Familia – was driven by another man, also disguised. Witnesses described the driver as a person of solid build, and larger than Thompson. While the robbery was occurring, the driver noticed that one of the customers was heavily pregnant, and he mouthed to her the words “are you OK”. When the customer, nodded, the driver responded with the “thumbs up” signal. Thompson fled the bank with a total of $14,591.75 in cash, and he and the driver drove away.

[4] The Mazda was located in Edmonds Street, a cul-de-sac a few minutes’ drive away, about twenty minutes after the robbery. A balaclava, which had been fashioned from the sleeve of a black jersey, was found on the floor of the vehicle. A red and blue ski glove was found floating in a nearby stream. A matching glove was found at the rear of a property in Westminster Road, which can be accessed across a walkway from the cul-de-sac where the Mazda was found.

[5] That afternoon, the Police received information that the appellant was one of three known armed robbers who had recently travelled to Wellington from Wanganui. Another of the group, a man named Mallinson, had visited the bank the previous day. The appellant’s father lived at an address in Dewsbury Grove, Wainuiomata. A member of the Police had observed the appellant enter that address a few hours after the robbery. This led the Police to apply for a search warrant of the Dewsbury Grove premises. A warrant was issued by a Justice of the Peace.

[6] The search of the address commenced at 4:25 pm. Shortly after 5:00, when searching a garage on the property, the Police located a pencil case under a settee. It contained $5,360 in cash. The Police also found a black jersey with one sleeve missing. The balaclava in the Familia appeared to have been made from the missing sleeve. In the same area, the Police found a sleeveless leather jacket containing $620 in cash. In the floorboards underneath a lean-to construction attached to the garage, the Police found a plastic bag containing a sawn-off shotgun.

[7] Some time before 5:00, the appellant telephoned his father’s address. He said that he and his friends were driving towards Wainuiomata from Wellington. That information was conveyed to the Police, although in what way is not in the evidence. A Police team assembled at the top of the Wainuiomata Hill. At approximately 5:15 the appellant drove a car to the crest of the hill. The car was stopped by an Armed Offenders Squad. The occupants - the appellant, Thompson and Mallinson – were told of their rights under the New Zealand Bill of Rights Act (“BORA”) and then taken into custody.

[8] The appellant was interviewed by Detective Van Berkel. The interview commenced shortly after 5:30, and the appellant was again advised of his rights under BORA. The appellant indicated that he did not wish to consult a lawyer, and that he was prepared to speak to Detective Van Berkel, (with whom the appellant had been to school), provided their discussion was “off the record”. Detective Van Berkel and the appellant were together for approximately four hours without any notes being taken. During the “off the record” phase of the conversation, the detective “searched the appellant and took possession of $462.20 in cash”.

[9] Shortly after 9:30 pm, the appellant gave Detective Van Berkel permission to take notes. He indicated that he, Mallinson and Thompson had come down from Wanganui two days before, and that all three had been staying at his father’s home in Dewsbury Grove. He gave an account of his movements that morning, denying any involvement in the robbery. He claimed that he had visited his sister’s address in Westminster Road, (near to where the second glove was found), where he had unexpectedly come across Thompson. He said that he and Thompson returned to Dewsbury Grove, and that shortly afterwards he found the garage was “laden with

cash”. He said that he counted about $15,000, and that he had helped himself to some of the money. He had not asked where it had come from because he was “not nosey”. He accepted that he helped to conceal the firearm. The interview concluded at around 10:40 pm.

[10] Shortly afterwards, following a request by one of the other suspects, the Police arranged for the appellant, Mallinson and Thompson to meet in private. This meeting began at 11:10 pm and lasted 45 minutes. Then Detective Taare asked the trio if they had “made a decision”. The appellant indicated that they had, and acknowledged that they had done the robbery. The appellant admitted that he was the driver, and Thompson said that he had “had the shooter and done the armo”. The appellant declined to be interviewed further that night. He was then arrested on a charge of possession of cannabis, founded on other evidence.

[11] The following morning the appellant asked to speak to a lawyer. The Police contacted a lawyer, Mr Antunovic, with whom the appellant spoke by telephone in private. Following this discussion, the appellant indicated that he was prepared to make a statement to Detective Van Berkel, but did not want it to be recorded on video. The appellant indicated that he was happy to speak without a lawyer present.

[12] The appellant made a full statement admitting that he was the driver of the Mazda that had been used in the robbery. He said that during the robbery he had “spoken to” a pregnant woman who had been in the bank, saying “sorry about this, but we’re broke”, and that he had wanted to get her out of the bank. After outlining the vehicle’s progress from the bank in a manner consistent with that observed by witnesses, the appellant described the clothing he had been wearing. When asked if he had been wearing anything else, the appellant replied “yeah, blue and red ski gloves I think”. He signed the detective’s notes as true and correct. The statement concluded at approximately 9:00 am, following which the appellant was charged with the robbery.

[13] Thompson pleaded guilty to charges arising from his involvement in the robbery. The appellant pleaded not guilty. A photograph of Mallinson, who was the

obvious alternative suspect, was produced as part of the Crown case, together with evidence that Mallinson was of slim to medium build.

[14] At trial, the appellant maintained that his initial account of the events of

7 March 1995 was the correct one. This was that he had had no involvement in the robbery. He testified that he had been pressured by Thompson and Mallinson, during their private meeting, into “taking the rap” as driver.

[15] The trial before McGechan J, resulting in the appellant’s conviction which is now under appeal, was the third time the appellant had stood trial on this charge. The first trial, before Judge Jaine, had to be aborted while the second trial had resulted in a disagreement. Before Jaine J and McGechan J the appellant had sought the exclusion of the admissions that he made at the Police Station, both after the late night meeting and in the following morning’s interview. Jaine J recorded, after hearing from Detectives Van Berkel and Taare, and from the appellant, that the

parties had agreed that the appellant’s comments on the evening of the 7^th would not

be led, but that the confession on the 8^th was admissible. Following a fresh argument during the third trial, McGechan J ruled that the appellant’s comments, after the meeting with Mallinson and Thompson, had not been obtained in circumstances that breached his rights under the s 23(1)(b) of BORA, nor had it been obtained unfairly. McGechan J pointed out that the appellant had consulted with Mr Antunovic prior to making his statement on 8 March; that neither Mallinson nor Thompson was able to exert any pressure on him at that stage; but that the appellant had gone on to make a detailed statement nonetheless. Evidence of both confessional statements was therefore given to the jury.

The search warrant

[16] The search warrant executed at the home of the appellant’s father was issued on the strength of an affidavit, sworn by a police constable, in the following terms:

1. THAT at about 10.00 a.m. on Tuesday, 7 March 1995, the business premises of Trustbank situated at 6 Queen Street, Wainuiomata, was the subject of an aggravated robbery.

2. THAT one person described as a male, 5’8” in height, thin build, wearing a balaclava, entered the bank and at gun-point stole an amount of $16,000 in various denominations.

3. THAT leaving the bank, this offender was seen getting into a two-door Mitsubishi motor vehicle, with a second offender. This vehicle was later recovered in Edmonds Street, Wainuiomata.

4. THAT following Police enquiries, information has been received from the Wanganui Police that Joseph Hohepa MALLINSON, Matthew Solomon THOMPSON and Osa Poni SAVELIO are in the Wainuiomata area and are currently involved in aggravated robberies.

5. Information has also been received that MALLINSON on the 6^th of March 1995 was at the Wainuiomata Branch of Trustbank making a withdrawal from a bank account.

6. The description of MALLINSON matches the description of the offender at the Wainuiomata Trustbank during the aggravated robbery this morning.

7. THOMPSON is currently on active charges of aggravated robbery and it is believed that THOMPSON, together with MALLINSON and SAVELIO, are involved in this robbery.

8. Information has been received that THOMPSON, MALLINSON and SAVELIO reside or use the address of 15 Westminster Road, Wainuiomata.

9. At 12.45 p.m. on 7 March 1995, a member of Police identified

SAVELIO entering the address of 19 Dewsbury Grove, Wainuiomata.

10. Items sought include black and brown balaclavas, canvas bags, black pants, white runners, grey hooded sweatshirt, brown mask, firearms and

$16,000 in various denominations.

11. Aggravated robbery is an offence against the Crimes Act 1961 and is punishable by imprisonment.

First ground of appeal – misdirection?

[17] The main grounds of appeal relate to alleged breaches of rights assured by BORA. However, the first ground concerns the Judge’s direction to the jury in respect of inferences and circumstantial evidence. It is convenient to deal with that ground before embarking on the other, more substantial grounds.

[18] The Judge’s directions included the following:

The first thing you have to do, as I’ve said, is decide the facts; decide what happened. You do that, and you alone; not me; not counsel; certainly not the

police; you and you alone are the sole deciders of fact and you decide that solely upon the evidence which you’ve heard in this courtroom. Now, that of course includes the exhibits which you’ll have and it also includes what we call inferences. Now, let me make quite sure you understand what I mean by that. You’re allowed to draw reasonable inferences from proved facts. An example might help you. If you went outside the courtroom to an intersection, saw some glass in the middle of the intersection and a damaged car on one side of the road, another damaged car on another side of the road, you could draw a reasonable inference from those facts that the two cars had collided, probably somewhere near where the glass was. It’s as simple as that. You’re doing it every day of your lives and you’re allowed to do that, to draw reasonable inferences from proved facts, but you must not guess. You must not speculate. No conjectures. No hunches. Reasonable inferences from proved facts, yes; guesswork a very big no.

...

All right, now a word about some particular types of evidence you’re dealing with, and the first one is this matter of direct evidence, eye witness evidence, and circumstantial evidence. You’ve got some of both. You’ve got witnesses who say they saw someone as the driver of the get-away car and give descriptions. You’ve got circumstances such as a sawn-off shotgun and money being found at the accused’s father’s house. Now, in a case like this you just give both types of evidence, eye witness or circumstantial, whatever weight you consider they deserve. I say this because there are some bad American television programmes which give some very strange views as to circumstantial evidence. If you’ve seen anything of that just put it right out of your minds and do what I just said; give both sorts of evidence whatever weight you think they deserve. The question in the end is whether on all the evidence you accept the case is proved beyond reasonable doubt.

[19] Mr Ellis submitted that the direction on inferences was inadequate, and also untimely in that it was at the beginning of the summing up rather than near the end. He also submitted that there were no directions on circumstantial evidence and such an omission was critical, given the nature of the case. He submitted that the Judge should have directed the jury on a need to be satisfied that the facts were such as to be inconsistent with any other rational explanation than that the appellant was guilty.

[20] In the course of their deliberations, the jury asked for a direction whether it was sufficient for a guilty verdict if the jury were satisfied beyond all reasonable doubt that the appellant was a party to the offence but not necessarily the driver of the get away car. The Judge directed that they could not find the appellant guilty on that basis because the Crown had presented its case from the outset in terms of the appellant being the driver of the getaway car, and the case had been defended on that same basis. Mr Ellis submitted that the direction did not address the possibility that the appellant may have been an accessory after the fact or a receiver, and that such

omission compounded the inadequacies of the direction on inferences and circumstantial evidence.

[21] We have difficulty in understanding how the appellant could have been disadvantaged by a direction that held the Crown to the unnecessarily narrow basis on which it had presented its case. That basis was favourable to the appellant because the circumstantial evidence plainly indicated some prior complicity by the appellant, such as providing a base for the robbery operation. In any event, the Judge’s response to the jury question could not appropriately range into possibilities which were irrelevant to the issue whether the Crown had proved the appellant was guilty of being the getaway driver.

[22] Nor are we persuaded that the location or timing of the directions on inferences and circumstantial evidence in the context of the summing up was an error of law. There is no principle mandating a particular sequence in which necessary directions shall be given. All that is required is that necessary directions are given and that they be adequate.

[23] The directions in respect of inferences were adequate. They emphasised that the inferences must be reasonable and must be drawn from proved facts; and they must not be guesses, speculation, or conjecture. It is the case that the Judge did not expressly define “circumstantial evidence” but it is not necessary to do so. By inference, he characterised it as evidence which was other than eye witness evidence, emphasising however that the jury ought give evidence of either category such weight as it might deserve and that in the end the question was whether on all the evidence the jury accepted the case was proved beyond reasonable doubt. There was no need to go further. We reject this ground of appeal.

Unreasonable search?

[24] A more cogent ground is that the search was unreasonable, contrary to the right, affirmed by s 21 of BORA, not to be subject to unreasonable search. The argument is founded on an assertion that the search warrant was invalid.

[25] There was no challenge at or before trial to the validity of the search warrant. Its terms and the affidavit in support were not in evidence before the High Court. Mr Ellis has sought to place that material before us by way of inclusion in a folio of documents. That is not an appropriate way of bringing before this Court alleged evidence which was not part of the trial record. If an appellant should seek to place further evidential material before this Court, that should be done by way of a formal application. In that way, issues of cogency and freshness may be examined according to their merits before the additional material might be examined in a substantive context.

[26] We are conscious, however, that an argument might be advanced that a pretrial challenge, based on inadequate justification for the issue of the search warrant, ought to have been mounted; and that a failure to do so might constitute radical error by former counsel.

[27] Usually the issue of radical error is not considered without a request that an appellant waive legal professional privilege so that the context in which a decision was made by counsel might be examined. Often tactical judgments will inform the issue of alleged counsel incompetence. But we doubt that can be the case here. Granted that almost 10 years ago defence counsel were often not as astute as in recent years to scrutinise the reasons for the issue of a search warrant, nevertheless the adequacy of the grounds for a warrant can hardly invoke tactical, judgmental, decisions. Although it is ultimately the responsibility of the trial Judge to exclude inadmissible evidence, that responsibility cannot be regarded as undischarged where, as in this case, the evidence on which a decision has been made has not been placed before the Court. But in a case which, by virtue of the Privy Council’s decision in Taito, involves a miscarriage of justice in terms of appeal rights, we think we ought not take a too rigid procedural view in respect of material which is part of a Court record and assessable on its face. Therefore, in the interests of justice, we are prepared to consider the warrant and supporting affidavit although such evidence is not “fresh” in the conventional sense. We note however the Crown’s strong objection to the admission of such material on the appeal, and we are not disposed to consider other material, not forming part of a Court record, which Mr Ellis has

sought to bring to our notice. Such material is not fairly to be considered in a context which excludes evidential qualification.

Should the warrant have issued?

[28] We do not doubt, however, that the affidavit in support of the warrant was inadequate to justify its issue. Unlike many search warrants which come before the courts, it was not unfocussed in its scope. It did not, for example, authorise a search of aircraft or vessels, which objects had no relevance to this or most other applications, but seem nevertheless to be indiscriminately included in warrants. But when the affidavit is analysed, it must be considered meagre in its relevant information.

[29] There is no issue as to whether the described armed robbery had occurred. What had to be shown, however, was a justification for searching the home of Mr Savelio’s father. Essentially, the deposition on this issue was, as set out in paragraphs 4 and 9 of the affidavit:

(a) Following Police inquiries, information has been received from the Wanganui Police that Mallinson, Thompson and Savelio are in the Wainuiomata area and are currently involved in aggravated robberies; and

(b) At 12.45 p.m. on 7 March 1995, a member of Police identified

Savelio entering the address of 19 Dewsbury Grove, Wainuiomata.

[30] As to (b) above, the fact, by itself, that someone enters an address, raises no inference capable of supporting a warrant to search such address. Crucial to the issue of the validity of the warrant is whether the issuing officer could properly have relied on the information in (a) above, and if so, whether the appellant’s entry into the Dewsbury Road premises, or indeed any other premises, thereby amounted to reasonable ground for believing that evidence of the robbery was present there.

[31] The information set out in paragraph 4 of the deposing constable’s affidavit has no acceptable probative value. What is the nature of the alleged Police inquiries? Who are the members of the Wanganui Police from whom the alleged information was received? Why didn’t they depose to the information they had to pass on? What is the source of that information? What other robberies, allegedly involving Savelio and the others, were said to have occurred?

[32] We accept that there was probably an adequate evidential basis for the officer who issued the warrant to be satisfied that the robbery of the Trustbank had occurred and that Mallinson may have been involved. However, the only indication that Savelio was implicated is the inadequate terms of paragraph 4 of the constable’s affidavit; and the only indication that Mr Savelio senior’s home might be relevant is that the appellant was seen entering those premises almost three hours later.

[33] Mr Ellis submitted that, following the robbery, the Police embarked on a search fishing exercise of what has come to be known vernacularly as “the usual suspects”. We think there is some force in that observation but it is not necessarily determinative of the issue whether the search was unreasonable. It would seem, however, to account for the obvious, although possibly avoidable, inadequacies of the constable’s affidavit.

[34] We understand and accept that good policing involves using institutional information, informed tactical decisions, networking and initiative. So it may well be the case that the information received from the Wanganui Police was shrewdly informative, and the results of the search of the home of Mr Savelio senior attest to the soundness of an operational assessment by the Police.

[35] We also acknowledge that, in the past decade, the need for cogency and justification in affidavits applying for search warrants has been realised and exemplified by members of the Police. However, this Court has to approach the facts as they were described, not as it is now realised they should have been. And notwithstanding the admonitions of the Courts, inadequacies, possibly avoidable, still occur. The Police really must understand, in the interests of the community, that

they have to scrutinise, as devil’s advocates, the grounds on which they seek authority to search and seize.

[36] We have to conclude that the affidavit in support of the search warrant just does not pass muster. The issuing officer could not, reasonably, have been satisfied that there was reasonable ground for believing that there was at Mr Savelio senior’s address – to use the terms of s 198(1) Summary Proceedings Act 1957 –

(a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

(b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

(c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence—

[37] It must be concluded that the search warrant was wrongly issued. Does that make the search unreasonable? And if so, should the evidence, the fruits of the search, be held inadmissible?

[38] Before examining those issues, it is necessary to consider a preliminary question. This is whether the appellant can be heard to impugn the search of his father’s premises.

[39] In R v Bruhns (1994) 11 CRNZ 656 the accused complained about an alleged breach of the BORA rights of a witness who, having been intercepted by the Police on leaving a tinnie house, went with the Police into the house and identified the accused as the seller of the drug. This Court held that the accused could not seek a remedy for himself in respect of an alleged breach of another person’s rights.

[40] Bruhns was cited and followed in a very similar case, R v Wilson [1994]

3 NZLR 257 where Cooke P said at 259:

Mr Harrison has argued that the purpose of the Bill of Rights Act is to give rights to all, and to ensure so far as can be done that in their conduct of investigations the police act in accordance with those generally available rights. But we think that that is a somewhat loose way of describing the purpose or effect of the Bill of Rights. The rights affirmed therein are those of the persons to whom they are granted. It is not any part of the scheme of the Bill of Rights Act that a person whose rights have been in no way

infringed should be able to capitalise on an infringement of someone else's rights.

There is no need or justification for taking the implications of the Bill of Rights so far, for, if there were anything in a particular case which persuaded the Court that to admit evidence against a particular defendant was unfair to the extent that it should be excluded, that jurisdiction is always available. In exercising that jurisdiction it could be material to consider whether a third party's rights under the Bill of Rights had been infringed

[41] This Court noted in R v Holford [2001] 1 NZLR 385 at [16]:

It is now well established by decisions of this Court that the rights guaranteed under the New Zealand Bill of Rights Act 1990 are essentially personal and that their vindication through exclusion of evidence cannot usually be claimed by a person to whom they are not due. R v Bruhns (1994)

11 CRNZ 656; R v Wilson [1994] 3 NZLR 257.

[42] Further confirmation of the personal nature of the s 21 BORA rights is found in R v Pointon CA227/98, 22 February 1999.

[43] However, a case such as the present can present difficulties because it raises the question whether the personal rights of an accused may have been breached in the course of an unreasonable search of property belonging to another, but in respect of which the accused has some licence of use. A guest occupying a bedroom in a dwelling or a passenger in a motor car may be examples.

[44] The Supreme Court of Canada was faced with this issue in R v Edwards [1996] 1 SCR 128. In that case the Police had searched and found incriminating evidence in the flat of the accused’s girlfriend. The accused stayed in the flat from time to time and held a key to it. The judgment of Cory J, for the majority of the Court, stated:

45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s.8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:

1 A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R v Rahey [1987]

1 SCR 588, at p.619.

2 Like all Charter rights, s 8 is a personal right. It protects people and not places. See Hunter, supra.

3 The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, supra.

4 As a general rule, two distinct inquiries must be made in relation to s 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.

5 A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p

54, and Wong, supra, at p 62.

6 The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched; (iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

See United States v Gomez [1994] USCA8 224; 16 F 3d 254 (8^th Cir 1994), at p 256.

7 If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

46 Taking all the circumstances of this case into account, it is my view that the appellant has not demonstrated that he had an expectation of privacy in Ms Evers’ apartment. While the factors set out in Gomez, supra, are helpful, they are certainly not exhaustive and indeed other factors may be determinative in a particular case. Nonetheless, it is significant that, apart from a history of use of Ms Evers’ apartment, the appellant cannot comply with any of the other factors listed in Gomez, supra.

47 There are, as well, several factors which specifically militate against a finding that the appellant had any reasonable expectation of privacy in the apartment. First, Ms Evers stated in her testimony that the appellant was “just a visitor” who stayed over occasionally. As McKinlay J A found at pp

136 and 134, respectively, “he was no more than an especially privileged guest” who “took advantage of Ms Evers by making use of her premises to

conceal a substantial quantity of illegal drugs”.

48 Second, although the appellant kept a few personal belongings at the apartment, he did not contribute to the rent or household expenses save for his alleged assistance of Ms Evers in the purchase of a couch.

49 Third, although only he and Ms Evers had keys to the apartment, the appellant lacked the authority to regulate access to the premises. In the words of McKinlay J A at p 136, “Ms Evers could admit anyone to the apartment whom the appellant wished to exclude, and could exclude anyone he wished to admit”. An important aspect of privacy is the ability to exclude others from the premises. This is apparent from one of the definitions of the word “privacy” found in The Oxford English Dictionary (2^nd ed 1989). It is set out in these terms:

b. The state or condition of being alone, undisturbed, or free from public attention, as a matter of choice or right; freedom from interference or intrusion.

50 The right to be free from intrusion or interference is a key element of privacy. It follows that the fact that the appellant could not be free from intrusion or interference in Ms Evers’ apartment is a very important factor in confirming the finding that he did not have a reasonable expectation of privacy. He was no more than a privileged guest.

51 Since no personal right of the appellant was affected by the police conduct at the apartment, the appellant could not contest the admissibility of the evidence pursuant to s 24(2) of the Charter. ... This is, in itself, a sufficient basis for dismissing the appeal.

[45] What R v Edwards shows, as one would expect, is that the specific facts of a particular case require analysis to determine whether there is a reasonable expectation of privacy which has been breached. The analysis may involve considerations of cultural practices, patterns of family or other group behaviour in the circumstances, the nature of any relevant property, the nature, extent or limitations of any licence of use, and other relevant matters.

[46] In the present case what was searched was the garage and certain of its contents, including the pencil case and clothing, as well as the adjacent lean-to. There was evidence that the appellant had a licence to use the garage to “bunk up there”. Such licence could not have extended to using the garage as a base for committing serious crimes. There is no evidence suggesting that the appellant had any proprietorial or possessory interest in, even by way of licence, the pencil case into which he put some stolen bank notes. Nor is there any evidence to suggest that he had a licence to use the lean-to for any purpose, let alone for the concealment of a weapon. Indeed, he said in his evidence that he concealed the firearm there because

he did not want his father to know there was a firearm around the house. Neither the appellant nor his associates were present at the time of the search. There is nothing to show that he had any personal authority to prevent anyone, whether his father, other members of his family, any invitee of his father or indeed any other person from entering the garage for any purpose at all.

[47] In these circumstances we are satisfied that the appellant had no relevant privacy rights which would be breached by a search of the garage, lean-to, pencil case, or clothing belonging to associates. All he had was a belief that he and his associates would not be disturbed because of the privacy rights enjoyed by his father and any other members of his family domiciled at the premises. In our opinion, therefore, the appellant is not entitled to the exclusion of evidence by way of a remedy for breaches of rights which were not personal to him.

Evidence admissible even if appellant had standing

[48] Earlier in this judgment at [37] we raised the issue whether the fact of a search having been made pursuant to an invalid warrant renders it unreasonable and, if so, whether evidence obtained by such search should be held inadmissible.

[49] In R v Karalus CA420/04 and CA96/05, 7 June 2005, this Court expressed reservations as to whether a search was rendered unreasonable merely by the fact of its having been conducted pursuant to an invalid warrant. This Court noted the comments in R v Grayson and Taylor [1997] 1 NZLR 399, 409.

A warrant issued by a judicial officer, unless perhaps on its face patently invalid, is treated as valid and effective in law unless and until set aside. Invalidation is then retrospective. Where the police officer seeking the warrant had no reason to believe that he or she was not entitled to obtain the warrant and reasonably undertook the search and seizure in reliance on the warrant, that will be relevant in assessing the reasonableness of the search and seizure. It may constitute an objectively reasonable misapprehension of the existence of the search power at the time the warrant was obtained and executed.

[50] In Karalus at [30], this Court went on to remark that there was scope for debate as to how the Courts should assess the reasonableness of a search carried out bona fide pursuant to an invalid warrant. The debate did not occur in that case

because the matter was not put in issue in that way. Nor has it been sufficiently argued in this case for us to be justified in expressing a definitive view.

[51] But just as a search carried out pursuant to a lawful authorisation may nevertheless become unreasonable through the manner of its execution, so there might be circumstances where a search carried out, bona fide, pursuant to an authorisation believed, albeit erroneously, to be valid, may nevertheless not be unreasonable because of the manner of its execution and the context in which it occurs. The issue remains open but may often be of no real significance in criminal cases where, almost invariably, the remedy sought for a BORA breach will be exclusion of evidence. The balancing test invoked by R v Shaheed [2002] 2 NZLR

377 is likely to bring into account many of the considerations that would inform the issue of the reasonableness of the search or seizure.

[52] If, contrary to the view we have expressed, the appellant had a relevant privacy interest in the garage, lean-to and chattels which he may have handled but is not shown to have had any right to do so, then such a privacy interest must be at a very minimal level. To be balanced against that is the significant public interest in placing the material evidence discovered before a Court in the trial of a person for a very serious crime. This was a very serious crime, involving several offenders committing a robbery with a firearm in a bank during business hours, with members of the public and the bank staff present. There is nothing to indicate that the search was carried out in anything but a proper way and in good faith, in reliance upon a warrant which the Police were then entitled to regard as valid.

[53] Even without bringing into account the belated and inappropriate way in which additional material has been placed before this Court, we consider this is a case where the remedy of evidence exclusion should not be accorded for any BORA breach relating to the search and seizure, if there were indeed such a breach.

The phone call then following

[54] Mr Ellis submitted that although it is not clear how the Police came to know of the fact and nature of the telephone call to Mr Savelio senior, preceding the

Armed Offenders Squad operation, nevertheless the Police would not have had that information if they had not been at Mr Savelio senior’s house executing an invalid warrant. We are not sure what the significance of that submission is, since the telephone call is merely part of the context or narrative relating to the subsequent detention and confessional statements of the appellant.

[55] The admissibility of those statements is challenged on various grounds. First, that the appellant should never have been taken to the Lower Hutt Police Station. This is because, in counsel’s submission, the appellant was arrested without being charged or informed of any charge. Also, the Armed Offenders Squad members did not identify themselves as required by s 60(3) Arms Act 1983, when exercising their powers of search under s 60(1). In counsel’s submission, the appellant and his associates were detained for questioning and, there being no power to detain for such a purpose, the detention was arbitrary contrary to s 22 BORA.

[56] It is the case that there is no evidence of the appellant having been told why he was taken into custody. The evidence as to the timing and nature of his being charged is that of Detective Berkel who said, first, that shortly after midnight the appellant was charged with a cannabis offence, and that he charged the appellant with aggravated robbery at 9.10 a.m. on the morning following the robbery. Although the detention was not challenged at trial the only reasonable conclusion is that until charged with the cannabis offence, the appellant was detained arbitrarily in breach of his rights assured by s 22 BORA. We note, however, that until this appeal the appellant never challenged the justification for detention, nor the “search” resulting in the seizure of $462.20.

[57] Counsel also submitted, correctly, that the appellants’ rights to be informed at the time of arrest or detention, assured by s 23(1)(a) BORA was breached. Counsel for the appellant took exception to the occurrence of an “off the record interview” which appears to have lasted for almost four hours and in the course of which Detective Berkel “searched” the appellant and took possession of $462.20 in cash. We note, however, that no objection was taken at trial to the evidence of Constable Berkel to the following effect:

I also gave him the NZ Bill of Rights advice which is You are entitled to consult and instruct a solicitor without delay and in private if you wish. He understood those rights and he did not wish to contact a solicitor. He told me he was happy to speak to me in an off the record capacity which we did up until the period at 9.33 p.m. that evening when on the record notes were taken.

[58] The notes taken “on the record” are consistent with the appellant’s exculpatory evidence at trial, the nature of which is indicated at [10] of this judgment. Indeed, the notes taken “on the record” were read to the jury with the leave of the Court after the appellant’s trial counsel indicated he had no objection to that course. It is not surprising there was no objection because it was consistent with the defence case.

[59] It is what occurred later that evening and the next morning to which exception was taken at trial. The first element of those confessions came after a meeting between the appellant and his associates which had not been imposed by the Police but merely facilitated at the request and with the acquiescence of the participants. The second element of the evidence was a full confessional statement made after the appellant had consulted a very experienced criminal barrister, and once more had been informed of his rights.

[60] It is perfectly plain that throughout the whole period of detention, from the interception of the car by the armed offenders squad until formal charging the following morning, the appellant was fully aware of his right to silence and his right to consult and instruct a lawyer. The evidence showed that these rights and cautions were explained to him on at least three occasions and understood by him. The first occasion was at the time of the Armed Offenders Squad interception. The second was immediately before the “off the record” interview by Detective Berkel. The third was at the outset of his confession on the morning following the accident.

[61] The appellant has never testified to the effect that his right to silence and his right to consult and instruct a lawyer was suborned, pre-empted or unavailed of, by reason of the fact or nature of his being detained. A causal nexus between that detention and the making of inculpatory statements just has not been established. On the other hand, the voluntariness of those statements is evident. In these

circumstances there is no justification for a remedial response in terms of excluding the statements.

Conclusion

[62] It follows from the above that there has been no miscarriage of justice. The appeal against conviction is dismissed.

Solicitors:

N Dunning, Wellington for Appellant

Crown Law Office, Wellington