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Practice Note - R v Leonard CA417/07 [2007] NZCA 452; [2008] 2 NZLR 218 (19 December 2007)

Last Updated: 19 January 2018

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UNTIL THE FINAL DISPOSITION OF THE TRIAL, [49] - [84] OF THIS JUDGMENT ARE NOT TO BE PUBLISHED ON THE INTERNET OR ANY PUBLICLY AVAILABLE DATABASE. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.



IN THE COURT OF APPEAL OF NEW ZEALAND



CA417/07 [2007] NZCA 452



THE QUEEN




v




VINCENT PATRICK JAMES LEONARD




Hearing: 17 October 2007

Court: Glazebrook, Hammond and Ellen France JJ Counsel: W McKean for Appellant

B J Horsley and T Smith for Crown Judgment: 18 October 2007 at 3.30pm Reasons for Judgment: 19 December 2007 at 4pm

JUDGMENT OF THE COURT



A Leave to appeal is granted. B The appeal is dismissed.

  1. Until the final disposition of the trial, [49] – [84] of this judgment are not to be published on the internet or any publicly available database.

Publication in Law Report or Law Digest is permitted.


R V LEONARD CA CA417/07 18 October 2007

REASONS OF THE COURT

(Given by Glazebrook J)


Table of Contents



Para No

SCOPE OF JUDGMENT [1] CRITERIA AND PROCEDURES FOR LEAVE TO APPEAL [3] Introduction [3] Submissions [9] Criteria for granting leave [11] Commentary on criteria [19] Legal aid ramifications [26] Other concerns [30]

New procedure [32] Notice of application for leave to appeal [32] Reply notice [36] Hearing of applications for leave [39] Interim procedure [42] Judgments on leave applications [46]

SUBSTANTIVE APPLICATION [49] Contentions of the parties [49] Background facts [52] Judge’s ruling [58] Application for leave [70] Search warrant applications [73] Submissions [73] Discussion [77] Failure to take Mr Leonard to court [83]
RESULT [85]






SCOPE OF JUDGMENT

[1] Mr Leonard sought leave to appeal, under s 379A of the Crimes Act 1961, against a pretrial decision of 7 August 2007 by Judge Harvey, which ruled admissible evidence obtained pursuant to search warrants executed at Mr Leonard’s home and workplace. On 18 October 2007, we granted his application for leave to appeal but dismissed the appeal. These are the reasons for that judgment.

[2] In addition to addressing Mr Leonard’s application, this judgment sets out the procedure this Court will use in future in assessing leave applications made under s 379A. This will apply to applications filed on or after Monday 3 March 2008.

CRITERIA AND PROCEDURES FOR LEAVE TO APPEAL


Introduction


[3] Section 379A of the Crimes Act provides that, at any time before trial (or retrial), an accused person and (in most cases) the Crown, may appeal either to this Court or the Supreme Court (but not both) in relation to certain pretrial matters with the leave of the Court appealed to. The most common applications for leave to appeal concern pretrial rulings on the admissibility of evidence under s 344A. However, s 379A also covers, among other things, such matters as joinder and severance (under s 340), extensions of time for filing indictments (s 345B), orders excusing the prosecution from disclosing certain information (s 345C), granting or refusing leave to file an amended indictment (s 345D), change of venue (s 322), name suppression (s 140 of the Criminal Justice Act 1985), and anonymity orders (under s 112 and s 113 of the Evidence Act 2006).

[4] In the past the practice for dealing with s 379A applications in this Court has been to hear the leave application with the substantive appeal so that the trial is not unduly delayed by the appeal process. This has had the effect of leave being granted as a matter of course in many cases and of improperly blurring the distinction between appeals as of right and applications for leave to appeal. Gleeson CJ made similar comments in relation to the position in New South Wales in R v Makovski (1989) 15 NSWLR 720 at 722 (NSWCCA).

[5] The existence of the leave requirement in s 379A recognises that there are competing interests to be considered in pretrial appeals in criminal matters. Policy reasons in favour of pretrial appeals include:

(a) If an accused is denied access to a pretrial appeal, he or she must wait until the conclusion of a trial and a post-trial appeal (if convicted) for

review of any error. The entire trial must then be repeated and both the accused and the legal system have expended considerable time and cost for naught. This was the rationale for the insertion of s 379A given by the Hon J R Hanan (the then Minister of Justice) on its introduction – (15 June 1966) 346 NZPD at 491;

(b) Delay occasioned by postponing relief until after the trial may impact negatively on the memories of witnesses at any retrial. Delay may also limit the ability of either side to put their case;

(c) If any error leads to a successful post-trial appeal, the parties (and in particular the Crown) may have an unwarranted opportunity to improve their case at any retrial;

(d) The Crown has limited post trial appeal rights (see s 380 of the Crimes Act and s 107 Summary Proceedings Act 1957) and those that exist are used very sparingly. The Crown should have the opportunity to test on appeal any rulings which will significantly affect its case at trial;

(e) While an accused can appeal post trial if convicted, the test under s 385 is more onerous than that under s 379A.

[6] Policy reasons against appeals in pretrial matters include:

(a) Hearing an appeal after the trial is ended permits the Court to address all appeal issues simultaneously and in the context of the completed trial, thus preventing the wasted time and confusing fragmentation that may occur if several separate appeals arise out of a single trial. It also allows the Court to get a better gauge of the impact of any error, which is especially important in terms of the application of the proviso to s 385;

(b) Often the trial Judge is in the best position to determine the issue and primacy ought to be given to his or her decision;

(c) Declining to hear a pretrial appeal ensures that the appeal is truly required and it is not later rendered moot by an acquittal or by a subsequent ruling made at trial;

(d) Limiting pretrial appeals limits delay in the trial process. Not only does the accused have the right to be tried within a reasonable time, there is also a societal interest in dealing quickly with criminal charges, leading some commentators to argue that the effects of pretrial appeals are especially pernicious in criminal proceedings – see Layton “The Pre- trial Removal of Counsel for Conflict of Interest: Appealability and Remedies on Appeal” (1999) 4 Can Crim L Rev 25 at 30;

(e) An expeditious trial lessens the attendant strain on complainants and witnesses – see Clark v R [2005] NZSC 23; [2005] 2 NZLR 747 at [11] (SC).

[7] As well as those policy considerations, there are resource implications for this Court. As at 10 December 2007, the total number of judgments released by the Court this year is 566. The number of pretrial applications for leave to appeal made to this Court has been increasing from 49 in 2001 to 68 in 2006. So far this year there have been 70 applications filed. In the past, a number of s 379A applications have been hopeless from inception, have related to matters of little significance in the trial or have involved issues that would likely have to be or which may be revisited in the course of the trial. Despite this, even in such cases, a full hearing on the merits of the appeal takes place and a full judgment is written. Such applications should not be taking the time of the Court.

[8] In light of the policy and practical issues discussed above, it seemed to the Court that there should be a proper focus on the leave requirement for pretrial appeals. To this end, the Court considered that, while it may be expedient in some cases for the practice of hearing the leave and the appeal arguments together to continue, this should be done in future only where, on the basis of the documents filed, it appears likely that the leave criteria (as set out below) are met. In other cases, an application for leave should (if not dealt with on the papers) be heard in a

separate hearing that addresses the leave issue only. If leave is granted, a date for a substantive hearing of the appeal will then be allocated.

Submissions


[9] A minute seeking submissions on the proposed new procedure and the criteria for applications for leave to appeal was sent to the parties in this case and to the parties in R v Healy [2007] NZCA 451, a case heard at the same time. The minute was also sent to the Legal Services Agency (LSA), the New Zealand Law Society (NZLS), the New Zealand Bar Association (NZBA) and the Criminal Bar Association (CrBA). Leave was granted for those parties to file written submissions and to apply to make oral submissions at the hearing of Mr Leonard’s application.

[10] By letter of 21 September 2007, the LSA confirmed that there were no funding issues with the proposed new procedure and that operational staff had been informed of the change in procedure. The NZLS, NZBA and the CrBA did not receive the Court’s minute until just before the hearing date and thus did not have time to prepare submissions. The deadline for filing submissions was extended and we have now received submissions from the NZLS and the NZBA. They were generally supportive of the new procedures and criteria, as was the Crown.

Criteria for granting leave


[11] If the Court lacks jurisdiction to hear the appeal leave will obviously not be granted – see for example R v Coleman [1996] 2 NZLR 525 at 528 (CA).

[12] In all other cases, when considering whether leave to appeal under s 379A should be granted, the following factors will be taken into account to the extent they apply, together with any other factors that may be relevant in any particular case. It is for the applicant to establish that an appeal should be heard before the trial occurs.

[13] Factors pointing towards the granting of leave include:

(a) The argument is based on a novel point or is of significance for other cases;

(b) There is conflicting authority covering the issue to be determined on the proposed appeal;

(c) The application relates to an identified error of law;

(d) The application involves the admissibility of evidence that is important to one of the parties;

(f) The matter cannot be dealt with adequately in any appeal after the trial or there are only limited post-trial appeal right (as will often be the case for Crown applications);

(g) The proposed grounds of appeal are arguable. [14] Factors pointing towards refusing leave include:

(a) The issue will need to be revisited at trial or is best dealt with in the context of the trial;

(b) The application involves the admissibility of evidence that would not make a significant difference to the course of the trial and is unlikely to lead to post conviction appeal success;

(c) The issue is best dealt with in the context of any post conviction appeal;

(d) The application challenges a factual finding, especially where the finding rests on an assessment of credibility;

(e) The application challenges the exercise of a discretion. In such cases leave should not be granted unless there are grounds articulated which point to the fact that the judge has, in exercising his or her discretion,

acted on some wrong principle, has given weight to extraneous or irrelevant matters, has failed to give sufficient weight to relevant considerations, or is plainly wrong;

(f) The appeal will cause unnecessary delay: for example where there is not time to hear the appeal before the trial commences or where it would unduly delay the trial;

(g) The proposed appeal is without merit.

[15] None of the above factors are individually determinative but will be assessed in the round. We recognise that some of the factors may be more important than others. For example, the fact that an appeal is based on a novel point of law or the issue to be appealed would have significance in other cases would normally be enough to determine the leave application in favour of granting leave unless there are procedural circumstances, such as lack of time before the trial, that may make a pretrial appeal inappropriate.

[16] We also recognise that, because s 379A covers such a wide range of matters, not all of the above criteria will be relevant to all applications in all of the areas covered by s 379A. The weighting of factors may also differ depending on the type of application. We would anticipate also that the Court’s jurisprudence will develop over time on the criteria to be taken into account when deciding on leave, both generally and in particular types of pretrial applications for leave.

[17] For the avoidance of doubt, this judgment is not intended to displace any earlier decisions of the Court which have dealt with leave criteria in particular situations. Nor, obviously, is it intended to have any effect on how the substantive appeal is dealt with if leave is granted. The criteria set out above at [13] - [14] apply only to the leave decision and not to the substantive appeal.

[18] This Court would encourage the trial court judges, when giving decisions on pretrial matters, to give their view, as far as they consider it appropriate, of anything that may bear on the criteria set out at [13] - [14]. In particular, it would be useful to

have the benefit of the Judge’s views on the likely importance of the evidence to the trial and whether the ruling might need to be revisited at trial.

Commentary on criteria


[19] Most of the above criteria are self-evident. We provide comments only on those which may require explanation or which were the subject of submissions. We begin with a discussion of the criterion in [13](f). The Crown submitted that, as the Crown has much more limited appeal rights than an accused, greater scope should be given to allowing applications for leave brought by the Crown.

[20] Both the NZBA and the NZLS point out that, unlike equivalent provisions in the United Kingdom and New South Wales, s 379A makes no distinction between applications for leave filed by a prosecutor or by an accused person. In their submission, if there is to be any accommodation arising from the more limited Crown appeal rights, it should be given only by Parliament.

[21] In our view, it is appropriate for the more limited appeal rights of the Crown to be taken into account in assessing a Crown pretrial leave application as part of the more general consideration of whether the matter at issue in the proposed appeal is more appropriately dealt with in any appeal after the trial has occurred. It seems to us that this factor is the flip side of the factor set out at [14](c), which cannot apply to the Crown as it has very limited appeal rights post trial. Taking this into account does not operate to give the Crown a differential appeal right. The position with regard to post trial appeal rights will just be one factor among many and is likely to be influential only where the factor in [14](c) would operate to weigh against leave being granted for an accused.

[22] With regard to the factor set out at [14](e), we note that many rulings determining the admissibility of evidence involve the exercise of a discretion, including the “balancing process” for the exclusion of improperly obtained evidence under s 30(2)(b) of the Evidence Act 2006. It is the function of trial judges to regulate the conduct of trials. Pretrial appeal rights should not be used to substitute

the views of the appellate court in discretionary matters, where the decision was one open to the trial court and there was no error of principle.

[23] With regard to the factor set out at [14](f), the Crown and the NZBA pointed out that, under s 379A(6), it is only possible to proceed with a trial when the application for leave relates to an appeal against a s 344A decision. In all other cases, the application for leave to appeal will have to be determined before the trial can proceed.

[24] In our view s 379A(6) may have been unnecessary as trial courts may well have inherent jurisdiction or inherent power to proceed with a trial if the interests of justice so require, without an application for leave being determined. This would apply to any pretrial matter covered by s 379A and not only in situations where s 379A(6) applies. Even were that not the case, in our view, s 379A(6) should not prevent this Court from taking into account any unnecessary delay in the trial as a factor that weighs against leave being granted in all cases – see [14](f). This is particularly the case if there has been delay on the part of the applicant for leave. For the avoidance of doubt, nothing said here is intended to discourage trial judges from proceeding in trials where empowered to do so under s 379A(6), despite an application for leave to appeal not having been determined.

[25] We also comment that there may be situations, such as when an issue can only sensibly be dealt with in the context of the trial, where it may be appropriate for the pretrial application to be dismissed by the trial court on the basis that the issue should be dealt with in the course of the trial.

Legal aid ramifications


[26] Both the NZBA and the NZLS were concerned that possible legal aid funding implications might arise if a legally aided appellant is required to file distinct written submissions addressing the leave issue, appear at a leave hearing and then potentially a subsequent appeal hearing. They also point out that experience suggests that delays can arise if a legally aided appellant is required to secure additional funding after an initial hearing.

[27] The NZLS also submitted that, either because of fiscal pressures or pressure of time, there is a risk that appeals from provincial centres may be discouraged by the potential need for two separate appearances before the Court. The NZLS is concerned to ensure that there does not develop, across the country, a situation where provincial counsel are marginalised by the development of a specialist appellate bar in Wellington and Auckland, where this Court regularly sits.

[28] After the submissions of the NZBA and NZLS were filed, the Court gave the LSA the opportunity to file further submissions. The LSA was told that, if no further submissions were filed, the Court would assume that the concerns in the NZLS and NZBA submissions had not led to a revision of the LSA’s view there were no funding or operational issues involved in the new procedures. The LSA indicated that it did not need to file any further submissions.

[29] As to the concern expressed by the NZLS about the development of a specialist appellate bar based in Auckland and Wellington, this Court is supportive of appeals always being conducted by experienced appellate advocates, as appellate advocacy requires a different skill set than trial advocacy. There are, however, very experienced appellate advocates in provincial centres. We anticipate that such experienced advocates would be able to exercise judgment so that applications for leave to appeal pretrial are filed only in cases where the leave criteria are likely to be met. This would mean one hearing only. Where a leave application was to be heard separately, the parties in provincial centres could, to minimise cost and disruption, make arrangements to appear by video conferencing (if that facility is available in their centre). They could also agree that the leave application be dealt with on the papers – see R v Wang CA387/04 14 June 2005.

Other concerns


[30] The NZLS expressed the concern that appellants might be criticised in post conviction appeals for not having applied for leave to appeal pretrial against adverse rulings.

[31] Under the new procedures outlined in this judgment, any decision not to apply for leave to appeal pretrial rulings would be assumed to have been as a result of a perfectly proper decision that the leave criteria may not be met and that the matter is better dealt with in any post conviction appeal. Criticism of an appellant by the Crown or the Court for making such a decision would be unwarranted.

New procedure


Notice of application for leave to appeal


[32] All of the parties who made submissions accepted that, for the Court to be able to make a determination as to a suitable mode of hearing for the leave application (ie separate leave hearing or combined leave and substantive appeal hearing), notices of appeal must be more extensive.

[33] Adequate information must be provided in the notice of application for leave to appeal, both with regard to the leave criteria and the grounds of appeal. This should not be unduly onerous as counsel will have recently prepared submissions for the pretrial ruling. The provision of more detailed notices of applications for leave to appeal may also allow the identification of cases that may involve significant issues that might be better dealt with by the permanent Court: New Zealand Gazette No. 116, 12 October 2006 at 3461.

[34] For all applications filed after 3 March 2008, the following information must be provided in the notice of application for leave to appeal:

(a) Where the admissibility of evidence is challenged, a summary of the evidence in question and its relevance to the trial;

(b) Where the exercise of a discretion is challenged, a reason why the exercise meets the criteria for challenging the exercise of a discretion needs to be articulated;

(c) Where a factual finding is challenged, evidence (that was part of the lower court record) indicating that the finding was made in error must be outlined;

(d) Reasons why leave should be granted. Each of the criteria set out at [13] - [14] must be briefly addressed to the extent they apply, as well as any other relevant factors;

(e) The specific grounds of the proposed appeal, including the authorities relied on;

(f) The likely trial date; and

(g) A copy of the lower court’s ruling (if available).

[35] If detailed grounds addressing the criteria for leave to appeal are not provided, the matter will be set down for a separate leave hearing.

Reply notice


[36] Respondents will be given the opportunity to file a notice either consenting or opposing the granting of leave to appeal. Any such notice should be filed and served within three working days of the service on the respondent of the (detailed) notice of application for leave to appeal. The notice by the respondent must discuss the respondent’s stance on the relevant criteria for and against granting leave, even if consent is given.

[37] Mr McKean (referring particularly to the Crown) noted the importance of respondents at the same time clearly identifying the grounds of any opposition to the appeal and any change in the position of the respondent since the lower court hearing. We agree that this should be done by the respondent, whether on an application by an accused or by the Crown.

[38] Even if the respondent consents to leave being given, this does not, of course, oblige the Court to grant leave. Nor does it necessarily mean that the leave application and the substantive appeal will be heard together.

Hearing of applications for leave


[39] If, on the documents filed, it appears that the leave criteria are likely to be met, the case will be set down for a substantive hearing in which both leave and the substantive appeal will be determined. This will also be the case where the matter is urgent, the proposed appeal appears to have merit and the delay has not been the fault of the applicant. Even where the leave application is heard at the same time as the application for leave to appeal, the leave criteria must be separately addressed at any combined hearing, both in the written and oral submissions. In clear cases, the criteria may, of course, be addressed briefly.

[40] If, on the documents filed, it appears that the leave criteria are not met or it is unclear whether they are met or not, the case will be set down for a leave hearing (except where there is a determination under s 392A(1) that it be heard on the papers). The leave hearing will be solely to decide whether leave should be granted.

[41] At any leave hearing, the parties will be under time restrictions. Each party will have a maximum of fifteen minutes for oral submissions (including any interventions from the Bench). The applicant will then have a maximum of five minutes for a reply. Any submissions filed in respect of a leave application should not exceed five pages, using 1.5 line spacing.

Interim procedure


[42] The NZBA and the NZLS submitted that, in the interests of clarity and consistency, there should be amendments to the Court of Appeal (Criminal) Rules

2001 to incorporate the new procedures. The Court is supportive of that course if the Rules Committee agrees. However, in our view, any changes to the Rules should cover only the new procedure and should not incorporate the criteria set out at [13] - [14]. These criteria are inclusive only and may change or be supplemented in

relation to particular types of applications as the jurisprudence develops – see at [16]

above.

[43] Until the new procedure has become well known or is enshrined in the Rules, when any pretrial appeal is filed (after 3 March 2008) and before any decision is made as to the mode of hearing, a minute will be sent out to the parties setting a timetable for a detailed notice of application for leave to appeal, incorporating the matters set out at [34] (if that has not already occurred), and for a reply notice to be filed.

[44] Mr McKean, the NZBA and the NZLS suggested that brief submissions be filed addressing the leave criteria at the time of filing the notice of application for leave to appeal so that a decision as to whether there is a separate leave hearing can be made on the basis of full information.

[45] Applicants will of course be entitled to file submissions at the time of filing their notice of application for leave to appeal. At present, however, we do not see the need to make this a requirement. We consider that decisions as to the mode of hearing will be able to be made on the basis of the proposed expanded notice of application for leave to appeal and the reply notice.

Judgments on leave applications


[46] Where there is a separate leave hearing, if leave is refused, the Court will normally state its reasons briefly and in general terms only. If leave is granted, the appeal will be set down for hearing to determine the substantive appeal. Reasons for granting leave will not usually be given.

[47] Where the substantive appeal and the leave application are dealt with together, if leave is granted, the leave question will generally be dealt with in the judgment separately from the substantive issues. Brief reasons for the grant of leave will be given. If leave is refused, the Court will give its reasons briefly in the same way as if the leave application had been heard separately. There will be no

consideration of the substantive appeal in such a judgment, except to the extent that the substantive merits are relevant to the application for leave to appeal.

[48] Where it is determined under s 392A of the Crimes Act that the leave application will be dealt with on the papers, both the leave application (and, if necessary, the proposed appeal) will be dealt with briefly in a short form judgment.

SUBSTANTIVE APPLICATION


Contentions of the parties


[49] With regard to the application for leave to appeal in this case, Mr McKean, on behalf of Mr Leonard, submitted that the proposed appeal has merit and a determination of the admissibility of the evidence prior to trial is important to the way Mr Leonard will conduct the trial. The Crown opposed leave as it argued that it was open to the Judge to conclude that evidence was admissible under s 30 of the Evidence Act.

[50] With regard to the appeal, Mr McKean contended that there had been two major breaches of the New Zealand Bill of Rights Act 1990 (BORA) by the police:

(a) The search warrants were defective and accordingly the searches were in breach of s 21; and,

(b) Delay in contacting the District Court resulted in a breach of s 23(3).

[51] Mr McKean submitted that, because of these breaches, the evidence obtained in the two searches was tainted and the Judge was wrong not to exclude the evidence under s 30 of the Evidence Act. The Crown supported the Judge’s ruling on both points.

Background facts


[52] On Sunday 12 November 2006, the offices of Mr Leonard’s former employer were completely destroyed by a fire. On Monday 13 November 2006, when the factory was opened for work, it was discovered that a number of items of machinery inside the factory had also been damaged. It was later found that the fire had been deliberately lit. As a result of the police investigation, Mr Leonard became a suspect.

[53] At 9.13am on 16 November 2006, Detective Clubley went to Mr Leonard’s work premises to speak to him. Mr Leonard accompanied the detective to Whangarei Police Station where, after being advised of his rights, he was video interviewed. At the conclusion of the interview, Mr Leonard was arrested and charged with arson and burglary. This was at approximately 9.43am.

[54] On 15 November 2006, Detective Clubley had applied for a search warrant to search a residence, said to be the home of Mr Leonard. At the time the interview of Mr Leonard was taking place, unbeknown to Mr Leonard, the police were searching his home. During the interview, officers rang the detective and asked whether Mr Leonard’s home was alarmed or whether there was a hidden key. Detective Clubley did not pass this information on to Mr Leonard until the interview was finished. Mr Leonard then advised that there was no alarm or hidden key and asked whether he could phone his wife so that she could let the police in and be present for the search. Detective Clubley declined the request.

[55] Mr Leonard was taken to the watch house at 9.44am. The watch house keeper was told not to allow Mr Leonard to make any phone calls. Detective Clubley filled out a charge sheet for Mr Leonard but did not contact the Whangarei District Court to enquire whether Mr Leonard would be able to appear that day, as was usual practice. Instead Detective Clubley applied for a second search warrant to search an address that was said to be Mr Leonard’s place of work.

[56] The search warrant was duly obtained and executed. Detective Clubley returned to the police station at 11.30am, at which time he contacted the Whangarei

Court. He was informed that Mr Leonard would not he able to appear in court until the next day. Mr Leonard was taken to the Whangarei District Court at 9am on

17 November 2006.

[57] As a result of the search of Mr Leonard’s home, a number of items were seized including: a pair of shoes, caps, shorts, striped polo shirt, and newspapers. No items were taken from Mr Leonard’s workplace but his work vehicle was searched and later photographed by police.

Judge’s ruling


[58] The Judge applied the structured approach to the application outlined by this Court in R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 at [245] – [253]. He was satisfied that the search warrant applications made by Detective Clubley disclosed that the police had every reason to believe that Mr Leonard was involved in serious offending. While the reasons for believing Mr Leonard was linked to the premises to be searched were not in the applications, the Judge expressed himself absolutely satisfied that, when the police applied for those search warrants, they knew where Mr Leonard lived and where he worked. In those circumstances the Judge did not regard the extent of the illegality as being any more than minor.

[59] The Judge went on, however, to say that, as a result of the deficient warrants, a search took place at Mr Leonard’s home and part of that search involved a search of areas that are accorded the highest expectation of privacy. That meant, in his view, that there was a serious breach of Mr Leonard’s rights.

[60] The Judge then considered the alleged aggravating factors put forward by Mr Leonard. The first was that the search of his house had been conducted in an unreasonable manner, including damage to laptop computers which had been dropped from a height onto the floor. The Judge said that it was an unfortunate fact that, when a search is conducted, a certain amount of disruption can be expected. While it was no doubt distressing for Mrs Leonard to come home and find that her belongings had been searched through that does not, in itself, make the search unreasonable.

[61] The Judge noted that, while he had seen photographs of laptop computers on the floor, there was no other evidence of damage. In his view, it was significant that no complaint was ever made to the police by Mrs Leonard, no insurance claims had been made in respect to the computers and, when cross-examined about this damage, the police witness denied that the police were responsible for it. On the evidence he had received, the Judge was unable to say that the police had deliberately destroyed property.

[62] Mr Leonard’s next factor aggravating was the delay in taking him to Court. The Judge rejected this submission on the basis that the search of the house was already underway at the time Mr Leonard was arrested. The decision of when to take Mr Leonard to Court therefore had no bearing at all on that search. The Judge also rejected the submission that the fact that Mr Leonard was prevented from ringing his wife in order to have somebody present during the search increased the seriousness of the breach. The Judge said that there was no right to have anyone present at a search.

[63] Mr Leonard had also submitted that there had been a breach of his rights to consult and instruct a lawyer. The Judge assumed that this submission was based on the evidence that when Mr Leonard was processed, the watchhouse keeper was told not to allow him to make any telephone calls. However, the Judge said that there was no evidence that Mr Leonard asked to make a phone call and he did not say when giving evidence that his wish to talk to a lawyer was in any way thwarted. Mr Leonard had already been given his rights at the commencement of the video interview and also before accompanying Detective Clubley to the police station in the first place.

[64] With respect to mitigating factors, the Judge noted that there is a very real difference between a search warrant granted in circumstances where the police have either withheld or misstated evidence, thus enabling them to conduct a search that they would otherwise never have been allowed to conduct, and the police conducting a search which they would have always been allowed to conduct had an error not been made in the application. This case fell into the second category.

[65] The Judge then conducted the balancing exercise required by s 30 of the Evidence Act. He referred to his finding that the breach was in the mid range as it related to Mr Leonard’s house and something less than that as it related to his place of work and the motor vehicle owned by his employer. The Judge balanced the breaches against the public interest factors pointing towards admitting the evidence, including the seriousness of the offence which, if proved, was likely to result in a starting point of four years imprisonment or more. The Judge commented that arson is always regarded as a serious offence as it has life threatening potential.

[66] As to the nature and quality of the evidence, what was found at the house was real evidence and its reliability was in no way affected by the breach. The Judge considered that the evidence was highly probative, being the only direct evidence linking Mr Leonard to the crime. He was satisfied that, without the evidence gathered at Mr Leonard’s house, the Crown case would be in very serious difficulty.

[67] The Judge was of the view that the evidence obtained from the search of Mr Leonard’s workplace would inevitably have been available to the police. He also held that, if the evidence gathered from Mr Leonard’s home is admissible, then so must the evidence from his workplace.

[68] The Judge then took the final step of deciding whether the remedy of exclusion of evidence found during the searches was proportionate to the breaches. The Judge said that, given that the breaches were caused by the police officer omitting from the search warrant applications facts that were already in his knowledge, it would be totally out of proportion to rule that the evidence was inadmissible.

[69] Moving to the alleged s 23(3) breach, the Judge considered that there was no breach but, even if he was wrong about that, any breach of Mr Leonard’s rights in this regard was at the very bottom of the scale. The Judge rejected the submission that there was any causative link between any unlawful detention and the evidence found at the house and at Mr Leonard’s work. All of the evidence was thus admissible.

Application for leave


[70] In this case, Mr Leonard’s proposed appeal raised issues relating to the application of Williams to the new Evidence Act. While the Court in Williams expressed the view, at [150], that the approach in that case would remain applicable under the new Evidence Act, save perhaps in one minor regard, we nevertheless thought it appropriate to take the opportunity to confirm that this was the case after the new Evidence Act had entered into force – see also on this point R v McGaughey [2007] NZCA 411.

[71] It was also important to clarify the approach taken to the appellate review of decisions involving the balancing test in s 30 of the Evidence Act where breaches of BORA are involved, particularly as this will have relevance to the new procedures for granting leave to appeal outlined in this judgment – see the discussion at [14](e) and [22] above.

[72] These factors justified the granting of leave to appeal in this case.


Search warrant applications


Submissions


[73] It was common ground that the search warrant applications in respect of both the house and the workplace were deficient in not providing any reasons for the belief that there was a link between the premises to be searched and Mr Leonard. The searches were thus illegal. It was also common ground that this meant that the searches were unreasonable and in breach of s 21 of BORA – see Williams at [228]. The evidence was, therefore, improperly obtained – see s 30(5)(a) of the Evidence Act. The parties differed on the proper consequences of the breaches.

[74] Mr McKean, for Mr Leonard, argued that the Judge was wrong to assess the seriousness of the breach as minor. In his submission, the illegality of the search was significant, given the deficiencies in the warrant and the fact that the privacy interest in Mr Leonard’s home was high. Mr McKean also submitted, referring to

R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136 (CA), that the further information referred to by the Judge was four months old and therefore not reliable. Mr McKean contended further that the Judge erred in determining that the evidence found was crucial to the Crown case and accordingly gave this factor a disproportionate amount of weight. Finally, Mr McKean submitted that the Judge did not properly consider the aggravating features of the search.

[75] Mr Horsley, for the Crown, submitted that the breach was not categorised by the Judge as minor but was correctly categorised as a mid range breach. This was a situation of deficient applications where the police had information, which, if it had been included in the applications, would have made the search lawful. He further argued that the four month old information relating to Mr Leonard’s home address was reliable. Four months is not a significant amount of time in terms of a person’s residential address.

[76] Mr Horsley accepted that, when viewed in isolation, each of the pieces of evidence found at Mr Leonard’s house were not of high probative value, but, when considered together, they comprised compelling evidence. A witness had seen a man at the location of the fire wearing clothes very similar to those possessed by Mr Leonard and found as a result of the search. Mr Horsley also submitted, in any event, that the Judge had treated the relevance of the evidence as only one factor of many in conducting the balancing exercise. Mr Horsley also contended that the Judge was right in his approach to the so-called aggravating factors.

Discussion


[77] In assessing the admissibility of the evidence, the Judge used the approach set out in Williams. That decision was designed to provide a structured approach to the balancing test in Shaheed, now effectively enacted in s 30 of the new Evidence Act. We confirm that the Williams approach remains applicable under the new Evidence Act.

[78] The Williams structure should not, however, be seen as a straightjacket. The important issue is whether all relevant matters have been weighed and the overall

result of the balancing test. The labels put on the interim results at each stage will not matter unless that has led to an error of principle or a plainly wrong result. The Court will concern itself with substance and not semantics in its review of any pretrial ruling in this regard. The principles relating to the review of a discretion will apply – see above at [14](e) and see Williams at [292].

[79] In this case, we would not have characterised the failure to link Mr Leonard to the premises to be searched as a minor deficiency in the application for a search warrant. However, the Judge, as pointed out by Mr Horsley, assessed the breach overall as mid range (and even, at one point, serious), given the type of premises to be searched. In concluding that the failure to link Mr Leonard with the premises was minor, the Judge was taking into account the adequacy of the warrant in other respects and the fact that the police had information linking Mr Leonard to the premises which, if included in the application, would have justified the application being granted.

[80] For ourselves, we would have taken the information held by the police linking Mr Leonard to the premises (and we accept the Crown submission as to the adequacy of that information) into account at the stage of the Williams structure where mitigating factors are considered. The important point, however, is that it was taken into account and not at what stage that was done. We recognise that the Judge also mentioned this factor under mitigating factors but there was no double counting as the Judge continued to assess the breach as mid range after his consideration of mitigating factors.

[81] We accept the Crown submissions and agree with the Judge’s reasoning in relation to the alleged aggravating factors. We comment further that, even had there been damage to the laptop computers, that would not have been sufficient (absent deliberately destructive or reckless conduct on the part of the police) to be characterised as an aggravating factor.

[82] The Judge in this case proceeded in a structured manner in accordance with the approach in Williams. He weighed all of the relevant factors and the result was one open to him. It is not susceptible to being challenged on appeal.

Failure to take Mr Leonard to court as soon as possible


[83] It is now conceded by the Crown that, in failing to arrange to take Mr Leonard to court as soon as practicable, there was a breach of s 23(3). It, however, submitted that Judge Harvey was correct to hold that there was no causative link between the breach and the evidence found at Mr Leonard’s home or workplace.

[84] There must be a causative link for evidence to be excluded – see s 30(5)(a) and Williams at [242]. We accept the Crown submission that there was no causative link in this case. The search of Mr Leonard’s home was already underway. With regard to the work premises, we agree with the Judge that the breach did not contribute to obtaining the search warrant or to the actual search of the appellant’s workplace. The search would have occurred whether or not Mr Leonard appeared before the Court that day. Unlike a confession, the warrant application and search with regard to the work premises did not rely upon co-operation from Mr Leonard. Furthermore, as pointed out by the Judge and the Crown, the photographs of Mr Leonard’s work vehicle (which was in any event provided by his employer) were not even taken on the same day as the search warrant was executed.

RESULT


[85] For the above reasons, on 18 October 2007 leave to appeal was granted but the appeal was dismissed.

[86] Until the final disposition of the trial, [49] – [84] of this judgment are not to be published on the internet or any publicly available database. Publication in Law Report or Law Digest is permitted.







Solicitors:

Crown Law Office, Wellington

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