R v Williams [2007] NZCA 52; [2007] 3 NZLR 207; (2007) 23 CRNZ 1 (7 March 2007)

Last Updated: 5 February 2018

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ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT, THE REASONS FOR JUDGMENT AND ANY PART OF THE PROCEEDINGS (APART FROM [8] - [153], [209] - [253], [258] - [292] AND [297] IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA372/05, CA373/05, CA374/05
CA375/05, CA376/05, CA377/05
CA378/05, CA379/05, CA380/05

CA381/05, CA382/05 [2007] NZCA 52

THE QUEEN

v

CHRISTOPHER DAVID WILLIAMS DALE ARTHUR WILLIAMS SHANE EDWARD WILLIAMS SCOTT JAMES CORLESS

JOHN IVAN SIMETI JOSEPH ABRAHAM ANAE KURA TIRINGA WILLIAMS PHILLIP ROBARTS

BRIAN SYDNEY MCLAUGHLIN JULIE KAREN NIBLET

JOHN MALCOLM TE MONI

Hearing: 18 May 2006

Court: William Young P, Glazebrook and Hammond JJ Counsel: J C Pike and M D Downs for Crown

C P Comeskey for Respondent C D Williams No appearance for Respondent D A Williams L B Cordwell for Respondent S E Williams

_{R M Mansfield for Respondent S J Corless}

R V WILLIAMS AND ORS CA CA372/05, CA373/05, CA374/05 29 November 2006

C B Cato for Respondents J I Simeti and P Robarts

P J B Winter for Respondent J A Anae

P H H Tomlinson for Respondent K T Williams

G N Bradford for Respondents B S McLaughlin and J K Niblet

A G Speed for Respondent J M Te Moni

Judgment: 29 November 2006

Reasons for Judgment: 7 March 2007 at 12.30pm

_{JUDGMENT OF THE COURT}

A The application of the Solicitor-General for leave to appeal is granted. B The appeal is allowed to the extent set out in C and D below.

C The determination of the High Court that the evidence gained from the

Patiki Road search not be led at trial is confirmed.

D The evidence gained from the subsequent searches is admissible at trial, subject to this evidence being able to be given and understood without reference to the Patiki Road search and subject to any other considerations which have not been raised before this Court.

E Publication of the judgment, the reasons for judgment and any part of the proceedings (apart from [8] - [153], [209] - [253], [258] - [292] and [297] in the news media or on the internet or other publicly accessible database is prohibited until the final disposition of the trial. Publication in law reports or law digests is permitted.

REASONS

William Young P and Glazebrook J [1] Hammond J [258]

WILLIAM YOUNG P AND GLAZEBROOK J

_{(Given by Glazebrook J)}

Table of Contents

_{Para No}

Introduction [1]

What are the principles that should apply in search and

seizure cases? [8]

Overview [8] The link between unlawfulness and unreasonableness [12] When can bad faith render a warrant unlawful? [25] Who can complain about a breach of rights? [47] The effect of a breach on downstream evidence [79] How should the Shaheed balancing test be conducted? [104] NATURE OF THE RIGHT [106] EXTENT OF ILLEGALITY [110] NATURE OF PRIVACY INTEREST [113] AGGRAVATING FACTORS [116] MITIGATING FACTORS [122] NEUTRAL FACTORS [130] SYSTEMATIC ANALYSIS [132]

PUBLIC INTEREST FACTORS [134] SERIOUSNESS OF OFFENDING [135] NATURE AND QUALITY OF EVIDENCE [140] PROPORTIONALITY [142] EVIDENCE ACT 2006 [149] ADDITIONAL REMEDIES [153]

Was the Patiki Road warrant unlawfully obtained? [154] Did police bad faith render the search of Patiki Road unlawful? [167] Was the search of Patiki Road unreasonable? [182] Whose rights were breached? [185] Were subsequent searches tainted by the Patiki Road search? [188] How does Shaheed apply to the Patiki Road search? [195] How does Shaheed apply to the subsequent searches? [199]

Search warrant applications [208] General principles [209] Common errors [223] Summary of what an application should contain [224]

Summary of the principles of search and seizure dealt with in

this judgment [226]

Link between unlawfulness and unreasonableness [226] When bad faith can render a warrant unlawful [231] Claiming a personal remedy for breach [235] Effect of a breach on downstream evidence [241] Conduct of the Shaheed balancing test [245] Conclusion and result [254]

Introduction

[1] The police received information from an anonymous informant that there was a methamphetamine manufacturing operation being conducted in an industrial unit in Patiki Road, Avondale. It is common ground that this information was not sufficient to found an application for a search warrant.

[2] Two plain-clothed detectives made a preliminary reconnaissance of the precincts of what, on the basis of the information given, they assumed to be the unit. These detectives were “warned off” by individuals they encountered in the carpark which adjoins that building. In the course of that reconnoitre, the detectives had noted the registration numbers of vehicles parked in the carpark. One of the vehicles was subsequently reported stolen that day. The police sought and obtained a search warrant in relation to the stolen vehicle and the adjoining unit. An extensive police search of the premises was then mounted.

[3] Incriminating evidence was located, implicating a number of the respondents in methamphetamine manufacture. Subsequent to the initial warrant, the police accumulated further evidence of methamphetamine manufacture from the execution of further search warrants, call data warrants and an interception warrant issued by a Judge of the High Court. As a result, ten of the respondents were charged with conspiracy to manufacture methamphetamine. There were also charges against some

of the respondents for manufacturing methamphetamine and conspiracy to supply methamphetamine.

[4] At their trial, the respondents challenged the admissibility of all of the evidence against them on the basis that the Patiki Road search was unlawful and unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and that this tainted all subsequently obtained evidence. Section 21 of the Bill of Rights provides:

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

[5] Heath J, in a ruling delivered on 6 September 2005 (Ruling (No. 8) in CRI-2004-404-3697), excluded the evidence of the Patiki Road search. He held that the police had acted in bad faith in obtaining the warrant with regard to the stolen car when their real purpose had been to search for drugs. In a judgment delivered on

28 September 2005, he confirmed his earlier ruling and also excluded all of the subsequent evidence. He held that the subsequent evidence had been obtained as a direct result of the Patiki Road search and it was therefore tainted by the finding of bad faith with regard to that search. Given the nature of the original breach, he did not consider that the evidence should nevertheless be admitted under the balancing test in R v Shaheed [2002] 2 NZLR 377 (CA).

[6] The Solicitor-General applies for leave to appeal against the 28 September ruling. The issues that arise are:

(a) What are the principles that should apply in search and seizure cases? (b) Did police bad faith render the search of Patiki Road unlawful?

(c) Was the warrant otherwise unlawfully obtained? (d) Was the search of Patiki Road unreasonable?

(e) Whose rights were breached?

(f) Was the subsequent evidence tainted by the Patiki Road search?

(h) How does Shaheed apply to the subsequent searches? (i) What should search warrant applications contain?

[7] At the end of the judgment, we provide a summary of the principles on search and seizure dealt with in this judgment – see at [226] - [253] below.

What are the principles that should apply in search and seizure cases?

Overview

[8] The Bill of Rights is now over 15 years old. One might think that the principles that apply in search and seizure cases would be well settled by now. That is not the case. There remain inconsistencies between the cases in some areas. There is also uncertainty about the continued applicability of a number of the cases decided before this Court introduced the balancing test in Shaheed. We were not asked to and neither would it be appropriate for us (given that it was a seven judge bench) to revisit the Shaheed test. In any event, the Evidence Act 2006 effectively enshrines Shaheed in legislation. It may nevertheless be time to refine the test in light of subsequent experience and academic commentary. Further, the issue as to the continued application of the pre-Shaheed cases needs resolution.

[9] The areas of uncertainty and inconsistency that we propose to attempt to resolve in this part of the judgment are as follows:

(a) The link between unlawfulness and unreasonableness;

(b) When bad faith can render a warrant unlawful;

(c) Who can complain about a breach of s 21 of the Bill of Rights;

(d) The effect of a breach of s 21 of the Bill of Rights on downstream evidence; and

[10] There are no doubt other areas of uncertainty and inconsistencies in relation to search and seizure cases, but we have limited our discussion to those that are relevant in this case. If issues that are dealt with in this judgment arise in the future, however, the Court is unlikely to find reference to earlier authorities helpful. Reference to this judgment would normally suffice.

[11] As indicated above, for the convenience of readers, a summary of the principles on search and seizure is provided at the end of the judgment. The relevant summaries are set out in the following paragraphs:

(a) The link between unlawfulness and unreasonableness, at

[226] - [229];

(b) When bad faith can render a warrant unlawful, at [231] - [233];

(c) Who can complain about a breach of s 21 of the Bill of Rights, at

[235] - [239];

(d) The effect of a breach of s 21 of the Bill of Rights on downstream evidence, at [241] - [243]; and

(e) How the Shaheed balancing test should be conducted, at

[245] - [252].

The link between unlawfulness and unreasonableness

[12] Since R v Jefferies [1994] 1 NZLR 290, this Court has recognised that legality and reasonableness, while related, are distinct concepts. In Jefferies, four of the judges stated that an unlawful search could nevertheless be reasonable but only where the illegality arose as a result of a technical or inconsequential procedural breach or in the case of an emergency – see Cooke P (discussing exceptionality only at 296), Casey J (at 312), Hardie Boys J (at 315) and Thomas J (at 320). Although

concurring in the result in that case, McKay J considered that an unlawful search must, by that very fact, be unreasonable (at 315 – 316).

[13] In R v Grayson and Taylor [1997] 1 NZLR 399, this Court widened the grounds for holding that an unlawful search could nevertheless be a reasonable one. The Court in that case took into account factors such as the extent of the invasion of privacy, the manner of conducting the search, the length of the search, the good faith of the officers, what type of evidence was uncovered by the search, whether the police had additional material not disclosed in the warrant application, and the fact that the search took place in the course of the investigation of possibly serious criminal activity (in that case cannabis cultivation).

[14] The next relevant development was this Court’s decision in Shaheed. Before Shaheed, this Court applied what was known as a prima facie exclusion rule. Under the rule as originally conceived, evidence obtained in breach of s 21 of the Bill of Rights was inadmissible, except where there was good reason to admit it. The rule had, however, in practice become effectively an automatic exclusion rule. The majority in Shaheed (Elias CJ dissenting) replaced the prima facie exclusion rule with a new balancing test. The purpose of that balancing test is to determine whether the exclusion of evidence is a proportionate response to the breach in question.

[15] One of the reasons for the introduction of the new balancing test was the perception that frequently a balancing exercise was carried out in the fact-finding process or in the determination of whether a search was reasonable. Blanchard J (in a judgment joined by Richardson P and Tipping J) considered that this may have led to some distortion. In Blanchard J’s view, there were cases in which it would have been preferable to mark the breach of s 21 by a statement from the Court that the search and seizure was unreasonable and then to determine, by means of a principled balancing exercise, whether the evidence ought nevertheless to be admitted – see at [141]. Of the other three concurring judges, two said that they agreed with the reasons expressed by Blanchard J (see McGrath J at [192] and Anderson J at [201]). Gault J did not expressly adopt Blanchard J’s reasoning for the introduction of the balancing test, although he did say that he had little to add on that aspect of the case – see at [169] - [170].

[16] While the Court in Shaheed did not explicitly overrule Grayson and Taylor, the reasoning in that case supports the transfer of most of the factors considered in Grayson and Taylor to the balancing phase under Shaheed – see at [106] - [131] below. These factors will be relevant to the assessment of the seriousness of the breach. In our view, the necessary implication from Shaheed therefore is that an unlawful search will normally be an unreasonable search. This is supported by the comments of this Court in R v Maihi [2002] NZCA 205; (2002) 19 CRNZ 453 at [31]. Subsequent cases, such as R v Abraham CA253/05 30 August 2005, R v Magan CA252/03

29 September 2003 and R v Hardy CA307/02 27 November 2002, which have referred to the wider factors considered in Grayson and Taylor, in the context of assessing the reasonableness of a search or seizure, are thus, post-Shaheed, no longer to be followed.

[17] Transferring the wider Grayson and Taylor factors to the balancing phase under Shaheed has the advantage of requiring those factors to be explicitly weighed in assessing the proportionality of the remedy to the breach rather than being factors leading to automatic admissibility of evidence through a finding of reasonable search and seizure. It also has the advantage of simplifying the inquiry and eliminating the double counting that concerned the Chief Justice in Shaheed (see at [19] of that decision). In addition, it avoids the incongruity of characterising breaches of the law by those charged with the enforcement of the law as reasonable and, in cases where warrants are required, reinforces the fundamental requirement of judicial pre-authorisation.

[18] This approach to Grayson and Taylor is supported by a number of the commentators – see for example, Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005) at 575, Mahoney “Evidence” [2006] NZ Law Review

112 at 116. See also Optican “Search and Seizure in the Court of Appeal – An Essay On the Uses and Misuses of Section 21 of the Bill of Rights” (1999) 18 NZULR 411 at 419 and Optican “Lessons from Down Under: A Dialogue on Police Search and Seizure in New Zealand and the United States” (2005) 3 Ohio St J Crim L 257 at

268. We also refer to the comments of this Court in R v Savelio CA234/96 5 August

2005 at [51].

[19] The next task is to identify any remaining exceptions to the general rule that unlawfulness equates with unreasonableness. This Court in Jefferies indicated two possible exceptions. The first was where the search takes place in the context of an emergency and the second was where the error is minor or technical – see the discussion at [12] above.

[20] We do not think that the first of these exceptions should survive Shaheed. In many cases of emergency or threats to public safety, warrantless searches will be lawful (see for example s 60 of the Arms Act 1983), as will warrantless entries and arrests in certain circumstances (see s 317 of the Crimes Act 1961). Furthermore, the Court has recognised that, in some circumstances, police entry onto property will be lawful under the common law justification of necessity. Where the police have good reason to fear that public safety may be at risk, or that a person may be in need of assistance following serious physical harm, they will have authority to locate any persons in trouble, as well as any person or thing representing a danger to anyone - see R v Fraser [2005] 2 NZLR 109 (CA), at [37] especially, and R v Findlay CA410/05 14 March 2006. For the purpose of assessing the admissibility of evidence, we consider it better, outside of these situations which have been sanctioned by Parliament or by the common law, for an unlawful search to be held to be unreasonable even in the case of an emergency. The fact that a search or seizure took place in an emergency situation will, however, be relevant when assessing the magnitude of the breach under the Shaheed balancing test. This seems to be the approach envisaged by Blanchard J in Shaheed – see at [147] of that decision. See also s 30(3)(h) of the Evidence Act 2006.

[21] It is, however, appropriate that the second of the exceptions set out in Jefferies should survive Shaheed. If even minor or technical breaches lead to a finding of breach of s 21 of the Bill of Rights, this risks trivialising the right – see also Shaheed at [146]. Even where a breach is minor or technical, a search or seizure will not normally be held to be reasonable, however, if the police realised the error existed before the search or seizure was undertaken.

[22] What is minor or technical should not be given an expansive interpretation. An example of what has been seen as a minor and technical breach is R v Smith

[1996] NZCA 22; (1996) 13 CRNZ 481 (CA), where there had been a failure to file a report after the exercise of a warrantless search under s 18(2) of the Misuse of Drugs Act 1975. By contrast, mistakes such as specifying the wrong property in a warrant would not normally be considered a minor or technical breach, even where the intended property is in fact searched. See for example R v Kappely [2001] 1 NZLR 7 (CA) and R v Te Whatu (2002) 6 HRNZ 673, the latter involving the search of a Ford camper-van when the warrant authorised a search of a Nissan vehicle with a different registration number. For completeness, we note that in neither case was the warrant able to be saved by s 204 of the Summary Proceedings Act 1957 – see Kappely at [13] and Te Whatu at [9].

[23] Further, the failure to follow the identification requirements in, for example, s 18(4) of the Misuse of Drugs Act 1975, is also unlikely to be a minor or technical breach. Section 18(4) requires police officers, when exercising powers of search under s 18(2) and (3) of the Misuse of Drugs Act, to identify himself or herself to any person searched, and to any person present on the property being searched where that person questions the right of the officer to conduct the search. As was noted in Smith at 483 – 484, the identification requirement in s 18(4) is concurrent with the exercise of the search power under s 18(2) or s 18(3). Despite what was said by some members of the Court in Jefferies, we consider that the same applies to the identification requirement in s 60(3) of the Arms Act 1983. In our view, provisions such as s 18(4) of the Misuse of Drugs Act and s 60(3) of the Arms Act are important. Requiring a person to submit his or her body or property to a search is a restraint on their freedom. Identification provisions provide the target of the search with the reason why his or her person or property is being invaded – see Perkins v Police [1988] 1 NZLR 257 at 262 (CA). If the police, however, indicate the general source of the power or permit the suspect to contact a lawyer at the time of the search, this may allow the breach to be regarded as minor or trivial – see Butler and Butler at 572.

[24] Finally on this topic, it is a necessary consequence of the fact that lawfulness and reasonableness are distinct concepts that a lawful search may nonetheless be an unreasonable search in terms of s 21 of the Bill of Rights, although this will be rare. This could occur where a lawful search is conducted in an unreasonable manner. For

example, see R v Pratt [1994] 3 NZLR 21 (CA), where a strip search conducted in public view was legal but unreasonable due to the time, place and disregard for dignity. Likewise, where a warrant was readily obtainable and there was no question of urgency (such as the threatened loss of evidence), a search conducted pursuant to a warrantless power may be lawful, but unreasonable – see R v Laugalis (1993)

10 CRNZ 350 at 355 – 356 (CA) and R v H [1994] 2 NZLR 143 at 148 (CA). Regard must be had to the practicalities of policing, including whether a property can be kept under surveillance, and the resources available to officers at that time, in assessing whether the situation faced by a police officer made it reasonable to invoke a warrantless power – see, for example, Smith at 485 and Kappely at [20].

When can bad faith render a warrant unlawful?

[25] In this case, Heath J defined bad faith (see footnote 26 of his ruling of

6 September 2005) as meaning:

[A] deliberate decision to apply for a warrant for purpose A, while intending it to be used for purpose B, when the applicant knew the evidence was insufficient to justify an application to search for purpose B.

[26] The Crown submitted that this definition is too wide. In its submission, there is nothing wrong with law enforcement officers having a dual purpose in applying for a warrant. In support of this proposition, the Crown cited R v Coveny CA351/05

11 April 2006 (CA), a case decided after Heath J’s ruling.

[27] The respondents argued that Coveny was wrongly decided and that Heath J’s formulation of the test for bad faith should be preferred. As an alternative, they argued that, if Coveny was correctly decided, it only applies where the search was genuinely conducted for the purpose for which the warrant was issued and not where that purpose was a mere ruse.

[28] This Court in Coveny held that a search pursuant to a valid warrant was not unreasonable where one of the officers had another purpose in executing that warrant, despite the fact that there was no proper basis for any search with regard to that other purpose. At issue in Coveny was the admissibility of evidence of stolen

property obtained when a fines seizure warrant was executed. The fines seizure warrant had been executed by a bailiff of the District Court accompanied by local police officers. For present purposes it suffices to say that, as well as owing money on fines, Ms Coveny had been identified as a suspect in relation to a number of burglaries and one of the police officers executing the fines seizure warrant had recently reviewed the burglary files.

[29] The District Court Judge in Coveny had ruled the search unreasonable on the basis that he had a strong suspicion that the police assistance to execute the fines seizure warrant in that case was only a ruse to get a foot in the door of Ms Coveny’s house. This Court agreed that, when the police officer in question attended the address, she was “motivated by the hope that a search of the premises would link Ms Coveny with the burglaries” – see at [31]. The Court held, however, that there was no basis for concluding (or even suspecting) that the execution of the fines seizure warrant was only a ruse to get into Ms Coveny’s house. This was because it was perfectly clear that there was a bona fide intention to execute the fines seizure warrant and indeed, property subject to that warrant was seized. The Court concluded that the officer had a dual purpose in attending at the execution of the warrant. The first was to facilitate the execution of the warrant and the other was to look for evidence linking Ms Coveny with the burglaries.

[30] The Court in Coveny had not been referred to any New Zealand cases addressing the issue of admissibility of evidence where there was such a dual purpose, but noted that evidence had been held to be admissible in such circumstances in the United States and Canada – see United States of America v Ewain [1996] USCA9 1724; 88 F 3d 689 (9^th Cir 1996) and the decision of the British Columbia Court of Appeal in R v Krist (1998) 130 CCC (3d) 347. However, we note that the ulterior motive was not the focus of the decision in Krist and that a contrary decision was reached in R v Caron (1982) 31 CR (3d) 255 (Ont Dist Ct). The Court also noted

that there is no general principle applicable to the criminal law which outlaws the use of law enforcement powers for dual purposes, referring to R v Chalkley [1998] 2 All ER 155 (CA), Keenan v Attorney-General [1986] 1 NZLR 241 (CA) and R v Te Kahu [2005] NZCA 438; [2006] 1 NZLR 459 at [76] (CA).

[31] The Court considered that there had been no appreciable adverse impact on Ms Coveny’s privacy rights as, by her non-payment of fines, she had exposed herself to the execution of a fines seizure warrant. Her privacy would have been invaded even if the sole purpose of the officer had been to execute the fines seizure warrant. The finding of the stolen items did not require a more intrusive search than was permitted by the fines seizure warrant. The Court also remarked that the victims of the burglaries warranted consideration and they could reasonably expect the police to take advantage of lawful opportunities to search in places where it was likely that property which had been stolen from them might be located. The Court was thus satisfied that the search was reasonable.

[32] Usually, the seizure of property not referred to in an authorising power (such as a warrant) will be illegal – see Barnett and Grant v Campbell (1902) 21 NZLR

484 (CA) and McFarlane v Sharp [1972] NZLR 838 (CA). Unlike Canada and the United States, New Zealand does not have a general doctrine of “plain view” seizure. However, where the property seized is stolen, as it was in Coveny, this Court has taken the view that no element of illegality in relation to the seizure arises, effectively creating a limited plain view seizure doctrine. The person in possession of stolen goods cannot have an interest in the goods entitling him or her to hold them as against the true owners – see R v Thomas CA173/05 7 July 2005.

[33] Also relevant, but not referred to in Coveny, are R v Stockdale [1995]

2 NZLR 129 (CA) and R v Gillies CA470/05 4 April 2006. In Stockdale, bags of heroin were discovered in the appellant’s excrement while he was held on remand in a prison facility. The prison superintendent then gave this heroin to the police, believing that he could not actively destroy such evidence. While the police had suspected the appellant of concealing heroin, the Court accepted that the prison authorities’ surveillance of him was for the purpose of ensuring his safety, while also preventing the introduction of heroin into the prison system. The Court (and the Crown) accepted, however, that, if the prison authorities had colluded with the police to gather evidence in an attempt to avoid the limited powers available to police in such instances, the evidence should not be admitted – at 132 and 133 – 134.

[34] In Gillies, the High Court had formed the view that the officer’s entry into the applicant’s car was unlawful for several reasons, one of which was the officer’s dual motive. The officer not only wished to enter the vehicle in order to effect its impounding, he also wished to obtain information about the vehicle’s owner (the police held the suspicion that the vehicle might be stolen). The officer smelt marijuana and after invoking s 18(2) of the Misuse of Drugs Act 1975, discovered various drugs. This Court viewed the entry as clearly lawful, being a necessary requirement of placing the vehicle into safe storage. Having focused on the clear legality of the officer’s actions, the Court’s discussion of dual motives was brief, stating at [15]:

[I]t may well be that the police had more than one motive for entering the vehicle. It does not matter whether one reason was bad and the other good; so long as one of the reasons was good and permitted lawful entry, that will suffice.

[35] As indicated above, at [27], the respondents’ first submission was that Coveny was wrongly decided and that Heath J’s approach should be preferred. Even if we considered that to be the case, there would be no grounds for overruling Coveny. It is a recent decision of this Court and followed full argument. There are no conflicting decisions of this Court of which we are aware, we have not been pointed to any academic criticism of the decision and there has been no relevant social change or contrary decisions in other jurisdictions since Coveny was decided - see R v Chilton [2005] NZCA 295; [2006] 2 NZLR 341 at [83] – [90] (CA).

[36] In any event, we consider Coveny, Gillies and Stockdale to have been correctly decided on the dual purpose point. While we accept that in extreme cases police bad faith may render an otherwise lawful search unreasonable, merely having a dual purpose for a search is not sufficient, even where there are insufficient grounds for applying for a warrant for one of those purposes. It will not be uncommon, as the Crown pointed out, for police officers to have prior knowledge of possible offending falling short of providing proper grounds to apply for a warrant and for those officers to be aware of the possibility that evidence of this offending may come to light when conducting a search pursuant to a warrant lawfully obtained for another purpose. We accept the Crown’s submission that the police cannot be precluded from exercising a power of search in such circumstances. The key point is

that, as long as the search is not wider than would be allowable in relation to the purpose for which the warrant was obtained, the lawful invocation of alternative search powers will occur in a situation where there has been no greater infringement of privacy than would have occurred in any event. To the extent that Frost v Police [1996] NZHC 185; [1996] 2 NZLR 716 (HC), R v Hetaraka and Thomas HC WHA CRI 2004-029-931

5 May 2005 (cited by Heath J at [111] of his 6 September 2005 ruling) and any similar cases are inconsistent with these views, they are overruled.

[37] We add a caveat. Any collateral purpose for conducting a search should be a legitimate law enforcement purpose. If a warrant were obtained or a search conducted for an illegitimate purpose, such as to harass an ex-partner or for discriminatory purposes contrary to s 19(1) of the Bill of Rights, then, where that illegitimate purpose is anything more than incidental, any resulting search would in our view be unreasonable in terms of s 21 of the Bill of Rights. We see this caveat as consistent with the principles enunciated by Lockhart J in Crowley v Murphy [1981] FCA 31; (1981) 34 ALR 496 at 521 (FCA), cited with approval in Wilson v Maihi (1991)

7 CRNZ 178 at 180 - 181 (CA). Lockhart J considered that, amongst other things:

[T]he power must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. If, for example, it is used to punish the person whose premises are to be entered and searched, plainly that is an ulterior purpose.

[38] We also consider that, where any collateral purpose is strong, its existence should ideally be disclosed in any warrant application and it should also be disclosed that there was not sufficient evidence to seek a warrant for that collateral purpose.

[39] The respondents’ next submission was that cases where the purpose for which the warrant was obtained is a mere ruse are not covered by Coveny. In their submission, where that is the case, the search should be held to be unreasonable. It is true that this Court in Coveny rejected the submission that the fines seizure warrant was a mere ruse. It thus did not have to decide whether it would have made any difference to the reasonableness of the search if the execution of the fines seizure warrant had been a mere pretext for the search in relation to the burglaries.

[40] On this point, Heath J had been referred to Whren v United States 517 US

806 (1996) and to the earlier Supreme Court case of Horton v California [1990] USSC 92; 496 US 128 (1990) on this point. In Whren, plain clothes policemen were patrolling a high drug risk area in an unmarked vehicle. They observed a traffic violation and stopped the vehicle involved, allegedly to speak to the driver about that violation. On approaching the vehicle, the officers saw plastic bags of crack cocaine in Mr Whren’s hands and he and the driver were arrested. The petitioners sought to have the evidence excluded on the basis that the asserted ground for stopping the vehicle was a mere pretext. The Supreme Court held that ulterior motives cannot invalidate police conduct which is justified on the basis of probable cause, in this case probable cause to believe that a traffic violation had occurred. Outside inventory searches or administrative inspection, the Court said that it had always held that an officer’s motive could not invalidate objectively justifiable behaviour – see, for example, United States v Villamonte-Marquez [1983] USSC 130; 462 US 579 (1983), United States v Robinson [1973] USSC 253; 414 US 218 (1973) and Gustafson v Florida [1973] USSC 252; 414 US 260 (1973).

[41] The Supreme Court in Whren also rejected an approach whereby an officer’s conduct would be judged on the basis of standard police practice. The petitioners had submitted that, in order to prevent police stopping cars based on an ulterior motive or pretext, the test should be whether a reasonable officer would have stopped the car for the purposes of enforcing the traffic violation at issue. The Supreme Court was concerned that there could be variations in police practice from place to place and from time to time. It also considered that it would be very difficult to ascertain such practice. There would be little of objective assistance and a court would be reduced to speculating about the hypothetical reaction of a hypothetical constable, an exercise the Court called “virtual subjectivity” - see at 815.

[42] Heath J considered that Whren did not apply when a warrant is actually sought to conduct a different type of search and not for the purpose for which the warrant was granted. We are not able to read down Whren in that manner. The very basis of the petitioners’ argument in that case was that the real purpose of stopping the vehicle was to search for drugs. It was alleged that a reasonable officer would not have stopped the car for the traffic violation and that the traffic violation was a pretext or ruse. Despite this, the Supreme Court held that, apart from in exceptional

cases, the test was whether objectively there was probable cause to stop the vehicle. The officers’ subjective purpose was irrelevant. It must follow that it did not matter whether or not the officers used the traffic violation as a pretext or ruse for stopping the vehicle.

[43] The issue is whether we should adopt the Supreme Court’s approach in New Zealand. We consider that the approach in the United States is too extreme. In our view, members of the New Zealand public would expect that their privacy would only be invaded where it was lawful to do so and where the purpose for that lawful invasion of privacy was genuine and not a mere ruse. We would, however, expect a conclusion that the purported purpose for a lawful search was a ruse to be very rarely drawn.

[44] Whether or not something is a mere ruse should be judged from the totality of the circumstances, taking into account both subjective and objective factors. It should be judged from the perspective of the operation as a whole and not just from the perspective of the individual officer who applies for the warrant or those who execute it. The words and actions of the officers at the time of applying for any warrant and in conducting the search will clearly be relevant to the assessment. We also consider that, if, in the circumstances of the case, it would be standard police practice to conduct a search, then this would be a very telling factor against a finding that the purported purpose for the search was a ruse, provided the practice is itself reasonable. New Zealand is a smaller country than the United States with one police force and so the difficulties which led the Supreme Court in Whren to reject the consideration of standard police practice do not apply with such force in this country.

[45] The cases of R v Bainbridge [1999] NZCA 180; (1999) 5 HRNZ 317 (CA), R v Koroheke CA193/00 7 September 2000, R v Thomas (2001) 19 CRNZ 392 (CA) and Jones v Attorney-General [2004] 1 NZLR 433 (PC) are examples of cases where the purported purpose was no more than a pretext. Broadly, these cases concerned a police officer’s power to stop a driver for the purposes of exercising any powers under the Land Transport Act 1998 and to obtain the driver’s personal details – most notably s 114 of that Act. The Court was dealing with officers who had no intention of using the Land Transport Act powers. As these cases make clear, s 114 cannot be

used for a non-road transport purpose, such as a hunch that a driver possesses drugs (Koroheke at [19] and Thomas at [10]), and the officer must also always act within the scope of the authorising power (Jones at [4] and Bainbridge at [29]).

[46] In summary, we consider that the definition of bad faith used by Heath J (above at [25]) is too wide. If there is a collateral purpose (even a dominant purpose) for a search, this does not make the search unreasonable as long as the search is lawful, not unreasonably executed and does not extend further than to fulfil the lawful purpose. Any collateral purpose must be a legitimate law enforcement purpose and the lawful purpose must not be a mere ruse in the sense described above.

Who can complain about a breach of rights?

[47] It has long been established that breaches of other people’s rights under the

Bill of Rights cannot be relied upon by third parties – see R v Wilson [1994] 3 NZLR

257 at 259 (CA). This concept is often couched in terms of standing, although the term is rather inapt for this subject-area. It is more helpful to define the issue as being whether or not a person is able to claim a personal remedy (i.e. exclusion of evidence) under the Bill of Rights. The purpose of that remedy is to provide vindication of an individual’s rights. If that individual’s rights have not been breached then there is nothing to vindicate.

[48] A touchstone of s 21 of the Bill of Rights is the protection of reasonable expectations of privacy – see R v Fraser [1997] 2 NZLR 442 at 449 (CA). It is thus only where a person’s privacy interest has been breached that his or her rights under s 21 of the Bill of Rights have been breached and a personal remedy is available. The issue therefore is in what circumstances an individual’s privacy interest arises.

[49] The Supreme Court of Canada has answered this (by majority) by a test which considers the totality of the circumstances – see R v Edwards [1996] 1 SCR

128 at [45] per Cory J, drawing from United States v Gomez [1994] USCA8 224; 16 F 3d 254 at 256 (8^th Cir 1994). Factors to be considered include:

(a) presence at the time of the search;

(b) possession or control of the property or place searched; (c) ownership of the property or place;

(d) historical use of the property or item;

(e) the ability to regulate access to the property or place;

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

(g) the objective reasonableness of that expectation.

[50] In Edwards drugs were found, after what was alleged to be an unlawful search in the apartment of Mr Edwards’ girlfriend. Mr Edwards was held to have no relevant privacy interest (possessory or proprietary) in the drugs in question, having, until the Supreme Court hearing, denied ownership. He was also held to have no privacy interest in his girlfriend’s apartment. Although he had a key and occasionally stayed over, he did not live there or contribute financially to the upkeep and had no right to regulate access to the apartment, the latter being seen as an especially important factor – see at [48] - [50] of the judgment. As Mr Edwards had no relevant privacy interest, he was held to have no standing to challenge the unreasonable search.

[51] The Supreme Court rejected the proposition that an accused should have automatic standing where the Crown alleges that he or she was in possession of property that was discovered and seized in the course of an unlawful search. This was because the United States Supreme Court and most State courts in the United States had resiled from an automatic standing rule of this nature and because such a rule was inconsistent with the remedy section in the Canadian Charter of Rights and Freedoms (the Charter) which applies only to those whose rights have been breached

– see at [52] – [54] of the judgment. It was, however, recognised that there could be rare cases where the invasion of the privacy of innocent third parties may be constitutionally relevant to an assessment of reasonableness (although arguably only where standing has been established). The Court gave the example of a flagrant

abuse of an individual’s right to privacy or a potentially massive invasion of third party rights as occurred in R v Thompson [1990] 2 SCR 1111.

[52] La Forest J wrote strongly in dissent. At [59], he said that the protection accorded by the Charter was not limited to searches of premises over which an accused has a personal right to privacy in the sense of some direct control or property interest. Rather, the Charter was intended to protect the public generally from unreasonable searches or seizures. Unlike the majority, he would have extended the cases where an invasion of privacy is constitutionally relevant to other situations where the public right to be secure against unreasonable search and seizure has been infringed, such as the wilful and forcible breaking into the home of a person other than the accused – see at [64]. La Forest J considered it unfortunate that the majority had decided to follow the United States approach which was the product of history and which had been the subject of stringent criticism in that country – see the discussion at [66] – [68] of his judgment.

[53] A similar result was reached in R v Belnavis [1997] 3 SCR 341, where Cory J again gave the leading majority judgment. In that case, Ms Belnavis was driving a car that she had borrowed from a friend. The car was pulled over by police. While an officer was talking to one of the passengers, a Ms Lawrence, he noticed some rubbish bags in the back seat containing garments with price tags hanging from them. A search of the car boot revealed five more such bags.

[54] The majority held that, apart from her presence at the time of the search, there were few other factors which would suggest that the passenger, Ms Lawrence, had an expectation of privacy in the vehicle. She did not own it, being merely a passenger in a car driven by a friend of the owner. There was no evidence that she had control of the vehicle or that she could regulate access to it. She had no past connection with the vehicle and had not shown any relationship with the owner or driver which would have given her some special access to or privilege in regard to the vehicle (such as marriage or as fellow travellers on an extended journey sharing expenses and the driving responsibilities). She also could not demonstrate any reasonable expectation of privacy in the seized merchandise or the rubbish bags in

which that merchandise was contained. She thus had no standing to challenge the search – see at [22] – [23] of the judgment.

[55] By contrast, the majority recognised that Ms Belnavis, driving with the apparent permission of the owner, did have a reasonable expectation of privacy in the vehicle. The evidence, however, was held admissible against Ms Belnavis as its exclusion would cause harm to the administration of justice, given that the quantity of merchandise suggested more than a random act of petty theft, the evidence was essential to the prosecution, it was reliable and any breach was not serious – see at [46] of the judgment. The car had been stopped lawfully, the officer treated the appellants politely, the breach was isolated and brief and the officer acted in good faith – see at [41] – [42]. There was also a lesser expectation of privacy in a car than in a home or office – see at [38] – [39].

[56] Again La Forest J strongly dissented. He said (at [50]) that the majority’s approach interpreted the reasonable expectation of privacy protected by the Charter, not by reference to what a citizen should expect in a free society, but by reference to legalistic property concepts. These, he went on to say, would favour the economically advantaged – see at [66] of his judgment. The majority’s approach also drew, in his view, unwarranted distinctions which depended on the personal relationships between individuals – see at [67] of his judgment. La Forest J agreed that there is a reduced expectation of privacy in a motor vehicle. However, he said (at [55] – [56]) that taking a drive with one’s spouse, friends or anyone else permitted to do so by the owner or driver, is a common and perfectly legitimate activity in a free society. It is an activity which the citizen should normally be left free to pursue in the reasonable expectation that he or she would be left alone and for their possessions in the car to be likewise left alone, except where there are legitimate public safety reasons to stop the vehicle.

[57] The approach of the majority in Edwards and Belnavis has been criticised on several grounds. For instance, commentators argue that, in relying on United States’ case law, the Canadian Supreme Court has failed to account for the difference in remedies between the two jurisdictions – see Stuart “The Unfortunate Dilution of Section 8 Protection: Some Teeth Remain” (1999) 25 Queen’s LJ 65 at 70 and Lawn

and Bernstein “Primacy to Privacy? The Supreme Court and the Privacy Threshold in Edwards” (1997) 55 U Toronto Fac L Rev 341 at 345. While the Canadian jurisdiction provides for the exclusion of evidence in the interests of justice (s 24(2) of the Charter), the United States Supreme Court has adopted an automatic rule of exclusion to evidence obtained in breach of an accused’s rights – Weeks v United States [1913] USSC 86; 232 US 383 (1914). The United States Supreme Court’s cases concerning standing are fundamentally driven by the desire to avoid the “social costs” of the exclusionary rule – see Rakas v Illinois [1979] USSC 12; 439 US 128 at 137 (1978) per Rehnquist J. The individualistic bias of the United States approach to Fourth Amendment standing, adopted in Canada, has also been criticised for its focus on property rights and the individual’s ability to regulate access and exclude not just governmental incursion, but the world at large – see, for example, Dawe “Standing to Challenge Searches and Seizures under the Charter: the Lessons of the American Experience and their Application to Canadian Law” (1993 - 1994) 52(1) U Toronto Fac L Rev

39 at 54.

[58] We now come to the position in New Zealand. This is an area where there have been inconsistent decisions by this Court. In R v Pointon [1999] NZCA 8; (1998) 5 HRNZ 242 at 248, this Court left open the question of whether the approach to standing in Belnavis should be adopted because the question did not arise in the particular circumstances of the case. The Court said that, in a case where it did arise, it would be necessary to consider the minority opinions in Belnavis and similar United States Supreme Court cases in order to decide what connection, in the absence of any proprietary interest in the vehicle or property contained in it, is sufficient to give a passenger standing to complain of unreasonable search and whether physical presence at the time of the search by the person claiming standing is required.

[59] The next case is R v Anderson (2005) 21 CRNZ 393 (CA). In Anderson the police stopped a vehicle that they suspected had been involved in a hit and run in the area. After examining the car and ruling out its involvement, the police nevertheless decided to search the vehicle because the occupants fitted the description of a group of males dressed in dark clothing who had been acting suspiciously in the vicinity of a car parked outside a cinema. The cinema was some distance away from where the

car was stopped. In the course of the search, the police found burglary instruments, offensive weapons and drugs which led them to invoke warrantless search powers.

[60] The Court held that the search of the vehicle was clearly unlawful. The police officers in question, purporting to rely on s 225 of the Crimes Act 1961, had no reason to believe that the car contained stolen goods. The Crown had, however, submitted, on the basis of Belnavis, that only the driver of the car had standing to complain about the search – see [44] of the judgment. The Court rejected that submission. It held that there was a clear inference that the passenger was in the vehicle with the consent of the driver, who in turn had the permission of the owner to drive the car. The Court said that there was nothing to suggest that the passenger’s right to be in the vehicle was any different from that of the driver and there was no basis for distinguishing between them as to a reasonable right to privacy when neither was unlawfully within the vehicle. In the circumstances of the case, the Court considered that there would be a perversion of justice if the driver had standing for the purpose of s 21 of the Bill of Rights but the passenger did not – see at [45] – [46] of the judgment.

[61] This Court in Savelio, without referring to Anderson, took a different approach. There had been an armed robbery of a bank and Mr Savelio was a suspect. A police officer had seen Mr Savelio going into his father’s house a few hours after the robbery. A search warrant was obtained and incriminating items were found in the garage, including a pencil case hidden under a couch containing substantial amounts of money, a black jersey with one sleeve missing (matching a balaclava found earlier in the abandoned getaway car) and a sawn-off shotgun under the floorboards.

[62] The Court held, following the approach of the majority in Edwards, that Mr Savelio had no standing to argue that the search breached s 21 of the Bill of Rights. Although there was evidence that Mr Savelio used the garage to “bunk up” on occasions, there was no evidence that he had permission to use the garage for any other purpose, let alone the concealment of a weapon. There was also nothing to show that he had any authority to prevent anyone entering the garage and he had not shown any proprietorial or possessory interest in the pencil case in which the money

was found. Savelio was applied in R v Williams CA63/05 9 December 2005 and R v

Sua CA365/05 9 December 2005.

[63] In our view, the approach in Anderson is to be preferred over that in Savelio, Edwards and Belnavis. It was, in any event, decided before Savelio. The Court in Savelio took a formal proprietary approach to the inquiry, which we consider inappropriate for the reasons outlined by La Forest J in Belnavis. The Bill of Rights should not become dominated by formal proprietary notions given the universal nature of the rights it protects. The Court also focused on the criminal activity being undertaken in assessing the privacy interest involved. Section 21 provides protection of the rights of the general public. Privacy interests in premises should thus be assessed objectively without any concentration on property rights, or the activities of the accused.

[64] The fact that any licence terms have been breached (for example, by engaging in illegal activity) should have no bearing on whether there is a legitimate privacy interest. The words of La Forest J in R v Wong [1990] 3 SCR 36 at 50 are apposite:

[I]t would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.

[65] As Mahoney points out, in “Evidence” [2006] NZ Law Review 105 at 115, taking into account the use to which the property is put would leave little room for anybody but the property owner to be granted standing. The only lease or licence holders to have standing might be those who have been granted a lease or licence to use the premises as a base for criminal activity which, as Mahoney points out, is an ironic choice for the beneficiary of the protection of the Bill of Rights.

[66] Further, the concentration on criminal activity at this point in the analysis is in our view akin to saying that the end will, in all cases, justify the means. Taking account of the seriousness of the offence as a factor in the Shaheed analysis – see at [135] – [139] below acknowledges that sometimes the end cannot be ignored but this

is only after a proper balancing of all relevant factors. Having “standing” as an “all or nothing” concept risks encouraging unlawful behaviour on the part of the police - see Pointon at 249, Bainbridge at [36], R v Thomas (2001) 19 CRNZ 392 at [18] - [20] (CA), Shaheed at [24] per Elias CJ, and Anderson at [33]. In a civilised society, it is vital that those entrusted with the enforcement of the law be required to follow it themselves.

[67] We have rejected the totality of the circumstances approach of the majority in Edwards. Despite this, we consider that the factors identified in Edwards - (see at [49]) above are useful factors to be considered individually and disjunctively. This means that everyone actually present at premises which are the subject of a search must be taken to have a reasonable expectation of privacy if they can be seen to be there with the acquiescence of anyone having any sort of licence to be present at the property.

[68] The “gatecrasher”, not expressly invited to a social occasion, would, on the view we have adopted, be able to raise a breach of s 21. Whether this extends to a pure trespasser on the premises for unlawful purposes, such as a burglar, has been raised in the United States context. For instance, in Rakas v Illinois, Rehnquist J for the majority considered that such a trespasser could not be said to have a legitimate expectation of privacy. The burglar’s expectation of privacy is, in the United States, variously described as “wrongful” and not “one that society is prepared to recognize as ‘reasonable’”, especially given that the burglar does not have the right to exclude others from the property – see Rakas v Illinois at 142 n 12. We consider that the same approach is likely to apply here.

[69] For those not present at a search, any type of licence to occupy the premises, however bare, and any type of possessory or proprietorial interest in any property searched or seized would give rise to an expectation of privacy. Although Jones v United States 362 US 257 (1960) has been overruled by subsequent cases (see below at [73]), we agree with the Supreme Court’s statement at 266 of that case:

[I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body

of private property law ... . Distinctions such as those between ‘lessee’,

‘licensee’, ‘invitee’ and ‘guest’, often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.

[70] The next question is whether the accused must prove a connection with the property or at least be able to point to an evidential basis for such connection. As it was not the subject of full argument, we leave this question open. In Canada at least, the accused, in order to persuade a judge to hold a voir dire as to the admissibility of evidence, bears the burden of providing an evidentiary basis for a claim that his or her Charter right was violated – see R v Pugliese (1992) 8 OR (3d) 259 at 267 (Ont CA) and Edwards at [43] and [45]. This requires, in most instances, positive evidence (see R v Khuc (2000) 142 CCC (3d) 276 (BCCA)), unless the accused adopts the Crown’s position that he or she was connected to the property in a way which gives rise to a claim for standing – see R v Chan [2003] OJ No 188 (Ont SCJ) at [24] - [34].

[71] The argument that an accused must provide an evidential basis for a relevant connection to the property before being able to claim a personal remedy may be in line with the approach in R v Te Kira [1993] 3 NZLR 257 per Cooke P. In that case, it was held (in a different context) that it was up to the accused to point to an evidential foundation for a breach of the Bill of Rights and then for the Crown to disprove that breach on the balance of probabilities – see Te Kira at 261 per Cooke P. Also, in R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528 at 531 (CA) the Court considered that, where admissibility of a statement following a breach of s 23(1)(b) of the Bill of Rights is put in issue by the accused, the burden of establishing admissibility rests with the Crown– see also Attorney-General v Udompun [2005] NZCA 128; [2005] 3 NZLR 204 at [119] - [120] (CA). In that case it was said that, where a claimant at the time in question acknowledged an understanding of their right to consult and instruct a lawyer (s 23(1)(b)), they must put forward an evidential basis other than mere assertion when claiming that they in fact did not understand the right at the time. Once an evidential basis is established, it is for the Crown to prove understanding. For the position under the new Evidence Act, see s 30(1)(a) and (b).

[72] The other possible approach is to give automatic “standing” where it is part of the Crown case that property seized has a connection to the accused or alternatively that the accused has a connection to the premises where the items seized were found. The argument in favour of that approach is that the Crown should not be able to have it both ways, by asserting a connection but requiring the accused effectively to accept that part of the Crown case before being able to claim a remedy. This may be seen as an unjustified intrusion into the accused’s right to remain silent – see R v Gaston [2003] AJ No 295 (Alta CA) at [2] and Luther “Of Excision, Amplification and Standing: Making Sense of the Law of Evidence in the Context of Challenges to Warranted Searches” (2006) 11 Can Crim LR 1 at 20 – 21.

[73] Concerned about this problem, the United States Supreme Court had originally adopted a rule of automatic standing for anyone charged with crimes of possession – see Jones v United States at 263 – 264. In United States v Salvucci

[1980] USSC 139; 448 US 83 at 85 (1980), the Supreme Court overruled its decision in Jones. However, the Court’s analysis in Salvucci has been criticised by commentators – see, for example, Doernberg “‘The Right of the People’: Reconciling Collective and Individual Interests Under the Fourth Amendment” (1983) 58 NYU L Rev 259 at

264 n 26 and 268 – 269 and MacDonald “Standing to Challenge Searches and

Seizures: A Small Group of States Chart their Own Course” (1990) 63 Temp L Rev

559 at 585 - 586 and 589 – 590.

[74] While we have defined privacy interests broadly, the strength of any privacy interest is a factor to be taken into account under the Shaheed balancing test in assessing the seriousness of the breach. This will depend both on the strength of a person’s links to the property and also on the type of property being searched (with a greater privacy interest in a residential as against a commercial property for example). Moving these considerations to the Shaheed balancing phase has the support of Mahoney – see “Evidence” [2006] NZ Law Review 112 at 116.

[75] Finally on this topic, we discuss the position of a person with no personal claim under the Bill of Rights. The common law jurisdiction to exclude evidence on the basis of unfairness and/or abuse of process runs parallel to the Bill of Rights – see Shaheed at [62] - [65]. Although those with no reasonable expectation of

privacy may not be able to claim a personal remedy under the Bill of Rights, he or she could avail himself or herself of the common law jurisdiction (or, when it comes into force, the Evidence Act 2006, which incorporates and modifies the common law jurisdiction – see below at [77]. This Court recognised in R v Wilson [1994]

3 NZLR 257 at 259 that whether someone else’s rights have been infringed under the Bill of Rights may be a material factor in exercising that common law jurisdiction. This is appropriate, given that the rights and freedoms enshrined in the Bill of Rights are fundamental ones that underpin our society, as Gault J said at [171] of Shaheed.

[76] We consider that it would be a highly relevant factor, when undertaking the common law analysis, if an accused were jointly charged with a person able to claim a personal remedy under the Bill of Rights. It would not seem either fair or readily comprehensible to a jury for evidence to be inadmissible in those circumstances against the person who would usually have the strongest connection to that evidence but admissible in respect of the other accused. This applies with even greater force where the charge is one of conspiracy. We note that in Wilson the persons whose rights had allegedly been breached were not complaining about the breach and they were not jointly charged – see at 259.

[77] The new Evidence Act, codifying much of Shaheed (see below at [149] - [152]), provides for the possible exclusion of “improperly obtained evidence”. As well as evidence obtained in breach of any enactment by a person to whom s 3 of the Bill of Rights Act applies, (see s 30(5)(a) of the Act), “improperly obtained evidence” is defined in s 30(5)(c) as evidence that was obtained “unfairly”. This must encompass the common law jurisdiction to exclude evidence on that ground. It seems to us, therefore, that a defendant who wishes to raise the breach of a third party’s right would still, under the new Evidence Act, be able to argue that the evidence was obtained unfairly because it was obtained in breach of another person’s rights.

[78] In any event, it is arguable that the new Evidence Act abolishes any question of “standing”. Section 30(1)(a) states that the issue of improperly obtained evidence can be raised by “the defendant against whom the evidence is offered”. Section

30(5)(a) states that improperly obtained evidence includes evidence obtained in

breach of any enactment or rule of law by a person to whom s 3 of the Bill of Rights applies. Neither subsection requires that the defendant personally be the victim of any breach. However, the degree of connection of a defendant to the property searched or the objects seized would remain relevant to the determination of the seriousness of the breach – see s 30(3)(a) of the Evidence Act and below at [124].

The effect of a breach on downstream evidence

[79] The issue of the effect of a breach on downstream evidence is a subset of the vexed question of causation. The test in New Zealand for causation is whether there is a real and substantial connection between the breach and the obtaining of the evidence – see R v Te Kira [1993] 3 NZLR 257 at 261 (per Cooke P), 272 (per Richardson J, Casey J concurring), 277 (per Hardie Boys J) and 281 (per Thomas J) (CA). It is clear that where the evidence is obtained in the course of a single transaction which includes an unreasonable search, there will be a sufficient connection between the breach and the evidence for the evidence to be excluded. For examples of this principle, see Bainbridge, R v Thomas (2001) 19 CRNZ 392 (CA), R v Ratima (1999) 5 HRNZ 495 (CA) and R v Pou [2002] 3 NZLR 637 at [43] (CA).

[80] More difficult issues arise when there is a time gap between the breach and the obtaining of the evidence. This was the situation in Shaheed and it caused major division in this Court. In that case, the admissibility of two pieces of evidence was challenged: evidence obtained from DNA profiling of the accused (after a compulsion order had been made by the High Court for the taking of a fresh blood sample) and the complainant’s identification of the accused from a photo-montage. Both pieces of evidence would not have been obtained but for Mr Shaheed having been identified as the possible attacker through an unlawful and unreasonable search - the taking of his blood other than in conformity with s 30 of the Criminal Investigations (Blood Samples) Act 1995 (now the Criminal Investigations (Bodily Samples) Act 1995). The crime at issue was the abduction and rape of a 14 year old schoolgirl on her way to school. The unlawful blood sample was taken a year later

when he was arrested for accosting a 16 year old schoolgirl walking to the same school.

[81] There were five judgments in Shaheed. Four of these were individual judgments (Elias CJ, Gault , McGrath and Anderson JJ) and one a joint judgment of Richardson P, Blanchard and Tipping JJ, delivered by Blanchard J. We start with that joint judgment.

[82] The Judges subscribing to the joint judgment would have excluded both the DNA and the photo-montage evidence. Blanchard J said at [163] that, although the High Court in making the compulsion order had relied on evidence other than the databank sample, that evidence had come to light only because of the matching of the unlawfully gained sample and the identification by the complainant which followed. He accepted that the identification was based on the complainant’s own memory but Mr Shaheed’s photograph would not have appeared in the photo -montage used for identification “were it not for the DNA match derived from the databank sample.” There was therefore a real and substantial connection between the breach and the evidence, notwithstanding the intervening compulsion order.

[83] Blanchard J considered that the breach did more than merely provide an opportunity for testimony which could be said to be truly independent of the breach, as happened in United States v Ceccolini [1978] USSC 205; 435 US 268 (1978) and R v Hearne-Smith CA104/01 23 July 2001. In Ceccolini, (discussed in more detail in Shaheed at [75] - [77]) the evidence of a witness interviewed the day following an unlawful search was ruled admissible. This was because the witness was already known to the police, she was not referred in the interview to anything seen in the unlawful search and she was completely willing to offer evidence. Furthermore, in the context of the United States exclusionary rule, the search did not exhibit any form of bad faith. The case of Hearne-Smith (discussed in Shaheed at [130] – [132]) was slightly different in that the witness was unlikely to have been interviewed had it not been for the unlawful search. The witness’s evidence about the subject matter of the unlawful search was held inadmissible as the accused’s rights could not be properly vindicated if, by a route really and substantially connected, the witness’s evidence could be

tendered in substitution for the product of the unreasonable search. The witness was also, however, able to give independent evidence of other offending by the accused. That evidence was held admissible as having no substantial connection to the breach. The Court in that case noted, at [27], that it was a step removed both in terms of connection and vindication.

[84] Blanchard J’s approach was thus to consider whether the evidence would not have been obtained but for the breach. This is subject to the qualification that evidence will be admissible if it is from a witness who can give evidence without taking advantage of the material gleaned from the unlawful and unreasonable search (such as occurred in Ceccolini) or if the evidence relates to offending independent of that uncovered by the breach (such as in Hearne-Smith).

[85] Blanchard J recognised too that there may be situations where the connection between the breach and the evidence is so attenuated that it cannot be seen as causative of the evidence being obtained – see at [146] of his judgment. Blanchard J also said in that paragraph that there will be no relevant link between a breach and evidence where the discovery of the evidence by legitimate means was bound to have occurred. We consider that Blanchard J had in mind the situation where the downstream evidence could be said to be independent of the breach, such as in Ceccolini, rather than a general doctrine of inevitability of discovery. See below at [126] - [129] for our discussion of the inevitability doctrine and why it should be treated as a balancing factor in the Shaheed analysis.

[86] The other Judges took a different view on admissibility from that in the joint judgment delivered by Blanchard J. Elias CJ, Gault and Anderson JJ would have held both the DNA evidence and the photo montage evidence admissible. McGrath J regarded the photo montage evidence as admissible but agreed with Blanchard J that the DNA evidence was inadmissible. We now examine their reasoning in more detail.

[87] Elias CJ considered, at [9] - [10], that a real and substantial connection between the breach and the challenged evidence is not difficult to discern where the evidence is seized during the course of a single transaction. Indirectly obtained

evidence may also be so connected with a breach that its acquisition would effectively perfect the breach of right. However, in her view, a real and substantial connection is not established simply because the evidence came to light through a sequence of events which included an earlier breach. If that were so, the knowledge would become “sacred and inaccessible”, a result which would undermine the public interest in the detection and prosecution of crime and “would be disproportionate to the affirmation and protection of the right” – see at [10].

[88] The Chief Justice went on to state that sufficiency of connection is a matter of degree. She articulated a twofold test. Subsequent lawfully obtained evidence will not have a sufficient connection with a breach where it is not dependent for its proof or cogency on the admissibility of the earlier evidence obtained in breach of a right, and where it has not been obtained through bad faith in exploitation of the original breach. The Chief Justice also considered that remoteness from the breach achieved by lapse of time or by intervening events was significant – see at [11] of her judgment.

[89] Gault J doubted that it was possible to lay down a test for the kind or degree of connection that would so link a suspect’s rights with an earlier breach that the balancing test should be invoked – see at [179]. However, he said that there “should be a point of remoteness beyond which the issue of balancing does not arise.” Even where the balancing test is reached, however, the nature of the link and its relationship to the evidence must be taken into account. He continued, at [180], to say that he saw an analogy in the civil context in which a distinction is drawn between causing loss and creating the opportunity for loss to be suffered. In a criminal investigation, it is one thing to cause evidence to be obtained. It is another to provide a line of inquiry which presents an opportunity to obtain evidence. In the first situation, the evidence itself (its content) flows from the breach. In the second situation, the content of the evidence may be independently volunteered. Such evidence would be the same whether or not the earlier breach had occurred. Gault J noted that the position would be different if the probative value of the evidence could be realised only by adducing evidence of the product of the earlier breach. If this were the case, the balancing test should be applied to determine admissibility – see at [181].

[90] Applying these arguments to the case, Gault J considered that the compulsion order had been obtained on the basis of independent evidence which, in his view, sufficiently severed it from the breach. The only link was that the independent evidence would not have been assembled had there not been the earlier breach. Even were he wrong on that point he would have admitted the evidence under the balancing test, given its extremely high apparent reliability. In his view, the exclusion of the evidence would be disproportionate to the breach, although, like Elias CJ, he considered that the situation would have been different had there been bad faith or deliberate abuse of Mr Shaheed’s rights by the police – see at [185] - [190].

[91] McGrath J distinguished between the DNA evidence and the photo montage evidence, excluding the former and admitting the latter. With regard to the DNA profile, the crucial factor for McGrath J (set out at [193]) was the fact that the subsequent compulsion order was sought by the police only after they had breached Mr Shaheed’s rights and become aware that the unlawfully obtained DNA sample matched that earlier found on the complainant. In those circumstances, he considered that, in reality, the evidence was derived from the breach even though the order itself was ultimately made by the Judge on the basis of other material and in particular the identification evidence. The balancing test was therefore required. He agreed that the outcome of the balancing approach should be to exclude that evidence, primarily because of the policy of the Criminal Investigations (Bodily Samples) Act – see at [194].

[92] McGrath J, however, held (at [195]) that the complainant’s identification evidence was not so sufficiently connected with the breach of Mr Shaheed’s rights as to require application of the balancing process to determine its admissibility. He said that a distinction must be drawn between the identification evidence given by the complainant and the opportunity that arose for her to give it. The complainant’s capacity to give evidence of the offending, including that relating to the identity of the alleged perpetrator, arose at the time of the assault. Her mental awareness existed prior to the breach of the accused’s rights when the first blood sample was taken. Likewise, the awareness of the police of the complainant’s version of events and her availability as a potential witness existed prior to the breach of the accused’s

rights. To this extent, the evidence the complainant could give was independent of the breach of the accused’s rights under s 21 of the Bill of Rights. The only connection between the breach of rights and the complainant’s identification evidence was that the breach resulted in the accused becoming the suspect of the police so that they knew to ascertain whether the complainant could identify him - see at [197]. In McGrath J’s view, such a connection was too remote.

[93] If a balancing exercise had been necessary McGrath J would have admitted the identification evidence – see at [198]. Significantly for him, the admission of such evidence would not offend against the policy of the Criminal Investigations (Bodily Samples) Act. To exclude the identification evidence would, in his view, have serious implications as it would effectively give an immunity in cases where a breach of rights does no more than lead to the suspect. He considered this to be a disproportionate outcome in a case where the police have been acting in good faith.

[94] Anderson J said that whether a link is sufficient and, if it is, how its nature and relationship to the evidence should be weighed in the balance, will depend on the facts of a particular case – see at [200]. In his view, if there is no logical connection of a real and substantial kind, the exclusion of evidence would be unreasonable as it would tend to accord permanent immunity from prosecution. He agreed with Gault J that the evidence sought to be adduced in the instant case was not obtained in breach of Mr Shaheed’s rights – see at [206].

[95] If there were a sufficient link so as to call for a balancing exercise, Anderson J considered that the unlawful nature of the first sample was outweighed by the attenuation of the link and public interest factors such as the gravity of the crimes, their relevance to public safety and the crucial nature and cogency of the evidence that Mr Shaheed was the offender – see at [213]. He also considered that our system of justice risked its credibility if it allowed such compelling evidence of guilt of such serious crimes to be excluded – see at [215]. He had, however, earlier said that, if a violation of the right was deliberate, cynical or gross, that would weigh heavily on the balancing process as that process should not depreciate rights or lend encouragement to official abuse of them – see at [203].

[96] In summary, Elias CJ, Gault and Anderson JJ, although expressing the point in slightly different ways, were agreed that evidence is not considered “sufficiently connected” to a breach where:

(a) there is some break in causation through time or intervening events;

and

(b) the cogency of the subsequent evidence is not dependent on the earlier breach; and

(c) there is no bad faith on the part of the police.

[97] Gault and Anderson JJ did, however, leave open the possibility that the balancing test may need to be applied in some cases. If that were the case, the extent of the link of the downstream evidence to the breach would be a relevant factor. Elias CJ of course did not consider the balancing test as it was her view that the prima facie exclusion rule should remain.

[98] Blanchard J (joined by Richardson P and Tipping J) used a slightly attenuated “but for” test to hold that subsequent evidence was obtained in breach of s 21 of the Bill of Rights. Under this test, subsequent evidence that would not have been obtained but for the breach must be considered to have a real and substantial connection to that breach. It would therefore be unreasonably obtained on that basis. This test will not be met, however, where the obtaining of the evidence can be seen as being independent of the breach. It also does not apply where the link between the breach and the evidence is so remote that it cannot sensibly be seen as causative of the obtaining of the evidence.

[99] McGrath J used a “but for” test for the DNA evidence but not for the identification evidence. The main reason he would have held the identification evidence admissible was the fact that it had been in existence prior to the breach. The breach of Mr Shaheed’s rights only gave rise to the opportunity for the complainant to draw on her independent recollections. While he does not say so, it thus appears that he considered the identification evidence to be akin to the evidence in Ceccolini and Hearne-Smith.

[100] In our view, McGrath J’s approach best equates with that of Blanchard J in the joint judgment, rather than with that of Elias CJ, Gault and Anderson JJ. This means that the majority in Shaheed used Blanchard J’s slightly attenuated “but for” test, set out above at [98].

[101] A generous approach to causation at the point of deciding whether there is an unreasonable search is in line with that taken by the Supreme Court of Canada in R v Bartle [1994] 3 SCR 173 at 208 – 209. That case held that all that is required is for the subsequent evidence to be part of the “chain of events” involving the Charter breach, except where it is “too remotely connected with the violation”.

[102] The presence and strength of the causal connection will, however, be a relevant factor when deciding whether or not to exclude the evidence under the Shaheed balancing test. The factors identified by Elias CJ, Gault and Anderson JJ (see at [96] above) will be relevant at the balancing stage in assessing the strengths of those links (apart from police misconduct which is dealt with separately under the Shaheed test). In addition, we consider it relevant to an assessment of the strength of the causal connection that an accused has engaged in further acts of illegality, such that police focus on an accused is generated, heightened, or enlarged. While the accused may come to the attention of the police through an initial breach, he or she should not be afforded automatic immunity in relation to further offending – see also the comments of Elias CJ, McGrath and Anderson JJ in Shaheed at [87], [93] and [94] above.

[103] Treating attenuation of causation as a factor in the balancing exercise has the support of commentators – see Optican and Sankoff “The New Exclusionary Rule: A Preliminary Assessment of R v Shaheed” [2003] NZ Law Review 1 at 35, Mahoney “Evidence” [2003] NZ Law Review 141 at 152 and Rishworth and others The New Zealand Bill of Rights (2003) at 801 – 802.

How should the Shaheed balancing test be conducted?

[104] The aim of the Shaheed balancing test is to assess whether exclusion of evidence in the circumstances is a balanced and proportionate response to the

circumstances of the breach. That there has been a breach is given considerable weight as a very important but not necessarily determinative factor. The balancing exercise must be carried out conscientiously so that, even if the evidence is ultimately ruled admissible, it will be clear that the right has been taken seriously – see at [143] – [144] of Shaheed.

[105] In this judgment we have taken a broad view of what might constitute an unreasonable search under s 21 of the Bill of Rights and moved many of the factors previously taken into account in deciding whether a search was reasonable under s 21, to this balancing phase where they can be taken into account as diminishing the seriousness of any breach. This enables a proper assessment to be made of the proportionality of any remedy to a breach rather than there being an all or nothing approach.

NATURE OF THE RIGHT

[106] The starting point in the balancing exercise is the nature of the right and the nature of the breach. The more fundamental the right and the more serious the breach, the less likely it is that the balancing test will result in the evidence being admitted. Concentration on the nature of the right has been criticised by commentators on the basis that this encourages the grading of rights – see, for example, Mahoney “Evidence” [2003] NZ Law Review 141 at 143 - 144 and Rishworth and others The New Zealand Bill of Rights at 784 - 785.

[107] International law does, however, recognise the gradation of rights in that some rights are non-derogable, even in cases of emergency – see Article 4(2) of the International Covenant on Civil and Political Rights. This would mean, for example, that the fundamental and non-derogable right to be free from torture (see Zaoui v Attorney-General (No 2) [2005] NZSC 38; [2006] 1 NZLR 289 at [51] (SC)) would not allow any confession obtained as a result of torture to be admitted, even under the Shaheed balancing test. See also s 29 of the new Evidence Act, which provides for the exclusion of statements influenced by oppressive, violent, inhuman or degrading conduct towards, or treatment of, the defendant or another person, or the threat of

such conduct or treatment unless a Judge is satisfied beyond reasonable doubt that it was not so influenced.

[108] It may well be that confessional evidence generally is in a special category, especially where any breach of rights throws doubt on the reliability of the evidence. This will certainly be the case under the new Evidence Act, where s 28 provides that confessional evidence must be excluded unless the Judge is satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability. Further, there is the broader notion, underpinning rules preventing self-incrimination, that a person should not be enlisted, through a breach of his or her rights, to participate in his or her prosecution

– see Lam Chi-ming v R [1991] 2 AC 212 at 220 (PC).

[109] In most circumstances, however, the nature of the right will not be considered separately but as part of assessing the seriousness of the breach. This is the case for search and seizure cases where the nature of the privacy interest will be one of the important factors influencing how seriously the breach is regarded.

EXTENT OF ILLEGALITY

[110] Assessing the seriousness of any breach involves a number of steps. Where the search and/or seizure were unlawful, the first task is to assess the extent of the illegality. This involves an assessment of how far the grounds for search and/or seizure fell short of what was required for them to be lawful. For example, a situation of borderline illegality, where reasonable minds could differ as to whether sufficient grounds existed, would be regarded as less serious than one where the grounds clearly fell short. As a further example, an unlawful seizure following a lawful search will, in similar cases, be regarded as less serious than where the entry too is unlawful. The seriousness of the unlawful seizure may in such circumstances be lessened also by the existence of an alternative lawful power overlooked by the police - see R v Power [1999] NZCA 299; (1999) 17 CRNZ 662 at [11] (CA) and R v Taylor CA384/05

3 May 2006 at [28] - [29].

[111] Where the search requires a warrant, the assessment of seriousness will involve an assessment as to how deficient the warrant application was. As a general rule, misleading applications, which have left out material that may have led to the warrant being refused, or which have included misleading material will be regarded more seriously than merely deficient applications. Equally, a warrant obtained on deficient grounds, where the police held no further information which could have justified the application, is worse than a search where the police officer preparing the warrant had information which, if it had been included in the warrant, would have made the search lawful. Although the existence of such material does not make the warrant lawful or reasonable, a baseless search must be worse than one where there were in fact sufficient grounds to justify an invasion of privacy.

[112] Such a concession is not designed to encourage a general fishing through of police files for information that might have justified the application if the officer preparing the warrant had bothered to seek it out. It is confined to information that the particular officer applying for the warrant had at the time. It is also not designed to allow an ex post facto justification for a search on the basis of after-acquired material, although after-acquired material may be relevant to the question of inevitability discussed later – see below at [125] - [129]. The concession is also not to be taken as suggesting that it is acceptable for the police not to put forward proper grounds in their warrant applications or for judicial officers to issue warrants on insufficient grounds. Indeed, seriously inadequate warrant applications can lead to a finding of police misconduct which in itself can lead to exclusion of the evidence - see below at [119] - [121] and [127]. It would tend to subvert the quasi- judicial process involved in the issue of search warrants if wholly inadequate information is later supplemented by a claim that the police in fact possessed information that would have justified the issue of a search warrant – see R v Pineaha (2001) 19 CRNZ 149 at [8].

NATURE OF PRIVACY INTEREST

[113] It is now necessary to assess the nature of the privacy interest involved. The highest expectation of privacy relates to searches of the person and particularly intimate searches, such as strip searches (as in Pratt), or invasive procedures, such as

DNA testing (as in Shaheed). In terms of searches of property, residential property will have the highest expectation of privacy attached to it - see, for example, R v McManamy (2002) 19 CRNZ 669 (CA). There will be some gradation even within a residential property, however. The public areas will invoke a lesser expectation of privacy than the private areas of the house - see Fraser at 453 (CA). Inaccessible areas such as drawers and cupboards (particularly ones where one would expect to find private correspondence or intimate clothing) would count as private areas. There will be less privacy expected in the garden, particularly in the front garden. The same applies to garages or outbuildings. There is also a lesser expectation of privacy in vehicles (see, for example, R v Jefferies at 327 per Thomas J and R v Firman CA351/04 16 December 2004 at [25]), in commercial premises (see, for example, Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) [1990] 1 SCR

425 and Hoechst AG v Commission [1989] ECR 2859 at 17 - 18) and on farmland, apart from the areas around the farm residences (see, for example, R v Williams at [83]).

[114] Although we have recapitulated this Court’s consistent view that assessing the privacy interest involves a contextual analysis, this should not be taken as license to intrude into the citizen’s reasonable expectation of privacy. “Lesser expectation of privacy”, in the context of this gradation, is a relative term. It is not intended to suggest that an unlawful intrusion into a garden is not serious. It is just less serious than an unlawful intrusion into a person’s bedroom. Furthermore, the above are examples of the gradation of privacy interests in respect of particular types of property and are not meant to be rigid classifications. As indicated above at [63] [66], privacy interests are largely assessed objectively and are not influenced by the type of activity being conducted. There may, however, be outward signs of an increased (subjective) expectation of privacy (such as signs, barricades or security) which should be taken into account. This includes where the implied license to enter property has been revoked - see, for example, Ratima. As matters are to be judged objectively, even where such signs give rise to a suspicion of criminal activity (as in Grayson and Taylor at 410 and R v Gardiner (1997) 4 HRNZ 7, these circumstances, in our opinion, will not lead to a diminished expectation of privacy.

[115] The extent of the illegality and the nature of the privacy interest have to be combined in order to assess the seriousness of the breach. For example, a mid-range illegality relating to a search of the person or a residential property is likely to be regarded more seriously than a more serious breach relating to open farmland.

AGGRAVATING FACTORS

[116] The next step in the process is to ascertain if there are factors that reduce or increase the seriousness of the breach. Factors that can increase seriousness are non- compliance with a statutory code, conducting a search in an unreasonable manner and police misconduct. We prefer to use the term police misconduct rather than bad faith as it covers a wider range of conduct. The term bad faith is not apt in cases where the officers do not know they are acting illegally or where they might be acting for what seems to them (mistakenly) to be a proper motive. We refer to “police” misconduct to recognise that it is the police who most often undertake a search or seizure, but the concept of misconduct extends to all searchers.

[117] Non-compliance with a statutory code can increase the seriousness of a breach where the breach is substantive and where the code is one in which Parliament has carefully, and in detail, prescribed the circumstances in which searches can take place. This applies with particular force to a code that regulates invasive procedures relating to personal bodily integrity such as the taking of blood samples – see Shaheed at [166] per Blanchard J and at [194] per McGrath J; and R v Hoare CA310/04 21 April 2005 at [36] and [42]. We pause to note that a related argument is often made that admitting evidence obtained in breach of statutory requirements, in all cases, challenges parliamentary sovereignty. We do not subscribe to this view. Many of the statutes authorising searches pre-dated the Bill of Rights and were thus passed in the knowledge that, under the old common law tests, illegally obtained evidence was admissible, subject to a discretion to exclude it in the interests of justice. While the breach of a statutory requirement is in all cases highly relevant (giving rise to unlawfulness), it cannot lead to an automatic result under the balancing test.

[118] If a search is conducted in an unreasonable manner, this also increases the seriousness of the breach. An example of such conduct would be the police persisting with an unlawful search and/or seizure over the rightful objection of the accused – see R v Maihi at [30]. Where the search is conducted in such a manner that it would be held to be unreasonable under s 21 of the Bill of Rights, even though it was lawful (see above at [24]), then this will be a stand-alone and often very weighty factor.

[119] As to police misconduct, if the police officers conducting a warrantless search or those applying for a warrant know that the grounds are insufficient, then this will markedly increase the seriousness of the breach. This is likely to be a controlling factor as to whether the evidence should be excluded. Misleading applications, which have left out material that may have led to the warrant being refused, or which have included misleading material, will often be a hallmark of knowledge that the grounds might be insufficient – see, for example, Solicitor-General v Schroder (1996) 3 HRNZ 157 (CA) and R v McColl (1999)

5 HRNZ 256 at [23] - [29] (CA).

[120] We include in police misconduct situations where the officers were reckless in the sense that they were indifferent as to whether the grounds were insufficient or not. We also include gross carelessness on the part of the police as an aggravating factor. There will be times when the police, although not “consciously reckless”, have significantly strayed from the dictates of prudent police action. In Shaheed, Blanchard J pointed out for instance, that gross carelessness does not extend to the police officer operating under a genuine misunderstanding of a difficult legal complication – see at [148]. We would add that mere sloppiness in drafting an application, particularly where circumstances dictate haste, will not amount to gross carelessness. The practical realities of policing must be borne in mind. Gross carelessness would, however, usually be assumed to be present when the grounds for a search are seriously deficient. Police officers should make sure that they properly turn their minds to whether or not proper grounds exist and that they make the proper inquiries of an appropriate person as to the legal position if they are not sure. Shaheed itself provides an example of police action characterised as grossly careless. The police in that case failed to inform Mr Shaheed of his right to counsel and his

right to refuse to give the police a blood sample under the Criminal Investigations (Bodily Samples) Act 1995. In the words of Blanchard J at [164], the police “must have known” about the detailed prescriptions set down by Parliament.

[121] In assessing the existence and extent of police misconduct (or indeed the extent of the illegality of a search), the police must be regarded as a body. It is thus irrelevant that the officers actually executing a warrant may have had no knowledge of the deficiencies in the application and may have been acting in good faith on the assumption that the warrant was validly issued. The granting of a warrant should not be treated as a “rubber stamp process” - see Schwartz “The Short Happy Life and Tragic Death of the New Zealand Bill of Rights Act” [1998] NZ Law Review 259 at

275 - 279 and Mahoney “Evidence” [2006] NZ Law Review 105 at 112 - 114. In this regard we consider that R v Lerm CA52/05 23 May 2005, R v Rushton CA94/01

21 June 2001 at [27] especially and R v Hooker [1997] NZCA 72; (1997) 4 HRNZ 1 (CA) should no longer be followed. In our view, these cases cannot stand beside Shaheed, which held, at [149], that good faith should be viewed as a neutral factor - see below at [130] also.

MITIGATING FACTORS

[122] We now turn to those factors that can diminish the seriousness of a breach. The main ones are where the search takes place in a situation of urgency, where the strength of the connection between the person and the property searched or seized is weak and where there has been attenuation of the link between the breach and the evidence.

[123] Breaches that take place in situations of urgency, particularly where a person’s safety might be in jeopardy, must be regarded as less serious than those where there was proper time for reflection and the taking of advice - see also Shaheed at [147]. The possible destruction of evidence is also a matter that can alleviate the type of illegality that occurred in Te Whatu, although the possibility of the destruction of evidence would not normally even partially excuse a more serious breach.

[124] Given that the purpose of the exclusion of evidence under the Bill of Rights is to vindicate individual rights, the strength of the privacy interest of the individual involved will be of major significance. This will be judged by the degree of connection to the premises or land involved or to the property searched or seized in those premises. Obviously the person with a bare licence, whether or not they are present at the search, will have a lesser expectation of privacy than a person who is the owner or exclusive occupier of the premises or land – see above at [67] - [69] and [74].

[125] The next possible mitigating factor is any attenuation in causation. As indicated above at [102], matters such as whether or not the evidence can be given without referring to the earlier breach, the length of time between the breach and the obtaining of the evidence, the existence of intervening events (including fresh illegalities) and any other factors attenuating the link will be relevant considerations. It is also of significance in relation to causation whether the evidence was brought into existence as a result of the breach (such as a sample taken for DNA testing as in Shaheed) or merely brought to light because of it – see above at [89].

[126] The final factor is inevitability of discovery. The inevitability of obtaining evidence will only count in favour of admitting evidence if the Crown shows that the police would, on the balance of probabilities, have obtained the evidence by lawful and proper means and that they did not undertake a deliberate (or, we would add, reckless or grossly careless - see at [120] above) course of conduct in contravention of the rights of the accused - see R v Butcher [1991] NZCA 135; [1992] 2 NZLR 257 at 267 (per Cooke P), Te Kira at 261 (per Cooke P), at 275 (per Richardson J) and 276 (per Hardie Boys J) and R v H at 150.

[127] The fact that there were other investigatory techniques available, which were not used, may be classed as police misconduct if there had been a deliberate, reckless or grossly careless decision not to employ those other techniques – see Shaheed at [150] per Blanchard J. It would therefore be an aggravating factor rather than a mitigating one.

[128] Although we recognise that the inevitability doctrine has been applied outside of the balancing exercise in cases post-Shaheed (see, for example, R v Greer CA162/03 24 May 2004), we prefer to consider the inevitability of obtaining evidence as another factor in the Shaheed balancing exercise. Crucially, when adopting an argument of “independence”, or “inconsequentiality” (see at [84], [85] and [98] above), the Court is accepting that there was no causative link between the breach of the right and the obtaining of evidence. When evidence was discovered as a result of a breach but would have “inevitably” been discovered by other means, there remains a very real causative link to the breach. As there remains a causative link, it is more principled, in our view, to consider inevitability as a factor in the balancing test. This is also Mahoney’s recommendation – see “Problems with the Current Approach to s. 24(2) of the Charter: An Inevitable Discovery” (1999)

42 Crim LQ 443 at 471, as well as Rishworth and others The New Zealand Bill of

Rights at 810.

[129] Inevitability of discovery, even as a factor in the balancing process, should be used with caution. The concept is a difficult one as it will always involve an element of speculation. It could also encourage short cuts to be taken by police and can be seen as rewarding the careful criminal who hides evidence well - see the criticisms in Rishworth and others at 807 - 810. In our view, this factor will mainly be of relevance for downstream evidence.

NEUTRAL FACTORS

[130] We now come to factors that are neutral. These include a number of matters taken into account in Grayson and Taylor (and indeed by the Canadian Supreme Court in Belnavis - above at [55]). Good faith on the part of the police is expected, as is courtesy in executing a warrant. While overbearing and rude behaviour may make matters worse, politeness can never be seen as ameliorating the unlawful or unreasonable nature of the search – see R v Reid CA108/98 30 July 1998.

[131] We also do not consider that the fact that a search might have taken place in the course of the investigation of possibly serious criminal activity (referred to in Grayson and Taylor at 410) is a factor that should be taken into account at this

point – see above at [63] – [66]. A focus on criminality can unduly limit the scope of protection under s 21 of the Bill of Rights. Furthermore, under the Shaheed balancing exercise, the seriousness of the criminality has always been taken into account in the balancing exercise when assessing the public interest factors on the other side of the ledger. The addition of this Grayson and Taylor factor at the point of assessing the seriousness of any breach could therefore lead to unnecessary double counting.

SYSTEMATIC ANALYSIS

[132] The assessment of the seriousness of the breach should be conducted in a systematic manner following (as appropriate to the particular case) the steps set out above. All of the factors discussed above, to the extent they are relevant, should be enumerated and reasons given at each stage for the conclusion reached in relation to each factor and the effect that that factor has on the assessment of the seriousness of the breach. An overall conclusion would then be drawn, taking all of the factors in combination, as to the seriousness of the breach in relation to the particular individual and the particular items of evidence involved.

[133] It might be helpful to consider each step against a scale that ranges from extremely serious through very serious, serious, moderately serious, moderate to minor. For example, there might be a very serious illegality but it might be reduced to serious because the search was of open fields. It might be further reduced to moderately serious because it was only remotely causative of the obtaining of the evidence and reduced still further to moderate because the particular accused had a minimal connection to the property at issue. We are not, however, intending to suggest that the approach is linear or that the scale can be anything other than a rough tool. The exercise in assessing seriousness is evaluative and the level of seriousness must depend on the particular combination of features in the specific case.

PUBLIC INTEREST FACTORS

[134] The next stage is to balance the breach against public interest factors pointing towards admitting the evidence, such as the seriousness of the offence, the nature and quality of the evidence and the importance of that evidence to the Crown’s case. It is the combination of those factors that will be of significance in any balancing exercise rather than any one factor taken on its own. The aim is to assess whether the exclusion of the evidence is a proportionate response to the particular breach in question. In conducting the balancing exercise, however, due weight has to be given to the fact that there has been a breach (however serious) of what has been called a quasi-constitutional right - see Shaheed at [143] per Blanchard J.

SERIOUSNESS OF OFFENDING

[135] As a guideline, an offence can be considered serious if the sentencing starting point (in the sense the term is used in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [8]) for the relevant accused is likely to be in the vicinity of four years imprisonment and over. This would have to be assessed on the basis of the Crown case. An offence could also be seen as serious, even if the likely penalty was less, if the offence involved a threat to public safety, such as the carrying of a loaded weapon in public. The more serious the offence, the more weight it has. It has been suggested that there has been a more benign attitude in the courts to drug offences because they are “victimless” crimes. We consider that any benign attitude to drug offences has usually been where there has been low level cannabis cultivation – see, for example, R v Hjelmstrom (2003) 20 CRNZ 208 at [20] (CA). We make it clear, however, that we do not see drug offences as victimless crimes. Even where no specific victim can be identified in relation to the specific offending, potential individual victims exist and society at large suffers.

[136] The use of the seriousness of the offence as a balancing factor has been criticised on the basis that the more serious the offence, the greater the need for procedural safeguards for an accused – see, for example, Optican and Sankoff at 24. We would agree that this should be taken into account when considering confessional evidence - (see at [108] above for a discussion of the special nature of confessional evidence). While the Shaheed balancing exercise still applies, to admit confessional evidence obtained in breach of an accused’s rights risks eroding

procedural safeguards that pre-date the Bill of Rights and that are fundamental to our society. Particularly where there are doubts as to reliability of confessional evidence, the admission of that evidence could potentially detract from the credibility of the justice system – see, for example, R v Kokiri (2003) 20 CRNZ 1016 at [23] – [24] (CA) and Haapu v R CA88/02 26 September 2002 at [27] and [29]. This is likely to mean that the admission of confessional evidence obtained in breach of an accused’s rights under the Bill of Rights would be rare.

[137] Different considerations apply, however, to real evidence which is not brought into existence but only brought to light as a result of a breach. Where undoubtedly reliable, the use of such evidence does not affect the accused’s procedural (trial) safeguards. In this regard, although Blanchard J said that the reliability of confessional evidence obtained by means of a breach of a right will often give rise to concerns that its use at trial would be unfair, the Canadian approach of extending the concept of trial unfairness to include real evidence of undoubted reliability emanating from the accused is not the law in New Zealand - see Shaheed at [151]. No issue of self-incrimination arises in such circumstances.

[138] Weight is given to the seriousness of the crime not because the infringed right is less valuable to a person accused of a serious crime but in recognition of the enhanced public interest in convicting and confining those who have committed serious crimes, particularly if they constitute a danger to public safety - see Shaheed at [152]. The public might justifiably think it too great a price to pay for evidence, which is reliable, highly probative and central to the Crown case, to be excluded in such cases. Weight is also given to the seriousness of the crime in recognition of victims’ rights, particularly where the crime involves a serious invasion of bodily integrity of a victim or presages danger to a possible future victim. After all, the Bill of Rights, in ss 8 and 9, affirms the right to life and the right to be free from torture and from cruel and degrading treatment. We recognise that Blanchard J stated in Shaheed at [143] that victims’ rights are subsumed in society’s rights, but this does not mean that their interests are not relevant to an assessment of what is needed to maintain confidence in the integrity of the criminal justice system.

[139] The seriousness of offending is a matter taken into account in Canada, for example, albeit only in respect of non-conscriptive evidence (ie evidence that does not emanate from the accused as a result of the breach) – see R v Collins [1987]

1 SCR 265 at [39] per Lamer J. It is also taken into account in the United

Kingdom – see Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91 at

118 per Lord Steyn, discussed in Shaheed at [106] - [110].

NATURE AND QUALITY OF EVIDENCE

[140] The next factor to consider is the nature and quality of the evidence. This includes its probative value, its relevance to the case and its reliability. The probative value of any evidence is a very important factor. The more cogent the evidence, the more likely it is that the accused committed the crime and the stronger the public interest in conviction. Evidence from searches will be real evidence and so its reliability will rarely be an issue unless it has been compromised by the breach itself in some manner (such as through damage in the search process or possible breaks in the chain of custody). The question of reliability will have more relevance in relation to admissions. If there were a significant issue of unreliability because of the breach, then the balancing test would clearly come down in favour of exclusion - see at [108] and [136] above.

[141] The final factor is how crucial the evidence is to the Crown case. The more crucial the evidence is, the more the public interest in conviction is engaged. We note, however, that this factor was removed from s 30 of the Evidence Act 2006 on the recommendation of the Justice and Electoral Select Committee in its final report. In the Select Committee’s view, the seriousness of the offence is the main issue of relevance - see Justice and Electoral Select Committee “Evidence Bill” (24 October

2006) at 4. In our view, however, the centrality of the evidence to the prosecution may still be of some relevance when assessing the nature and quality of the evidence.

PROPORTIONALITY

[142] As we indicated above, the aim of the balancing exercise is to assess whether, after giving any breach of the Bill of Rights its proper weight (taking into account its

quasi-constitutional nature), the remedy of exclusion of evidence is proportionate to the breach. Strict rules cannot be laid down, given that the result of the balancing exercise will depend on the individual case, but some generalisations can be made with regard to cases at each end of the scale of seriousness.

[143] As Blanchard J said in Shaheed at [148], a system of justice, which readily condones serious breaches of rights committed deliberately or in reckless disregard of the accused’s rights or where police conduct has been grossly careless, will not command the respect of the community. On the other hand, the administration of justice could be brought into disrepute if every breach leads inevitably to the exclusion of crucial evidence, which is reliable and probative of serious crime.

[144] Thus, where a breach is minor, the balancing exercise would often lead to evidence being admissible where the crime is serious and the evidence is reliable, highly probative and crucial to the prosecution case. The exclusion of evidence in such cases would properly be seen as unbalanced and disproportionate to the circumstances of the breach.

[145] By contrast, if the illegality or unreasonableness is serious, the nature of the privacy interest strong, and the seriousness of the breach has not been diminished by any mitigating factors such as attenuation of causation or a weak personal connection to the property searched or seized, then any balancing exercise would normally lead to the exclusion of the evidence, even where the crime was serious. This result would be almost inevitable where the breach was deliberate, reckless or grossly careless on the part of the police – see Shaheed at [148] – [149].

[146] We say almost inevitable because we cannot rule out a possibility that, even in such cases, where the evidence is reliable, highly probative and crucial to the Crown case, the public interest may be seen to outweigh the breach in cases involving very serious crimes and especially those involving major danger to public safety, such as a possible serial rapist or murderer or a major drugs offender. Even in such cases, however, due consideration would need to be given in the balancing exercise to the risks to the integrity of the system. A system that condones deliberate breaches of the law, for whatever motive, risks losing moral authority.

[147] One of the main criticisms levelled at the Shaheed balancing approach is the perception that, although numerous factors are to be taken into account, it is uncertain what weight should be given to each factor – see Optican and Sankoff at

23 - 24. We have attempted in this section of the judgment to lay down a structured approach to the Shaheed exercise that should lead to more consistent results. In so doing, we have emphasised that in many cases significant weight should be given to particular factors.

[148] The nature of the right and the seriousness of the breach are of fundamental importance. For example, if the reliability of evidence is questionable then this would clearly favour exclusion – see above at [140]. Police misconduct will often be a controlling factor in favour of exclusion (see above at [119]) and may be assumed where there is a serious deficiency in any search warrant application – see above at [120]. We have also attempted to provide generalisations at each end of the scale of seriousness – see above at [142] - [146]. The exclusion or otherwise of evidence under the Shaheed balancing test, however, must be tailored to the circumstances of each case and the decision remains an evaluative one for the individual Judge.

EVIDENCE ACT 2006

[149] We have alluded to the new Evidence Act several times throughout this section. Section 30 of the Act in large part reproduces the Shaheed test in legislation. Section 30(3)(a) refers to “the importance of any right breached by the impropriety and the seriousness of the intrusion on it”. In effect, this is the initial step in the Shaheed balancing exercise, discussed above at [106] - [133]. Our discussion also encompasses police misconduct (s 30(3)(b)), the availability of alternative investigatory techniques known to the police (s 30(3)(e)) and situations of urgency or emergency (s 30(3)(g) and (h)). Attenuation of causation (see at [125] above) and inevitability of discovery (see at [126] - [129] above) are not explicitly mentioned, but s 30(3) provides that the list of relevant factors is not exhaustive. This is also the case in Shaheed (at [145]), although we are unaware of any other factors that have been enumerated in any of the cases to date.

[150] We do not consider that anything we have said with regard to the balancing exercise conflicts with the new Act. Indeed, the guidance we have provided should assist trial judges in determining the weight and relevance to be given to each statutory factor in the circumstances of a particular case. We do not claim, however, that this judgment authoritatively addresses all questions that will arise under s 30. As noted above at [77], there is the question of how the common law jurisdiction is modified by the Act’s inclusion of “unfairly” in the definition of “improperly obtained evidence”. At common law all relevant evidence was admissible unless the judge exercised his or her discretion to exclude the evidence on unfairness or abuse of process grounds – see R v Coombs [1985] 1 NZLR 318 (CA), R v Smith (Malcolm) [2000] NZCA 99; [2000] 3 NZLR 656 (CA) and Shaheed at [63] - [65]. Now, all questions of admissibility for “improperly obtained evidence” will be considered under s 30 of the Act, which requires the balancing exercise for all evidence. Given that the importance of any right breached is a factor under s 30(3)(a), however, evidence obtained in an improper manner other than through a breach of the Bill of Rights may be more likely to be admitted under the balancing exercise.

[151] In addition to the common law fairness jurisdiction, s 30(6) of the Evidence Act provides that the judge, when considering “unfairly” obtained statements, must take into account guidelines set out in practice notes issued by the Chief Justice. Writing in 1999, the Law Commission originally conceived that the Judges’ Rules would provide a guide for determining whether evidence had been unfairly obtained

– see New Zealand Law Commission Evidence: Evidence Code and Commentary (NZLC 55 Vol 2 1999) at 87. The explicit incorporation of practice notes as guidelines, introduced by the Select Committee prior to the third reading of the then Evidence Bill –(see Justice and Electoral Select Committee at 4) may, however, extend beyond simply incorporating the Judges’ Rules into the admissibility analysis.

[152] We also note that s 30(3)(f) of the new Evidence Act provides that the judge must consider “whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant”. Whether this requires modification to the position that exclusion of evidence is the only adequate remedy

in the criminal context (see Shaheed at [153] – [155] per Blanchard J) may need to be addressed.

ADDITIONAL REMEDIES

[153] Finally on this topic, even where the individual’s right is vindicated by the exclusion of evidence, we do not see this as excluding the possibility of courts making declarations of breach and/or referring breaches to the Police Commissioner and, in extreme cases, to the Police Complaints Authority. This would enable the public nature of the right to be recognised, systemic difficulties to be recognised and addressed and individual transgressors to be dealt with in an appropriate manner (including by the retraining of individual officers).

Was the Patiki Road warrant unlawfully obtained?

[154] We now move on to the application of principles to this case. The first matter is the lawfulness or otherwise of the Patiki Road warrant. Mr Pike, for the Crown, conceded that the warrant was unlawfully obtained, although he did not concede that it was obtained in bad faith. The concession as to illegality was well made. It is nevertheless necessary to deal with this point as the extent of unlawfulness has an effect on the Shaheed balancing process.

[155] The application for the warrant was drafted by Detective Reardon, and sworn by him. It follows the form prescribed by s 198 of the Summary Proceedings Act

1957. It is expressed to be an application for a search warrant relating to the search of the Patiki Road premises in Avondale. The detective deposed to having learned from an informant that there were persons manufacturing methamphetamine at

40 Patiki Road. He swore that he had visited the property and had been warned off, and that he had noted a Subaru Legacy motor vehicle which subsequent enquiries had confirmed as having been stolen. The detective then deposed:

13. I believe the said address is being used by persons for criminal purposes.

14. I believe a search of the address will reveal the vehicle SK6602, a

Subaru Legacy. I also believe a search of the address will reveal

documentation in either hard or electronic forms relating to the theft and use of stolen vehicles and the criminal associations of the occupants of the address who may be involved in the theft and use of stolen vehicles.

[156] Heath J held that there was evidence justifying the issue of the search warrant in respect of the vehicle that had been reported as missing. However, all that was apparent to the issuing officer was the single and recent theft of a motor vehicle. There was nothing in the application to suggest that the occupants of the particular unit, with which Detective Reardon was concerned, had any knowledge of the theft of the particular motor vehicle. In the Judge’s view, there were no reasonable grounds for the Detective’s belief that documents of the type suggested would be found at the premises. Further, the suggestion of a car ring operating, made in [14] of the application, was purely speculative.

[157] We agree with Heath J that the reference to motor vehicles in the plural in [14] of the affidavit does suggest a car ring and that this was pure speculation. The information held by the police was limited to a single recent theft of a motor vehicle. Detective Reardon’s alleged belief that there would be multiple stolen vehicles was based on no more than suspicion, if that. However, given that the stolen vehicle was parked with a number of other vehicles in the carpark adjoining the unit, in our view there could, however, be a reasonable belief that the theft might be connected to somebody connected with that unit. Unlike Heath J, we consider that a warrant in such circumstances can legitimately extend to at least a limited search of premises outside which the vehicle was located. As the Crown submitted, there could, in addition to documents, be items such as keys or other property in associated premises.

[158] Apart from the evidence of Detective Reardon on this point, there was also evidence from Detective Sergeant McHattie, a police officer of some fifteen years experience, who was at the time with the officers based in Avondale and was called in to assist in the search. He said that he was not surprised to find that the warrant covered more than merely the vehicle. He would expect that documents from inside the vehicle might be found in associated premises and that they might also assist with fingerprint identification. He said:

Look at exhibit 1 [the search warrant]. Did that authorise the seizure of the vehicle and search of the address at 40 Patiki Road in relation to documentation associated ... Yes it did.

Did that surprise you at all ... No.

Had you had experience with searching for stolen cars prior to that ... Yes considerable.

If you knew of the location of a vehicle that you believed was stolen would you be interested in the premises at which the vehicle was found ... Yes very much so.

Explain why you would be interested in the premises ... Commonly items inside the vehicle may be inside the address where it is located, evidence identifying who the occupants of the vehicle may be and indicating association with the vehicle found, items from the vehicle could include documents or lawful user of that vehicle and items of that type. I have been involved in investigations where plans of theft if you like or where they develop when they will commit the offence has been located.

In contrast [to] that would [you only be interested in] looking at the vehicle and taking it away ... No definitely not.

[159] In this case, however, the affidavit did not even explain where the vehicle was parked in relation to the unit or why it might be reasonable to believe that it was associated with that unit. There was also nothing in the affidavit to suggest what the police hoped to find in the unit that related to that particular vehicle and why. It did refer to the possibility of finding documentation that might be associated with a car theft ring but, as indicated earlier, the suggestion of a car ring was pure speculation. We thus agree with Heath J that the application was minimalist and fatally deficient.

[160] There are some further aspects of the search and its continuation the following day which are also of concern, although, as we did not hear full argument on them, we mention them relatively briefly. On arrival at the unit, there was an initial sweep through the unit and the occupants were all taken outside. The men were asked to turn out their pockets and subjected to a pat down search. In the course of that exercise, some white powder in a snap lock bag, a knife and a (crushed) glass pipe of the type used for smoking methamphetamine was found on Mr Fred Robarts and Mr Christopher Williams. Detective Reardon then says that he invoked s 18(2) of the Misuse of Drugs Act to conduct a search of vehicles belonging to those men (although the respondents do not accept that s 18(2) was mentioned). Detective Sergeant McHattie appears to have been of the view that s 18(2) had been invoked in

relation to the search of the unit as well but Detective Reardon insisted in evidence that the search of the unit was covered by the warrant.

[161] After the pat down search, the search of the premises was resumed. Detective Brown, another of the drug squad members, found two large jars with “dark brown stuff” in them in a corner under a tablecloth. Also found were some two-layered liquids in a refrigerator and some glassware. A number of the officers also gave evidence of a strong chemical smell in the unit. Detective Reardon took the view that these matters were consistent with drug manufacturing and, after consultation with an ESR scientist, shut and secured the site. He instructed Detective Brown to prepare a search warrant application specifically directed to the drug operation. As it was late at night she did that the following morning and the warrant was issued the following afternoon. In the meantime, Detective Reardon, purportedly in reliance on the Hazardous Substances and New Organisms Act 1996 (the Hazardous Substances Act) and s 18(2) of the Misuse of Drugs Act, had returned that morning with an ESR scientist to resume the search.

[162] The first question is whether there was any basis for the actions of the police in asking for the pockets to be turned out and for the pat down search. It is clear that the men were not under arrest (and indeed there would have been no grounds for arrest in any event) and so the power to search on arrest did not arise. Unlike in the United States and Canada, no power of search consequent on investigative detention has been recognised. In any event, any detention, if the men were in fact detained, would have been unlawful.

[163] Detective Reardon said in evidence that the turning out of the pockets was consensual. Mr Christopher Williams, the only one of the accused to give evidence, said that he turned out his pockets because he was told to and that he was not going to argue with the police, some of whom were armed. Heath J in his 28 September

2005 judgment, at [74], accepted this evidence. This means that the police created a situation where Mr Christopher Williams, at least, considered that he had no choice but to consent to the search. In the circumstances therefore his consent would be legally ineffective – see, for example, Hjelmstrom at [13] - [14].

[164] It is possible that, given there were concerns about possible gang connections which led to some of the search police being armed, there might have been a justification for the searches under the Arms Act but none of the formalities associated with that Act were complied with. There is in any event conflicting evidence on why the police asked the men to turn out their pockets and why they conducted the pat down search. The most common explanation was that it was standard procedure to ensure police safety (but seemingly without any idea of the legal basis for that procedure). However, Detective Miller, the drug squad member who searched Mr Christopher Williams, said that he had a dual motive – to see if Mr Williams had the car keys to the stolen car and also to make sure he was not carrying any weapons. Searching Mr Williams for the car keys clearly had no legal basis, absent consent.

[165] As an aside, we remark that, if indeed it is standard police procedure to conduct pat down searches in these circumstances, then the legal basis for this should be investigated and proper training given to officers conducting such searches as to the limits of their powers.

[166] The next issue relates to the invocation of s 18(2) of the Misuse of Drugs Act. At the time of the search, methamphetamine was not a drug listed in the relevant schedule to the Act. Thus there was no power to conduct a warrantless search. As we heard no argument on the Hazardous Substances Act, we cannot be definitive but we doubt that this Act provided any justification for the police actions. The later drug search warrant was also tainted by the illegality of the motor vehicle search warrant (as appears in any event to have been accepted by the Crown).

Did police bad faith render the search of Patiki Road unlawful?

[167] It is appropriate now to consider the question of police bad faith as this was the primary basis for Heath J’s conclusion as to the legality of the Patiki Road search and his finding that evidence from the subsequent searches was inadmissible. The respondents supported the decision of Heath J that the warrant issued in relation to the stolen car and the resulting search of Patiki Road was illegal because the police

had a collateral motive in securing and executing the search warrant, namely a search for drugs. The police were, they submitted, acting in bad faith.

[168] For purposes of the following discussion, we will assume that the application for the search of the premises was not deficient and that the search was lawful. In accordance with the principles discussed above at [25] – [46], the fact that there is another purpose for a search cannot invalidate a lawful search, even where there would be insufficient grounds to search for the other purpose. Exceptions are where the other purpose is not a legitimate law enforcement purpose, the search goes further than would be justified by the lawful purpose, and where the lawful purpose is a mere ruse.

[169] In this case, the other purpose for the search (drugs) was a legitimate law enforcement purpose. If the search warrant in relation to the stolen motor vehicle had been lawfully issued, however, any search inside the unit would have been for documentation and items associated with that vehicle. While searching the premises, it appears that the police opened refrigerators and searched under furniture, places that, it might be thought, would have been unlikely to have held such documentation. To this extent therefore the search may have gone too far. This would have invalidated the search only to the extent it went too far, however.

[170] The issue remains as to whether the search relating to the stolen car was a mere ruse in the sense described above at [43] – [44]. In Ruling No 8 of

6 September 2005, Heath J held that Detective Reardon, the officer in charge, deliberately used information received fortuitously about a report of a missing car to procure a search warrant designed to search for drugs. This was when he knew that the information he held was insufficient to get a warrant for that purpose. He rejected the Detective’s evidence that the search for the stolen vehicle would have been conducted by members of the drug squad even if the police had had no intelligence of drug manufacture having taken place at those premises. At most, relevant information relating to the stolen vehicle would have been passed to the police at Avondale to investigate.

[171] In Heath J’s view, a further indication that the search was for drugs was the manner of execution of the warrant. Approximately eight police officers attended the scene, two of them armed. That was entirely consistent with a search for drugs but was not consistent with the search for a vehicle known to be located outside the premises. In addition, the Judge pointed out that no attempt had been made on arrival to secure the vehicle, even though it was plainly in view. He also noted that there appeared to have been no steps taken when first entering the unit to locate documentation of the type described in the application. In the Judge’s view, further investigations should have been carried out before any attempt to conduct a search was made. There was nothing in the evidence to suggest any urgency about the investigation. Even after the Patiki Road searches were completed, no further search warrants were executed until 23 May 2002.

[172] The Judge said that he was not prepared to countenance admission of evidence when a warrant to conduct a search had been procured cynically for an ulterior purpose. He rejected the submission that the search was a dual purpose search. He accepted that the police intended to make cursory searches of the vehicle and for documentation but, in his view, this was to ensure that the terms of the warrant were seen to be executed. He held that the search for the vehicle and associated documentation was a de minimis purpose. The real purpose of the search was to find drugs.

[173] We can understand why Heath J was unimpressed with Detective Reardon’s evidence that the drugs squad would have been involved in the obtaining and execution of the warrant relating to the stolen car, even if they had not suspected the presence of a clandestine methamphetamine laboratory at the premises. Looked at from another angle, however, it would not have been appropriate, given their suspicion that a clandestine laboratory may have been in operation, merely to have handed the information on to the Avondale police. There would have been very real dangers to persons and property if a laboratory had been found in the course of any search and not properly dealt with.

[174] Such safety considerations and the suspicion that there were gang links also diminish the inference that Heath J drew from the numbers of officers, some of them

armed, involved in the search. While the suspicions as to drug and gang links did not suffice to found an application for a warrant, there would have been nothing wrong with those factors being taken into account in the execution of a valid warrant. Thus there would have been nothing wrong in having enough police to deal with possible difficulties in the execution of the warrant as well as having specialist drug officers in attendance to deal with any laboratory. Indeed, it would in our view have been irresponsible for the police to have acted otherwise.

[175] As to Heath J’s concern that there was no attempt to secure the stolen car on arrival at the unit, Detective Reardon provided an explanation for the delay in the time it took to clear the premises and to conduct the pat down search. He said that it is standard procedure to clear the premises in order to make sure that there is no opportunity to destroy evidence and to ensure the safety of those searching and the occupants. The unit was then searched but, on finding evidence that suggested drug manufacturing, the scene was shut down.

[176] Heath J’s comments that the intention of the police was to make cursory searches of the vehicle merely sufficient to justify the search warrant seem to have been directed at Detective Reardon and we can see why Heath J came to that view. Detective Reardon dealt with Mr Fred Robarts when the premises were first cleared. He said that he did not recall if he spoke to Mr Robarts about the stolen car or not. When asked whether he had tasked anyone with questioning any of the occupants about the stolen car, Detective Reardon answered that he had not done so specifically as they were all of sufficient experience to make up their own minds in that regard.

[177] It is, however, necessary to look at the operation as a whole. Detective Miller, who searched Mr Christopher Williams, did ask him about the stolen vehicle, being met by the answer that he, Mr Christopher Williams, knew nothing about it and that he was only an occasional visitor to the property. Mr Christopher Williams confirmed in his evidence that he was asked one question about the stolen car. Detective Brown, one of the other drug squad detectives, said that she saw her task at the unit as being to search for a stolen vehicle, documents relating to a stolen vehicle and she thought also car keys. She busied herself checking registration numbers of some of the other 20 cars that were located outside or in the unit, while she was

waiting for the scene guards to arrive. It thus cannot be said that none of the drug squad officers were concerned with the stolen vehicle.

[178] Further, Detective Reardon had enlisted the help of the Avondale police for the search. It was those officers who, it appears, primarily dealt with the stolen motor vehicle. Detective Sergeant McHattie and his colleague Detective Constable Welch did a cursory search of the vehicle where it was parked with four other cars in front of the unit. It was getting dark and they were concerned about contamination of evidence, however, and so they arranged to have the vehicle towed to the police station at about 9.50 pm. The keys were not in the vehicle and a search inside the unit did not reveal them. Some two or three days later the vehicle was searched fully and fingerprinted. Insufficient evidence was, however, found to lay charges in relation to the theft of the vehicle.

[179] There was also evidence from a number of the officers about the briefing given at the Avondale police station before the search. The briefing appears to have concentrated largely on the stolen car, the possibility that there were other stolen cars at the unit and the possible gang connections of the occupants. There is no doubt, however, that at least the drug squad officers were aware of the possibility of methamphetamine manufacturing at the premises.

[180] Looking at the operation as a whole, it is not possible to come to the conclusion that the police were not interested in the stolen vehicle or that any search of the premises was not directed to items relating to that vehicle. It seems, for example, that there had been a search for the car keys in the unit – see above at [178]. Proper measures appear to have been taken to ascertain those responsible for the theft. We also differ from Heath J’s conclusion that there was no urgency in the search. While that was no doubt true in relation to any possible drug search, it was not the case with regard to the stolen motor vehicle. The owners of the vehicle were entitled to expect that their stolen car would be dealt with urgently. There was no suggestion that it would not have been standard police practice to seek a search warrant in relation to a stolen car. Thus, even without the desire to search for drugs, the premises would have been searched.

[181] Taking all these factors into account, this is not, in our view, one of those rare cases where the search in relation to the stolen motor vehicle could be said to be a “mere ruse”.

Was the search of Patiki Road unreasonable?

[182] The Crown argued that the search, while unlawful, was nonetheless reasonable as there were reasonable grounds to believe that the vehicle was stolen and it was not unreasonable to assume that there would be associated documentation or items such as car keys in the adjoining unit.

[183] Under the principles we have articulated above at [12] - [24], unlawfulness leads automatically to unreasonableness except where the breach is technical or trivial. Here the breach was substantive, given the minimalist nature of the application and the suggestion of a car ring when this was pure speculation. There were also the further illegalities in relation to the pat down search, the turning out of the pockets and the reliance on s 18(2) of the Misuse of Drugs Act.

[184] For completeness we note, however, that, for the reasons outlined above at [173] - [174], we do not consider that the manner of conducting the search was in the circumstances unreasonable.

Whose rights were breached?

[185] The Crown submitted that only Mr Dale Williams had standing to complain about the Patiki Road breach as he was the only one of the respondents who (probably) lived in the unit. Even that link was tenuous as the property was leased to a Mr Viles who, to the owner’s knowledge but not with the owner’s consent, was possibly sharing the unit with Messrs Dale and Christopher Williams, the latter denying having any real connection with the unit.

[186] In accordance with the principles set out above at [63] – [69], those who are able to claim a personal remedy are those who were present at the time of the search

of the property and those who had any licence at all to use the property, as well as those who had a possessory interest in the material seized at Patiki Road. Messrs Dale and Christopher Williams, on the basis of the landlord’s evidence, seem to have some kind of licence to use the property. Mr Phillip Robarts, along with his brother Fred, were present at the search.

[187] These men therefore can claim a personal remedy for the breach in the form of exclusion of evidence (subject to the Shaheed balancing). Whether any of the other respondents could claim a possessory interest in the material seized was not argued before us, perhaps understandably given the difficulties discussed above at [70] – [73]. The other respondents are therefore limited to the common law test for the exclusion of evidence but, as they are jointly charged with those who are able to claim a personal remedy under the Bill of Rights, the common law test would exclude the evidence if it were excluded against the others – see at [75] - [76] above.

Were subsequent searches tainted by the Patiki Road search?

[188] The Crown’s position was that the subsequent searches were independent of the Patiki Road search and thus were not tainted by it. After the Patiki Road search, the police had received specific information that Mr Shane Williams had a “secret room beneath his garage at Blockhouse Bay which is accessed through the garage floor” and which contained “a lot of his drugs”. The information earlier provided by the Patiki Road informant, while insufficient in itself to provide the police with reasonable grounds to search Patiki Road, was, in the Crown’s submission, available to corroborate the information relating to Mr Shane Williams obtained later from a different informant. The police were thus, in the Crown’s submission, justified in proceeding to search his property at Blockhouse Bay. The Crown accepted, however, that, if the Blockhouse Bay evidence was tainted, then the evidence gathered after that search was similarly tainted.

[189] In accordance with the principles discussed above at [98], it is only if the subsequent evidence was obtained independently of the Patiki Road breach that it was not tainted by the Patiki Road breach. In his judgment of 28 September 2005

Heath J concluded that the Blockhouse Bay search warrant could not have been obtained without the evidence gathered during the Patiki Road search.

[190] The application for the Blockhouse Bay warrant was again sworn by Detective Reardon. In his affidavit, he referred to the informant evidence in respect of Patiki Road and what had been found in the course of that search. He stated that the Patiki Road unit had been occupied by a number of persons, including Messrs Phillip Robarts, Fred Robarts, and Christopher Williams. The application then referred to information from an anonymous informant to another constable about the involvement of Mr Fred Robarts and Mr Shane Williams with the manufacturing and selling of drugs at some Auckland schools and to the information relating to Mr Shane Williams’ secret room.

[191] The application stated that the informant had given other personal details relating to Mr Robarts and Mr Williams that would not necessarily be known unless the informant was their direct associate and it was stated that those details have now been corroborated by police. It was said that both Mr Fred Robarts and Mr Shane Williams had brothers who were associated with the Head Hunters gang which is well documented as having a heavy involvement in the manufacture and distribution of methamphetamine.

[192] In his judgment, Heath J noted first that, although the application for the Blockhouse Bay search was made about seven months after the Patiki Road search, there was no reference to any further inquiries made by the police in that period. He noted further that the evidence from the anonymous informant was not entirely fresh, having been received almost a month earlier, and that there were scant details about how the information came to the police or why the informant was considered reliable. There was nothing in the application to suggest what the other personal details were that allegedly showed the reliability of the informant or how the details given had been corroborated by the police (and no further evidence on that matter had been led before him). In addition, no specific details were given about the allegations that drugs were being manufactured and sold to some Auckland schools.

[193] The Judge accepted that there was reference to police intelligence linking each named person with a brother who had suspected involvement in the manufacture and distribution of methamphetamine but, in his view, this was of limited value. In any event, the ability to make these links arose from the Patiki Road search. Before that search, Detective Reardon, although having intelligence of a “Dale” being involved in methamphetamine manufacturing, did not know his surname. Further, he did not know that Mr Dale Williams and his family occupied the Patiki Road property until he went there to execute the warrant in relation to the stolen vehicle. Finally, no further information had been put forward in evidence before Heath J that might have justified the Blockhouse Bay search.

[194] We agree with Heath J, for the reasons he gives, that the information held by Detective Reardon was insufficient to justify the issue of a search warrant for the Blockhouse Bay property without the tainted evidence obtained during the course of the Patiki Road search (and we agree that this includes the names of the occupants of Patiki Road). This means that that the evidence gained from that search must be considered tainted by the Patiki Road breach on a “but for” analysis. We must move to the Shaheed analysis in relation to both the Patiki Road evidence and the subsequently obtained downstream evidence.

How does Shaheed apply to the Patiki Road search?

[195] The Crown submitted that the application of the Shaheed balancing test with regard to Patiki Road should result in the admission of the evidence. The respondents take the opposing position.

[196] The first stage is to assess the extent of the illegality. Although a search of the unit could have been justified on the basis of the stolen vehicle, the warrant application failed to provide the proper justification for this. Worse, it suggested the existence of a car ring, which was pure speculation. The unlawfulness was exacerbated by the pat down searches and the wrongful reliance on s 18(2) of the Misuse of Drugs Act. The premises were to all outward appearances commercial rather than residential but they were used for residential purposes (at least by Mr Dale Williams). In those areas used for residential purposes, therefore, there was

objectively a high expectation of privacy. A lesser expectation of privacy would apply to the workshop and storage areas. The intrusion was, however, a major one, given the number of police involved, some of whom were armed. Further, the pat down search affected the personal bodily integrity of those searched.

[197] The combination of those factors in our view renders the breach moderately serious on the scale set out at [133]. As to aggravating factors, while we have determined that the actions of the police were not irredeemably coloured by a “bad faith” ulterior motive, there was still an element of exaggeration in the application for the warrant (with the suggestion of a car ring). This would raise the level of breach to serious. On the other hand, it is a mitigating factor that the connection of all but Mr Dale Williams (and possibly Mr Christopher Williams) to the property was very weak. This lowers the level of breach back to moderately serious for all but Mr Dale (and possibly Mr Christopher) Williams.

[198] On the other side of the ledger, the crime is serious (see R v Fatu [2006]

2 NZLR 72 (CA)) but the evidence, taken alone, was not central to the Crown case and not highly probative insofar as it relates to the offences with which the respondents are currently charged. Giving due weight to the quasi-constitutional character of the breach and its seriousness, the balancing test results in the exclusion of this evidence. We thus uphold Heath J’s decision that the evidence obtained from the Patiki Road search should not be admitted under the Shaheed balancing test, although our reasoning differs from his.

How does Shaheed apply to the subsequent searches?

[199] The Crown argued that the exclusion of the subsequent evidence would be disproportionate to that breach and would effectively provide immunity from prosecution for the fresh acts of illegality committed. The respondents supported Heath J’s conclusion that the evidence obtained after the Patiki Road search should be excluded because of its substantial connection with the Patiki Road breach.

[200] Heath J’s conclusion that the subsequent evidence was inadmissible was based largely on his finding of bad faith in relation to the Patiki Road search. We

have differed from his finding in that regard. We have nevertheless found the breach in relation to Patiki Road to have been serious (for two of the respondents) and moderately serious for the others. With regard to the Blockhouse Bay search, while the warrant application had its difficulties (see at [192] - [193] above), in our view it would have (just) supported the issue of a warrant had the reliance on the Patiki Road information been valid. The case was run before us on the basis that, if the Blockhouse Bay search was upheld, then the subsequent searches and interception warrants were lawful and reasonable and so we deal in this section only with the Blockhouse Bay search.

[201] The severity of the breach with regard to that search is to be judged largely by reference to the Patiki Road breach but taking into account any added features related to the Blockhouse Bay property and those affected by that search. The only added features are the nature of the Blockhouse Bay property (purely residential as against Patiki Road which was mixed residential/industrial) and the greater expectation of privacy those living at the Blockhouse Bay property would have. The former would not be sufficient to change the assessment of seriousness (at least when comparing the residential parts of Patiki Road) and the latter will only do so for those who were living at the Blockhouse Bay property. It seems to us too, that the fact that there would have been a proper basis for the Patiki Road search, had the application been drafted with more care, may legitimately be seen as having a greater mitigating effect on subsequent searches than it did on the Patiki Road search.

[202] In assessing the seriousness of the Blockhouse Bay (and subsequent) breaches, a further factor is any attenuation of the links between that evidence and the Patiki Road breach. The first issue in this regard is whether the cogency of the subsequent evidence is dependent on the Patiki Road breach (see factor (b) above at [96]). As we understand it, that is not the case and the subsequent evidence can be given without any reference to the Patiki Road search. Indeed, as we understand it, the subsequent evidence relates to subsequent actions of the respondents, rather than to added proof of the Patiki Road offending. As the Crown pointed out, exclusion of the evidence from the subsequent search would effectively give the respondents immunity for their criminal conduct after the Patiki Road search.

[203] The next relevant issue is whether the evidence was brought into existence as a result of the breach or merely brought to light as a result of the breach – see above at [89] and [125]. Most of the evidence would be seen as having been brought to light as a result of the breach. However, given the nature of interception warrants, it may be that these are in the same category as the DNA testing in Shaheed and thus may be seen as arising directly from the breach.

[204] The third factor is the separation in time and intervening events between the breach and the obtaining of the evidence (see factor (a) above at [96]). As indicated above, there is a long gap between the Patiki Road warrant and the Blockhouse Bay warrant but we have no indication of any police activity during that period. This therefore is a neutral factor, except to the extent that there were fresh illegalities during the later period of investigation, which in our view seriously attenuate the link. As the Crown pointed out, police attention continued to be directed towards the respondents because of their ongoing offending and not merely because of the Patiki Road information. There was also the informant evidence about Mr Shane Williams, which, although not enough in itself without the Patiki Road evidence to render the Blockhouse Bay warrant lawful, does nevertheless serve to attenuate the link.

[205] All of the above factors in our view reduce the seriousness of the breach in relation to the subsequent evidence to minor for all those not living at either Patiki Road or Blockhouse Bay and to moderate for those who were.

[206] On the other side of the ledger, these offences are serious. We understand the evidence, particularly arising out of the interception warrants, to be highly probative and the evidence is central to the Crown case. Crown counsel acknowledged that, in the event the ruling is upheld, “it is inevitable that all 11 accused will no longer [be] troubled by the serious allegations in the indictment”. While the exclusion of evidence from Patiki Road recognises the failings of the police with regard to that search (and in particular the elements of exaggeration), the subsequent evidence gathered from later searches is removed from the breach both in terms of connection and vindication. In our view, the original breach with regard to Patiki Road is sufficiently vindicated by the exclusion of the Patiki Road evidence. Even giving the breaches of the Bill of Rights due weight, the exclusion of the subsequent evidence

would not be proportionate to the breaches and our system of the administration of justice could be brought into disrepute if it were excluded.

[207] The final point is that those with no ability to claim a personal remedy, in the sense described above at [67] - [69], would not get to this stage. All of the evidence would be admissible against them unless the common law test of exclusion was met

– see at [75] - [76] above. We do not decide this point as it was not raised before us and we therefore heard no argument on it but we remark that our preliminary view is that the common law test would be unlikely to be met in relation to the subsequent evidence, given that it is more stringent than the Shaheed balancing test and the application of that test has resulted in the admission of the subsequent evidence against those who are able to claim a personal remedy under the Bill of Rights.

Search warrant applications

[208] Despite the continued exhortations of this Court, woefully inadequate applications (such as those at issue in this case) continue to be drafted and warrants continue to be issued on the basis of inadequate applications. Warrants also continue to be too widely drawn, even when based on adequate material. Below we set out the principles for the drafting of such applications and give examples of common failures.

General principles

[209] The matters set out in the application must provide the person issuing the warrant with evidence that meets the statutory criteria. In this section we concentrate on s 198 of the Summary Proceedings Act 1957. In that context, the applicant must provide evidence that would afford the issuing officer with reasonable grounds to believe that there will be at or in a stated location an item (or items) that will be evidence of, that are intended to be used for or that have been used in, the commission of an offence.

[210] A warrant must be “as specific as the circumstances allow” – see Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780 at [41] (CA) and Director of the Serious Fraud Office v A Firm of Solicitors [2005] NZCA 435; [2006] 1 NZLR 586 at [71] (CA). It follows that the same must apply to the application that forms the basis upon which the warrant is issued.

[211] The application must therefore accurately describe the offence and the specific incident or incidents to which the search relates. It is not sufficient to say that among a large group of people, over a large period of time, an offence must have occurred – R v Sanders [1994] 3 NZLR 450 at 461 (CA) and Auckland Medical Aid Trust v Taylor and Ors [1975] 1 NZLR 728 at 736, 740 and 749 (CA). A warrant will generally be found to be invalid where it fails adequately to specify the particular offence(s) to which the warrant relates – R v Baptista (2005) 21 CRNZ

479 at [24] (CA).

[212] The application must also be limited to the places where the items are expected to be found (see R v Chapman CA241/02 4 November 2002 and Baptista) and the things the application alleges will be found must be sufficiently defined. The search must be more than a fishing expedition with nothing in particular in mind - see Sanders at 461.

[213] Having “reasonable grounds to believe”, the test under s 198 of the Summary Proceedings Act, is a higher standard to meet than “reasonable ground to suspect”, the test under s 60(1) of the Arms Act for example – see R v Karalus (2005)

21 CRNZ 728 at [27] (CA). Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant (see Laugalis at 354 - 355), while suspicion means thinking that it is likely that a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists – see Sanders at 461.

[214] While there is nothing to stop an applicant for a warrant expressing an opinion on whether there are reasonable grounds, the primary task is to set out the evidence for the issuing officer – see Sanders at 460. In general, an applicant’s job is to provide all the facts that may be relevant to the issuing officer’s decision to

issue the warrant – see Tranz Rail at [21] and R v Butler CA439/00 10 April 2001 at [31]. It is important that the applicant does not present only selected facts, or leave out things that the applicant thinks may mean the issuing officer is less likely to issue the warrant – see Butler at [4]. The applicant officer must give the issuing officer the full picture – see R v McColl .

[215] Applicants for a search warrant must state that they personally believe in the truth of the facts they are including in the application, or it must be obvious to someone reading the warrant that the applicant personally believes the facts to be true – see Sanders at 460. The person applying for the warrant does not need to have personal knowledge of the facts set out in the application. However, where he or she does not have personal knowledge, the basis for believing in the truth of the facts must be set out. Where an applicant relies on information of which he or she does not have personal knowledge, the source of that information must be clearly stated so that the issuing officer may assess its reliability and cogency – see Baptista at [9] and Sanders at 460.

[216] There is often a particular difficulty with warrant applications based on information provided by informants. In such cases, there has to be some accompanying evidence in the application suggesting why the informant should be considered reliable and why the informant’s assertions are solidly grounded in more than mere suspicion, rumour or gossip – see R v Condren CA233/96 10 September

1996. Evidence of an informant’s reliability could be that the source has supplied reliable information in the past particularly if information provided by them previously has resulted in the conviction of other offenders – see R v Burns (Darryl) [2002] 1 NZLR 204 at [16] (CA) and R v Hepi and Anor CA382/03 5 April 2004, or that their part of the story has been confirmed by police inquiries – see R v Debot (1986) 30 CCC (3d) 207 (Ont CA), upheld by the Canadian Supreme Court in R v Debot [1989] 2 SCR 1140.

[217] The source and nature of the information itself may affect reliability. For example, an eyewitness account will be more reliable than information passed through multiple sources and then onto the police – see Burns at [16]; R v Black CA50/06 20 July 2006; and R v Thompson [2001] 1 NZLR 129 at 144 (CA).

Information from an informer close to the alleged offender such as a family member, colleague or friend will generally be considered more reliable than information from a more distant source (see Black at [19]), as will be information from a participant in an illegal transaction, as opposed to a spectator – see R v Groves CA210/03

23 September 2003.

[218] Where aspects of an informant’s story unrelated to the alleged offending, such as personal details about the offender, are able to be verified through other inquiries the informant will be considered more reliable – see Groves and Hepi. Links between the alleged offender and the address stated in the warrant (see Butler and Hepi), accurate reports of the alleged offender’s previous convictions (see Groves), and facts that are able to be independently checked, such as power bills consistent with hydroponic cannabis growing operations as alleged by the informant (see Butler and Thompson), are examples of information that, where confirmed, has been found to increase an informant’s reliability.

[219] Particularly in cases where only general or brief information is provided by the informant, it must be supported by information from the police about the source and the reliability of the informant in order to be considered reliable – see R v Harrison CA20/01 23 May 2001. It is not possible for the reliability of an informant to be assessed if their statements as recorded in the affidavit are conclusory. There must be some evidence provided to show that the statements are based on more than suspicion, rumour or gossip – see R v Kahika CA200/97 31 July

1997.

[220] As well as the effect the external factors discussed above will have on reliability, the way in which the applicant records the information received from the informant will affect its reliability. The applicant should give the date when information from any informant was supplied. If the information was given not to the applicant him or herself but rather to another member of the police, that other officer should be named or should swear their own affidavit in support of the application. The applicant should use direct speech where possible indicating exactly what the informant told the police – see R v Poelman (2004) 21 CRNZ 69 at [27] - [28] (CA).

[221] There is a public interest in the protection of police informers. The Court will prevent the disclosure of identifying information to an accused where that is necessary to protect an informant’s identity and it will use a confidential filing system. The issuing officer must, however, be given all information held by the police when deciding whether to issue the warrant, no matter how sensitive the information might be – see Poelman at [35].

[222] As a general check, an applicant should scrutinise the grounds on which he or she applies for a warrant and consider, taking the role of devil’s advocate, whether the grounds provide a sufficient basis for a warrant to be issued – see Savelio at [35]. Unless not practical, as a matter of best practice, applicants should also have the application checked by a superior officer or a legal advisor to ensure that it meets the statutory criteria for the issue of a warrant.

Common errors

[223] We provide below some examples from the case law which illustrate common errors:

(a) Applicants should not apply for too wide a warrant.

Example One: In Chapman, the applicant officer had received reliable information that cannabis was being cultivated on a specific part of a large farm, in an area of gorse a few hundred metres from the accused’s house. On its face, the warrant requested in the application, and ultimately issued, authorised a search of the whole farm and the accused’s house. The Court found that the warrant authorised a search only on the part of the farm supported by the information provided in support of the application. The police in this case should have restricted their application and search to the area for which they had reasonable grounds to believe cannabis was growing, on the basis of the information received. The search of the house was held to be

unlawful and the evidence found in the course of this part of the search was excluded.

Example Two: In Baptista, this Court criticised the warrant as being too widely drawn in several respects. This was largely due to the construction of the application. First, although the true intention of the police was to search for evidence supporting offending relating to precursor substances, the affidavit supporting the warrant application referred to much wider potential offending. The Court found that this confused and generalised the picture, making it difficult to link the evidence in the affidavit and the specified alleged offences to what was sought – at [14]. Second the warrant authorised a search of a wide range of financial documents and other materials. Third, the warrant authorised a search of an aircraft, ship or carriage where there was no suggestion that such a vehicle was at the address or involved in the offending – at [18]. The Court found there was no justifiable basis for such a wide search on the evidence presented in support of the warrant application, and said “[t]his was no more than a fishing expedition” – at [19].

(b) Applicants should not state conclusions without saying why.

Example: In Pineaha, the applicant officer stated in his affidavit “police have established that... ‘Boss GILLIES’...resides with Missy Murray on Ruaroa Road near Takahue.” The affidavit did not state any facts that provided a basis for this belief, or established a link between the accused and the premises. The Court held that the warrant was invalid. The applicant should have said why he believed that the accused lived at the address. For example, the applicant may have made corroborating inquiries such as checking the electoral roll, or the accused’s neighbours may have confirmed the applicant’s belief.

(c) Applicants should not include standard form material on the criminal activity being investigated unless it is relevant to the particular application.

Example: In R v Cummings CA105/06 6 July 2006, the applicant officer began his search warrant application with a large amount of standard form background information relating to cannabis and methamphetamine offending. The Court reiterated that it frowns upon the use of “cut and paste” techniques in affidavits supporting applications for a search warrant. In any event, the officer did not state his expertise to give the standard form information on the drugs.

(d) Applicants must explain any delay in applying for a warrant.

Example: In McColl, the police had received information that the accused was selling cannabis from his home address. When making the application, the applicant police officer did not tell the issuing officer that the information had been supplied two and a half months earlier. The Court found that the issuing officer would probably not have issued the warrant if he or she had known the length of delay between the receipt of the information and the application. The warrant was held to be invalid.

(e) Applicants should not leave out relevant information.

Example One: In Tranz Rail Ltd, the applicant (the Commerce Commission) sought a warrant to search Tranz Rail’s offices. The applicant failed to disclose in its application the extent to which Tranz Rail had previously co-operated with the Commission in interviews and in voluntarily handing over documentation – see at [23]. Section 98A(2) of the Commerce Act 1986, under which the warrant was sought, authorises the issuance of a warrant only where there are reasonable grounds for

believing a search is “necessary”. The previous co-operation of the appellant was relevant to the necessity of the search and should therefore have been disclosed.

Example Two: In R v H CA340/00 27 September 2000, the applicant officer sought a warrant to search the accused’s address for firearms that were ultimately linked to bullet fragments found in the deceased’s head. The application stated that the accused admitted leaving the house where the deceased was last seen alive with the accused. The application failed to record, however, further details of the accused’s version of events, being that although he had left the house with the deceased, the deceased had then dropped the accused off in Wellington. The application also failed to disclose that the deceased, when found, was lying on a rifle. The Court in this case, however, upheld the warrant on other grounds.

Example Three: Similarly, in R v Fountain and Ors CA176/05

10 August 2005, the Court criticised the failure of the applicant officer to include in his application explanations given by the suspect, which tended to undermine her alleged involvement in drug related offending. He also made unqualified assertions that a “pencil burner” was used to consume methamphetamine and that 6g of methamphetamine was located in her handbag (when no tests had been done to verify this). The applicant also did not record that one of the accused’s associates had claimed ownership of some of the drug paraphernalia cited in the application as evidence of her involvement in drug offending. This Court agreed with the trial Judge’s analysis that the applicant had not “fairly and fully disclosed the basis for his belief as to [the suspect’s] involvement in the manufacture and distribution of methamphetamine”. However, sufficient other information was included in the application to save the warrant from invalidity.

(f) Applicants should not include misleading information.

Example: In Schroder, the applicant officer stated in his application “I received information from an informant who has previously given me drug-related information which has proved to be 100 per cent reliable. I trust this informant emphatically”. In fact, the informant referred to was another police officer, so could not properly be referred to as an informant. The Court found that the applicant had deliberately set out to mislead the issuing officer and thus the warrant was invalid.

(g) Applications must say why the applicant believes an informant is reliable.

Example One: In Kappely, the applicant police officer applied for a warrant on the basis of information passed from an unknown informant to a reliable informant – see at [10]. The applicant did not give any reason why the unknown informant should be believed. The warrant was held to be invalid.

Example Two: In R v Cook CA70/99 6 May 1999, a bare, unsubstantiated assertion that an informant was reliable meant that the Court did not uphold the warrant as valid.

(h) Applicants should not describe the belief of “the police” or the belief of another person. Applicants must describe their own personal belief in a state of affairs justifying the issue of a warrant and the facts that make them hold that belief – see at [215] above. If applicants refer to the belief of another police officer, or information received by another police officer, that police officer should be identified.

Example: In Kappely, the affidavit in support of the warrant application stated “that police believe that a search of the address will result in the discovery of cannabis plant material”. This Court criticised the reference to “the

amorphous ‘Police’” (at [10]), considering it to be “unhelpful”. It also criticised the fact that the affidavit did not identify the police officer who received the relevant information from an informer. These references, and the error referred to at [223](g) above, combined to render the warrant invalid.

Summary of what an application should contain

[224] In summary, applicants for warrants should:

(a) Accurately describe the offence they believe the search relates to.

(b) Explain what it is they expect to find and why, and where they expect to find it and why. Applicants should be as specific as possible.

(c) Make sure they describe the place where they expect to find the item accurately, such as the correct address of a house or registration number of a car.

(d) Include a description of all relevant information held or received

(whether favourable or unfavourable) and all relevant inquiries made.

(e) When describing the information received, state the date when each piece of information was received, who received the information, and in what circumstances. Provide an assessment (with reasons) of the significance and reliability of the information.

(f) Describe the relevant inquiries that have been made. State the date on which each inquiry was made, who made it, how each inquiry was conducted, and the circumstances in which it was conducted. Explain (with reasons) the significance of those inquiries.

(g) Explain any delay between the last receipt of information and/or the last inquiry and the application for a warrant. If there has been a delay in applying for a warrant, make any necessary inquiries to ensure everything contained in the application is current and explain why that is so.

(h) If information relied on is from an informant, give as much information about the informant as possible, including the informant’s name, address and relationship to the suspect (if known) and any specific information on past reliability.

(i) Indicate in the application who received the information from the informant, when and in what circumstances.

(j) As far as possible, report information received from an informant in the informant’s own words. Consider attaching the original notes of the conversation to the application.

(k) Disclose all relevant information, even if confidential. Confidential information (for example as to an informant’s identity) does not have to be disclosed to the suspect (even if later he or she is charged) but it must be disclosed in the warrant application. If applicants are concerned about inadvertent disclosure of confidential information, they should consider putting it in an attachment to the affidavit, sealed and marked confidential. Applicants should refer in the affidavit to the attachment and swear to their belief in its accuracy.

(l) Explain the reason for every expression of belief in the affidavit.

Applicants should never express a conclusion without saying why.

(m) Scrutinise the grounds on which they apply for a warrant and consider, taking the role of devil’s advocate, whether the application meets the statutory criteria.

(n) Where practical, refer the application to a superior officer or legal advisor for checking before it is submitted to the judicial officer.

[225] A significant departure from the above guidelines risks there being a finding that the warrant (and therefore the search) is unlawful. This in turn may lead to the exclusion of evidence under the Shaheed balancing test.

Summary of principles of search and seizure dealt with in this judgment

Link between unlawfulness and unreasonableness

[226] Legality and reasonableness, although related, are distinct concepts.

[227] A lawful search may be an unreasonable search where it is conducted in an unreasonable manner (such as being conducted with excessive force).

[228] For the purpose of assessing the admissibility of evidence, an unlawful search or seizure will, however, be unreasonable and therefore in breach of s 21 of the Bill of Rights, except where:

(a) the error is minor or technical; and

(b) the error is not noticed before the search or seizure is undertaken. [229] After Shaheed, the factors identified in Grayson and Taylor (including

urgency – see at [20] above) will not be relevant to an assessment of reasonableness but most will move to the balancing phase under Shaheed, where they will be taken into account in assessing the seriousness of any breach.

[230] For a fuller discussion, see at [12] - [24] above.

When bad faith can render a warrant unlawful

[231] The existence of a collateral purpose (even if that purpose is dominant) does not render a search unreasonable where the search is otherwise lawful and reasonable and as long as the scope of the search covers only what is necessary to fulfil the lawful (authorising) purpose for the search – see at [36] above.

[232] Any collateral purpose must, however, be a legitimate law enforcement purpose. If the collateral purpose is illegitimate, such as to harass an ex-partner or is discriminatory in terms of s 19(1) of the Bill of Rights, then this would render the search unreasonable if that collateral purpose is more than incidental – see at [37] above.

[233] Further, if the lawful purpose is a mere ruse, then the search will be unreasonable. A conclusion that the purported purpose for a lawful search was a mere ruse should not be lightly drawn. It should be judged from the perspective of the operation as a whole and not from that of individual officers. The circumstances of applying for any warrant and of the execution of the search should be taken into account, along with considerations of standard police practice – see at [43] - [45] above.

[234] For a more detailed discussion, see above at [25] – [46].

Claiming a personal remedy for breach

[235] Breaches of other people’s rights under the Bill of Rights cannot be relied upon by third parties to claim the personal remedy of exclusion of evidence under the Bill of Rights see at [47] above.

[236] The main aim of s 21 of the Bill of Rights is to protect privacy interests. It is only where a person’s reasonable expectations of privacy have been breached that a personal remedy under the Bill of Rights (i.e. exclusion of evidence) is available. The reasonable expectation of privacy enjoyed by a person is to be judged largely

objectively. A broad view of privacy interests should be taken – see at [48] and [63]

above.

[237] Everyone actually present at a search of private property has a reasonable expectation of privacy, with the likely exception of pure trespassers on a property for unlawful purposes such as burglars. For those not present at a search, any type of licence to occupy the premises searched (however bare) and any type of proprietary or possessory interest in property searched or seized would give an expectation of privacy – see at [67] - [69] above. The fact that any lease or licence terms have been breached (e.g. by engaging in illegal activity) has no bearing on whether there is an expectation of privacy – see at [64] - [66] above.

[238] The strength of the privacy interest is a factor to be taken into account under the Shaheed balancing test. This will depend both on the strength of the links of the person to the property involved and on the type of property being searched. For example, there is a greater privacy interest in a residential property as against a commercial one – see at [74] above.

[239] The common law exclusion rules survive where the Bill of Rights is not engaged. Whether there have been breaches of other parties’ rights that have led to evidence being obtained against a person will be relevant to the application of the common law test for the exclusion of evidence. This is particularly the case where a person is jointly charged with another who has the right to claim a personal remedy under the Bill of Rights for the relevant breach. – see at [75] - [76] above.

[240] Our complete discussion on this topic is at [47] - [78] above.

Effect of a breach on downstream evidence

[241] Where evidence is obtained in the course of a single transaction which includes an unreasonable search in breach of the Bill of Rights, there will be a sufficient connection between the breach and the evidence for that evidence to be tainted by the breach – see at [79] above.

[242] In cases where there is a gap in time between the breach and the gathering of the evidence, if that evidence would not have been obtained but for the breach, then the subsequent downstream evidence is tainted by the original breach – see at [98] and [100] above. Any subsequent searches are unreasonable on that basis, except:

(a) where the evidence can be seen to be independent of an earlier breach as in Hearne-Smith (a known witness offering evidence of unrelated offending) and Ceccolini (a witness offering unprompted evidence based on independent recollection); or

(b) where the connection between the breach and the evidence is so attenuated that the breach cannot sensibly be considered as having caused the evidence to be obtained.

[243] The strength of the links of the subsequent evidence to the breach is taken into account when assessing the seriousness of the breach under the Shaheed balancing test. Factors to be taken into account include (see at [96], [102] and [125] above):

(a) whether the evidence can be given without referring to the earlier breach;

(b) the length of time between the breach and the obtaining of the evidence;

(c) the existence of intervening events (including fresh illegalities);

(d) whether the evidence was brought into existence as a result of the breach or merely brought to light; and

(e) any other factors that attenuate causation.

[244] Our complete discussion on this topic is found at [79] - [103] above.

Conduct of the Shaheed balancing test

[245] The first step in the Shaheed balancing test is to assess the magnitude of the breach – see at [115] above. This involves assessing (in combination):

(a) the extent of the illegality – see above at [110] - [112];

(b) the nature of the privacy interest considered objectively – see above at

[113] - [114];

(c) any aggravating or mitigating factors. [246] Factors that can aggravate a breach include:

(a) a substantive breach of a specific statutory code – see above at [117];

(b) conducting a search in an unreasonable manner – see above at [118];

and

(c) police misconduct – see above at [116] and [119] - [121]. [247] The main factors mitigating the seriousness of a breach are:

(a) where the search takes place in a situation of urgency – see above at

[123];

(b) where the strength of the connection between the person and the property searched or seized is weak – see above at [124]; and

(c) where there has been attenuation of the link between the breach and the evidence – see above at [125] and [243];

(d) where there is inevitability of discovery, the onus being on the Crown to prove this. It must also be shown that the police did not undertake a deliberate (or reckless or grossly careless) course of conduct in

contravention of the rights of the accused, which, in the balancing exercise, would aggravate any breach and result in a finding of police misconduct. The inevitability factor should be used with caution and would primarily be relevant to downstream evidence – see above at [126] - [129].

[248] Police good faith, the courtesy with which a search is conducted and the fact that the unlawful or unreasonable search takes place in the context of the investigation of serious criminal activity are all neutral factors – see above at [130] - [131].

[249] The assessment of the seriousness of the breach should be conducted in a systematic manner. The extent of the illegality, the nature of the privacy interest and any aggravating and mitigating factors should be considered in turn and then in combination to reach an overall conclusion on seriousness – see at [132] - [133] above.

[250] Having assessed the seriousness of the breach, the next stage is to balance the breach against the public interest factors pointing away from the exclusion of the evidence. These factors are considered in combination and not in isolation – see at [134] above. They are:

(a) The seriousness of the crime. A crime is considered serious if the starting point of any sentence is likely to be in the vicinity of four years or more or where there are elements of a threat to public safety involved, such as the carrying of a loaded weapon in public. The more serious the crime the more weight this factor is accorded. Crimes involving a serious incursion into the personal bodily integrity of the victim, particularly where there is a significant risk of there being further victims, are regarded as particularly serious – see above at [135] – [139].

(b) The nature and quality of the evidence. The more probative, reliable and crucial the evidence is, the more likely it is that the public interest

in the conviction of criminals might outweigh the breach of rights. Conversely, where there is a significant issue of unreliability because of the breach, the balancing test would come down in favour of exclusion – see above at [140] – [141].

[251] The aim of the balancing exercise is to assess whether the remedy of exclusion of evidence is proportionate to the breach. The fact that there has been a breach of a quasi-constitutional right and the seriousness of the particular breach in question must be given due weight. Strict rules cannot be laid down. The exclusion of evidence under the Shaheed balancing test must be tailored to the circumstances of each case and it remains an evaluative decision for the individual judge – see above at [134], [142], [147] and [148].

[252] Generalisations can be made, however. The reliability and probative value of the evidence will often outweigh a minor breach where the crime is of a serious nature – see above at [144]. When the illegality or unreasonableness is serious, however, and supported by a strong privacy interest, then, in the absence of any mitigating factors such as attenuation of causation or a weak personal connection to the property searched or seized, any balancing exercise would normally lead to the exclusion of the evidence, even where the crime was serious. This result would be almost inevitable where the breach was deliberate, reckless or grossly careless on the part of the police – see above at [145] – [146].

[253] Our complete discussion of the Shaheed balancing test is at [104] - [153]

above.

Conclusion and result

[254] On 29 November 2006 the application of the Solicitor-General for leave to appeal was allowed. The appeal was also allowed to the extent set out below.

[255] The determination of the High Court Judge that the evidence gained from the

Patiki Road search be excluded at trial is confirmed.

[256] The evidence gained from the subsequent searches is admissible. This is subject to the subsequent evidence being able to be given and understood without reference to the Patiki Road search and to any other considerations which have not been raised before this Court.

[257] The publication of the judgment, the reasons for judgment and any part of the proceedings (apart from [8] – [153], [209] - [253], [258] - [292] and [297]) in the news media or on the internet or other publicly accessible database is prohibited until the final disposition of the trial. Publication in law reports or law digests is permitted.

_{HAMMOND J}

Table of Contents

_{Para No}

Introduction [258]

The central problems in the law of search and seizure

Introduction [260]

The norm of judicial pre-authorisation [261] But what if the law as to search warrants is not observed? [271] Some field problems [280] The importance of process [290] Police misconduct and the exclusion of evidence [292]

Introduction

[258] I agree with the outcome of the application of the R v Shaheed [2002]

2 NZLR 377 (CA) test to these particular appeals. I therefore support the result in these appeals propounded by Glazebrook J and set out in points C to E inclusive of the judgment of the Court. I also agree with the discussion of the law set out in the judgment of Glazebrook J, which I have read in draft, and commented on.

[259] However, given the importance of the issues raised in this case I propose to add some short observations of my own. This is because I consider that the difficulties in cases of this kind in New Zealand repose more in their “operational”

aspects, than the doctrinal state of the law, and a failure to adhere firmly to the necessity for, and requirements of, a norm of judicial pre-authorisation for a search.

The central problems in the law of search and seizure

Introduction

[260] The law of search and seizure has generated a vast amount of case law and commentary in all the common-law jurisdictions. However, the essential concepts are not complex, and tend to get lost sight of somewhat in the myriad of cases. It may be useful, therefore, to restate what I think are the bedrock principles.

The norm of judicial pre-authorisation

[261] For centuries there has been a tension between the rights of individuals to have the privacy of their own “home” respected and the abilities of the state and its agencies to “intrude” into that home to search for incriminating evidence related to crime.

[262] Search warrants seem to have been unknown in the early common law, but they crept in, in particular to permit searches for stolen property. Then, in a dark chapter of English legal history, the Star Chamber gave rise to the practice of issuing general warrants to search for libellous matter. The famous cases of Wilkes v Wood (1765) 19 St Tr 1153; Lofft 1; 98 ER 489 and Entick v Carrington (1765) 19 St Tr

1030; [1765] EWHC J98; 2 Wils KB 275; 95 ER 807 held these general warrants to be illegal. Lord Camden ruled that for a search to be valid, a warrant must be issued by a judicial officer having jurisdiction, and it must be a special warrant on probable cause, distinctly describing the individual or place to be searched and things to be seized.

[263] What occurred thereafter in the western world to protect the individual, but at the same time recognise the need to repress crime, was the furtherance of this concept of judicial pre-authorisation. The recognition was that what was required

was a prophylactic device against unjustified state intrusion before a search takes place. And meaningful judicial pre-authorisation necessarily requires a neutral third party, capable of acting as a true intermediary between the rights of the individual and the interests of the state. This concept subsequently found its way into legislation around the western world (for instance, in New Zealand, what is now s 198 of the Summary Proceedings Act 1957).

[264] It is true that a particularly nasty form of general warrant - the Writ of Assistance - has lived on, particularly in North America. This open-ended warrant, which required all parties to support the officer to whom it was issued, was a device particularly used in custom and excise inspections. It authorises an officer to search any person or place, and generally does not expire. Ultimately the use of such writs had much to do with the loss to Great Britain of the American colonies. They remain something of a controversy today in some countries (for instance, attempts have been made in recent times to utilise them in relation to customs and RCMP officers who are enforcing drug and import laws at the Canadian border).

[265] It is also true that New Zealand law - as in other countries - has statutes granting police and sometimes other officials the power to search without a warrant. It was inevitable that, in some circumstances, warrantless searches would have to be countenanced, but they should not be the norm in practice, or indeed anything like it. Both the history of the development of the concept of judicial pre-authorisation, and the terms of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) itself point unerringly, in my view, to that conclusion. And it is extremely difficult to make out policy arguments for an expansive view of the ability to resort to warrantless searches, other than in such obvious areas as exigent searches.

[266] Where there is a warrantless search, s 21 of the Bill of Rights applies. As was said, forcefully and unanimously, by the Judicial Committee of the Privy Council in P F Sugrue Ltd v Attorney-General [2006] 3 NZLR 464 at [23] per Lord Carswell:

Constitutional provisions such as s 21 of the Bill of Rights Act are primarily directed towards preventing the invasion of personal freedom and privacy. (Emphasis added).

[267] It is not necessary, for the purposes of this case, to consider where the limits of warrantless searches are. My short points are the simple ones that the route of judicial pre-authorisation is preferable; and, where the law enforcement agency takes that route, the task must be undertaken with proper care.

[268] At the very heart of the requirements of the concept of judicial pre-authorisation is a recognition by Parliament and the courts that a Justice or a Judge should be placed in a position to independently determine how persuasive the evidence already gathered is. That is why the search warrant applicant must set out the officer’s sources of evidence and information. And in those cases where the source cannot be named (as in the case of tipsters and confidential informers) the requisite affidavit must put the judicial officer in a position to make an assessment of the source before any weight can be given to that evidence.

[269] The Federal Court of Australia has captured this critical role in Parker v Churchill (1985) 9 FCR 316 at 322. The process is “not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by an inevitable signature”. The judicial officer must:

[S]tand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.

(per Burchett J).

[270] These things are of the utmost importance to the development and administration of our law. The rights of citizens to be free from unjustifiable government intrusion are predicted on a system of prior authorisation, not subsequent validation. And there must inevitably be elements of caprice, uncertainty, and variation in the balancing process between citizen and state where the enforcement authorities are themselves permitted a large licence to conduct warrantless searches. The states’ interest in detecting and preventing crime only begins to prevail over the individual’s right in being left alone at a point where a soundly based probability assessment overtakes suspicion. This is an objective assessment, and the legal process would not normally leave such a decision in the hands of the “suspecter”, who, to quote Jackson J in Johnson v United States 333 US

10 at 14 (1948) is “engaged in the often competitive enterprise of ferreting out crime”. This, in and of itself, offends the usual norms of legal decision-making.

But what if the law as to search warrants is not observed?

[271] There is then a difficult problem as to what is to be done if the application for a search warrant is deficient, for some reason or another. The dilemma was well stated by Cardozo J in People v Defoe 150 NE 585 at 589 (1926):

No doubt the protection of the [search warrant] statute would be greater from the point of view of the individual whose privacy had been invaded if the government were required to ignore what it had learned through the invasion. The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flaunted by the insolence of office. There are dangers in any choice.

[272] The range of choices is relatively obvious. The law could take the attitude that if the warrant and the search were not in all respects lawful, then any evidence gained thereby is not admissible in court. This was essentially the position taken under the Fourth Amendment in the United States of America in Weeks v United States [1913] USSC 86; 232 US 383 (1914) and Mapp v Ohio [1961] USSC 142; 367 US 643 (1961).

[273] In more recent decisions, the United States Supreme Court has stripped this “exclusionary” rule of its constitutional underpinnings by turning it into a court-created discretionary remedy. And at least the majority of the Justices of the United States Supreme Court in recent years have proceeded to define how a court should exercise its discretion by reducing the purpose of the rule to the single one of deterrence of future police misconduct (see Elkins v United States [1960] USSC 116; 364 US 206 (1960). That is, they have rejected any consideration of the rule as, more broadly, vindicating the constitutional right of the individual, or as essential to preserve judicial integrity by not having courts condone police illegality by letting police benefit from the fruits of their unlawful conduct. (I am also here thinking of cases such as United States v Calandra [1974] USSC 4; 414 US 338 (1974) and United States v Janis 428

US 433 (1976)).

[274] The exclusionary rule has been rejected in Canada (see s 24(2) of the Canadian Charter of Rights and Freedoms and R v Collins [1987] 1 SCR 265). As the matter was concisely put by Dickson CJ a year or so later in R v Simmons [1988]

2 SCR 495 at [60]:

Section 24(2) [which is the remedy provision of the Canadian Charter] rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights: see, for example, Weeks v US, [1913] USSC 86; 232 US 383 (1914), and Mapp v Ohio, [1961] USSC 142; 367 US 643 (1961). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained: see R. v Wray, [1970] 4 CCC 1, 11 DLR (3d) 673, [1971] SCR

272. Evidence may be excluded under s 24(2) if, having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute.

[275] In New Zealand, as is carefully set out by Glazebrook J, the approach to the exclusion of evidence is now governed by a “balancing test” under Shaheed which has been endorsed by Parliament in the Evidence Act 2006. The essential purpose of that approach is to ascertain whether the exclusion of the evidence would be proportionate to the breach of the right.

[276] There still continues to be, from time to time, strong protests by senior jurists against the disappearance of the exclusionary rule, and its cousin, a prima facie exclusionary rule.

[277] For instance, Justice Brennan, dissenting in United States v Leon [1984] USSC 201; 468 US 897 at 928 - 929 (1984), pronounced the following epitaph to the exclusionary rule in the United States:

Ten years ago in United States v. Calandra ... I expressed the fear that the Court’s decision “may signal that a majority of my colleagues have positioned themselves to reopen the door [to evidence secured by official lawlessness] still further and abandon altogether the exclusionary rule in search and seizure cases.” ... Since then, in case after case, I have witnessed the Court’s gradual but determined strangulation of the rule. It now appears that the Court’s victory over the Fourth Amendment is complete. That today’s decision represents the pièce de résistance of the Court’s past efforts cannot be doubted, for today, the Court sanctions the use in the prosecution’s case-in-chief of illegally obtained evidence against an individual whose rights have been violated - a result that had previously been thought to be foreclosed.

[278] In New Zealand, Elias CJ in Shaheed argued for the merits of a “rule certain”, in supporting the continuation of a prima facie exclusionary rule.

[279] That said, a Full Court of this Court (comprising Judges who now make up the Supreme Court of this country) and the Parliament of New Zealand have endorsed the discretionary approach in Shaheed. The real problems are now therefore, how best to make Shaheed work, in the field; and even more fundamentally, how to avoid the necessity to have to resort to that formula.

Some field problems

[280] Unfortunately, as is routinely the case in New Zealand, we have very little information in the way of systematic empirical studies as to how things are working out in the field with search warrants.

[281] A survey conducted by the New Zealand police indicated that at least three-quarters of search warrant applications are presently made to District Court Registrars - see New Zealand Police, A short study on the search warrant application process (2006) at 4. Of these, the police survey showed that registrars declined 7 per cent of applications made in Wellington - see at 3.

[282] Records of the number of warrants issued by Justices of the Peace are apparently not kept, but a survey conducted in 2005 reported that in a 12-month period 91 Justices of the Peace had presented to them 1,031 warrants in the Auckland metropolitan area - see Auckland Justices of the Peace Association (Inc) Report on a Survey of Search Warrant Trained JPs conducted in January and February 2005 (2005). Of those, 1,023 were presented by the police, one was from the Department of Conservation, one from Maritime, and six were presented by the Serious Fraud Office. There is a “preferred” list of JPs to deal with search warrants, with 100 names on it.

[283] Judicial experience as to what happens in real life may not be entirely without value. It strikes me that in this subject area there are some unfortunate features

which are contributing to the ongoing run of cases in the trial courts, and in this

Court.

[284] The first issue appears to be an insufficient appreciation by some police officers of the fundamental importance of the concept of and requirements for judicial pre-authorisation which I have endeavoured to outline earlier in this judgment. There are too many inadequately or badly drafted warrants, and Crown counsel are too often put in the invidious position of having to defend, as best they can, the indefensible. Inappropriate cutting and pasting is endemic. The present case provides an unfortunate example.

[285] Several points can be made here. It is obvious from other areas of “search” law, that the police are capable of doing quality work. For instance, in my years on the High Court bench I never had a warrant application for an interception warrant under Part 11A of the Crimes Act 1961 which was not immaculately prepared. Sometimes questions had to be asked going to (say) the extent of the intrusion sought in the warrant, but overall the work was exemplary.

[286] Of course, interception warrants are in a different category. Almost invariably they arise in relation to quite serious crime, usually under very careful consideration by a metropolitan unit, and under the direct control of a senior police officer. More commonplace search warrants usually arise in a different context altogether. There may be a sole police officer in a remote part of New Zealand who finds it necessary to make an application (often with limited administrative resources) to a Justice of the Peace who rarely sees such applications. It would be surprising if errors did not sometimes occur in such circumstances.

[287] Overall however, it appears to be the case that there are more errors than there should be. This in turn gives rise to forensic difficulties, and considerable expense to the public purse in resolving the arguments as to whether the evidence gained should or should not then be admissible.

[288] This leads to the second main area of contemporary concern. There is a tendency on the part of some members of the defence bar to overreach in objections

to the admissibility of evidence in search warrant cases. It is easy to understand their dilemma. Faced with a distinctly problematic “defence”, which may have little merit, counsel endeavour to clear away, and understandably so, any evidence they can. That said, the present rule is not an exclusionary one. This Court went to considerable pains in Shaheed to outline the factors which ought to be taken into account. In most cases, when those factors are faithfully applied, there is not a lot of room for debate about where a particular case ought to come out. Yet trials have been badly delayed and courts tied up in unnecessary and extensive arguments under this head, as for instance, in the present case. Given the prevalence of drug manufacturing offences in New Zealand such arguments have exacerbated the delay in the disposal of a significant number of cases.

[289] The short point here is that these police errors have a significant ripple effect on the day to day administration of justice.

The importance of process

[290] The New Zealand Law Commission has this subject area under consideration, and is understood to be nearing at least a draft report. In case it should be of assistance in relation to the future development of New Zealand law, it strikes me that the process involved in obtaining warrants may be every bit as important as the substantive law in this subject area. For instance, one of the reasons that the procedure relating to interception warrants has been successful is that there is a limitation on the range of personnel who are involved in that process. There may be something to be said for restricting the range of personnel who can issue general search warrants, and for some degree of “specialisation”. For instance, the issuance of warrants in suspected drug manufacturing cases raises other concerns. And it seems plain enough that a substantial number of the search warrants issued in New Zealand emanate from the signature of a District Court Registrar (which includes an Assistant Registrar), which may be thought to be a matter for concern.

[291] In any event, I have said enough to indicate that I have a real degree of hesitation as to whether further refinement of the substantive law relating to searches is going to achieve all that much, given that the basic framework has been adjudged

to be sound. Closer consideration of the actual process by which warrants issue, with input from the police, the Crown, the defence bar, the District Court and the like as to improved processes may produce sounder long-term operational effects.

Police misconduct and the exclusion of evidence

[292] A decision to exclude or not exclude evidence under the Shaheed test is the exercise of a judicial discretion. In accordance with the usual rules pertaining to appeals, the exercise of a discretion of that character will not be interfered with unless it can be demonstrated that the Judge was plainly wrong, in the sense of that term as understood in appellate courts.

[293] In this instance, an experienced High Court Judge took a very dim view indeed of Detective Reardon’s conduct. He held that although the warrant sought was to authorise the search for and seizure of a stolen car and associated documentation, “the true [and seemingly the Judge thought “the only”?] purpose for which that warrant was obtained was to search for equipment relating to the manufacturing of methamphetamine” (at [6] of Heath J’s No 8 Ruling). And further, the detective “deliberately used information received fortuitously about a report of a missing car to procure a search warrant ... to search for drugs. That conduct is unacceptable. The ends did not justify the means” (at [8]). The Judge went on to say that he was “not prepared to exercise a residual discretion in favour of admission of the evidence. Exclusion is required to mark serious misconduct on the part of the police” (at [7]). Later the Judge said (at [109]):

Although there are significant factors in favour of admission of the evidence, I am not prepared to countenance admission of evidence when a warrant to conduct the search has been procured cynically for an ulterior purpose. This is one of those rare cases in which the credibility of the criminal justice system depends upon exclusion of evidence of this nature both to mark the Court’s disapproval of the conduct of the police and to ensure the conduct is not repeated.

[294] Like my colleagues I have great difficulty in seeing that the conduct of the police officer in this instance amounted to “bad faith”, as that term is commonly used for legal purposes, even if that was a relevant factor.

[295] But even assuming, solely for the purpose of argument, that there was relevant police misconduct in this case, in my view the Judge misapprehended - as a matter of principle - the appropriate approach to the balancing test under Shaheed. The issue of police conduct in the search and seizure process does not exist in a vacuum as a sort of single determinative factor which is capable in and of itself of turning the outcome one way or the other. Police conduct must surely be examined within the totality of the circumstances disclosed on the evidence before the Court in any given case. Its value in the judicial determination of a s 21 case is the effect that it will have when assessing the factor of the “seriousness" of the violation.

[296] It seems to me that what the Judge did in this case - after coming to the conclusion that there were in fact substantial reasons to admit the evidence - was to say that he thought there was police misconduct which was, in and of itself, dis-entitling. The overall evaluation which was needed had to be broader, and more nuanced, than that.

[297] This leads to a final point. Sometimes counsel try to turn exercises of the present kind into a full scale review of what the police did, and urge the “disciplining” of the police. That is not what these cases are about. The master of evidence, Henry Wigmore, rightly reminded us that “[t]he judicial rules of evidence were never meant to be used as an indirect method of punishment” (Wigmore on Evidence (Chadbourn rev 1970) at Vol 8 §2183.) Instead, the overarching issue to be resolved in an allegation of an unreasonable search is a balancing of interests: once determined to be a breach of s 21, the court must consider whether exclusion of evidence as a vindication of the accused’s right would be a proportionate response to the breach. As has been stated, this includes assessing the individual’s privacy interest, the manner in which it was intruded on, and the government interest in adducing the evidence in question.

Solicitors:

Crown Law Office, Wellington