The Queen v Horsfall [2008] NZCA 449; (2008) 24 CRNZ 402 (30 October 2008)

Last Updated: 5 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA2/2008

[2008] NZCA 449

THE QUEEN

v

MUCKUNDA HORSFALL

Hearing: 16 September 2008

Court: Robertson, Wild and Cooper JJ

Counsel: G J King for Appellant
P K Feltham for Crown

Judgment: 30 October 2008 at 9 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The convictions are quashed and acquittals are entered on each count.

REASONS OF THE COURT
(Given by Cooper J)

[1] The appellant was tried on two representative counts alleging respectively that he manufactured and sold the Class A controlled drug methamphetamine. In addition, he faced three further counts alleging that he possessed equipment, precursor substances and materials for the purpose of manufacture of methamphetamine.
[2] He was convicted on all five counts and sentenced by Woodhouse J, who had presided at the trial, to an effective term of four and a half years’ imprisonment. He now appeals against his conviction and the sentence.
[3] Although a number of issues were raised in support of the conviction appeal the argument that assumed most prominence at the hearing was that the evidence on which the Crown relied at the trial was obtained in an unlawful and unreasonable search of property. The appellant also contended that exclusion of the evidence was the proper and proportionate response with the result that his conviction could not be sustained.
[4] The admissibility of some of the evidence in question had been the subject of an application by the Crown under s 344A of the Crimes Act 1961, dealt with by Stevens J prior to the trial. After hearing different arguments to those presented in this Court, he granted the Crown’s application and held admissible evidence obtained when the police forcibly opened a container to reveal various components of a clandestine methamphetamine laboratory.
[5] Our account of the background facts which follows is largely based on the judgment delivered by Stevens J on the pre-trial application, dated 3 September 2007. We did not understand the appellant to dispute any of the findings as to primary facts in that judgment. Where necessary to supplement the findings made in the High Court reference has been made to the evidence that was called at the pre-trial application.

Background

[6] There had been ongoing issues between Waitakere City Council and a Mr Gordon, who owned two properties situated within the Council’s district. Those properties are referred to as Nos. 184 (also known as 186) and 202 Shaw Road, Oratia. Both were substantial, comprising respectively 3.7967 and 7.4446 hectares, a total of approximately 11.2 hectares. Apart from a comparatively narrow strip in its north-eastern corner, the land at No. 202 lay to the south of No. 184/186. The properties were not separated by a fence or any other obvious physical boundary. Developments on them included a commercial plant nursery, and a number of workshops and other buildings, some of which were used as dwellings. There were paddocks, and substantial areas of bush occupied about two-thirds of the properties’ combined area.
[7] While there were a number of potential access points to the properties, a right-of-way over a property situated at 159 Scenic Drive, situated approximately to the south of the eastern-most boundary of No. 202 was the access generally used. It gave access to No. 202 at its south-eastern corner.
[8] When the application was heard by Stevens J there was an outstanding indictment in the Auckland District Court containing a number of counts alleging various breaches of the Resource Management Act 1991 (“the RMA”) and the Building Act 1991. The indictment was initially laid in April 2005 but had been amended from time to time and the trial was set down for February 2008. The charges included allegations that earthworks and building works had been carried out without resource consent. The Council also alleged that there were dwelling units on the properties in excess of the permitted number. The Judge found that there was a significant area of factual dispute concerning who was in fact residing in the scattered buildings situated on the properties.
[9] By way of further background, Stevens J recorded that two enforcement orders had been issued in the District Court by Judge McElrea in April 2004, following a conviction of the property owner for previous offences. Those orders required compliance with the RMA and allowed the Council to enter the properties in the event of non-compliance. Then, in December 2004, the Council received information that there might still be residents in a workshop area of a building. An inspection followed, in the course of which Council officers noticed unauthorised living accommodation units. This in turn led to the indictment originally filed in April 2005.
[10] In November 2005, a Mr Jonathan Reddell, employed by Waitakere City Council as an enforcement officer carried out a further inspection after another complaint to the Council. Stevens J found that in the course of that inspection Mr Reddell noted that part of a workshop building remained in residential use, despite steps previously taken by the Council to remove the occupants due to a fire hazard. He noted indications of residential occupancy of other buildings, but was denied entry to confirm its extent. He also observed that earthworks had recently been undertaken, and numerous trees appeared to have died as a result of fill or over-spill around their root areas.
[11] On 12 April 2006 Mr Reddell made an application for a search warrant pursuant to s 334 of the RMA. The application was supported by an affidavit in which Mr Reddell recorded a history of Council dealings with the property as well as giving the information obtained in the course of his inspection of 18 November 2005, to which we have earlier referred. He expressed the opinion that the number of household units on the land exceeded the number permitted by the district plan; that the quantity of earthworks carried out exceeded that which was permitted by the district plan without a resource consent; and that the amount of inorganic rubbish and cars stored on the property was also in breach of the district plan. He referred to four different respects in which applications for resource consent would be needed to authorise activities on the property and stated that no such resource consents had been obtained.
[12] At paragraphs 8 and 9 of his affidavit he said:

8. Access to the Properties is continually challenged and Council Officers are unable to attend without members of the New Zealand Police or a security guard. Search Warrants have been sought and gained by Council in the past to collect evidence once a breach of the Resource Management Act 1991 has been noted as per Section 334 of the Act.
9. Due to the confrontational nature of recent visits to the Properties and in light of past dealings with Mr Gordon and tenants at the Properties, which have required the assistance of the Police to enable Council officers to discharge their duties, I consider that Police assistance and a search warrant is again required to enter the Properties on this occasion.

[13] He then referred to the imminent date for the depositions hearing in respect to the outstanding prosecution of 26 April 2006. He said that access was required to determine if compliance had occurred with the Act or the precise extent of non-compliance in order to provide the Court with accurate information.
[14] At paragraphs 11 and 12 of the affidavit he said:

11. Therefore a search warrant is sought under s 334 of the Act to:

(a) Gain access to the workshop building located on 202 Shaw Road, to confirm the number in residential occupancy;

(b) Gain access to other buildings and/or structures located on 184 and 202 Shaw Road, which we believe to house further accommodation units.
(c) Enable council officers to clarify whether more cars, demolition and other material, vegetation and other inorganic rubbish is located at the Properties.

12. The following condition is to apply:

That the warranted council officers shall be accompanied by a constable and any such assistants as required to search and seize as detailed above.

[15] The search warrant was produced in evidence before Stevens J. It was in the following terms:

SEARCH WARRANT

IN THE MATTER of the Resource Management 1991

AND

IN THE MATTER of an application for a search warrant pursuant to Section 334 of the Resource Management Act 1991 in respect of property situated at 184 Shaw Road and 202 Shaw Road, Oratia, Waitakere City (legal description: Allotment 81, Parish of Waikomiti comprised and described in CT 52B 12211 and Lot 1 DP 156699, Certificate of Title NZ94A/815)

TO: Jonathon Bruce Reddell, Warranted Enforcement Officer of Waitakere City Council

AND TO: Robert Mark McCrone Warranted Enforcement Officer of Waitakere City Council

AND TO: Constables accompanying the abovenamed

AND TO: Fire Safety Officers accompanying the abovenamed

I AM SATISFIED on an application in writing made on oath that in accordance with section 334 of the Resource Management Act 1991 (“the Act”) there are reasonable grounds for believing that there is, in, on under or over the property situated at:

184 (aka 186) and 202 Shaw Road, Oratia, Waitakere City (legal description: Allotment 81, Parish of Waikomiti comprised and described in CT 52B 12211 and Lot 1 DP 156699, Certificate of Title NZ94A/815) (“the Properties”);

evidence of an offence against section 338 of the Act that is punishable by imprisonment; and

further that I am acting under the authority of s 334 of the Act.

THIS IS TO AUTHORISE YOU in accordance with sections 334 and 335 of the Act on one occasion within 14 days from the date of this warrant, with such assistance as is necessary and such force for making entry as is reasonable in the circumstances, to enter and search for, seize, measure, photograph and survey;

(a) the Properties and anything which is or may be evidence that on the Properties has been deposited earth, soil or fill and inorganic matter in breach of the operative Waitakere City District Plan;

(b) the Properties and anything which is or may be evidence that on the Properties has been the cutting, damaging, pruning or felling of trees and shrubs in breach of the operative Waitakere City District Plan;
(c) the Properties and anything which is or may be evidence that there is/are additional household units on the Property in breach of the operative Waitakere City District Plan; and
(d) the properties and anything which is or may be evidence that there is a landfill and/or the storage of motor vehicle wrecks on the Properties.

DATED at Waitakere this 12th day of April 2006

Registrar

[16] At 9.00 a.m. on 21 April 2006 Mr Reddell went to the land to execute the search warrant. He was accompanied by two police officers. He began a systematic inspection at the southern end of 202 Shaw Road to which he gained entry over the right of way access previously mentioned. Shortly after arriving, however, the police officers were requested to attend an incident elsewhere and after speaking with Mr Reddell they left to do so.
[17] Mr Reddell commenced his inspection by going to the workshop area on 202 Shaw Road. There were people living in the workshop to whom he showed the warrant. At that point they refused him entry and both they and Mr Reddell called the police. What happened next was described by Stevens J at [18] of his judgment:

Several officers arrived at the properties a short time later. After consulting with Mr Reddell, the officers were despatched around the properties in order to determine the residency of the different structures. At 11.00 a.m., three officers, Constables Headifen, Stewart and Leth, made their way to a building at the northern end of the properties. That dwelling is described as being at 182A Shaw Road, Oratia. Constables Headifen and Stewart approached the property and knocked on the ranchslider door, which was opened by Ms Leone Patangata. Constable Headifen advised her that they were executing a search warrant pursuant to the RMA and she directed them to Mr Horsfall, who was sitting in the living room with a young child. He explained the nature of their visit. Mr Horsfall told Constable Headifen that he knew the type of check being undertaken because several other inspections of the type had taken place previously. Constable Headifen then obtained Mr Horsfall’s details.

[18] Nothing turns on the reference to 182A Shaw Road in that paragraph. It was conceded by the appellant that the home was on the land known as 184/186 Shaw Road.
[19] In the following paragraphs, Stevens J recounted how, in the course of a conversation between them, Constable Headifen noted burn marks on Mr Horsfall’s hands together with a strong smell of cannabis emanating from him. He thought that Mr Horsfall’s eyes had a “glazed look”, and both he and Ms Patangata appeared extremely nervous. He decided to invoke his powers under s 18(2) of the Misuse of Drugs Act, introducing himself by name, rank and station. He advised them of their rights under the New Zealand Bill of Rights Act 1990 and a discussion ensued.
[20] While Constable Headifen engaged with Mr Horsfall, Constable Stewart went outside to look around the property near the dwelling. He noticed a large green shipping container that was locked, and had a security camera attached to it, together with what appeared to be an alarm. There was an extension cord from the container to a nearby house bus. He went back to the house to ask Mr Horsfall if he had a key for the container. One or other of the officers then told Mr Horsfall that police were entitled to use force to enter the container but Mr Horsfall maintained that he did not have a key. He then told Constable Headifen, “you are going to find what you are looking for in the shed”. In response to a question from the Constable, Mr Horsfall said that the container belonged to a Mr Frank Ferry. Under further questioning, Mr Horsfall told Constable Headifen that the police would find a methamphetamine laboratory in the container, in particular chemicals and glassware related to the manufacture of methamphetamine. He said it had last been used about a week ago.
[21] At this stage, a further caution was given to Mr Horsfall. The constable discussed the situation with another police officer and moved everyone present away from the house to a designated area for safety reasons. According to Constable Headifen, at some stage after that Mr Horsfall told him that he only “cooked” methamphetamine for money to support his family and some others and that it was not a big operation. The police then took Mr Horsfall to the Henderson Police Station where he underwent a video interview.
[22] The police clandestine laboratory response team was called out. At 1.30 that day a Detective Senior Sergeant Brunton from the team carried out an initial assessment of the scene, identifying containers with waste liquid and other chemicals related to the manufacture of methamphetamine. A crowbar was used to force entry to the container. Its contents were much as Mr Horsfall had described them. The scene was secured and a search warrant was obtained to enable the police to return the following day. Various substances, equipment and materials found in the shed and in and around the property (including in the container) were being catalogued and analysed.

The pre-trial argument in the High Court

[23] Stevens J had to deal with a number of arguments addressed to him about the inadmissibility of the evidence concerning what the police found at the property. There was a claim that there had been insufficient grounds for the issue of a search warrant under s 334 of the RMA. The Judge rejected that contention. The second argument with which he had to deal was that Constable Headifen had not had reasonable grounds for believing that there was any controlled drug on the properties, entitling him to invoke the powers in s 18(2) of the Misuse of Drugs Act, a contention that the Judge also rejected.
[24] Next, there was a challenge to Detective Brunton’s authority to search the property and in particular to force entry to the container. Stevens J held that the detective had authority to carry out his initial assessment of the property on the basis of necessity, i.e. a belief, in good faith and upon objectively reasonable grounds that it was necessary to carry out the search to prevent possible physical harm. It had been necessary for the detective to carry out his initial search to assess the full nature and scope of the risks and dangers involved to persons and property. Then, although there was an emergency within the definition of that term in s 135 of the Hazardous Substances and New Organisms Act 1996, the detective had not declared an emergency and so had been unable to force entry to the container under the powers given by that Act. Nevertheless, the Judge found he had been sufficiently briefed by other officers, and, further, his own search had put him in a position to be able to exercise his own judgment and have reasonable grounds for invoking the power of search under s 18(2).
[25] The Judge then carried out the exercise that would have been required under s 30 of the Evidence Act had he held any of the evidence had been improperly obtained. He considered that he would only have been justified in excluding the evidence if he had reached conclusions adverse to the Crown in respect of each of the alleged arguments concerning the unlawfulness of the police action. Since he had not been persuaded by any of the defence allegations he ordered that the evidence relating to the contents of the container, that is equipment, chemicals and substances found in it, would be admissible at the trial.

The appeal

[26] The principal argument urged in support of the appeal was that the police had effectively acted as if they had obtained the search warrant and had been empowered to execute it on their own behalf. This was contrary to the terms of the warrant and contrary to the terms of the RMA. Mr King submitted that exclusion of all of the evidence so obtained would be a proportionate response to what had been an unlawful and unreasonable search.
[27] Another argument to the effect that the warrant had not authorised entry onto all of the land was abandoned. We are in no doubt that that argument was incorrect, for the warrant plainly related to both of the subject properties.
[28] There was a subsidiary argument that the warrant having been issued to enter and search the “properties”, it did not authorise entry to buildings. Thus there had been no power for Constable Headifen to enter the building occupied by Mr Horsfall. Once again, we consider that argument to be untenable. The warrant plainly authorised entry of the properties. The word “property” is apt to include both land and buildings and there is nothing in the present context to suggest a different approach. Indeed, the explicit reference in the present warrant to searching for evidence of additional household units must have envisaged an internal examination of the buildings on the land.
[29] For the Crown, Ms Feltham accepted that s 335(1) of the RMA required the police to be present when the search warrant was executed. She submitted that it was sufficient that the police were on the properties to be searched at the same time as Council officers. She referred to evidence that had been given by Mr Reddell, under cross-examination before Stevens J, that when the police arrived back at the property a Sergeant Coles had made a decision that it would be prudent to make sure there would be no other incidents so that she had sent the police officers in different directions to ascertain what parts of the property were occupied. Ms Feltham submitted that this had been in furtherance of the purposes of the warrant. She maintained, in fact, that nothing had happened that was not authorised by the warrant.
[30] Were we to conclude that the evidence had been improperly obtained, Ms Feltham argued that the evidence should be admitted having regard to the nature and quality of the evidence, the seriousness of the offending, and the modest level of intrusion. Ms Feltham emphasised the fact that the police were there in a peacekeeping role and it was not a case in which the police had set out to investigate serious criminal activity or engaged in a search in a “conventional sense”.

Discussion

[31] Section 334 of the RMA provides for the issue of warrants authorising the entry and search of any place, if the issuing officer is satisfied, on an application made on oath, that there is reasonable ground for believing a number of matters. Although it was argued before Stevens J that there had not been reasonable grounds for belief as to the requisite matters, that argument was rejected and not pursued on appeal.
[32] Section 335 of the RMA is important for the disposition of the appeal. It provides as follows:

Content and effect of warrant for entry for search

(1) Every warrant under section 334 shall be directed to and executed by—

(a) Any specified constable; or

(b) Any specified enforcement officer when accompanied by a constable; or

(c) Generally, every constable; or

(d) Generally, every enforcement officer when accompanied by a constable.

(2) Every warrant under section 334 shall authorise the person executing the warrant to—

(a) Use such assistance as is necessary in the circumstances; and

(b) Use such force both for making entry and for breaking open anything in, on, under, or over the place or vehicle as is reasonable in the circumstances; and

(c) Search for and seize anything referred to in the warrant and, while at the place pursuant to the warrant, to seize any other thing that the person believes on reasonable grounds to be evidence in respect of which that person could have obtained a warrant under section 334.

(3) Every person called upon to assist in the execution of the warrant shall have the powers contained in subsection (2)(b) and (c).

(4) It shall be the duty of every person executing any warrant to—

(a) Produce it for inspection upon initial entry and in response to any later reasonable request and, when requested, to provide a copy of the warrant no later than 7 days after the making of the request; or

(b) If the owner or occupier is not present at the time of the entry and search, leave in a prominent position at the place or attached to the vehicle subject to the warrant, a written notice showing the date and time of the execution of the warrant, the name of the person in charge of the entry and search, and the address of the office where inquiries can be made; and

(c) If the owner or occupier is not present at the time of the entry and search, inform the owner or occupier within 7 days, by written notice delivered, left in a prominent position, or sent by registered mail, of—

(i) Anything seized upon execution of the warrant; and

(ii) From where it was seized; and

(iii) Where it is held,—

unless a District Court Judge orders otherwise because of exceptional circumstances.

(5) If the person executing the warrant believes leaving a notice as required under subsection (4)(b) would unduly prejudice subsequent investigations, that person may refrain from leaving a notice and apply to a District Court Judge within 7 days for confirmation of that decision. If such an application is refused, the person who executed the warrant shall notify or cause to be notified immediately the owner or occupier of the place or vehicle subject to the warrant of the particulars referred to in subsection (4).

[33] In respect of s 335(1) it is to be observed that a warrant under s 334 may be directed to and executed by a number of persons. Those persons are delineated by different language. First, warrants may be directed to and executed by “any specified constable”. Second, they may be directed to and executed by “any specified enforcement officer when accompanied by a constable”. Then again, warrants may be directed to and executed by every constable, generally, and by every enforcement officer, generally, when accompanied by a constable. The fact that the legislature has gone to some lengths to spell out who may execute s 334 warrants must be given due weight in the interpretation and application of the section.
[34] In the present case, it may be seen that the warrant specifically mentioned two enforcement officers, namely Mr Reddell and Mr McCrone. There is, of course nothing wrong with that, as the phrase “any specified enforcement officer” in s 335(1)(b) would clearly be broad enough to authorise a warrant to be executed by more than one specified enforcement officer (Interpretation Act 1999, s 33).
[35] It is apparent from the four possibilities set out in s 335(1), that if the warrant is to be directed to specified enforcement officers, then they must be accompanied at the warrant’s execution by a constable. Equally, if enforcement officers generally are to be authorised by the warrant, then they must also be accompanied by a constable at execution. It is only where a constable is specified, or where the warrant is directed to and may be executed by “every constable” that they are empowered to act alone.
[36] That aspect of the statutory scheme may be taken as indicating that the legislature recognised that enforcement officers acting under the RMA and in particular entering properties pursuant to a warrant, may find themselves in situations where they require police protection or in situations where the presence of the police will for one reason or another assist the inspection and, if necessary, the process of breaking open anything found at the place (s 335(2)(b)) and seizing anything found (subs (2)(c)).
[37] The provision may also reflect a degree of concern that powers given to Council officers to enter properties should be carefully confined. The general power of Council officers to enter property to do anything that a Council is authorised to do under the Local Government Act 2002, for example, may only be exercised after at least 24 hours’ notice to the occupier (s 171(2) of the Local Government Act 2002). Similarly, the power given by s 172(1) of the Local Government Act to enter land for the purpose of detecting a breach of a bylaw or the commission of an offence against the Local Government Act may only be exercised, in the case of a dwelling house, if it is authorised by a warrant issued by a District Court Judge “on written application on oath” and if, when exercising the power, the enforcement officer is accompanied by a member of the police (s 172(3)). The position that applies under the RMA is even more restrictive that that which applies under the Local Government Act.
[38] Nor is it without significance that s 335(4) provides that it shall be the duty of every person executing any warrant to produce it for inspection upon initial entry and in response to any later reasonable request.
[39] In the present case, when the police returned to the property it is clear on the evidence that they were sent in various directions away from where Mr Reddell was engaged in executing the search warrant. The search warrant had in fact been handed by him to occupants of the first building that he entered at the southern end of 202 Shaw Road. When Constable Headifen and others arrived at the building occupied by Mr Horsfall and Ms Patangata they were near the northern boundary of 184/186 Shaw Road. In other words, at the opposite end of this large block of land from where Mr Reddell was. They were not in a position to produce a copy of the warrant (they did not have one), but they were in effect acting as if they had been authorised to execute it. There was no such authorisation. It was Mr Reddell who was authorised to execute the warrant and then only when accompanied by a constable. We do not consider that, properly construed, the section would justify a conclusion that police officers located so far away, although on the same property (we treat both properties as one for present purposes since both were mentioned in the warrant), can be treated as accompanying the enforcement officer.
[40] Where s 335(1)(b) of the RMA applies, both the enforcement officer and the police must stay within reasonable proximity of each other so that in a realistic sense it may be concluded that the warrant is being executed by the enforcement officer when accompanied by the police. The language of the section strongly indicates that the police should be present with the enforcement officer at the time when he or she is taking the steps that the warrant has authorised him or her to take. That is the time at which, at least theoretically, the enforcement officer might come under pressure from the occupants of the property. It is also the time when the occupants themselves might benefit from the training which the police receive in the execution of search warrants, and conceivably look for protection from over-zealous actions by Council officials.
[41] The failure to comply with the legislation is dramatically illustrated by the fact that when Mr Reddell eventually approached the dwellinghouse occupied by Mr Horsfall he was not able to inspect it; the police spoke to him and he moved on to inspect other parts of the properties.
[42] The warrant was not issued under s 335(1)(a) or (c). Under its terms, the police had no power to act independently. That is essentially what they were doing when they approached Ms Patangata, entered the dwelling, interviewed Mr Horsfall and took the subsequent steps. Consistently with the view we take as to the ambit of the search warrant, we consider that Constable Headifen could not lawfully invoke his powers under s 18(2) of the Misuse of Drugs Act 1975, because he was not lawfully present on the property. Nor was it legitimate for the police then to call the clandestine drug laboratory team onto the property with the consequent opening of the container. We conclude that the series of events which led to the obtaining of the evidence found in the container meant that the evidence was improperly obtained for the purposes of s 30 of the Evidence Act.
[43] In our view, once the police parted company with Mr Reddell, their actions thenceforth became unlawful and any evidence that they obtained was improperly obtained. In R v Williams [2007] 3 NZLR 207, having analysed the various judgments delivered in R v Shaheed [2002] 2 NZLR 377 (CA), the Court noted at [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 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.

[44] In the present case, the link between the breach and the obtaining of the evidence is clear, and it applies to everything that the police discovered following their initial encounter with Ms Patangata and Mr Horsfall. R v Williams was, of course, decided prior to the coming into force of the Evidence Act 2006 (although the reasons were given later). At [102] it was recognised that the presence and strength of the causal connection (between the breach of the right and the obtaining of the evidence) will be a relevant factor when deciding whether or not to exclude the evidence under the Shaheed balancing test. Here, in the different context of s 30 of the Evidence Act, the reasoning still holds good.
[45] The conclusion that the evidence was improperly obtained makes it necessary to consider whether its exclusion would be proportionate to the impropriety, by means of the balancing process required under s 30(2)(b) of the Evidence Act. We recognise that the evidence obtained was highly probative and that the offending alleged against the appellant is serious. The charges of manufacturing and supplying methamphetamine carry with them potential maximum terms of imprisonment for life. However, Woodhouse J sentenced the appellant to four and a half years on each of those counts, imposing lesser concurrent terms for the balance of the offending. Consequently, although the offending was serious, it is not at the most serious end of the scale.
[46] In terms of the conclusions we have earlier expressed, the police here have effectively unlawfully entered the premises occupied by Mr Horsfall and there has been a serious intrusion on his rights. While there is no suggestion of bad faith, there was effectively a wrongful assumption by the police of a right of entry and search that was independent of the right given by the warrant to the Council’s enforcement officer.
[47] The attitude of the police is exemplified by evidence given by Constable Leth, who was one of the officers who accompanied Constable Headifen. She described going for a walk around a paddock and around the outer perimeter of the address before going to the “bottom area”. Asked what she was looking for, she replied:

Actually I was thinking this would be a great place to hide a stolen car and I noted a lot of number plates down[sic] and there was another car parked in a garage area and then there was a drive way near the grassy area which looked as if it had a vehicle down there recently. I sort of walked briefly down there.

[48] None of this was related to the purpose for which the warrant had been issued.
[49] In terms of the other matters set out in s 30 of the Evidence Act, there are no alternative remedies to exclusion of the evidence which would adequately provide redress to the defendant and there was no justification in terms of a need to avoid apprehended physical danger nor urgency in obtaining the improperly obtained evidence such as would justify the actions taken. On the question of alternative investigatory techniques, we simply note that had the police remained in the presence of Mr Reddell as he proceeded methodically around the property, it is possible that they would have been able to make lawful entry to Mr Horsfall’s dwelling with the consequences that in fact followed (i.e. obtaining the disputed evidence) being lawfully achieved.
[50] With reference to what was said in R v Williams at [102] the fact that the link between the breach of rights and the obtaining of the evidence is so clear points to exclusion as the appropriate response. In all the circumstances, we are satisfied that exclusion of the evidence is proportionate to the impropriety which affected the obtaining of the evidence.
[51] We note that Stevens J at the conclusion of his judgment made an order that “the evidence relating to the contents of the container, that is equipment, chemicals and substances found in it... will be admissible at the trial”.
[52] It follows from the reasoning set out in this judgment that not only would the evidence of what was in the container be inadmissible, but so too would any evidence about the conversation between the appellant and Constable Headifen, observations that he made about the state of the appellant’s hands and indeed, anything that was found on the property by the police officers as a consequence of the unlawful search. All of that evidence was improperly obtained and inadmissible against the appellant.
[53] Before concluding we note that we have accepted arguments by the appellant that were not presented to Stevens J nor raised before Woodhouse J at the trial. Stevens J heard arguments that the search warrant was invalidly issued and as to whether Constable Headifen had reasonable grounds for belief sufficient to enable him to invoke s 18(2) of the Misuse of Drugs Act. It was not suggested to him that Constable Headifen and the other officers who were accompanying him at the time were acting unlawfully because they had left Mr Reddell behind on another part of the property. Nor was it suggested that the presence of Detective Senior Sergeant Brunton and the clandestine laboratory response team on the property was unlawful for the same reason. However, those arguments have been advanced on appeal and we agree with them for the reasons that we have given.

Result

[54] For the reasons given, the appeal is allowed and the appellant’s convictions are quashed and acquittals are entered on each count. It was accepted that there was insufficient evidence to justify conviction if evidence arising from the search was excluded.

Solicitors:
Crown Law Office, Wellington