NZLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand
You are here:  NZLII >> Databases >> Court of Appeal of New Zealand >> 2012 >> [2012] NZCA 603

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Beckham v R [2012] NZCA 603; [2013] 1 NZLR 613; (2012) 26 CRNZ 125 (20 December 2012)

Last Updated: 26 January 2018

For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND
CA608/2011
[2012] NZCA 603
BETWEEN MAX JOHN BECKHAM
Appellant
AND THE QUEEN
Respondent


CA460/2012
AND BETWEEN THE QUEEN
Appellant
AND MAX JOHN BECKHAM
Respondent
Hearing: 11 October 2012
Court: Stevens, Venning and Dobson JJ
Counsel: S J Bonnar and S J Mount for Appellant in CA608/2011 and Respondent in CA460/2012
D J Boldt for Respondent in CA608/2011 and Appellant in CA460/2012
Judgment: 20 December 2012 at 2.00 pm

JUDGMENT OF THE COURT

  1. The appeal against conviction (CA608/2011) is dismissed.
  2. Leave is granted to the Solicitor-General to appeal out of time against sentence (CA460/2012).
  1. The appeal against sentence is allowed.
  1. The sentence of 13 years and six months’ imprisonment, together with a minimum period of imprisonment of seven years, is quashed. In its place a sentence of 18 years’ imprisonment is imposed, together with a minimum period of imprisonment of nine years.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)
Table of Contents

Para No
A major drug investigation [1]
Factual background – abuse of process [8]
High Court judgments [22]

First stay judgment [22]

Submissions on whether the calls were listened to [24]

High Court findings [25]

Release of information from calls [28]

Judge’s conclusions on abuse of process [29]

Crown application to destroy disks containing call data [30]

Further evidence judgment [34]

Second stay judgment [38]
Abuse of process – legal principles [43]
Issues on first part of appeal [48]
First issue – error of law? [54]

Appellant’s submissions [54]

Legal test – our views [60]
Second issue – errors of fact? [73]

Appellant’s contentions [73]

Preliminary issue – further evidence [76]

Second ground – our evaluation [82]
Third issue – a reduction in sentence? [93]

Appellant’s submissions [93]

Our evaluation [94]
Challenge to the interception warrants [95]

Factual background – chronology [95]

Admissibility of interception evidence [96]

Pre-trail steps leading to the admissibility challenge [100]

Submissions of parties [108]

Relevant statutory provisions [113]
Interception warrant evidence – our evaluation [116]
Sentence appeal [126]

Factual background [130]

Sentencing decision [132]

Discussion [134]

Result [139]

A major drug investigation

[1] In 2007 the police launched a major drug investigation referred to as “Operation Jivaro”. Following termination of the investigation in December 2008 Mr Beckham and four co-accused were arrested and charged with serious drug dealing offences. Following trial in the Auckland High Court on an indictment containing 57 counts of drugs and money-laundering charges the appellant was found guilty and was convicted on 24 counts.
[2] The Crown alleged, and the jury accepted, that the appellant had been a methamphetamine manufacturer and dealer on a significant scale over a period of at least 18 months. His convictions included two charges of manufacturing methamphetamine; two charges of conspiring to manufacture methamphetamine; two counts of possession of methamphetamine for supply; eight counts of supplying methamphetamine; one count of conspiring to supply methamphetamine; one count each of supplying cocaine, supplying MDMA, possession of MDMA for supply, conspiring to supply MDMA, conspiring to produce cannabis oil, and possession of cannabis plant for supply; and three counts of money laundering. Mr Beckham was sentenced in August 2011 to 13 and a half years’ imprisonment with a minimum period of imprisonment of seven years.[1]
[3] The appellant appeals against his convictions on two grounds. The first relates to alleged abuse of process arising out of an entirely separate investigation called “Operation Valley”. While the appellant was on remand, the police, as part of a separate inquiry, seized records of a number of telephone calls he had made from prison. Some of these calls were to his lawyer. Relying on this occurrence the appellant sought a stay of the proceedings in two applications made in the course of the criminal proceedings concerning the drugs charges.[2] Each was unsuccessful. He now asks this Court to quash the convictions on the basis that there was a fundamental breach of the appellant’s right to communicate with his lawyer in private.
[4] The second ground relates to the granting of three interception warrants in 2008 in the course of the electronic surveillance phase of Operation Jivaro. When making these applications, the police in each case failed to inform the issuing judicial officer that: (a) an interception warrant had been granted earlier in 2006 in an investigation into alleged drug offending by the appellant and others called “Operation Bend”; and (b) no charges had resulted from that investigation. The appellant unsuccessfully opposed an application by the Crown to admit the evidence obtained by the Operation Jivaro interception warrants.[3] He contends that the Operation Jivaro warrants failed to comply with disclosure requirements set out in s 14 of the Misuse of Drugs Amendment Act 1978 (MDAA) and with more general disclosure requirements for warrants obtained on an ex parte basis.
[5] The conviction appeal requires us to address two issues:
[6] The Solicitor-General also applies for leave to appeal the appellant’s sentence. Andrews J concluded that a sentence of 18 years and six months’ imprisonment was appropriate. However, she reduced this by five years to take account of the fact that the appellant was already serving a sentence of seven years and six months’ imprisonment for other charges. As the convictions on those charges have since been quashed and a new trial ordered,[4] the Solicitor-General invites this Court to reinstate the former sentence. The appellant accepts that some adjustment is necessary but contends that further allowances should be made for mitigating factors.
[7] To put matters in context we will separately describe the background to the abuse of process claim and the obtaining of the interception warrants.

Factual background – abuse of process

[8] On 22 December 2008 the appellant was arrested and charged with various drug offences. The charges were laid following the termination of Operation Jivaro. The officer in charge of Operation Jivaro was Detective Sergeant (DS) Schmid. Following arrest the appellant was remanded in custody.
[9] While the appellant was on remand, the police in about August 2009 received confidential informant information that the appellant was planning to escape from custody and had made threats against DS Schmid. On 10 August 2009 DS Lunjevich of the Special Investigations Group (SIG) was asked to conduct a new and separate investigation into this matter. It was code-named “Operation Valley”. SIG was operationally distinct and separate from the police unit responsible for the prosecution of the charges arising from Operation Jivaro.
[10] In the course of his investigation into the appellant’s plans, DS Lunjevich applied for, and was granted, a search warrant authorising the seizure of recorded telephone calls made by the appellant to friends and associates outside the prison. As described by Andrews J in the first stay judgment,[5] there are two ways in which persons in custody may make telephone calls. The first is by using the telephone in the Department of Corrections office. These calls are able to be made by the inmate in private and are not subject to any recording system. The second method is by using the public pay telephone. Inmates are warned in a notice at each pay telephone that calls from the public telephone will be recorded and may be listened to. When the call is placed by the prisoner from a pay telephone the warning is repeated by automated message that the call will be recorded and may be monitored. Such recording is kept in electronic “WAV” files and are retained for 180 days before being deleted. Prisoners are advised that calls made to their lawyers, although recorded, will not be listened to.
[11] The appellant had obtained approval to call nine numbers, one of which was that of his lawyer, Mr Murray Gibson. All of the nine numbers were listed in the warrant application, which also recorded that, as of 11 August 2009, the appellant had made 1016 recorded calls from the public telephone. It was common ground in the High Court that the fact that one of the approved numbers, that of his lawyer, Mr Gibson, ought to have been identified by police in the warrant application and that the application should have suggested a procedure for ensuring that the privileged status of those calls was recognised and preserved.
[12] The search warrant was issued and on 18 August 2009 police uplifted from the Department of Corrections a number of disks containing many hundreds of calls made by the appellant from the public telephone. Among these calls were nine made to Mr Gibson’s number. It transpired that five had been made by persons other than the appellant. On the evening of 18 August 2009 the police began screening the call data that had been obtained. The process adopted was for detectives to listen to each of the calls in reverse chronological order. By the following day, the police had identified three calls made to Mr Gibson’s number, as confirmed by the first three screening reports. None of these calls had been made by the appellant; they had been made by another inmate using the appellant’s PIN.
[13] DS Lunjevich told Andrews J in evidence that he was conscious of the need to ensure that the appellant’s legal privilege was preserved. He also told the Judge that he considered it appropriate for the police to have the privileged recordings in case circumstances arose in the course of the investigation making it necessary to seek permission to listen to them. He explained, for example, that as the inquiry included a possible escape from custody he retained an open mind as to the possibility that the appellant might use conversations with his lawyer to manipulate court hearing dates in an attempt to coordinate a possible escape.
[14] DS Lunjevich accepted that the calls by the appellant to Mr Gibson were “privileged conversations” and should not be listened to. Rather, they would be kept in reserve in case circumstances arose in the future where further steps might need to be taken in relation to them. In evidence given during the pre-trial hearing of the first stay application, DS Lunjevich stated:

... I felt any call made to [Mr Gibson’s] number, I would treat it as privileged. I felt that if we obtained those conversations, that the systems I had in place would be sufficient that we would not need to listen to them, and that they would be put aside from the main enquiry. Should the enquiry take a path that indicated to us that we needed to perhaps consider hearing what was happening in those conversations, I would seek advice from my management, legal section, and determine how we would do that. But at that stage I felt we could particular – you know, kind of firewall them from the enquiry. We would hold them, and they would be available if we needed to.

[15] Accordingly DS Lunjevich instructed his staff that they were not to listen to any calls made by the appellant to Mr Gibson. He also told staff involved in screening the calls that they should stop listening to any call as soon as they could identify that it was from the appellant to Mr Gibson. While screening of the calls was being carried out, DS Lunjevich received a schedule from the Department of Corrections listing 18 calls to Mr Gibson’s number. Yet the disks themselves only contained nine such calls. In evidence DS Lunjevich said that when he located those calls on the spreadsheet he was able to “cull-out the calls that we did not want listened to” so the screeners would know that they were not to listen to such calls. DS Lunjevich was asked whether he had any reason to believe that six of the calls to Mr Gibson had been listened to, he said:

No I do not. By this stage, as we progressed into the enquiry, we were able to put up a spreadsheet which had all of the call details, and that’s how the staff were allocated the phone calls for them to screen. They would go up the list, make a note of the calls that they were to screen and if they got to a phone call which was to Mr Gibson, that particular line in the spreadsheet had a line through it which meant don’t listen to the call, therefore they just jumped over it if they got to it and continued on. In the earlier stages, we were only able to determine who a call was made to by listening to the beginning of the conversation.

[16] On 19 August 2009, DS Lunjevich ascertained that a call using the appellant’s PIN number and made to Mr Gibson had been listened to by a screener in its entirety. That call had been made by another prisoner using the appellant’s PIN number. DS Lunjevich explained that this may have occurred because his instruction was that only calls between Mr Gibson and the appellant should not be listened to. He said that:

I recall later on that I actually went back to my staff and said, “Any phone call relating to Mr Gibson, regardless, is not to be listened to,” and we disclosed that screening shoot as part of this process.

[17] The next day, DS Lunjevich issued an email instruction to his staff that all calls to Mr Gibson were to be removed from the shared drive his staff were operating from. That instruction was complied with only in relation to three of the calls to Mr Gibson. The evidence was that the remaining calls were deleted from the shared drive in late 2010.
[18] On 18 September 2009, DS Lunjevich received a further disk containing telephone calls made by the appellant. These calls were supplied by New Zealand Customs, having been obtained pursuant to a Customs requisition. This disk contained calls made after the police warrant had been executed and included three more calls from the appellant to Mr Gibson. DS Lunjevich issued the same instruction that he had given in August, namely, that staff were to cease listening to calls the moment they realised it was a call to Mr Gibson. Contemporaneous notes prepared by the screeners recorded that the privileged nature of the calls was identified and respected. The calls were not listened to. This is apparent from the reports of the screeners produced in evidence.
[19] The screening report forms used in Operation Valley were of two types. Both types relevantly contained boxes for entry of information showing the call file number, the date of the call, start and end times, duration, outbound number, second party and the screening officer. One of the forms had two boxes to identify whether relevant or irrelevant. The second form had “relevant/irrelevant” boxes, as well as other options, for example “Jivaro”, “Prison” and so on. It seems that the inclusion of the separate and earlier operation “Jivaro” was in case information relevant to that investigation arose in any of the calls.
[20] A further search warrant was obtained by DS Lunjevich in January 2010. It was directed to calls made by the appellant since execution of the previous warrant. One of the numbers included in the application was that of Mr Gibson. The application referred to the earlier search warrant and developments with the investigation so far. The fact that one of the numbers was that of a lawyer was not stated. However, reference was made to privileged calls as follows:
  1. In total 972 telephone calls were screened and collated into a format for analysis under my direct supervision. All calls except those deemed to be privileged (such as calls to a solicitor) were listened to and brief notes created to summarise the main points of the conversations. Due to the number of telephone calls screened it was not practical to transcribe them at this time.

[21] The purpose of the application was to obtain further calls made by the appellant from the public telephone. It was clear that the calls would be screened and analysed, as had occurred with the calls obtained earlier. As to the process followed by DS Lunjevich’s staff, this was the subject of extensive evidence in the High Court. DS Lunjevich accepted that he ought, in the warrant application, to have referred to the possibility that the search could produce calls containing privileged information. However, he was confident that the systems he had put in place would ensure that none of the calls made by the appellant to Mr Gibson were listened to and that no privileged information from Operation Valley was passed on to staff in Operation Jivaro. DS Lunjevich was asked:
  1. Have you got any reason to believe, putting aside the monitor’s notes, but thinking back on the course of the enquiry and general conversation within the office, that any of those three conversations had been listened to beyond the point at which it was determined that it was a call to Mr Beckham?
  2. No. The staff were well aware of my position on this matter. It wouldn’t have been worth their jobs to do that.

High Court judgments

First stay judgment

[22] The events described above occurred over a timeframe between December 2008 to around mid-2010. The appellant’s trial on the drugs charges arising from Operation Jivaro was due to commence in February 2011. In late 2010 the appellant applied for a stay of the prosecution (the first stay application) on the basis that there had been an abuse of process. A five day hearing before Andrews J involved the presentation of considerable evidence from the appellant, his solicitor, DS Lunjevich, two witnesses from the Department of Corrections and affidavit evidence from two further witnesses. DS Lunjevich was the subject of extensive cross-examination.
[23] Two factual questions of critical importance to the first stay application were:

The first stay judgment of Andrews J addressed both questions in considerable detail. Both were the subject of submissions on appeal.

Submissions on whether the calls were listened to

[24] Before Andrews J Mr Mount, counsel for the appellant, contended that although there was no evidence that the four calls by the appellant to Mr Gibson (seized pursuant to the August warrant) were listened to, that possibility existed. Mr Mount acknowledged that the absence of screening reports for those calls gave rise to a possible inference that the calls were not listened to, but submitted that the position was uncertain. Counsel for the Crown submitted that the position was not “uncertain”. Rather it could be inferred from the absence of screener’s reports that those four calls were not listened to. Counsel submitted that there was no evidence to suggest, and no reason to believe, that DS Lunjevich’s staff would have disregarded his instructions, both as to not listening to calls to the appellant’s number and as to filling in the screener’s reports for calls that were listened to.[6]

High Court findings

[25] The Judge carefully analysed the evidence on this issue.[7] She noted that of the 12 calls made to Mr Gibson’s number, only one was listened to in its entirety. That call was made by another inmate using the appellant’s PIN.[8] The issue turned on whether the various oral and written instructions given by DS Lunjevich to his staff were complied with.
[26] The critical findings of Andrews J on whether the appellant’s calls to Mr Gibson were listened to are:

[43] Having heard DS Lunjevich’s evidence, I accept that:

(a) He instructed his staff as to his process for dealing with any calls to Mr Gibson’s number, and all staff who were engaged in screening calls were aware of that instruction from the start of the screening process.

(b) He instructed his staff to fill in screener’s reports for each call screened.

(c) DS Lunjevich’s instructions were initially that as soon as a screener identified a call as being to Mr Gibson, the screener was to stop listening to the call and record on the screener’s report that the call was to Mr Gibson and therefore likely to be privileged.

(d) When the spreadsheet of ... files was received a line was drawn through calls identified on the working spreadsheet as being to Mr Gibson’s number and staff were instructed not to screen calls to that number.

[44] Further, I accept DS Lunjevich’s evidence that the three calls by Mr Beckham that were listened to by screeners, were listened to only to the extent required to identify that the call was to, or intended for, Mr Gibson. In that respect, I accept that the screener’s reports for those calls are accurate.

[45] Finally, I accept Mr Johnstone’s submission that an inference can be drawn that if there is no screener’s report for a call, then that call has not been screened – that is, it has not been listened to. I accept that there is no reason to believe that DS Lunjevich’s staff would have disregarded his instructions, in particular after he had reinforced those instructions both orally and by way of email.

[27] These findings were referred to by Andrews J in the context of her overall assessment of the challenge. The Judge relevantly concluded:

[82] I am not satisfied that the Police conduct in this case should be found to be an abuse of process. This is for the following reasons:

(a) I accept DS Lunjevich’s evidence that his failure to say, in his application for the August warrant, that he was seeking to seize calls to Mr Beckham’s counsel, and to outline his planned procedure for dealing with such calls, was an oversight. I accept that DS Lunjevich did not turn his mind to the need to disclose that, and that he did not deliberately and consciously make a decision to withhold that information from the court.

In making that finding, the Court is not to be taken as holding that DS Lunjevich’s conduct was not wrong. It was. As he acknowledged, he should have addressed the matter of possible privileged calls in the application for the August warrant, and again in the application for the January warrant.

(b) In the light of the findings set out at [43]–[45] above, I am satisfied that DS Lunjevich put in place a procedure, pursuant to which none of Mr Beckham’s calls were listened to beyond establishing that they were calls to Mr Gibson.

(c) I have no reason to believe that any calls by Mr Beckham to Mr Gibson have been accessed in any way, except as outlined above, as part of the screening process. Taking (b) and (c) together, I am satisfied that there has been no destruction of Mr Beckham’s right to legal professional privilege.

...

Release of information from calls

[28] On this issue the Judge found that, at the direction of his senior manager, DS Lunjevich released some information from the call data obtained from the August warrant, the calls received from NZ Customs, and the January warrant to a drug squad detective who was liaising with NZ Customs.[9] She found as follows:

[46] ... [DS Lunjevich’s] evidence was that the Detective had no involvement with “Operation Jivaro” and that none of the information released related to or derived from Mr Beckham’s calls to Mr Gibson.

[47] DS Lunjevich also released some information to a Detective in the Police Proceeds of Crime Unit. He said in evidence that none of that information was derived from Mr Beckham’s calls to Mr Gibson.

[48] DS Lunjevich said that no information obtained from the call data was released to the “Operation Jivaro” squad. He said that this was at the express direction of his Senior Manager.

...

[50] Finally, in the course of preparation for this hearing, DS Lunjevich created a disk with copies of the call data for calls to Mr Gibson. He made copies of that disk, intending them to be for defence counsel, counsel for the Crown, the Court, and the Police. His evidence was that he created these copies not because Crown counsel had expressed any interest in receiving a copy, rather because it is his usual practice that anything provided to defence counsel is also provided to Crown counsel. The copy provided to the Crown was retrieved, at Crown counsel’s request, almost immediately. The copy intended for the Court was not filed in Court.

Judge’s conclusions on abuse of process

[29] The Judge accepted that a stay could be granted for abuse of process if the conduct of the prosecution is so inconsistent with the principles of criminal justice that it would offend the Court’s sense of propriety or justice to continue.[10] In the light of the factual findings on the two issues just discussed, Andrews J was satisfied that there had been no destruction of the appellant’s right to legal professional privilege. The following conclusions resulted in the Judge dismissing the application for stay or proceedings:[11]

(d) I am satisfied that DS Lunjevich did not act in bad faith or with an improper motive. In no sense can his actions be equated with those of the Police Officers in Sutherland and Grant, who placed interception devices solely for the purpose of recording and listening to suspects’ communications with their solicitors.

(e) I accept that DS Lunjevich’s inquiry was entirely independent of, and [quarantined] from, the drug squad’s Operation Jivaro investigation.

(f) I also take into account Mr Johnstone’s submission that the Crown is not intending to call at Mr Beckham’s trial any evidence derived as a result of the acquisition of Mr Beckham’s calls. He submitted that the Crown case was complete by the time these calls were acquired, and no Crown evidence has been derived from independent inquiry begun after the calls were acquired.

(g) Further, in the light of the facts as I have found them, I am satisfied that the requirement to address DS Lunjevich’s actions in respect of the warrants is well outweighed by the public interest in ensuring that the charges against Mr Beckham should proceed to trial. The “extreme step” of a finding of abuse of process is not justified in this case. To find an abuse of process and stay the prosecution in this case would be a totally disproportionate response.

Crown application to destroy disks containing call data

[30] The trial of the appellant and four co-accused began in February 2011. During the trial, the Crown applied for an order for destruction of two disks containing recorded calls made by the appellant to (among other persons) Mr Gibson. The application dated 1 March 2011 was supported by two affidavits sworn by DS Lunjevich and a Detective Peat. The background to the Crown application is set out in the further evidence judgment of Andrews J.[12]
[31] On 14 March 2011 the appellant filed a second application for stay (second stay application) on the ground of alleged abuse of process. He claimed the evidence contained in the two affidavits revealed that in two respects the factual position explained by the police was materially different from that represented to the High Court in the first stay hearing. He alleged that privileged calls were in fact supplied outside the Operation Valley team and that privileged calls remained on the police network beyond December 2010. He contended that the new evidence undermined the conclusion of Andrews J in the first stay judgment that the inquiry by DS Lunjevich was “entirely independent of, and [quarantined] from, the drug squad’s Operation Jivaro investigation”.[13]
[32] The second stay application raised the following issues:
[33] The first issue was resolved by consent with the two disks being surrendered to the Court pending further order of the Court.[14] The second issue was dealt with in the further evidence judgment following cross-examination of DS Lunjevich and Detective Peat. The third issue was the subject of the second stay judgment, to be referred to below.

Further evidence judgment

[34] The hearing to consider the request for further evidence was dealt with in April 2011 and was directed at two matters that had not been raised in the evidence at the earlier hearing. These were:
[35] The appellant submitted that as a result of this new information, the Judge should make an order[15] that the prosecution call DS Lunjevich and Detective Peat to give evidence on these matters so that the appellant’s counsel might cross-examine them on their evidence.
[36] For present purposes it is sufficient to record the Judge’s findings, having seen and heard evidence from the two police officers. Andrews J concluded:

[42] Neither matter discloses good Police practice. However, I am not satisfied that any of the evidence given by DS Lunjevich and Detective Peat justifies further evidence being called so that the inquiry into whether there was an abuse of process can be reopened. This is for the following reasons:

(a) The schedules given to Detective Peat did not reveal the contents of any calls to Mr Gibson. Detective Peat did not select any calls to Mr Gibson to listen to. I accept his evidence that he did not know the disks in fact contained any privileged calls until February 2011.

(b) I accept that Detective Peat was well aware of lawyer/client privilege and, even if he had known there were calls to Mr Gibson on the disks, he would not have listened to them.

(c) I am not satisfied that the evidence discloses any realistic possibility that anyone else in the Assets Recovery Unit may have covertly obtained access to the disks. I accept that Detective Peat did not tell anyone that he had the disks.

(d) I am not satisfied that DS Lunjevich deliberately sought the second search warrant in January 2010 in order to obtain calls from MB to his lawyer, so that he could learn the whereabouts of safety deposit boxes. Such a conclusion would be inconsistent with the fact that DS Lunjevich ensured that calls to Mr Gibson would not be provided in response to the second search warrant.

(e) I considered the possibility of other persons in DS Lunjevich’s team, or who had access to the X: drive, listening to calls to Mr Gibson at [40] to [45] of the judgment. No fresh evidence has been presented which causes me to conclude that my conclusions should be reconsidered.

(f) The absence of bad faith or improper motive on the part of DS Lunjevich is supported by the fact that the schedules provided to Detective Peat in December 2009 did not include the content of any calls to Mr Gibson (a fact I was not previously aware of).

(g) I accept that DS Lunjevich did not turn his mind to the possibility that the disks given to Detective Peat would contain privileged calls, for the reason that he had given instructions that calls to Mr Gibson were to be deleted.

(Footnote omitted.)

[37] As a result of these findings, the Judge dismissed the application for an order that further evidence should be called.[16] The Judge directed that submissions regarding the second stay application should be filed without delay.

Second stay judgment

[38] The second stay application was founded on two, allegedly new, propositions. These were: (a) that privileged calls were in fact supplied outside the Operation Valley team, and (b) that privileged calls remained on the police network beyond December 2010. Such new information undermined at least one of the Judge’s conclusions that had led to the dismissal of the first application for stay, namely the conclusion that:[17]

I accept that DS Lunjevich’s inquiry was entirely independent of, and [quarantined] from, the drug squad’s Operation Jivaro investigation.

[39] The appellant’s counsel at the second stay hearing submitted that the police had deliberately collected privileged calls, had put no effective protocols in place to deal with them, and had not destroyed the recordings of privileged calls (or provided them to counsel) as soon as they were discovered.[18] He submitted that the court could now conclude that there had been an abuse of process such that the prosecution should be stayed because of:
[40] With respect to the alleged delay in making full disclosure of material obtained in Operation Valley, Andrews J rejected the appellant’s allegations as follows:

[21] Having reviewed the material submitted by Mr Gibson, it is clear that up until MB’s first application for stay was served on the Crown on 3 December 2010, it appeared that the request for disclosure was solely in relation to MB’s trial, and not a separate application for discharge or stay. I accept that the Crown reasonably queried the relevance of any “Operation Valley” material to the trial, since no communications intercepted during Operation Valley were being relied on at trial. Accordingly, I do not accept Mr Gibson’s submission that there has been delay in disclosure. The intercepted calls were disclosed by disk on 22 November 2010, and other material was provided by mid-December 2010.

[22] I considered DS Lunjevich’s failure to disclose, at the hearing of the first stay application, that he had provided a copy of the recorded calls to Detective Peat, in the “further evidence” judgment. At [42](g) I accepted that DS Lunjevich had not turned his mind to the possibility that the disks given to Detective Peat would contain privileged calls, for the reason that he had given instructions that calls to Mr Gibson were to be deleted from the Police system.

[41] As to whether an abuse of process had been established, Andrews J concluded:

[23] I return to the issues discussed at [75] to [82] of the first stay judgment, taking into account the additional information disclosed by the further evidence of DS Lunjevich and the evidence of Detective Peat. It is not necessary to decide whether I should adopt the “presumptive” approach, or the “balancing test”, as Mr Gibson described them. On either test, I have reached the same conclusion.

[24] For the same reasons as led to my conclusion that I should not order further evidence to be called, I am satisfied that the further evidence of DS Lunjevich and the evidence of Detective Peat [does] not lead me to conclude that there has been an abuse of process justifying a stay of prosecution. ...

[42] For those reasons the Judge ruled that the second application for stay of prosecution should be dismissed.[19]

Abuse of process – legal principles

[43] In New Zealand, a stay of proceedings on the basis of abuse of process may be granted in two broad circumstances:
[44] These two grounds emerge from Fox v Attorney-General,[20] where this Court stated:

[37] These principles [from previous case law] set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.

(Emphasis added.)

[45] The Court in Fox referred to the following comments[21] made by Richmond P in Moevao v Department of Labour where he emphasised that the inherent power to stay a prosecution:[22]

... stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of.

[46] The Court in Fox also referred[23] to the judgment of Richardson J in Moevao:[24]

... The concern is with conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court's processes and so diminish the Court's ability to fulfil its function as a Court of law. ...

The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.

... it is only where to countenance the continuation of the prosecution would be contrary to the recognised purposes of the administration of criminal justice that a Court would ever be justified in intervening.

[47] These judicial observations from Fox and Moevao emphasise that a high level of misconduct is required before a case will be stayed. We agree that a high level of circumspection on the part of the Court is required before it should intervene. The appellant relies upon the second of two possible grounds of abuse outlined in Fox, namely, that a stay is necessary in order to protect the Court’s own integrity and to prevent its sense of justice and propriety from being offended as a result of the police wrongly obtaining and listening to the calls he made to his lawyer. He accepts that the police misconduct in this case did not in any way imperil his ability to receive a fair trial. No specific prejudice relating to any aspect of his trial on the serious drug charges is alleged.

Issues on first part of appeal

[48] Mr Mount advanced three separate aspects in support of the abuse of process ground. First he contended that the rejection by the High Court of the applications for stay was based on errors as to the applicable legal principles. A key issue is whether a presumptive test, as opposed to a balancing test, should be used in determining whether prosecutorial misconduct rendered a prosecution an abuse of process. Further, depending on what is the correct legal test, whether Andrews J made factual errors which mean that her decisions on both applications for a stay were wrong.
[49] The second issue on this part of the appeal is whether the High Court was wrong to decline to order the Crown to call evidence from those who listened to and possessed privileged calls. That evidence was necessary to allow the appellant a fair opportunity to establish the extent of the prosecutorial misconduct. Counsel argued that, if this Court were not minded to quash the convictions, the abuse of process application should be remitted to the High Court with a direction that the Crown call that evidence.
[50] The third issue is whether, if the appellant is not entitled to a stay of prosecution, he is nevertheless entitled to a reduction in sentence as a remedy for the multiple breaches of his rights.
[51] Before addressing each issue we deal briefly with Mr Boldt’s preliminary point regarding the jurisdiction of this Court to consider the abuse of process ground. Mr Boldt submitted that the only ground out of those listed at s 385(1)(a) to (d) of the Crimes Act 1961 that could be relevant is s 385(1)(c), relating to a miscarriage of justice. As the appellant accepted that he received a fair trial, it follows that the prosecutorial misconduct relied upon could not have affected the course of his trial for the drug offending or the verdict. His counsel has failed to produce a New Zealand authority showing that an inconsequential breach of the appellant’s rights – “inconsequential” in the sense that it caused the accused no prejudice at all – can give rise to a miscarriage of justice for the purposes of s 385. Paragraph (c) in s 385(1) requires a miscarriage of justice.[25] Also, it must relate to a situation where something has gone wrong with the substance or process of the case and has not been cured or become irrelevant to the verdict. Mr Boldt submitted that this requirement was not met.
[52] However Mr Mount relied in argument on the error on any question of law ground in s 385(1)(b). Because of the nature of the errors being raised, and the fact that the appellant accepts he received a fair trial, we accept that the matter of jurisdiction is not free from doubt. Nevertheless we prefer to deal with the substance of the challenge raised on appeal. As will emerge from the reasons set out below we reject the submissions of the appellant on each of the three issues on this part of the appeal.
[53] For completeness, we add that even if we had found in the appellant’s favour on any one of these three grounds, it could not be said that the appellant suffered any miscarriage of justice at his trial on the serious drugs charges. There would therefore be a compelling argument in favour of the application of the proviso to s 385(1).[26]

First issue – error of law?

Appellant’s submissions

[54] Mr Mount first referred to the great importance attaching to legal professional privilege. We agree with that proposition and respectfully cite in support the following observations of Lord Taylor of Gosforth in Regina v Derby Magistrates’ Court, Ex parte B:[27]

The principle which runs through all these cases ... is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

[55] Counsel for the appellant submitted that where police deliberately and unlawfully acquire recordings of privileged communications and do not take all reasonable steps to remedy the breach of privilege, an associated prosecution is presumptively rendered an abuse of process and a stay should be granted. This principle, counsel submitted, emerges from a number of overseas cases, including Regina v Grant[28] and R v Desjardins (No 5).[29] In each of these cases (which involved serious charges) the unlawful actions of the police were found to have so seriously undermined the integrity of legal professional privilege, the right to counsel, and the right to be free from unreasonable search and seizure, that a stay was the appropriate remedy.
[56] Counsel referred us to the passage in Grant where the Court of Appeal of England and Wales stated:[30]

... the deliberate interference with a detained suspect’s right to the confidence of privileged communications with his solicitor ... seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers’ unlawful conduct.

[57] In Grant the police obtained recordings of privileged discussion between the appellant (who was charged with conspiracy to murder) and his counsel over about two days while the appellant was detained in custody. The recordings were obtained by listening devices placed in an exercise yard of the police station. The trial Judge declined to stay the proceedings. The Court of Appeal overturned that decision, holding:[31]

True it is that nothing gained from the interception of solicitors’ communications was used as, or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person’s rights to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court.

(Counsel’s emphasis.)

[58] The Court in Grant also emphasised that it would be improper to require the defendant to give evidence of the privileged conversations in order to establish prejudice. The Court concluded a stay should have been granted and allowed the appeal against conviction.
[59] Relying on Grant as an authority, Mr Mount submitted that it would be wrong to adopt in New Zealand a balancing test to determine whether the prosecutorial misconduct in this case rendered the prosecution an abuse of process. Counsel acknowledged that current English authority supports a balancing test. However, he submitted the issue has not been authoritatively determined in New Zealand. A presumptive test, whereby an abuse of process is presumed once a deliberate interference with legal profession privilege is established, is necessary in order to protect the integrity of the court’s processes.

Legal test – our views

[60] The threshold for an abuse of process is high, as the comments in Fox and Moevao make clear. Both judgments emphasise that a stay of proceedings is a rare step that courts should take only with great caution. However, counsel for the appellant proposed that where police deliberately and unlawfully acquire recordings of privileged communications and do not take all reasonable steps to remedy the breach of privilege, an associated prosecution is presumptively rendered an abuse of process and a stay should follow.
[61] We are concerned that such a presumptive approach could itself cause injustice. It would not serve to limit an application for stay to only the clearest or most worthy of circumstances. It would in fact broaden the application of a stay in an undiscriminating manner. This is problematic, as it would elevate legal professional privilege to a position above the numerous other things that can go wrong in criminal proceedings and which may also involve a breach of the accused’s rights.
[62] This Court in Fox seemed to be attracted to the view that a balancing test should apply in determining whether a stay should be granted when abuse of process is alleged. This is evident from the passage where the Court talks of certain “hallmarks” – such as bad faith or improper motive – that may warrant a stay, and refers to other factors, such as “prejudicial impact”, that may be important.[32] On that basis a stay should only be granted in the “clearest of cases”, indicating that it is a facts-based inquiry. The Court in Fox made clear that the power to stay is not available for disciplinary purposes. The presumptive approach leaves open the prospect of a stay operating as a disciplinary measure to punish wrong-doing by the prosecution.
[63] The English case of Grant – upon which counsel for the appellant places great weight – does not necessarily provide support for the presumptive approach. First, the passage relied on by the appellant[33] was qualified by the words “in general”. Second, the section of the judgment in Grant dealing with “The law” begins with these words:

52 Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court’s process.

[64] The interception warrants were granted and acted upon in the course of Operation Valley when the police were investigating the threats to DS Schmid in 2009/2010. No criminal proceeding was instituted in relation to such threats. Accordingly an essential condition for the application of the principle enunciated by the Court of Appeal in Grant did not apply. The appellant is seeking to have these principles apply to the criminal proceeding arising from a completely separate investigation, namely, the drugs charges instituted in December 2008 following the termination of Operation Jivaro. This highlights the lack of nexus between the alleged abuse and the convictions under appeal. We return to this point later.[34]
[65] Third, the presumptive approach is contrary to observations made by Laws LJ in his judgment for the Court in Grant when he said:

55 ... Not every misdemeanour by police officers in the course of an investigation will justify a stay on grounds of abuse. And plainly there are cases where prejudice or detriment to the defendant must be shown; indeed the case where the defendant is denied a fair trial by the prosecutor’s act or omission may be thought a paradigm of abuse of process. Where a fair trial remains possible, faced with an application for a stay on grounds of abuse the court has a balance to strike. On the one hand public confidence in the criminal justice system has to be maintained; and where misconduct by the police or prosecution is shown, that will favour a stay of the proceedings. On the other hand, it is the court’s duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay. For the balancing exercise see [Regina] v Latif.[35]

[Inline citations omitted.]

[66] The observations of Lord Steyn in Regina v Latif are instructive. They arose in the context of an alleged abuse of process arising from reliance on the evidence of an agent provocateur who had himself committed a criminal offence. The issue was whether there was an abuse of process amounting to an affront to public conscience. Lord Steyn, delivering a speech in the House of Lords with which four Law Lords agreed, said this:[36]

... If the court always refused to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime. The weaknesses of both extreme positions leaves only one principled solution. The court has a discretion: it has to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings. That is not what the present case is concerned with. It is plain that a fair trial was possible and that such a trial took place. In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Reg. v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1993] UKHL 10; [1994] 1 A.C. 42. Ex parte Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex parte Bennett conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.

[67] This passage provides support for the balancing exercise rather than the presumptive test contended for by the appellant.
[68] Finally, the judgment of the English Court of Appeal in Grant has been the subject of criticism in both the United Kingdom Supreme Court and the Privy Council. In Regina v Maxwell,[37] a decision of the Supreme Court, Lord Dyson – a member of the majority – noted “considerable reservations” as to whether Grant was correctly decided.[38] Also, one of the dissenting judges, Lord Brown, when discussing Grant, stated that not every violation of legal professional privilege should result in a quashed conviction.[39]
[69] In Warren v Attorney-General for Jersey,[40] a decision of the Privy Council, the principal judgment was given by Lord Dyson. He reiterated that Grant was wrongly decided and favoured a balancing test of the relevant factors rather than a presumptive approach.[41] Lord Brown also once again expressed his “grave doubts” concerning Grant.[42]
[70] In New Zealand, two decisions of the High Court have applied a balancing test in deciding whether or not there should be a stay of proceedings (or a strike out in relation to a civil claim) due to abuse of process involving breach of professional legal privilege.[43] This Court has also held that the appropriate remedy, where evidence is obtained in breach of legal privilege, is exclusion of that evidence, rather than a more severe consequence.[44]
[71] For the above reasons we reject the presumptive approach. In our view, while legal professional privilege is an important foundation of the criminal justice system, not every violation – however inconsequential – should result in a stay. This is particularly so when other options – such as exclusion of evidence obtained in breach of privilege – are available.
[72] This ground of appeal cannot therefore succeed. We now address the second issue of whether the Judge made errors of fact.

Second issue – errors of fact?

Appellant’s contentions

[73] Counsel for the appellant submitted that Andrews J committed three errors of fact in determining the two stay applications in this case. First, there was no evidential basis for the Judge’s finding that privileged calls were not substantively listened to, as evidence was not heard from the police officers who listened to the calls. Second, the Judge grossly understated the extent of the prosecutorial misconduct in the balancing test. Counsel contended there were at least seven breaches of the law and/or the Bill of Rights that occurred. For example, the seizure of privileged calls on 18 August 2009 breached s 21 of the New Zealand Bill of Rights Act 1990 (unreasonable search and seizure) and ss 23(1)(b) and 24(c) (the right to counsel).
[74] Third, counsel submitted that the High Court wrongly attributed significant weight to a finding of “good faith”. Counsel elaborated:

The police misconduct in the present case was serious in that it was occasioned by a persistent and deliberate interference with the rights of the Appellant. Impropriety occurred on a number of occasions. From the point of the initial warrant application, to the cavalier screening process, to the repeated deficiencies in the second warrant, to the improper dissemination of privileged communications, to the failure to remove the calls from the Police network, the opportunity for Police to remedy their misconduct was self evident. At no stage was correct procedure adopted.

[75] Counsel for the appellant submitted that the touchstone for the High Court’s analysis should be the effect that the police misconduct (whether or not that was occasioned by proven bad faith) had on the legitimacy of the Court’s processes, the appellant’s rights and the administration of justice. Therefore applying a proper balance a stay should have been granted. Here the police actions undermined core foundations of the justice system (namely legal professional privilege) and were an abuse of the relationship between the police and the courts. The prosecutorial misconduct also undermined the confidence of detained persons in consulting with counsel via telephone.

Preliminary issue – further evidence

[76] Before giving our evaluation we will address an additional aspect of this part of the appeal, namely, the Judge’s refusal to direct the Crown to call further evidence from DS Lunjevich and Detective Peat. This question was determined by Andrews J in the further evidence judgment, the outcome of which we have summarised earlier.[45] The hearing of that application was directed at whether the Judge should order that DS Lunjevich, Detective Peat, two other named officers (Detective Inspector Good and Detective Senior Sergeant Hooper) and “every Police Officer or other person who has been provided access to audio recordings of privileged telephone calls between the applicant and his counsel” be called by the prosecutor to give evidence. The grounds of the application were:

That it is in the interests of justice that the said witnesses give evidence and be cross-examined in relation to the respondent’s application for discharge/stay on the grounds of abuse of process.

[77] The Court had earlier received affidavits from DS Lunjevich and Detective Peat. At the hearing both witnesses gave further brief evidence and were then extensively cross-examined by defence counsel and re-examined by the prosecutor. In the further evidence judgment Andrews J carefully summarised and reviewed the evidence given[46] and made the findings, including credibility findings, as earlier described.[47]
[78] Counsel for the appellant challenged these findings on the basis that the Judge took a “narrow approach” on the issue of whether further evidence should be ordered. Counsel also criticised the issue as framed by the Judge, namely, whether any of the evidence given by DS Lunjevich and Detective Peat justifies further evidence being called so that the inquiry into whether there was an abuse of process can be reopened. Counsel submitted that the real issue was whether the interests of justice required the Crown to call evidence from those who had listened to the privileged calls. Because an abuse of process issue had been raised by the appellant relying solely on police misconduct, it was appropriate to require that all relevant police officers account for their dealings with the privileged material.
[79] We reject these submissions. The prosecutor had filed the two affidavits in support of the application for destruction of two computer disks. The contents of those affidavits were the subject of extensive cross-examination. The Judge made clear factual and credibility findings in favour of the two deponents. The appellant’s submissions produced no good reasons in argument as to why these factual and credibility findings should be set aside. No reliable evidence to the contrary was referred to.
[80] Further, we do not agree that the Judge asked the wrong question in the further evidence judgment. Indeed, we note that counsel for the parties at the hearing of the application agreed on the three matters to be determined one of which was:[48]

Whether there should be an order for evidence to be given by any person other than DS Lunjevich and Detective Peat, who were to be cross-examined on their affidavits.

[81] Accordingly we agree with the conclusion of Andrews J that the application for an order to call further evidence ought to have been dismissed.[49] We agree with the Judge’s reasons for so ruling.

Second ground – our evaluation

[82] As we have noted the threshold for a stay for abuse of process is high. It is true that the extent of the alleged police misconduct has been the subject of considerable dispute. We start our evaluation by dealing with the facts. The relevant factual and credibility findings were set out by the Judge in the first stay judgment.[50] These factual and credibility findings were supplemented by those arising from the further evidence hearing.[51] The final relevant findings are set out in the second stay judgment.[52]
[83] The critical findings that emerged from the Judge’s analysis included the fact that of more than 1000 calls (in total) received by the police, 12 were made to Mr Gibson’s number. Of these only six calls were listened to, to some extent, and of those calls, only three involved the appellant. The Judge also found that these calls were listened to only to the extent necessary to identify that the call had in fact been made to, or was intended for, Mr Gibson. The Judge also accepted DS Lunjevich’s evidence that all staff who were engaged in the screening process were aware of his instruction that calls to Mr Gibson were not to be listened to. The staff were also aware that they were to fill in reports of every call that was screened and that when the schedule arrived from the Department of Corrections identifying the privileged calls, staff were not to screen any calls made to Mr Gibson’s number.
[84] In the light of these findings, and others referred to in the first stay judgment, the Judge rejected the appellant’s claim that the police conduct with respect to Mr Gibson’s calls amounted to an abuse of process. Central to this conclusion were the following findings. First, the failure, in the interception warrant application, to avert to the possibility that privileged calls might be seized was an oversight by DS Lunjevich. This was not a deliberate decision to conceal from the issuing officer the fact that privileged material would be seized. Second, DS Lunjevich put in place a system to prevent any privileged material being accessed. Third, there was no reason to believe that any calls made by the appellant to Mr Gibson were accessed – except for the purpose of establishing that the call was indeed made to Mr Gibson’s number. Thus there was no breach of the appellant’s right to maintain and preserve privilege over the communications with his lawyer. Fourth, DS Lunjevich did not act in bad faith or with any improper motive. Fifth, his inquiry was entirely independent of, and unrelated to, the separate Operation Jivaro investigation which resulted in the drugs charges. Sixth, none of the material obtained during the Operation Valley investigation formed any part of the prosecution of the appellant on the drugs charges.
[85] It is also relevant that the appellant had refused at all stages of his abuse of process challenges to indicate, even in the most general of terms, what he and his lawyer discussed. There is no evidence that any of the seized telephone calls had anything to do with the convictions the appellant now seeks to have quashed. There is some authority for the proposition that the strength of the legal professional privilege rule is such that a person in the appellant’s position ought not to be required to waive privilege and testify as to the content of any conversations with his lawyer.[53] We agree with that approach, which reflects the importance attaching to the preservation of legal professional privilege. However the significant point is that there is no evidence at all to link the content of the calls (whatever that may be) to the criminal proceeding involving the drugs charges.
[86] Finally, any failure to address the issue of protection of the privileged material in the warrant applications was well outweighed by the public interest in ensuring that the charges against the appellant should proceed to trial. In the Judge’s view the extreme step of finding an abuse of process and staying the proceeding was not justified. To do so would be a totally disproportionate response to what occurred.
[87] We are satisfied that the appellant has not provided any basis upon which the factual findings of Andrews J should be disturbed. We are satisfied that the findings of the Judge were amply supported by the evidence heard not only at the hearing of the first stay application, but also the evidence emerging from the further evidence hearing. Moreover the ultimate conclusion rejecting a stay on the basis of abuse of process cannot be impeached. In this regard we note that the Judge commented that it was not necessary to decide whether she should adopt the “presumptive” approach or the “balancing test”.[54] She held that on either test the same conclusion would be reached.
[88] We record that counsel for the appellant submitted that the Judge had underestimated and undervalued the level of police misconduct in this case. We reject that submission. We agree with counsel for the respondent that the appellant has consistently exaggerated the level of any wrongdoing by the police. We are satisfied that the obtaining of the recordings of telephone conversations between the appellant and Mr Gibson had no bearing whatsoever on the prosecution of the appellant on the drugs charges.
[89] It is in this context that we observed that a key requirement of the Court of Appeal in Grant was not met. The conduct by the police in obtaining access to the privileged telephone calls was not in the course of an investigation into the drugs charges. It was a completely separate and independent inquiry conducted by different police personnel. Accordingly any support from the principles enunciated in Grant cannot assist the appellant.
[90] In any event, as noted above, the balancing test is the preferable measure. Applying that here the outcome is inevitable. The principles established in Fox permit the Court to take into account factors such as bad faith and improper motive. No such factors were present in this case.
[91] Another factor is the nature of the charges which the appellant was facing arising out of Operation Jivaro. For convenience we set out the findings of the Judge in her sentencing remarks in relation to the drugs charges which describe the offending as follows:

[3] ... Your offending was disclosed from two Police operations, in 2006 and 2008. I have concluded, on the basis of the evidence heard and the jury’s verdicts, that you were involved with manufacturing methamphetamine during the period from 2006 to 2008, and that the scale of the manufacture was substantial. This is on the basis of evidence that when the Police operation was terminated in December 2008 you had with you $300,000 which was intended to be used to buy pseudoephedrine which could be made into methamphetamine. It is also on the basis of the evidence from intercepted communications, and your own references to the quantities of methamphetamine you handled. I accept the Crown’s submission that your convictions on conspiracy to manufacture show that you had a number of sources of methamphetamine under your control.

[4] The scale of your dealings in methamphetamine is shown by the convictions for supply and conspiracy to supply, and by what was found when the 2008 operation was terminated. Four ounces of methamphetamine was found in your vehicle, and nine ounces was found hidden near the driveway to your house. These were valued at $40,000 and $90,000 respectively. You were also heard, in an intercepted communication, discussing dealings involving 2 kg of methamphetamine. Further, more than $50,000 in cash was found at your house.

[5] The jury also convicted you on three charges of money laundering – that is, dealing with the proceeds of your drug dealing in an attempt to conceal where it had come from. About $250,000 was put through accounts which was then used to buy an apartment, and $25,000 was moved through a third party’s bank account.

[92] We agree with the conclusion of Andrews J that a stay of proceedings on the basis of abuse of process was not warranted. That outcome would be wholly disproportionate to the nature of any misconduct involved. This ground of appeal must therefore fail.

Third issue – a reduction in sentence?

Appellant’s submissions

[93] By way of a further alternative, counsel for the appellant submitted that if this Court is minded to uphold the appellant’s convictions, then he should receive a reduction in sentence in order to remedy the infringement of his rights to legal professional privilege and the breach of his rights under the New Zealand Bill of Rights Act. Counsel referred to R v Williams[55] and Du v District Court at Auckland[56] as authority for this potential remedy and submitted a reduction in the range of 50 per cent is appropriate.

Our evaluation

[94] This ground of appeal must fail because of the decisive feature that there is no nexus between any alleged police misconduct under Operation Valley and the sentencing exercise for the drug offending under Operation Jivaro. A further fundamental flaw to the argument is that the appellant suffered no prejudice whatsoever as a result of the police obtaining the privileged material. We reject this ground.

Challenge to the interception warrants

Factual background – chronology

[95] The appellant’s second basis for challenging his convictions arises out of the following facts surrounding the granting of interception warrants in Operation Jivaro. The chronology starts with an earlier investigation in 2006 into serious drug offending allegedly involving the appellant conducted by the Northland police called “Operation Bend”:

Admissibility of interception evidence

[96] The challenge to the admissibility of the interception evidence concerns the three applications for interception warrants made by the police in Operation Jivaro between October and December 2008. The applications in each case were substantial. The first ran to 118 pages; the second was a similar length and the third (including a call data application) was over 146 pages long. In each case a massive amount of information and evidence was provided to the judicial officer concerned indicating that the appellant had been involved in the manufacture of huge quantities of methamphetamine, was receiving the finished product and arranging the on-sale and distribution of methamphetamine through an extensive criminal network. The applications included information provided by various registered informants, most of whom were said to have provided reliable information in the past. By any measure the applications provided an overwhelming case for the issue of an interception warrant.
[97] Relevant to the admissibility challenge, none of the applications referred to the following information: that an interception warrant had been granted in respect of Operation Bend; that no charges had been laid following the termination of Operation Bend; and that Northland Police had retained communications intercepted pursuant to Operation Bend. Thus the question for determination by Andrews J was whether, if the applications had referred to the fact that the appellant had been the subject of an interception warrant operation in 2006, namely in Operation Bend, and the Court had been informed of the results of that operation, a Judge would have been less likely to issue the Operation Jivaro interception warrants.
[98] The appellant has submitted that the interception warrant in Operation Bend did not yield sufficient evidence for criminal charges to be laid against him. Counsel for the respondent accepts that the police did not consider at that time that there was sufficient evidence to lay charges. But that was not the end of the matter. The prosecution led evidence at a pre-trial hearing from former DS Smith who gave evidence about Operation Bend. He concluded that an on-going inquiry would have been justified:

Max Beckham was speaking heavily in coded conversation. We hadn’t had the opportunity during the enquiry to seize any methamphetamine or product, he was clearly associating with a number of Auckland criminals and Asian organised crime criminals and it was clear that the enquiry had to be progressed further.

[99] The outcome of Operation Bend was considered by this Court in an earlier appeal when it concluded:

[5] In about August 2006, officers of the Northland police met with officers of the Auckland Metropolitan drug squad. The outcome of that meeting was that the Auckland officers were fully committed at the time but would pick up the investigation when there were available staff and resources to deal with it.

Pre-trial steps leading to the admissibility challenge

[100] In the High Court, Andrews J ruled that the evidence obtained from the Operation Bend interception warrant was admissible at trial.[58] That ruling was upheld in a judgment of this Court.[59]
[101] The Crown then filed an application for an order that the evidence obtained from the Operation Jivaro interception warrants of 13 October, 11 November and 11 December 2008 was admissible. The appellant opposed the application on the basis of material omissions in relation to the Operation Bend interception warrant. Andrews J released a ruling on 11 February 2011.[60]
[102] On the central issue Andrews J held that disclosure of the Operation Bend interception warrant would not have led the Judge considering the Operation Jivaro application to decline to grant an interception warrant. The Judge’s reasons were as follows:[61]
[103] As a result of these findings the Judge concluded that the Operation Jivaro interception warrants were validly granted.[62] She was not required to consider whether the evidence obtained by means of the Operation Jivaro interception warrants was admissible. Such evidence was admissible and the prosecution was entitled to produce such evidence at the trial.
[104] Relevant to the issues on appeal is the Judge’s reasoning on whether the applications for the Operation Jivaro warrants complied with s 14 of the MDAA. Counsel for the appellant had, in reliance on s 14(2)(e), contended that the Operation Bend interception warrant constituted “other investigative procedures and techniques” as that term is used in s 14(2)(e)(i) and (ii). The Judge held:

[37] ... s 14(2)(e)(iii) provides that the Police must set out the reasons why it would be impractical to carry out the investigation “using only investigative procedures and techniques other than the interception of private communications”. Thus, a distinction is drawn between the investigative procedure or technique of the interception of private communications, and “other” procedures or techniques. In accordance with the presumption that the word “other” has been used consistently in each of the three sub-paragraphs of s 14(2)(e), I conclude that “other investigative procedures and techniques” in sub-paragraphs (i) and (ii) means procedures and techniques other than the interception of private communications by way of an interception warrant. That interpretation is consistent with the purpose of the MDAA, as set out in the long title to the Act.

[105] Accordingly the Judge held that s 14 of the MDAA did not require the police to refer to the Operation Bend interception warrant in the application for the Operation Jivaro warrants.
[106] The Judge also considered that the information relating to the Operation Bend interception warrant should have been referred to in the applications for the Operation Jivaro warrants. Such disclosure would have been consistent with the obligations to be candid, to provide all relevant information and to include information that might have been relied on by the person, the subject of the interception warrant application.[63]
[107] However, for the reasons already set out,[64] the Judge concluded that the disclosure of the Operation Bend warrant would not have led the Judge considering the Operation Jivaro application to decline to grant an interception warrant.

Submissions of parties

[108] Mr Bonnar advanced this argument on behalf of the appellant. He submitted that the term “other investigative procedures and techniques” in s 14(2)(e)(i) and (ii) of the MDAA was broad enough to include details of the investigative procedures and techniques that fell within the Operation Bend investigation. In other words, Mr Bonnar was critical of the reasoning of the Judge in the passage just quoted.
[109] Next Mr Bonnar submitted, if there were found to be a breach of what he described as a “mandatory” obligation in s 14(2)(e), then the interception warrant in this case was not saved by the provisions of s 25(2)(d). The omission to refer to the Operation Bend interception warrant and resulting information was more than a defect in form or an irregularity. Moreover, as the MDAA contained a specific provision dealing with exclusion of evidence then the provisions of s 30 of the Evidence Act 2006 did not apply.
[110] Mr Bonnar submitted that the High Court Judge was correct to conclude that the police should have notified the issuing Judge of the matters relating to Operation Bend in terms of the general obligations of disclosure and candour relating to ex parte applications of this nature. Nevertheless the appellant challenged the findings of the Judge regarding the lack of effect of this omission as described in the Judge’s conclusions.
[111] For the respondent Mr Boldt relied on the following key findings namely:
[112] Mr Boldt supported the Judge’s reasoning in relation to s 14 of the MDAA. Mr Boldt provided the Court with a copy of the October 2008 application for an interception warrant and, with the agreement of Mr Bonnar, offered to provide (on a confidential basis) a copy of the November and December 2008 applications for the assistance of the Court. He did so and we have considered the content of the three applications.

Relevant statutory provisions

[113] Section 14 of the MDAA sets out the information the police were required to provide to the issuing judicial officer. Relevantly that section provides:
  1. Application by Police for warrant to intercept private communications

...

(2) Every application under subsection (1) shall be made by a constable who is of or above the level of position of inspector, in writing, and on oath, and shall set out the following particulars:

(a) the facts relied upon to show that there are reasonable grounds for believing that a person has committed, or is committing, or is about to commit, a drug dealing offence; and

(b) a description of the manner in which it is proposed to intercept private communications; and

(c) the name and address, if known, of the suspect whose private communications there are reasonable grounds for believing will assist the Police investigation of the case or, if the name and address of the suspect are not known, a general description of the premises, place, thing, or type of facility in respect of which it is proposed to intercept private communications, being premises or a place, thing, or type of facility believed to be used for any purpose by any person involved in the drug dealing offence; and

(d) the period for which a warrant is requested; and

(e) whichever of the following is applicable:

(i) the other investigative procedures and techniques that have been tried but have failed to facilitate the successful conclusion of the Police investigation of the case, and the reasons why they have failed in that respect; or

(ii) the reasons why it appears that other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case, or are likely to be too dangerous to adopt in the particular case; or

(iii) the reasons why it is considered that the case is so urgent that it would be impractical to carry out the Police investigation using only investigative procedures and techniques other than the interception of private communications.

[114] We also refer to s 15 of the MDAA which sets out the matters on which a Judge must be satisfied in granting an application for an interception warrant. Section s 15(1)(c) has particular relevance:
  1. Matters on which Judge must be satisfied in respect of applications

(1) On an application made to him in accordance with section 14, the Judge may grant an interception warrant if he is satisfied that it would be in the best interests of the administration of justice to do so, and that—

(a) there are reasonable grounds for believing that a person has committed, or is committing, or is about to commit a drug dealing offence; and

(b) there are reasonable grounds for believing that evidence relevant to the investigation of the offence will be obtained through the use of an interception device to intercept private communications; and

(c) whichever of the following is applicable:

(i) other investigative procedures and techniques have been tried but have failed to facilitate the successful conclusion of the Police investigation of the case; or

(ii) other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case, or are likely to be too dangerous to adopt in the particular case; or

(iii) the case is so urgent that it would be impractical to carry out the Police investigation using only investigative procedures and techniques other than the interception of private communications; and

...

[115] If an interception warrant is obtained in breach of s 14 of the MDAA, the intercepted communications are inadmissible. Nevertheless the Court may admit that evidence if the conditions in s 25(2)(a) to (d) are satisfied. Section 25 relevantly provides:
  1. Inadmissibility of evidence of private communications unlawfully intercepted

(1) Subject to subsections (2) to (4), where a private communication intercepted by means of an interception device otherwise than in pursuance of an interception warrant or emergency permit issued under this Act or of any authority conferred by or under any other enactment has come to the knowledge of a person as a direct or indirect result of that interception or its disclosure, no evidence so acquired of that communication, or of its substance, meaning, or purport, and no other evidence obtained as a direct or indirect result of the interception or disclosure of that communication, shall be given against any person, except in proceedings relating to the unlawful interception of a private communication by means of an interception device or the unlawful disclosure of a private communication unlawfully intercepted in that manner.

(2) Even though certain evidence is inadmissible in criminal proceedings by virtue of subsection (1), a court may admit that evidence if the following conditions are satisfied:

(a) the proceedings are for—

(i) a drug dealing offence; or

(ii) a prescribed cannabis offence; and

(b) the evidence is relevant; and

(c) the evidence is inadmissible by virtue of subsection (1) merely because of a defect in form, or an irregularity in procedure, in—

(i) the application for or the granting of the interception warrant or emergency permit; or

(ii) the manner in which the evidence was obtained; and

(d) the defect in form or irregularity in procedure—

(i) was not substantive; and

(ii) was not the result of bad faith.

Interception warrant evidence – our evaluation

[116] Central to our evaluation are the contents of the applications for the interception warrants. Mr Bonnar’s main submission focussed on the omission of any reference to the Operation Bend interception warrant applications and the information obtained arising from these warrants under the heading: “Other Investigative Procedures Tried But Failed”. This part of the application was no doubt included by the police officer concerned as a response to the requirements of s 14(2)(e)(i) and s 15(1)(c). Both of these provisions emphasise the requirement that the relevant procedure or technique has been tried but failed. It is true that the Operation Bend information was not mentioned either in the application dated 13 October 2008 or in the two later applications. Other investigative procedures said to have been tried but failed to facilitate the successful conclusion of the investigation were: evidence of informants, surveillance of suspects, telephone enquiries and search warrants.
[117] As already noted, Andrews J held in the interception warrant judgment that the words “other investigative procedures and techniques” in s 14(2)(e)(i) of the MDAA were a reference to investigative procedures and techniques other than the interpretation of private communications by way of interception warrant.[65] We have considerable reservations about that view. We consider it is arguable, despite the wording of s 14(2)(e)(iii), that the term as used at least in subpara (i) might be broad enough to include an early investigative procedure involving interception of private communications.
[118] However, for the reasons that follow, we consider that this challenge may be determined by another feature of the warrant applications. We therefore do not need to decide the precise meaning of the words as used in s 14(2)(e)(i) and expressly leave consideration of that interpretation issue in which it squarely arises.[66] In our view an important feature of the warrants applications requires us to consider s 14(2)(e)(ii).
[119] This is because the application dated 13 October 2008, as well as the November and December warrants, addressed the separate and distinct issue of other investigative methods unlikely to facilitate a successful conclusion. A bold heading using these words was included in each of the warrant applications. The reasons given as to why other investigative procedures would be unlikely to facilitate the successful conclusion of the police investigation addressed: use of an undercover agent, surveillance of suspects, search warrants, interview of suspects and tracking devices.
[120] Section 14(2)(e)(ii) of the MDAA requires the following:[67]

(ii) the reasons why it appears that other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case, or are likely to be too dangerous to adopt in the particular case;

The thrust of this subparagraph is as to an outcome in future. Logically this cannot include the very interception warrant sought in the application. It must be referring to other procedures and techniques. Whether such a procedure has been tried and failed in the past is irrelevant to the statutory requirement being addressed in the application.

[121] We are satisfied that in each of the three applications for interception warrants in October, November and December 2008 the police properly met the requirements of s 14(2)(e)(ii). The significance of this is that the structure of s 14(2)(e) requires only one of the three options to be made out. This is clear from the use of the opening words to para (e): “whichever of the following is applicable”.[68] One or more of the three options may be applicable in a particular case. As we have noted, here the applicant for the warrants referred to two of the applicable options.
[122] Here the requirements of s 14(2)(e)(ii) of the MDAA were met on the facts and the information provided was available to ensure that the Judge could be satisfied of at least one of the requirements of s 15(1)(c)(i)–(iii). Importantly in both s 14(2)(e) and s 15(1)(c) the alternatives in each case are separated by the disjunctive word “or”.
[123] The fact that the warrant applications in each case included material in purported compliance of s 14(2)(e)(i) of the MDAA matters not. The inclusion of such material, even if found to be inadequate or incomplete, cannot detract from the validity of the application and the warrant granted when it is able to be supported on another ground.
[124] In view of the conclusion which we have reached as to the content of the application warrants, no question of the admissibility of the evidence arises under s 25(2) of the MDAA.
[125] For completeness, we record that we agree with the Judge’s conclusions regarding the alleged failure of the police to include reference to the Operation Bend application and warrant information. This topic was addressed by the Judge comprehensively with appropriate reference to the applicable authorities.[69] We agree with the conclusions of the Judge and for the reasons she gave.[70]

Sentence appeal

[126] Following his trial on the drugs charges Mr Beckham was convicted of a total of 24 counts involving serious drug offending, including possession of methamphetamine for supply and supplying methamphetamine. As we have noted, other offences included conspiracy to manufacture methamphetamine, the supply of cocaine and charges of money laundering. Sentencing occurred before Andrews J in the High Court on 12 August 2011 at which she imposed a sentence of 13 years and six months’ imprisonment,[71] to be cumulative upon a pre-existing sentence of seven and a half years’ imprisonment. A minimum period of imprisonment (MPI) of seven years was imposed. This represented slightly more than 50 per cent of the head sentence.
[127] In bringing this sentence appeal, the Solicitor-General does not challenge the basis upon which the prison term was imposed by Andrews J. Rather, the application for leave to appeal has been brought because of events that have occurred after Mr Beckham was sentenced. At the time of the sentencing of the drug charges, Mr Beckham was already serving a sentence of seven and a half years’ imprisonment on charges of kidnapping, committing a crime with a firearm and conspiring to pervert the course of justice (collectively, the “kidnapping charges”) that had been imposed on 3 August 2011. Because of this, when Andrews J sentenced Mr Beckham later on the drugs charges, she reduced the effective end sentence of 18 and a half years’ imprisonment by five years to take account of totality.
[128] On 4 July 2012, this Court quashed Mr Beckham’s convictions on the kidnapping charges.[72] The Solicitor-General therefore argues that the factor that led the Judge to reduce the otherwise appropriate sentence of 18 and a half years’ imprisonment has disappeared, and seeks a new sentence that reflects the fact that totality no longer applies.
[129] The Solicitor-General’s application for leave to appeal is of course well out of time, given that the convictions for the kidnapping charges were not quashed until mid-2012. However, counsel for Mr Beckham did not oppose the application for leave to appeal. Without opposition leave to appeal out of time is granted on the basis that the circumstances underpinning the sentence have substantially changed.[73]

Factual background

[130] In summary, between 2006 and 2008 the police conducted two separate electronic operations that resulted in a large number of conversations and other communications being intercepted. Mr Beckham was arrested in late 2008 as a result. At the time of the arrest, he was found with four ounces of methamphetamine in his vehicle, nine ounces near the driveway of his home and more than $500,000 in cash. The intercepted communications recorded transactions involving more than 2 kg of methamphetamine. The money laundering charges arose from the movement of substantial sums.
[131] Although Mr Beckham pleaded not guilty to the charges, it now appears that he no longer denies the offending and has, according to the pre-sentence report, accepted responsibility for it.

Sentencing decision

[132] In sentencing Mr Beckham, the Judge noted that his offending for the lead charges involving the supply of methamphetamine and possession of methamphetamine for supply clearly fell within band 4 of R v Fatu,[74] which proscribes a starting point of 10 years to life imprisonment. In light of the large amount of methamphetamine that Mr Beckham supplied or had in his possession, the Judge set the starting point at 17 years’ imprisonment.[75] She applied an uplift of one year to reflect the charges of manufacturing and conspiring to manufacture methamphetamine, as well as a further one year uplift to reflect the other drugs charges.[76] She applied a six month discount to take account of mitigating factors, including Mr Beckham’s health problems, the circumstances surrounding the death of his son and his loss of standing in the community.[77] We interpolate by suggesting that Mr Beckham was fortunate to have the sentencing Judge recognise these as mitigating factors. No criticism could have been made had they been completely rejected by the Judge. Subject to the totality point the sentence would have been 18 and a half years’ imprisonment.
[133] However, the Judge was mindful of Mr Beckham’s pre-existing sentence of seven and a half years for the kidnapping charges, which engaged the totality principle.[78] Andrews J therefore reduced the sentence for the drug offending by five years, so that a cumulative sentence of only 13 and a half years’ imprisonment was imposed on top of the sentence for the earlier offending. This took the final combined sentence to 21 years’ imprisonment.

Discussion

[134] Counsel for the Solicitor-General and Mr Beckham are agreed that, in the circumstances, the sentence for the drug offending should be increased from the current term of 13 and a half years’ imprisonment. They are in agreement that the original starting point of 17 years and the uplift of two years cannot be challenged. We have no doubt that a total of 19 years’ imprisonment is an appropriate starting point having regard to the gravity of the overall offending. The real issue is whether this Court should reinstate the sentence of 18 and a half years’ imprisonment or – as counsel for Mr Beckham contended – apply greater discounts for mitigating factors.
[135] Mr Bonner submitted that Mr Beckham should receive a discount of one year for personal factors including the appellant’s health problems and the death of his son. This is a discretionary mitigating factor and we are satisfied that the six month discount applied by Andrews J for personal factors was appropriate. No further adjustment to the Judge’s evaluative assessment for personal factors is required.
[136] That leaves for consideration whether any further discount should be given. Mr Bonnar submitted that Mr Beckham should receive a discount for the time spent on electronically monitored (EM) bail prior to trial. This is a discretionary matter and we would not normally interfere with a Judge’s assessment on such an aspect. However, Mr Bonnar pointed out that at sentencing he had omitted to raise the possibility of such a discount with the Judge. He raised it for the first time as a counter-weight to the Solicitor-General’s appeal against sentence. Mr Boldt did not strenuously oppose a further modest allowance. He submitted that a final sentence of 18 years’ imprisonment would be within range.
[137] The facts are that Mr Beckham was detained on 24-hour EM bail for almost eight months. While time spent on restrictive bail conditions is not a mandatory mitigating factor, some credit may be appropriate.[79] We are satisfied that a further adjustment in the particular circumstances of this case is appropriate. We therefore allow a further discount of six months to reflect the time Mr Beckham spent on restrictive bail conditions. This would mean a total end sentence of 18 years’ imprisonment.
[138] Mr Bonnar did not dispute that this was an appropriate case for the imposition of an MPI. The only question is how long it should be. As noted Andrews J imposed an MPI of a little over 50 per cent of the head sentence. Mr Boldt accepted that an MPI of 50 per cent would not be inappropriate. We agree with that assessment.

Result

[139] The appeal against conviction is dismissed.
[140] The Solicitor-General’s appeal against sentence is allowed.
[141] The sentence of 13 years and six months’ imprisonment, together with a minimum period of imprisonment of seven years, is quashed. In its place a sentence of 18 years’ imprisonment is imposed, together with a minimum period of imprisonment of nine years.

Solicitors:
Moala Merrick, Manukau for Appellant Beckham
Crown Law Office, Wellington for Respondent Crown

[1] R v Beckham HC Auckland CRI-2008-404-29112, 12 August 2011 [sentencing decision].

[2] Three High Court judgments deal with Mr Beckham’s applications for a stay: R v Beckham HC Auckland CRI-2008-004-29112, 4 February 2011 [first stay judgment]; R v MB HC Auckland CRI2008-004-29112, 3 May 2011 [further evidence judgment]; and R v MB HC Auckland CRI2008-004-29112, 23 May 2011 [second stay judgment]. All of these judgments were delivered by Andrews J.

[3] R v MB HC Auckland CRI-2008-004-29112, 11 February 2011 [interception warrant judgment].
[4] Beckham v R [2012] NZCA 290.
[5] At [7]–[11].
[6] First stay judgment, above n 2, at [42].
[7] At [40]–[42].
[8] At [40].
[9] At [46].

[10] At [56], applying the principles laid down by this Court in Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA).
[11] At [82].
[12] At [2]–[7].
[13] At [82(e)].

[14] As explained at [43(a)] of the further evidence judgment, the disks were surrendered on 2 May 2011. They were to be held pending determination of the second stay application or any appeal in relation to that application or the application to call further evidence.
[15] Under s 368(2) of the Crimes Act 1961.
[16] At [43(b)].
[17] First stay judgment, above n 2, at [82(e)].
[18] Second stay judgment, above n 2, at [14].
[19] At [25].
[20] Fox v Attorney-General, above n 10.
[21] At [34].
[22] Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 470–471.
[23] Fox at [32]–[34].
[24] Moevao at 482.
[25] R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [11] and [30].
[26] Ibid at [31].
[27] Regina v Derby Magistrates’ Court, Ex parte B [1995] UKHL 18; [1996] 1 AC 487 (HL) at 507.
[28] Regina v Grant [2005] EWCA Crim 1089, [2006] QB 60.
[29] R v Desjardins (No. 5) (1991), 274 APR 149 (NLSCTD).
[30] At [57].
[31] At [54].
[32] At [37], quoted at [44] above.
[33] Set out at [57] above.

[34] At [89] below.
[35] Regina v Latif [1996] 1 WLR 104 (HL) per Lord Steyn.
[36] At 112–113.

[37] Regina v Maxwell [2010] UKSC 48, [2011] 1 WLR 1837.
[38] At [28].
[39] At [96].
[40] Warren v Attorney-General for Jersey [2011] UKPC 10, [2012] 1 AC 22.
[41] At [36].
[42] At [75].

[43] See R v Bain HC Christchurch CRI-1994-012-217294, 2 March 2009 (decided post-Grant) and Commerce Commission v Fullers Cruises Northland Ltd (1999) 13 PRNZ 412 (HC) (a civil case).
[44] See R v Uljee [1982] 1 NZLR 561 (CA) at 572.
[45] At [34]–[37] above.
[46] Further evidence judgment, above n 2, at [15]–[34].
[47] At [36] above.
[48] At [12(c)].
[49] At [43(b)].
[50] At [43]–[45] and [82(a)–(c)] of the first stay judgment, quoted at [26] and [27] above.
[51] At [42(a)–(g)] of the further evidence judgment, quoted at [36] above.
[52] At [21]–[24] of the second stay judgment, quoted at [40] and [41] above.
[53] See, for example, Grant, above n 28, at [57].
[54] Second stay judgment, above n 2, at [23].

[55] R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [18].

[56] Du v District Court at Auckland [2005] NZHC 276; (2005) 22 CRNZ 505 (HC).

[57] That matter was the subject of a separate challenge by the appellant and was decided on appeal by this Court in T v R [2011] NZCA 2.
[58] R v MB HC Auckland CRI-2008-004-029112, 16 December 2010.
[59] T v R, above n 57.
[60] Interception warrant judgment, above n 3.
[61] At [58].
[62] At [59].
[63] At [49].
[64] At [102] above.
[65] At [37], quoted at [104] above.
[66] These provisions of the MDAA were repealed on 18 April 2012.
[67] The November and December warrant applications contained similar wording.
[68] See also s 15(1)(c) of the MDAA.

[69] See Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780 (CA) and R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [214] and [223].
[70] Interception warrant judgment at [48]–[50].

[71] Sentencing decision, above n 1.

[72] Beckham v R, above n 4.

[73] See R v Hadfield CA337/06, 14 December 2006 at [11] and [14].

[74] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

[75] Sentencing decision at [27].

[76] At [28] and [29].

[77] At [33].

[78] At [35].

[79] See Schuster v R [2011] NZCA 343 at [10] and [12] and Bennett v R [2012] NZCA 173 at [25].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2012/603.html