Zhang v Auckland Council [2016] NZCA 332 (5 September 2016)

Last Updated: 17 September 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA253/2016 [2016] NZCA 332
BETWEEN	JIANYING ZHANG AND WENZHI JIA Applicants
AND	AUCKLAND COUNCIL Respondent

Court:	Kós P, Mallon and Whata JJ
Counsel:	Applicants in person Z Johnston and N Fong for Respondent
Judgment: (On the papers)	5 September 2016 at 2 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

[1] The applicants face one charge each of contravening a district plan by exceeding density provisions.^[1] Ms Zhang is also charged with contravening abatement notices issued by Auckland Council.^[2] The Council relies on evidence obtained under a search warrant. The District Court and High Court both found this evidence admissible. The applicants seek leave to bring a second appeal against the admissibility ruling.

Background

[2] The Council was concerned about breaches of the District Plan at a property owned by Ms Zhang. Following a period of correspondence, the Council inspected the property on 3 October 2012. It then issued abatement notices on 20 February 2013. These required cessation of use of the property for multiple residential units, within three months. The notices asserted the property contained one residential unit in the upstairs area, two in the lower level, and an additional group of rooms being used as an acupuncture clinic.
[3] Ms Zhang indicated she would apply for a resource consent to have an additional dwelling on the property. The Council received no such application.
[4] Mr Fryer, a Council investigator, applied for a search warrant on 4 November 2013, referring to an alleged offence of breach of an abatement notice under s 338(1)(c) of the Resource Management Act 1991 (RMA). The warrant was issued the same day. It authorised Mr Fryer to enter any dwelling, shed, shelter, vehicle or office to search, seize or photograph tenancy agreements, receipts for rental payments, receipts for work carried out on the units, and other evidence demonstrating the use of the property as multiple residential units. The warrant referred to a suspected offence of breach of the District Plan, s 338(1)(a) of the RMA, but not the offence of breach of an abatement notice, s 338(1)(c).
[5] Two days later, Mr Fryer searched the property, accompanied by 11 other people: seven Council staff, two police officers, an interpreter and a locksmith. He seized documents and took photographs. Ms Zhang was present during the search.

District Court decision

[6] Judge Harland held the search warrant was valid and the search was carried out properly.^[3] She found:

• (a) The fact the Council had levied rates on the basis there were three dwellings on the property was not a prior agreement by the Council that the property complied with the District Plan.^[4]
• (b) The failure in the search warrant to refer to the offence of breach of an abatement notice was not significant. The alleged breach of the District Plan (s 338(1)(a)) would form the factual basis of the alleged breach of the abatement notices (s 338(1)(c)).^[5]
• (c) The search warrant was not overbroad in authorising search of “any dwelling”.^[6]
• (d) The application for search warrant contained adequate information to justify search of the acupuncture clinic as an “office”.^[7]
• (e) It was reasonable for Mr Fryer to bring 11 other people to assist in the search because he wanted to carry out the search quickly.^[8]
• (f) It was reasonable for Mr Fryer to read and take photographs of a tenant’s diary that referred to rent. The element of intrusion into the tenant’s privacy was minor.^[9]
• (g) It was reasonable for Mr Fryer to review documents held in the acupuncture clinic relating to clients. That search was only for documents relating to tenancies.^[10]

[7] As the search warrant was valid and was not executed unreasonably, the evidence obtained pursuant to it was admissible.

High Court decision

[8] On appeal, Davison J largely agreed with the District Court Judge.^[11] Materially, he found:

• (a) The search warrant application did not need to include the full history and background of discussions with Ms Zhang and Mr Jia,^[12] explain the delay in making the application (because the delay was simply a grace period to Ms Zhang and Mr Jia),^[13] or indicate Ms Zhang and Mr Jia had a history of cooperation with the Council (because they did not).^[14]
• (b) The reference to s 338(1)(a) in the search warrant, rather than s 338(1)(c), was a technical defect that could not have misled anyone affected by the warrant because those paragraphs in s 338 were effectively interchangeable in the circumstances of this case.^[15]
• (c) There was a proper basis for the issuing officer to issue the search warrant.^[16]
• (d) The level of intrusion in the search was not unreasonable, despite the search being of bedrooms, drawers and cupboards to which a high degree of privacy attaches.^[17]

[9] Justice Davison disagreed with the District Court Judge on one point. He held the deployment of 12 people to search the property was unreasonable because there was no urgency and Ms Zhang and Mr Jia had no history of violence or active obstruction.^[18] He considered the use of so many searchers was a moderately serious breach of the right to freedom from unreasonable search. But, considering s 30 of the Evidence Act 2006, the Judge held it would be a disproportionate response to exclude the evidence.^[19]
[10] The appeal was therefore dismissed.

Application for leave to bring second appeal

[11] A second appeal of a pre-trial admissibility ruling is exceptional. This Court must not give leave for such an appeal unless a matter of general or public importance is involved, or a miscarriage of justice may occur.^[20]
[12] There are nine proposed grounds of appeal. None meet this test.
[13] The first ground is the Courts below erred in finding there was no error or defect in the search warrant application. What that error or defect might be is not identified in the applicants’ submissions. The defects alleged in the High Court related to highly factual matters. They do not raise any matter of general or public importance. It is unlikely the alleged errors would have affected the issuing officer’s decision. So no miscarriage of justice is likely to have occurred either.
[14] The second and third grounds are the Courts below erred in finding the search warrant was not defective, in particular by finding that scope of s 338(1)(a) of the RMA is the same as the scope of s 338(1)(c). This raises a question of some general and public importance concerning the scope of s 107(1)(b) of the Search and Surveillance Act 2012:

107 When search warrant invalid

(1) A search warrant is invalid—

...

(b) if the warrant contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or affected by the warrant as to its purpose or scope.

There is no Court of Appeal or Supreme Court authority directly concerning this section, which has recently been introduced.^[21] Plainly though it echoes ss 205 of the Summary Proceedings Act 1957 and 379 of the Criminal Procedure Act 2011. This is not an appropriate case to provide further guidance on the interpretation of s 107(1)(b), however. It is not seriously arguable that the minor error in not referring to s 338(1)(c) of the RMA would have been likely to mislead anyone. For the same reason it is unlikely a miscarriage of justice will occur if leave is declined.

[15] The fourth ground is the Courts below erred by holding that the acupuncture clinic falls within the definition of “office” in the search warrant. Whether the clinic was an “office” requires a factual assessment, and is not a matter of general or public interest. A miscarriage of justice will not occur if leave is declined because the only evidence obtained from the acupuncture clinic was some photographs. Judge Harland found these had little probative value and no prejudicial effect.^[22]
[16] The fifth ground is the High Court failed to consider the privacy interests of the downstairs tenants and acupuncture patients in conducting the s 30 balancing exercise. It is apparent however that the High Court did consider this factor. Justice Davison said: “the impropriety came down to an error of judgement in failing to have sufficient regard to the sanctity of the home and the expectation of privacy.”^[23] At another point in his decision, he said the bedrooms that were searched have the highest expectation of privacy.^[24] It does not seem seriously arguable the Judge overlooked the importance of the relevant privacy interests. And no issue of general importance as to the approach to s 30 arises.
[17] The sixth ground is the Courts below erred in holding that the execution of the search warrant was properly conducted. However, the High Court found the search was not properly conducted — and that there had been a more than trivial breach of the right to freedom from unreasonable search.^[25] Accordingly this cannot operate as a ground of appeal.
[18] The seventh and eighth grounds of appeal are opaque:

The District Court and the High Court erred by failing to taken into consideration any evidences that [Mr Fryer] lodged a false accusation against us.

The High Court at Auckland erred by failing to taken into consideration any evidences that [Mr Fryer] did a lot actions of against laws and legislations.

[sic]

The suggestion Mr Fryer has made false accusations and acted unlawfully is not elaborated upon in written submissions. Nor was it raised in the Courts below. It is not appropriate to grant leave on that basis. The applicants may be seeking leave to argue the underlying charges have no legal or evidential basis. If so, that is an issue for trial.

[19] The final ground is the High Court erred “by holding a framed case as a based foundation to judge the situation.” This may be an attempt to argue the High Court should not have approached the case by reference to the District Court judgment. The applicants may well mean “biased” rather than “based”. Assuming that is what is intended, this is does not meet the test for granting leave. The function of the High Court on appeal from the District Court is well settled and does not require elaboration.^[26]
[20] The applicants also raise two further matters in their written submissions.
[21] They submit the High Court erred in only referring to one of the three charges they are facing. It is clear, however, the High Court Judge was cognisant there were several charges.^[27] The precise number of charges did not have any material impact on the resolution of issues in the Courts below.
[22] The applicants also submit the Courts below did not touch on the issue of how they could be charged rates by the Council for three dwellings when the third dwelling is not permitted. But the District Court clearly dealt with this issue. It found the charging of rates on the basis there were three dwellings did not mean the property complied with the District Plan.^[28] This issue apparently was not raised before the High Court. It is not an issue of public importance justifying the grant of leave.

Conclusion

[23] None of the proposed grounds of appeal raises an issue of general or public importance. The applicants have not shown that a miscarriage of justice may occur if leave is declined.

Result

[24] The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Resource Management Act 1991, s 338(1)(a).

^[2] Section 338(1)(c).

^[3] Auckland Council v Zhang [2015] NZDC 20392 [District Court judgment].

^[4] At [35].

^[5] At [46].

^[6] At [57].

^[7] At [63].

^[8] At [71].

^[9] At [94].

^[10] At [96].

^[11] Zhang v Auckland Council [2016] NZHC 962 [High Court judgment].

^[12] At [99].

^[13] At [101].

^[14] At [103].

^[15] At [110].

^[16] At [96].

^[17] At [121]–[123].

^[18] At [125].

^[19] At [132]–[137].

^[20] Criminal Procedure Act 2011, s 223.

^[21] Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [SS107.02(2)].

^[22] District Court judgment, above n 3, at [98].

^[23] High Court judgment, above n 11, at [133].

^[24] At [121].

^[25] At [130].

^[26] Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5].

^[27] High Court judgment, above n 11, at [36] and [134].

^[28] District Court judgment, above n 3, at [35].