Commissioner of Police v Marwood [2014] NZHC 1866 (8 August 2014)

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IN THE MATTER	of an application pursuant to ss 52, 55 and 58 of the Criminal Proceeds (Recovery) Act 2009
BETWEEN	THE COMMISSIONER OF POLICE Applicant
AND	KARL LESLIE RAYMOND MARWOOD First Respondent ERANA KING Second Respondent THE PERRIN TRUST Third Respondent ANZ BANK _{Fourth Respondent}

Hearing:	3 June 2014
Appearances:	C H Macklin for Applicant M Ryan for First Respondent A G Speed for Second Respondent No appearance for Third and Fourth Respondents
_Judgment:	_{8 August 2014}

[1] This case raises an important question under the Criminal Proceeds (Recovery) Act 2009 (the Act). The question presented is whether evidence that has been excluded by a Court exercising criminal jurisdiction, because the evidence was improperly obtained by the police and exclusion is proportionate to the impropriety, can nevertheless be adduced by the Commissioner of Police for the purposes of an application for civil forfeiture orders under the Act. I am told that issue has not previously been the subject of decision.

[2] The Commissioner has applied for profit forfeiture orders citing variously ss 43, 44, 52, 55 and 58 of the Act. He wishes to support his application by reference to evidence of significant criminal activity that was obtained by the police when they executed a search warrant at a residential address in Taupo. In accordance with s 52(3), the application alleges that the first, second and third respondents have benefitted by $334,130 from the criminal activity. The application seeks orders that the residence occupied by the first and second respondents (owned by the third respondent) be specified for disposal, together with two motor cars and money in two bank accounts.

[3] The first and second respondents argue that the evidence obtained as a consequence of the search should be excluded for the purposes of the application under the Act just as it was in the criminal case.

[4] The Commissioner’s application was originally set down for hearing on 3 and

4 June. However, it was not able to be dealt with because counsel for the respondents had not received the papers. Following a telephone conference with counsel it was agreed to utilise the time available for the purposes of hearing argument about the admissibility of the evidence as a preliminary issue. The parties have co-operated to ensure that can be done and each has agreed that the issue should be determined prior to the hearing of the substantive application.

[5] To facilitate that process the parties have reached agreement on admissions pursuant to s 9 of the Evidence Act 2006 and the hearing has proceeded on the basis of the facts so agreed (the admissions).

[6] The disputed evidence was obtained after the police executed a search warrant at a residential address in Taupo. A Judge in the District Court subsequently held that the search warrant had been invalidly issued by a Justice of the Peace because of deficiencies in the application for the warrant.¹

[7] The unusual background to the police application for the search warrant was set out in the admissions as follows:

1. On 30 June 2010 Detective Humphries of the Taupo Police swore an affidavit in support of an application for a search warrant. In the affidavit, Detective HUMPHRIES stated:

a. On 23 June (2010), Mr Rex KIRBY received a phone call on the landline at his home address;

c. Mr KIRBY replied, “Yes” because he thought the caller was from the Police;

d. The caller said, “For your information I can’t tell you who I am, at 12A Laughton Street, Karl has marijuana plants growing in the back of his property”;

e. The caller hung up and this is when Mr KIRBY realised the caller had been asking if he was the Police and mistakenly left the information with him;

g. Detective HUMPHRIES completed checks on the Police computer database. These revealed that Karl Leslie Raymond MARWOOD, was listed as living at 12A Laughton Street; and

h. Checks also confirmed that Mr MARWOOD had convictions for cultivating cannabis and possession of cannabis for sale.

2. Detective HUMPHRIES concluded that all of the above made it likely that, as well as the cannabis plants growing in his yard, Mr MARWOOD was likely to have some cannabis product and/or utensils, for the consumption of cannabis within his house.

3. On this basis Detective HUMPHRIES applied for and was granted a search warrant pursuant to s 198 of the Summary Proceedings Act

4. In addition to the material used in the application for the Search Warrant, Detective HUMPHRIES was aware that Mr KIRBY had a landline telephone number that was similar to the landline number of the Taupo Police Station. It is impossible to be sure, but the person who called Mr KIRBY may have dialled his number by mistake.

[8] In summary, it appears that an unidentified person had telephoned Mr Kirby believing that he had rung and was speaking to the police. Mr Kirby thought the caller was from the police and so he listened. The caller then gave Mr Kirby the information about Mr Marwood growing marijuana plants, information that Mr Kirby passed on to the police. That information formed the basis for the application for the search warrant.

[9] The police executed the search warrant on 6 July 2010. The admissions state relevantly:

6. The Police search was conducted in the usual way, the first and second respondents were present throughout and no particular issues were raised with Police at the time.

7. The search located a number of items that the Police alleged related to cultivation, processing and sale of cannabis. It also appeared to Police that steps had been taken to steal electricity by by-passing power meters.

8. Following 6 July 2010 search the first respondent was arrested and both the first and second respondents were interviewed at the Taupo Police Station. Both made admissions in relation [to] the cannabis cultivation and its commercial scale. Only the first respondent ultimately faced criminal prosecution, for cultivation of cannabis, possession of cannabis for sale, and theft of electricity (CRI-2010-

[10] It is reasonable to conclude that the police would not have been in a position to lead any of the disputed evidence were it not for the search of the property.

[11] After commencement of the prosecution the first respondent challenged the search warrant. The issue raised was as to the sufficiency of the grounds advanced by the police when applying for the warrant. In response, the Crown applied under s 344A of the Crimes Act 1961 for an order that evidence of what was located in

[12] In a judgment delivered on 14 April 2011, the Judge summarised the objections to the search warrants as follows:²

... in terms of the application of the law to this particular search warrant, it is submitted, not sufficient grounds placed before the issuing officer to justify the reasonable belief required by the legislation. The search warrant contained rumour at best, it must have caused suspicion. The information passed on to the police was a conclusory statement which was anonymous, and not sufficient even for a warrantless search under s 18(2) Misuse of Drugs Act, and even less, for a search warrant based on the actual information. So therefore, the search warrant should be held to be invalid.

[13] Having concluded that the search warrant was invalid, the Judge considered whether in accordance with s 30(2) of the Evidence Act the evidence was “improperly obtained” and whether or not the exclusion of the evidence would be proportionate to the impropriety.

[14] The Judge concluded that the evidence was improperly obtained. She noted that the right breached was important and although the police had not acted in bad faith, they had been guilty of “sloppy” police work because of the inadequacies in the application for the warrant. The evidence produced was of high evidential value and important to the prosecution case, and the offending charged was serious, although not the most serious of its kind. She concluded that the appropriate remedy

[15] The Crown did not seek leave to appeal. As a result of the Judge’s ruling

there was insufficient evidence for the Crown to proceed to trial and on 26 May 2011

[16] For present purposes the Commissioner does not seek to argue that the Judge’s conclusions in the criminal proceeding were incorrect. That was clearly the appropriate stance to adopt, because the application for the search warrant was

_{patently inadequate: it was based on anonymous hearsay, and there
could be no}

assessment by the issuing officer of the reliability of the information.⁴The present application therefore proceeds on the basis that the evidence now sought to be relied on was improperly obtained because of the inadequacy of the application for the search warrant. Entry on to the property occupied by the first and second respondents was unlawful, and execution of the warrant there constituted an unreasonable search in terms of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).

[17] The discharge of Mr Marwood under s 347, of course, is not a bar to an application proceeding under the Act because “the significant criminal activity” from which a respondent has allegedly benefited need not be, or to have ever been, the subject of any criminal proceedings in New Zealand.⁵Further, where significant criminal activity is, or has been, the subject of criminal proceedings that have been withdrawn or determined, an application for a profit forfeiture order is not affected by the criminal proceedings, even if a conviction entered in those proceedings is, or has been, quashed or set aside.⁶

[18] It was common ground that s 30 of the Evidence Act, which was the provision under which the Judge acted to exclude the disputed evidence in the District Court, is not available in the present context. That is so because under the terms of s 30(1) the section applies only to “a criminal proceeding” in which a defendant has raised an issue as to whether evidence was improperly obtained. Applications for assets and profit forfeiture orders are expressly said to be civil

[19] Mr Macklin, in his written submissions for the Crown, submitted that by restricting s 30 of the Evidence Act to criminal proceedings, Parliament intended not to allow the remedy of exclusion to be applied in civil forfeiture proceedings. However, in the end, as I understood him, he accepted that the Court would have

_{inherent power to exclude the evidence. That was an important
concession because}

it removed from contention some issues that might otherwise have arisen having regard to the terms of s 7(1) of the Evidence Act, which provides as follows:

(1) All relevant evidence is admissible in a proceeding except evidence that is —

[20] I record Mr Macklin accepted that there could be two separate bases upon which the Court might exclude the disputed evidence. They were first in accordance with the Court of Appeal decision in Fan v R⁸or, alternatively, by application of the Bill of Rights Act, excluding the evidence as a remedy for a breach of the s 21 guarantee against unreasonable search and seizure:

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

[21] Although these points have been conceded their importance means that I should explain why I agree that exclusion of evidence could be an available response in an application under the Act in cases where the police have exceeded their powers in the course of obtaining relevant evidence.

[22] In Fan v R, the Court of Appeal confirmed by reference to previous decisions of that Court that a court’s general discretion to exclude evidence on fairness grounds had survived enactment of s 30 of the Evidence Act.⁹The facts before the Court in Fan made it necessary to consider whether the enactment of s 30 meant that it could no longer be argued that it would be unfair to admit evidence as distinct from arguing that it had been unfairly obtained. Having considered relevant provisions of the Evidence Act, the Court held:¹⁰

It would be inconsistent with the common law and the purpose of the Evidence Act which is to promote fairness to parties, to construe s 30 as excluding the common law discretion. The continued existence of the

⁹The decision has been the subject of criticism in academic writing (see Don Mathieson “Fair Criminal Trial and the Exclusion of ‘Unfair Evidence’” (2013) 25 NZULR 739) but it is, of course, binding on this Court.

common law discretion is consistent with the purpose of promoting fairness in s 6(c) to parties, and the Court must have regard to that purpose under s 11(2). The exclusion of evidence on unfairness grounds can be seen as dealt with only “in part” (in terms of s 12) by s 30, so that decisions on the admission of evidence can still involve a consideration of what is fair to the parties, that is, irrespective of the provisions of s 30. We conclude that the common law discretion survives the Evidence Act, although s 30 governs those cases to which the section applies.

[23] Not all of that reasoning is directly relevant here, where there is no doubt that the evidence was improperly obtained. The problem in this kind of case is that s 30, with its reference to improperly obtained evidence, does not apply because the application for forfeiture orders is not a criminal proceeding. However, the decision in Fan shows that the Court may supplement the Evidence Act’s exclusionary provisions, in an appropriate case, so as to do justice in cases not directly provided for by the Evidence Act.

[24] The position adopted in respect of evidence obtained in breach of the Bill of Rights Act prior to the decision of the Court of Appeal in R v Shaheed was summarised in the judgment of Elias CJ in that case:¹¹

Since the New Zealand Bill of Rights Act was enacted, New Zealand case law has steered a middle course between the common law preference for admission and the approach of automatic exclusion adopted in protection of Fourth Amendment Rights in the United States (Weeks v United States 232

US 383 (1914)). Evidence obtained in breach of the Bill of Rights Act has been treated as presumptively inadmissible unless good cause is shown for its admission. In R v Goodwin [1993] 2 NZLR 153 the Court was urged to reconsider the presumption of exclusion and to replace it with a general balancing of interests test for exclusion. The invitation was rejected by the Court (at pp 170 – 171 per Cooke P; at pp 191 and 194 per Richardson J; at p 198 per Casey J; at p 202 per Hardie Boys J; and at pp 206 – 207 per Gault J).

[25] The consequence of the decision in Shaheed, however, was to replace the previous approach with a balancing test designed to determine whether the exclusion of evidence was an appropriate and proportionate response to the breach of right.¹²

It was that approach which was subsequently given legislative expression in the drafting of s 30 of the Evidence Act. But where, as here, s 30 does not apply, it is

[26] Even though the proceeding is civil in nature, it is clear that a serious issue arises where the Commissioner seeks to rely on improperly obtained evidence for the purpose of an application for forfeiture orders. To suggest that because such an application is a civil proceeding, the evidence must be admitted because it is relevant, would be to make the Bill of Rights Act irrelevant. I am satisfied that would not only be inappropriate but also wrong in law. I say that for a number of reasons.

[27] I start with the Bill of Rights Act itself. It is clearly of fundamental importance in New Zealand’s legal system. That importance is demonstrated by s 5 of the Act, which provides that the rights and freedoms contained in the Bill of Rights Act may be subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is also demonstrated by the legislative preference for statutory interpretation consistent with the Bill of Rights Act which is clearly stated in s 6 of the Act.

[28] The importance of the Bill of Rights Act is also reflected in the fact that the courts have developed a range of remedies for its breach, the exclusion of improperly obtained evidence among them.¹³This also explains why s 30(3)(a) of the Evidence Act specifically refers to “the importance of any right breached” and the “seriousness of the intrusion on it”.

[29] It would be odd in this context if the combination of ss 7 and 30 of the Evidence Act were held to have the result that evidence obtained in breach of s 21 of the Bill of Rights Act is admissible in a civil forfeiture proceeding, subject only to a relevance test. In my view, the drafting of s 7 of the Evidence Act does not indicate that it was intended to oust any relevant provisions of the Bill of Rights Act in the civil forfeiture context. In the absence of clear words, I consider the interpretative direction given by Parliament in s 6 of the Bill of Rights Act can and should be applied to overcome any such suggestion.

[30] The contrary conclusion would also be inconsistent with s 6 of the Evidence Act, where Parliament described the purpose of the Act as providing for, amongst other things, rules of evidence that “recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990”. Nor would it be consistent with the obligation in s 10(1)(a) of the Evidence Act to interpret the Act in a way that promotes that purpose.

[31] I note also that s 12 of the Evidence Act deals with cases for which there is “no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part...”. In such cases, decisions about the admission of evidence must be made having regard to both the Act’s purpose, and the statutory principles set out in ss 6, 7 and 8. Regard must also be had to the common law to the extent that it is consistent with the promotion of that purpose. Confirming the existence of a discretion to exclude evidence that has been obtained in breach of the Bill of Rights Act in a case such as the present would be in accordance with s 12 on the basis that s 30 has dealt with the admission of improperly obtained evidence only in part, its provisions being limited to cases arising in the Court’s criminal jurisdiction. A decision that has regard to the purpose of recognising the importance of the rights affirmed by the Bill of Rights Act would be consistent with s 12.

[32] It would also be consistent with s 7 of the Evidence Act because, if the jurisdiction to exclude relevant evidence were exercised, the exclusion would occur as a remedy granted to vindicate the right affirmed in s 21 of the Bill of Rights Act. The evidence would in that case be excluded “under” the Bill of Rights Act. Since s 7(1)(b) of the Evidence Act contemplates the exclusion of evidence “under this Act or any other Act”, that would be an outcome apparently contemplated by s 7(1)(b) and consequently no inconsistency with that section would arise.

[33] I observe in passing that although counsel referred to s 8 of the Evidence Act, it is not in fact of any assistance in the circumstances of this case. Essentially, that is because the evidence is highly probative and a conclusion that it would have an “unfairly prejudicial effect on the proceeding” could not be justified. Any unfairness

here arises from the manner in which the evidence was obtained and not on any notionally unfair effect it might have on the proceeding.¹⁴

[34] For these reasons, I do not consider that the wording of ss 7 and 30 of the Evidence Act evinced a legislative intention to make evidence obtained in breach of the Bill of Rights Act admissible in proceedings for forfeiture subject only to a relevance test. Consequently, Mr Macklin’s concession about jurisdiction was properly and responsibly made.

[35] Mr Macklin submitted that it would be inappropriate to exclude the evidence in this case. His arguments implied that it would be wrong to do so in any case under the Act where the result of a search of property uncovered evidence of offending falling within the ambit of the term “significant criminal activity” defined in s 6 of that Act. Essentially that was because of the strong public interest that exists in ensuring that the purposes of the Act are able to be achieved.

[36] Section 3(1) of the Act states that its primary purpose is establishing a regime for the forfeiture of property that is derived from significant criminal activity, or that represents the value of a person’s unlawfully derived income. Section 3(2) then provides:

(2) The criminal proceeds and instruments forfeiture regime established under this Act proposes to—

(a) eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and

(c) reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and

(d) deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.

[37] Section 6 defines the expression “significant criminal activity” in terms that catch conduct which, if proceeded against as a criminal offence, would be punishable by a term of five years or more, or from which property, proceeds or benefits of a value of $30,000 or more have been acquired or derived.

[38] Mr Macklin submitted that admission of the disputed evidence would be consistent with the interests of justice, and the purpose and scheme of both the Criminal Proceeds (Recovery) Act and the Evidence Act. As to the former, the forfeiture application does not seek to punish; it is civil in nature and seeks only to return the respondents to the position they would have been in had they not engaged in significant criminal activity. The purpose of the legislation is to establish a robust process for the recovery of ill-gotten gains. The civil standard of proof that has to be met is an explicit departure from the previous legislative regime. The exclusion of the disputed evidence would be inappropriate in the new statutory setting, in which the Commissioner of Police has been empowered to make an application to the Court in its civil jurisdiction and is properly to be compared with any ordinary civil litigant.

[39] Mr Macklin relied in particular on Solicitor-General v Cheng¹⁵in which the Court had to consider the admissibility of evidence seized by the police, in the context of an application under the Proceeds of Crime Act 1991. Mr Cheng had absconded while awaiting trial on charges that he had sold methamphetamine. For the purposes of the application under the 1991 Act it was necessary for the Solicitor- General to establish guilt of a relevant offence according to the criminal standard of beyond reasonable doubt.

[40] Counsel for Mr Cheng submitted that the Court should exclude all evidence obtained in three separate searches. Harrison J found that one search, although lawful, nevertheless resulted in the unlawful and unreasonable seizure of the defendant’s car keys. The two searches that followed it were “tainted” by that unlawfulness. The Judge addressed the issue of whether or not the evidence should nevertheless be admitted under s 30 of the Evidence Act, and found that its exclusion

[41] In one respect of course that case is different from the present where the evidence has already been ruled inadmissible in the context of the criminal proceeding. However, Mr Macklin referred to observations made by Harrison J in the course of discussing the issue of proportionality in which he questioned whether in enacting the Bill of Rights Act Parliament would have intended to protect the property rights of persons whose assets were plainly acquired from the proceeds of

...where the result of a forfeiture order would simply return him to the financial position he would have occupied but for his criminality without exposure to the appropriate sanction of imprisonment. I acknowledge the Court of Appeal’s declaration in Williams at [63] that ‘privacy interests in premises should be assessed objectively without any concentration on property rights ...’. I do not, of course, question the absolute application of that principle when speaking of personal rights and freedoms. But I question its relevance to seizure of an item or chattel, even if unlawful, which leads down the path to discovery of property which represents the profits of methamphetamine dealing. This is not a call for expediency; nor does it suggest that an end should justify the means. It simply recognises that the value given to Mr Cheng’s notional property right in this retrospective balancing analysis is permeated with artificiality.

[42] Mr Macklin submitted that the concerns expressed by the Court in that case would arguably be more significant in the present one because the first respondent has permanently escaped criminal sanction as a result of his discharge under s 347 of the Crimes Act. He submitted that to allow him also to escape from liability under the Act would be an affront to commonsense and justice.

[43] Mr Macklin also referred to observations made by Harrison J that Mr Cheng had other potential remedies, including taking civil action against the police for the tort of conversion. In those circumstances the Court did not need to provide a remedy of excluding evidence obtained in breach of the Bill of Rights Act. Mr Macklin submitted that in the present case Mr Marwood had already achieved the remedy for breach of his rights and no further remedy should be required. He should not be left in a position of benefitting from significant criminal activity even if the

criminal proceedings against him had been unsuccessful due to the exclusion of evidence. Equally, if the Commissioner was successful in his forfeiture application, Mr Marwood would simply be returned to the financial position he would have been in had he not been engaged in significant criminal activity.

[44] I consider there are a number of difficulties with Mr Macklin’s argument. First, I do not consider that the Commissioner of Police is to be compared with an ordinary civil litigant. Under s 7(1) of the Policing Act 2008 the New Zealand Police is an instrument of the Crown. The Commissioner of Police is a person appointed by the Governor-General on the recommendation of the Prime Minister to act in that role. During the five year appointment for which the Commissioner is appointed, that person continues to hold the office of constable. He or she is responsible to the Minister of Police for carrying out the functions and duties of the police, the general conduct of the police and the effective, efficient and economical

applications such as the present under the Criminal Proceeds (Recovery) Act. Clearly, the Commissioner makes such application as the head of a body which is an instrument of the Crown.

[45] That is an important consideration and to my mind it is of relevance to the issue of whether improperly obtained evidence should be admitted. In essence, the Commissioner would be seeking to rely on evidence obtained as the result of the unlawful acts of members of the New Zealand Police and it would not be appropriate to ignore that fact merely because the present application is civil in nature.

[46] The fact that the police are an instrument of the Crown has a further implication for the suggestion made in argument that there might be a remedy in the law of trespass which would provide appropriate relief to persons in the position of the first and second respondents. I doubt that is the case, because of s 6(5) of the Crown Proceedings Act 1950. Section 6(5) provides that:

No proceeding shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or

purporting to discharge ... any responsibilities which he or she has in connection with the execution of judicial process.

[47] As the Commissioner is the responsible head of an organisation which is said to be “an instrument of the Crown”, I consider it probable that s 6(5) would stand in the way of a proceeding that sought to create vicarious liability in tort for the Commissioner, or some other defendant sued as the representative of the Crown, in respect of the unlawful entry to property in purported execution of the search

warrant. ¹⁸Further, s 44(1) of the Policing Act would preclude an action in trespass

against the individual police constables involved in the execution of the warrant.¹⁹

[48] In Solicitor-General v Cheng Harrison J considered that the defendant might have an available remedy in tort for the unlawful actions of the police in that case.²⁰

However, I have reached a different conclusion on the facts of this case. Harrison J’s remarks quoted above must also be seen in the context that the key transgression that affected the lawfulness of the police actions in that case was the seizure of the defendant’s car keys. That seizure enabled the police to locate the motor vehicle, and “tainted and invalidated” the subsequent searches in which incriminating evidence was found. The contrast between that case and the present, where the police unlawfully entered a dwelling, is marked. Harrison J himself drew a distinction between personal rights and freedoms and the “seizure of an item or

chattel” .²¹He also noted that an unlawful or an unreasonable seizure following a

[49] Although s 30 of the Evidence Act does not apply in the present circumstances, I consider that it exemplifies the approach that should be taken. Assuming as in this case that the evidence was improperly obtained it then becomes necessary to assess whether exclusion of the evidence would be a proportionate

_{response. That will involve “a balancing process that gives
appropriate weight to the}

¹⁹Section 44(1) provides that a police employee acting under a court process is not responsible for any irregularity, or any lack of jurisdiction in its issuing. Sections 26(3) and 27 of the Crimes Act would be a further bar to any claim.

impropriety and also takes proper account of the need for an effective and credible system of justice”.²³For that purpose, the considerations set out in s 30(3) can be applied in a civil forfeiture case by analogy.

[50] In this case, the right breached is of great importance and there was a serious intrusion on it. Although the police did not act in bad faith, and sought and obtained a search warrant, the application was very seriously deficient. The fact that this is a civil forfeiture proceeding does not diminish the importance of the right affirmed by s 21 of the Bill of Rights Act. These considerations in my view point strongly to the exclusion of the disputed evidence.

[51] A countervailing consideration is the nature and quality of the disputed evidence. It is clear that as a result of the search the police obtained evidence of a substantial cannabis growing operation. The evidence was tangible and strong. This point favours admission of the evidence.

[52] It is not relevant in this kind of case to consider “the seriousness of the offence with which the defendant is charged”, the matter referred to in s 30(3)(d). As that consideration has generally been applied, it has been treated as something which should tend in favour of the admission of unlawfully obtained evidence rather than something that should lead to its exclusion. That reflects the fact that in R v Shaheed it was said that:²⁴

If, however, the crime was very serious, particularly if public safety is a concern, that factor coupled with the importance of the evidence in question may outweigh even a substantial breach. It may require the view to be taken that exclusion of the evidence, leading to failure of the Crown case, is a remedy out of proportion to the circumstances of the breach.

[53] Where the application is made under the Act there is no “charge” to be considered. On the other hand, it must be relevant to take into account the fact that the evidence in question would tend to establish that there had been “significant criminal activity” as contemplated by s 6 of the Act. In this case the disputed evidence would clearly establish that, and taking that into account would recognise

_{the importance of the purpose of the Act. However, it is difficult to
see why that fact}

should lead to a different outcome than that which flowed from the application of s 30(3)(d) in the context of the criminal prosecution. The relevant considerations are essentially similar and relate to the desirability of taking effective action to punish wrongdoing in the case of a prosecution, and to prevent the making of profits from criminal conduct in the present context.

[54] As to the availability of other investigatory techniques, it seems that the police simply acted to obtain the warrant without attempting to investigate further. I doubt that was their only alternative.

[55] Section 30(3)(f) of the Evidence Act asks whether there are “alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant”. I have already referred to difficulties that would lie in the way of any attempt to sue the police by virtue of s 6(5) of the Crown Proceedings Act and s 44 of the Policing Act. That would not however prevent a claim being advanced for damages for breach of the Bill of Rights Act.

[56] However, to suggest that the evidence should be admitted while holding that nevertheless the respondents might be compensated by an award of damages under the Bill of Rights Act would in my view be inherently problematic. In part that is so because there is no suggestion that the manner of the execution of the search warrant was at all unreasonable. The breach of right was simply the fact of the unlawful entry onto the respondent’s property. In these circumstances any award of damages would likely not be significant, and would inevitably undervalue the importance of the right breached.

[57] Secondly, and perhaps more significantly, to supplant the remedy of exclusion by an award of damages would apparently be contrary to what was said by Blanchard J in Taunoa v Attorney-General:²⁵

It may be entirely unnecessary or inappropriate to award damages if the breach is relatively quite minor or the right is of a kind which is appropriately vindicated by non-monetary means, such as through the exclusion of improperly obtained evidence at a criminal trial.

[58] While that passage refers to the exclusion of evidence in a criminal trial, it is not clear from the context that Blanchard J intended his observations to be limited to that context. Further, it should be noted that Blanchard J also said:²⁶

When, therefore, a Court concludes that the plaintiff’s right as guaranteed by the Bill of Rights Act has been infringed and turns to the question of remedy, it must begin by considering the non-monetary relief which should be given, and having done so it should ask whether that is enough to redress the breach and the consequent injury to the rights of the plaintiff in the particular circumstances, taking into account any non-Bill of Rights Act damages which are concurrently being awarded to the plaintiff. It is only if the Court concludes that just satisfaction is not thereby being achieved that it should consider an award of Bill of Rights Act damages.

[59] I see no reason why that approach should not be adopted in the context of an application such as the present. It means that the question of whether exclusion is appropriate should be addressed first and only if that would be an insufficient response should an award of Bill of Rights Act damages be contemplated.

[60] In the end, I have not been persuaded that any different outcome is appropriate in the context of the present application than was appropriate when, as Mr Macklin concedes, the evidence was properly excluded in the District Court criminal proceeding.

[61] I add that I have found unattractive the suggestion made by Mr Macklin that because the remedy of exclusion had been applied in the criminal proceeding, the right had been sufficiently vindicated. Such an approach seems to me wrong in principle. I consider it more appropriate to focus on the fact that there was a breach of rights. The fact that it is once vindicated should not have the consequence that the breach is able to be set on one side for subsequent purposes. In my view, that would diminish the importance of the right. It would also be contrary to the rule in s 6 of the Interpretation Act 1999 that enactments apply to circumstances as they arise. Section 21 of the Bill of Rights Act should not cease to have effect merely because it has been applied in one relevant context when the same facts are relied on for a second time.

[62] I consider that to allow the evidence to be relied on for the purposes of the Commissioner’s application for forfeiture orders when it has already been excluded for good reason in the criminal proceeding would not take proper account of the need for an effective and credible system of justice.²⁷

[63] For the reasons I have given, I have concluded that the breach of rights in this case was sufficiently serious for exclusion of the evidence to be the proportionate response. I rule that the disputed evidence may not be relied on for the purposes of the Commissioner’s application under the Criminal Proceeds (Recovery) Act 2009.

[64] If there is any issue as to costs that cannot be resolved by agreement between counsel, I will receive memoranda, from the respondents within ten working days and from the applicant within a further five days of receipt of the respondents’ memoranda.

High Court of New Zealand Decisions

Commissioner of Police v Marwood [2014] NZHC 1866 (8 August 2014)