Bielawski v Police [2014] NZHC 2653 (29 October 2014)

Last Updated: 18 August 2017

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000086 [2014] NZHC 2653

GLENN STEPHEN BIELAWSKI

v

_{NEW ZEALAND POLICE}

Hearing:	14 October 2014
Appearances:	A J Bailey for Appellant S J Jamieson for Crown
Judgment:	29 October 2014

_{RESERVED JUDGMENT OF DUNNINGHAM J}

[1] This is an appeal against a pre-trial ruling of Judge Kellar made in the District Court on 18 August 2014, determining that evidence obtained following execution of two search warrants was admissible.

[2] While Mr Bielawski requires leave from this Court to appeal the decision,¹ the respondent does not oppose leave being granted. I also consider it appropriate to grant leave because the evidence admitted by the ruling is pivotal to the further charges against Mr Bielawski proceeding. It would be unfair and inefficient to leave the determination of this issue to a substantive appeal against conviction. Leave is

_{therefore granted.}

¹ _{Criminal Procedure Act 2011, s 215.}

BIELAWSKI v NEW ZEALAND POLICE [2014] NZHC 2653 [29 October 2014]

Background

[3] The District Court’s decision relates to two search warrants which were sought on 11 February 2014 and executed on 18 February 2014. One warrant was issued in respect of Mr Bielawski’s home address at 2 Middlepark Road, Christchurch, and the other in respect of a Holden Commodore car registered to his partner.

[4] The search warrants were issued to obtain evidence in relation to a possible charge of obtaining/causing loss by deception, because it was believed the tyres and mag wheels on the Holden car had been obtained by Mr Bielawski giving a false name and false order number to staff at Tyreland, saying they should be invoiced to Fulton Hogan.

[5] Because Tyreland had communicated with the person ordering the tyres and mag wheels by a cell phone number, the two search warrants obtained authorised police to search Mr Bielawski’s residence for “cell phones, SIM cards and all related cell phone electronic records”, as well as for the mag wheels and tyres.

[6] When conducting the search of Mr Bielawski’s residence, the police located counterfeit bank notes, a shotgun and shotgun shells. Discovery of those items led police to charge Mr Bielawski with obtaining by deception, possessing forged bank notes, dishonestly using a document (x 2), possession of a firearm except for lawful purpose and possession of explosives except for lawful purpose.

Grounds of appeal

[7] The basis for Mr Bielawski saying the evidence obtained is inadmissible is as follows:

(a) there was a significant delay between the dates in August when the cell phone number had been used in the course of communications with Tyreland (1-2 August 2013) and then discontinued on

21 August 2013, and the date on which the warrant was sought in

February 2014;

(b) there was a lack of information in the application to support the suggestion that locating the listed items would assist the police evidentially.

[8] Accordingly, Mr Bielawski’s counsel argued that there were not reasonable grounds to suspect that the cell phone and/or SIM card attributable to the cell phone number used were likely to be found at Mr Bielawski’s address almost six months after the number was disconnected, or that the items would be of evidential value, and so the requirements of s 6 of the Search and Surveillance Act 2012 (the Act) was not made out.

[9] The police support the District Court’s decision that the evidence was properly obtained but says, even if improperly obtained, the evidence would be admissible under s 30 of the Evidence Act 2006 because exclusion would not be proportionate to any impropriety.

The District Court Judge’s decision

[10] Judge Kellar’s decision sets out, in detail, the relevant chronology of events and the legal requirements for the issuing of a search warrant under s 6 of the Act, and the provisions of s 107 of the Act which sets out when warrants are invalid.

[11] He then addresses the question of whether delay in applying for the search warrant invalidated it. He discusses a range of cases where there had been a delay in applying for a warrant after receipt of information which is relied on for the application for the search warrant, and observes that delays which were reasonably explained, (for example, in Stevens v R),² or where, as a matter of common sense, the

delay is of no consequence,³ can be acceptable, even when the delay extends to

several months.

[12] He then applies those principles to the present case where the appellant says the police knew by 30 September 2013 that the mobile phone number used by the

_{person who ordered the wheels and tyres had been disconnected, and by}

² _{Stevens v R [2013] NZCA 32.}

³ Outram v R [2010] NZCA 554.

4 December 2013, the police received advice from Vodafone that the date of disconnection was in August 2013. The police therefore could not reasonably have considered that the mobile phone, or more importantly, the SIM card for the phone, which was the relevant connection to the cell phone number, would be found on the property where Mr Bielawski lived.

[13] The Judge however focused his discussion on whether there had been “police

inertia” during that time. He notes that in the period from 30 September to

28 November 2013, the police were gathering information linking Mr Bielawski to the cell phone number of the person who had undertaken a transaction with Tyreland. They were also gathering information in relation to where he lived, his connections to Tyreland and Fulton Hogan, his partner’s ownership of the Holden Commodore car and locating the car itself. In the second period of alleged delay, from 4

December 2013 to 18 February 2014, he outlines the commitments of the officer in charge and concludes that “there is nothing to suggest bad faith on the part of the police. Nor did the delay prejudice the defendant”.

[14] While the Judge acknowledged that the warrant applications did not explain the delay in the receipt of the information from Vodafone and the application for the warrant, it does provide information about the most recent inquiry as to whether the car was still at the property and still had tyres and mags on. The Judge observed that “while it would have been good practice to explicitly address the issue of delay, the proximity of the last inquiry (on 10 February 2014) to the application means that rather than a material defect, it was a minor oversight”.

[15] The Judge then went on to discuss whether there would be a reasonable belief that the search would find evidential material in respect of the offence, noting the submission that “there was nothing to suggest that he would still have the SIM card or how many ‘mobile phones’ would have evidential value”. The Judge concluded that “the description of the evidential material obtainable which was contained in the search applications was specific and not misleading and based on information police had uncovered during the course of the investigation”. He therefore concluded that there were reasonable grounds for the issuing officer to believe that this search would find evidential material in the house with respect to the deception.

[16] As a consequence he held the search warrants were lawful, and even if they were not, he would have considered the evidence admissible under s 30 of the Evidence Act 2006 because exclusion would not have been proportionate to any impropriety.

The appellant’s submissions

[17] The appellant criticises the District Court Judge’s conclusions, pointing out that the appellant’s arguments were not based on issues of bad faith, but whether, given the delay, police could still reasonably assert that it was likely that evidence would be found of a SIM card, or a cell phone containing a SIM card, for a cell phone number which had been discontinued nearly six months prior to the search. Mr Bailey says the District Court has simply not addressed that point.

[18] He also points out that the Judge does not explain why wording the search warrant broadly enough to locate multiple cell phones or SIM cards, would evidentially assist the police on the deception charge.

[19] The appellant submits that, had the police confined their search warrant to those items where a reasonable belief for the purpose of s 6 could be established, (that is, in relation to the mag wheels and tyres), then a search warrant was only needed in relation to the car. Of course, if that had been the only search warrant issued, the items which have been led to the current charges would not have been found.

[20] The appellant is also critical of the Court’s application of the balancing test under s 30 of the Evidence Act 2006. Mr Bailey’s submissions observe that, when a judge finds that a search warrant is valid, “one rarely, if ever, reads a judgment in which the hypothetical balancing exercise would give rise to a different ultimate outcome”.

[21] In relation to the Judge’s discussion of s 30 factors:

(a) he says the statement that the appellant was not “disadvantaged” by the delay misapplies the law and the protections that the law gives from unlawful searches;

(b) he disputes the observation that the evidential material found is of high probative value;

(c) he disputes that the charges which rely on the challenged evidence are, collectively, “very serious”, saying, none of the charges are protocol offences or Crown proceedings, and sentences of less than imprisonment are frequently imposed for such offending; and

(d) he says there are no strong countervailing factors that would support admission.

The legal principles applying

[22] Section 6 of the Act requires the issuing officer to be satisfied there are reasonable grounds to believe that evidential material relating to the offence will be found in the specified place, vehicle or thing.

[23] Whether or not there was a proper basis for the issue of a warrant is to be considered in a common sense way. As was said Collett v R, reiterating earlier cases:⁴

... [I]t is necessary to adopt a realistic approach to attacks upon search warrants. Whether or not there is a proper basis for the warrant to be issued needs to be considered in a common sense way. There has to be sufficient linkage between evidence of a crime, the suspect, and the property and things for which authority to search is sought. It is the global picture, rather than individual factors, that is important.

[24] In the present case, the application for the search warrant fully and frankly explained the evidence the police had as to the connection of Mr Bielawski to the cell phone number which was used by the person ordering the tyres and mag wheels,

_{including other evidence connecting Mr Bielawski to that number, the dates as to}

⁴ Collett v R [2013] NZCA 158 at [21].

when they last suspected Mr Bielawski used the cell phone, when it was disconnected, and when they found out this information.

[25] The police had, in my view, established a sound basis for asserting that Mr Bielawski, at least at the time of the offending, would have had a mobile phone with the SIM card for that telephone number and for asserting that this is “evidential material” relevant to the charge. Mr Bailey’s real criticism was that the police did not spell out why, some five and a half months later, Mr Bielawski might still retain such items, either in his house, or in his girlfriend’s car.

[26] However, the test which must be met under s 6 is whether there is a “reasonable ground of suspicion upon which a reasonable [person] may act”,⁵ or, that it is “possible or likely”, or “inherently likely”,⁶ that the evidential material will be found.

[27] Applying a common sense view, if Mr Bielawski had a cell phone with the relevant SIM card in it in August, it is not unreasonable to suspect that even five and a half months later, it may be found at his property. It is taking too pedantic an approach to require a search warrant to spell out that the police constable still believes it is possible or likely that such item or items would be in the house when that is a matter of logical inference. That is not to deny that, the longer the passage of time elapsing, the less likely it will be. In the present case, though, I do not consider that, five and a half months later, when he still lives there and when there are grounds for believing other items of relevance are in fact there, that the chance of the cell phone and associated SIM card being there could no longer be considered possible or likely.

[28] The second criticism of the District Court decision relates to “the lack of information which would suggest that locating the listed items would evidentially assist the police”. In part, this argument was related to the delay since the phone was last used. The other element to the argument, which really emerged in legal

_{submissions, related to the breadth of the request, which sought not just a phone with}

⁵ _{Police v Anderson [1972] NZLR 233 (CA) at 242.}

⁶ R v Sanders [1994] 3 NZLR 450 (CA) at 461.

the SIM card related to the cell phone number used, but “cell phones, SIM cards and all related cell phone electronic records”.

[29] The issue of why delay affected the evidential value of the evidence was not explained in submissions (except insofar as it went to whether there were grounds for belief that these items would be found in the relevant place which is discussed above). It is common sense that, had such items been found, it would have been another piece of evidence linking Mr Bielawski to the offence of obtaining the tyres and mag wheels by deception.

[30] The second point raised was that the search warrant sought cell phones and SIM cards in the plural and also provided no explanation as to what electronic cell phone records were believed to be relevant to the case.

[31] Although there was some speculation at the hearing of this appeal as to what evidence might have been gleaned from multiple cell phones or SIM cards, I am not prepared to embark on such an exercise. My preference is to stand back and ask whether, looked at in the round, the search warrant spelt out the items sought and the reasons for that.

[32] The police made it clear they were looking for items which might relate to the cell phone number used. The search warrant was worded broadly enough to ensure that any cell phone or SIM card which might, on subsequent checking, be found to relate to that number, could be uplifted. That is unobjectionable and I consider that the challenge to the wording of the search warrant on this basis is an

engagement in a “nit-picking exercise”.⁷

Outcome

[33] For the reasons given above, the appeal is declined. I rule that the search warrant was valid and the evidence obtained when it was executed is admissible.

⁷ R v Kissling [2008] NZCA 559, [2009] 1 NZLR 641 at [36].

[34] Because I have made that finding, I do not propose to address the application of s 30 of the Evidence Act 2006.

Solicitors:

A J Bailey, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch