Wilkins v Police [2016] NZHC 328 (2 March 2016)

Last Updated: 20 April 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-80 [2016] NZHC 328

ANTHONY WILKINS

v

_{NEW ZEALAND POLICE}

Hearing:	16 February 2016
Appearances:	K Preston and Ms V Thursby for the Appellant I S Auld for the Respondent
Judgment:	2 March 2016

_{JUDGMENT OF THOMAS J}

This judgment was delivered by me on 2 March 2016 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date:...............................}

Solicitors:

Public Defence Service, Wellington. Crown Solicitor, Wellington.

WILKINS v NEW ZEALAND POLICE [2016] NZHC 328 [2 March 2016]

Introduction

[1] This is an appeal by the appellant, Anthony Wilkins, from the pre-trial ruling of a District Court Judge on 8 December 2015. The pre-trial application challenged the validity of a warrantless search of the appellant’s house.¹ The application related to two charges to which the appellant has pleaded not guilty: cultivation of cannabis and possession of a utensil associated with illegal drug use.

[2] The issues relate to whether the search was lawful under s 20 of the Search and Surveillance Act 2012 (SSA) and, if the search were unlawful, whether the evidence should be excluded under s 30 of the Evidence Act 2006.

Background

[3] The appellant was stopped by a road policing unit in Wellington for an unrelated reason. When the constable approached the car he could smell cannabis. After a caution pursuant to the New Zealand Bill of Rights Act 1990 was given, the appellant handed over a bag containing cannabis.

[4] In his discussions with the officer, the appellant admitted he had grown the cannabis at his home. He was arrested and transported to the Wellington Central Police Station. The constable became aware during their conversations that the appellant had flatmates who could be expected to arrive home around that time.

[5] The constable decided that it would be impractical for him to obtain a search warrant. In his opinion, by the time he prepared an application, had it checked, located a judicial officer who could consider and grant the application, the appellant would be released on bail because, at that stage, he would only have been charged with possession of cannabis. The officer believed that, once released on bail, the appellant would most likely return home where evidence of the offending would be interfered with, concealed, removed or destroyed. Likewise, the constable said he was concerned that, if there were communication between the appellant and his

_{flatmates, the flatmates might interfere with the evidence.}

¹ Search and Surveillance Act 2012, s 20.

[6] In those circumstances, the constable, after consultation with his supervisor, decided to execute a warrantless search. General duty staff were called back in from other duties to accompany the constable conducting the search. This was due to concerns about the potential for the appellant’s uncle to be at the address. At the time, the uncle was being sought by the police in respect of other drug charges and was considered dangerous.

[7] A warrantless search of the appellant’s house then took place. Cannabis was located at the address comprising nine small plants, one mature plant having recently been harvested, and a tray of 10 seedlings. The Police noted that 19 mature plants could, given optimum conditions, have a street value of between $33,000 and

$47,000. 36 grams had been found on the appellant when he was stopped by the police that night.

[8] A search of the appellant’s car, which had been returned to the police station after the appellant’s arrest, was conducted later that evening. A firearm and ammunition were located in the car.

[9] The appellant has pleaded guilty to charges of possession of cannabis, possession of a firearm and possession of ammunition.

The Law

Section 20 of the SSA

[10] Section 20 of the SSA allows a constable to search a place without a warrant if certain criteria are met.

20 Warrantless search of places and vehicles in relation to some Misuse of

Drugs Act 1975 offences

A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—

(a) to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—

i. a controlled drug specified or described in Schedule 1 of the

Misuse of Drugs Act 1975; or

ii. a controlled drug specified or described in Part 1 of

Schedule 2 of the Misuse of Drugs Act 1975; or

iii. a controlled drug specified or described in Part 1 of

Schedule 3 of the Misuse of Drugs Act 1975; or

iv. a precursor substance specified or described in Part 3 of

Schedule 4 of the Misuse of Drugs Act 1975; and

(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and

(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.

[11] Each of these elements must be established separately. For example, there may be reasonable grounds to suspect the commission of an offence in terms of (b), but insufficient grounds to believe the controlled drug is in or on the place or vehicle concerned.²

[12] When considering whether it is unreasonable for the Police to have proceeded with a warrantless search in the circumstances regard must be had to the realities of policing.³ This is to be determined by the circumstances of the case and a number of considerations need to be taken into account such as:

(a) The time of day or night;⁴

(b) The availability of staff and personal safety of the constable guarding the scene;⁵

(c) The presence of another person who might have destroyed the evidence.⁶

² _{R v Merret CA280/05, 3 March 2006 at [13].}

³ _{R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [24].}

⁴ _{Swain v R [2014] NZCA 194 at [24].}

⁵ _{Dick v R [2011] NZCA 203.}

⁶ Butler v Police [2014] NZHC 1059.

District Court Decision

[13] The Judge considered that s 20(a) and (b) were clearly satisfied in the circumstances. The constable had been told by the appellant that he had grown cannabis at his home and was on his way home to smoke the cannabis he had harvested earlier. Therefore the constable had reasonable grounds for suspecting that an offence had been committed or was in the process of being committed in the appellant’s home.

[14] Whether it was “not practicable to obtain a warrant” was reliant on the Constable’s belief that, if the search were not carried out immediately, evidence would have been destroyed, concealed, altered or damaged. The Judge found it was reasonable that the appellant would be released on bail soon after having been charged and that it would have taken between one and three hours to have a warrant prepared. Further time would have likely elapsed due to the risk associated with the appellant’s uncle and the need for specialist staff to be available for the search.

[15] The Judge rejected the submission that these problems could have been overcome under ss 98 and 100 SSA, relating to applying for a search warrant and the mode of application for search warrants. Time would still have elapsed during this process. Furthermore, securing the premises under s 117 was not a viable option due to the lack of available staff. The general duty staff were only able to be pulled off other duties due to the priority the search was given, and it was not obvious to the Judge that this same degree of priority would be given to guarding the house while the warrant was issued.

[16] Therefore the Judge was satisfied that all the criteria in s 20 were met, making the search lawful. In the alternative, the Judge was satisfied that he would have nevertheless concluded that the search was reasonable even if it had been

_unlawful.⁷

⁷ Evidence Act 2006, s 30.

The SSA Issue

[17] There appears to be no dispute that under s 20 (a) the constable believed there was cannabis at the address and under (b) the constable suspected that an offence had been committed. The issues on appeal were therefore limited to whether the constable had reasonable grounds to believe it was not practicable to obtain a warrant to search the appellant’s address and that, if entry were not carried out immediately, evidential material would have been destroyed.

[18] The elements under s 20 of the SSA which must be established are that there are:

(a) Reasonable grounds to believe:

(i) it is not practicable to obtain a warrant; (ii) a controlled drug is in the place;

(b) Reasonable grounds to suspect that an offence under the Misuse of Drugs Act 1975 has been, is being, or is about to be committed in that place in respect of that controlled drug; and

(c) Reasonable grounds to believe that, if the entry is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered or damaged.

[19] The issues in this case relate to whether (a)(i) and (c) are satisfied.

Submissions

[20] Mr Preston, appearing for the appellant, relied on the concession made by the Constable in giving evidence that the Police “were keeping the appellant in custody pending...exercising this warrantless search”. In re-examination, the Constable clarified that, having arrested and brought the appellant to the Police Station, he no

longer had any direct responsibility in relation to the processing of the appellant because the custody unit then took over.

[21] Mr Preston also referred to the fact that the Police did not search the appellant’s vehicle until later that evening. He pointed out that the Police would not have released the appellant on bail until the search had been completed and that this further evidence undermined the justification for the warrantless search.

[22] In Mr Preston’s submission, the SSA is a comprehensive regime giving the Police significant powers to obtain search warrants as a matter of urgency, including making applications by telephone,⁸ and allowing the Police to secure premises in respect of which a warrant is sought before a decision is taken to grant or refuse the issue of a search warrant if the officer has reasonable grounds to believe evidential material maybe destroyed, damaged or removed.⁹ In Mr Preston’s submission, the Constable’s belief, and whether he had reasonable grounds for it, had to be considered in that light. That is, whether or not the Constable had reasonable grounds to believe it was not practicable to obtain a warrant had to be considered in the context of the other powers under SSA.

[23] In that context, in his submission, the contention that it would take up to four hours to obtain a warrant defied belief. He said there was no evidence that the constable had made any enquiries or considered the availability of any template search warrant applications. Given the time of day, contacting a judicial officer would not have been overly difficult, in Mr Preston’s submission.

[24] Mr Preston acknowledged that the incident occurred towards the end of the working day. The constable had discussed the matter with the district shift commander, who did not give evidence before the District Court Judge. Mr Preston submitted the circumstances suggest a conscious decision by the Police not to release the appellant from custody while the search was being carried out. If that were the

_{case, he said, then there could not be any urgency.}

⁸ _{Section 100.}

⁹ Section 117.

[25] In Mr Preston’s submission, the evidence about a dangerous offender, the appellant’s uncle, potentially being at the address was pure speculation and alluded to simply in order to support the Police case.

[26] Mr Preston disputed that there was a reasonable belief the appellant could tamper with the evidence, because he was held in custody during the search, or that his flatmates could interfere with the evidence, as they had no way of knowing the appellant was in custody. That was pure speculation, he said.

[27] Mr Auld appeared for the respondent. In his submission, while the SSA might allow for more urgent applications for search warrants, they still take time. In the context of this case, in his submission, the concern as to the potential for destruction of the evidence meant that there remained reasonable grounds to believe that it was not practicable to obtain a warrant even using the alternative procedures to which Mr Preston referred.

[28] In Mr Auld’s submission, it was reasonable for the Police to believe that, once bailed, the appellant would be likely to return home and destroy the evidence, particularly given his admissions to the Police. Mr Auld referred to the observations of the Law Commission: “so far as controlled drugs are concerned prompt enforcement action is often called for to prevent drugs being used or distributed: they are easily concealed and readily disposed of.”¹⁰ Mr Auld submitted, in the circumstances, the constable had reasonable grounds to believe that the flatmates would destroy or conceal the drugs. In light of the appellant’s admission, it was

reasonable to believe the flatmates knew and would take steps to destroy any incriminating material. The appellant had access to his cell phone in the police car and could have contacted them. He had indicated that, if he did not arrive home shortly, they “would start making calls” to see where he was.

[29] Mr Auld further submitted that, in determining whether the grounds are reasonable, the Court must have regard to the practicalities of policing. This includes resource constraints, timeframes, the experience level of the police

_{involved, and the prioritisation of police activities. Mr Auld referred to the}

¹⁰ Law Commission, “Search and Surveillance Powers”, (NZLC, R97, 2007), at 5.64.

Constable’s evidence that the specialist staff were available at 5.30 pm but might not have been available later that night.

[30] In Mr Auld’s submission, the issues of practicality and immediacy are closely linked. He said the six hour time period to make the application misrepresented the situation, and in any event the key issue was whether at 5.30pm the officer had reasonable grounds to believe it was not practical to obtain a warrant.

[31] Mr Auld also referred to s 83 of the SSA which provides:

83 Entry without warrant after arrest

(1) This section applies if a person—

(a) arrests a person for an offence; and

(b) has reasonable grounds to believe that evidential material relating to the offence is at a place and that the evidential material will be destroyed, concealed, altered, or damaged if entry to that place is delayed to obtain a warrant.

(2) The person may enter the place without a warrant to search for the evidential material relating to the offence (whether or not the person was arrested there).

[32] Mr Auld acknowledged that this provision was not referred to before the District Court Judge but said it was a further provision on which the Police could have relied. Although the appellant had been arrested for possession of cannabis and the Constable had reasonable grounds to believe that evidence relating to a different offence, cultivation, was at his residence, possession is inherent in cultivation. The appellant had told the Constable that the cannabis in his possession had taken him five months to grow and he had only just finished drying it. Accordingly, the Police could have relied on s 83. This would, of course, still require the Police to have reasonable grounds to believe that the evidence would be destroyed or concealed if entry to the house were delayed in order to obtain a warrant.

Were there reasonable grounds to believe it was not practicable to obtain a warrant?

[33] The constable was concerned that the appellant would be bailed and would return home to conceal or destroy the evidence. The appellant was in fact in Police custody for six hours. This would have allowed the constable time to prepare an

application for a warrant, based on the District Court Judge’s estimate, after having heard the case, that preparing an application would take between one and three hours. However, the constable did not have the benefit of hindsight. It was reasonable for the Constable to consider that, having been charged, the appellant would be bailed given he was charged with possessing cannabis only.

[34] The District Court Judge accepted that it would have taken between one and three hours to make a written application for a warrant and, even if an oral application had been made under s 100, this would still take time.

[35] The notes of evidence suggest that the constable making the decision usually dealt in traffic offences and was not familiar with the procedures for preparing an application. This could have made it appear to the constable that the process would take longer than the time available. He did however discuss the situation with his supervisor. Overall, even on the basis that the application process would take between one and three hours to prepare, it was reasonable for the Constable to believe it was impracticable to obtain a warrant.

Were there reasonable grounds to believe evidence would be destroyed, concealed, altered or damaged if there were not immediate entry into the house?

[36] It was reasonable for the constable to believe that evidential material would be concealed or destroyed had entry not occurred immediately.

[37] The appellant indicated to the constable that his flatmates would return home soon and would start making phone calls to see where he was. It was reasonable for the constable to believe the flatmates could have become worried and decided to conceal or destroy the evidence anyway. Given the appellant’s openness about his cannabis growing, it was reasonable for the constable to infer the flatmates knew about the cannabis and, as the appellant had access to his cell phone when in the Police car, to believe he could have contacted his flatmates and asked them to conceal or destroy the evidence.

[38] I accept that the type of evidence found in this case is highly susceptible to being tampered with by others. For a constable who had been told that the appellant

flatmates would soon be home and that there were drugs in the house, it was reasonable to conclude that an immediate search was necessary.

[39] I therefore agree with the conclusion of the District Court Judge that s 20 of the SSA allowed a warrantless search in this context.

Section 30 of the Evidence Act 2006

[40] If the search does not satisfy the criteria of s 20 and is found to be unlawful, the question is whether this evidence should be excluded. The test is found in s 30 of the Evidence Act.

30 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

(a) the defendant [or, if applicable, a co-defendant] against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2) The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate

to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of

the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was deliberate,

reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5) For the purposes of this section, evidence is improperly obtained if it is obtained—

(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.

(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a [constable] has been obtained unfairly for the purposes of that

provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.

[41] The appellant’s case is that the Judge erred in assessing that, in the event he was wrong about the lawfulness of the search, the impropriety was not sufficient to justify the exclusion of the evidence improperly obtained.

[42] The respondent’s response was that, even if the warrantless search were technically unlawful, the exclusion of the evidence would be out of proportion to any impropriety.

[43] If a search is unlawful, the evidence gathered as a result will be considered improperly obtained under s 30(5)(a) of the Evidence Act, as it is in breach of s 21 of the NZ Bill of Rights Act 1990, the right to be secure against unreasonable search and seizure. The question under s 30(2) is then whether or not the exclusion of evidence is proportionate to the impropriety. This is assessed by balancing the matters set out in s 30(3):

(a) The importance of the right breached: the intrusion into a private dwelling is generally regarded as a serious breach as seen in Hamed v

_R.¹¹

¹¹ Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

(b) The nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith: The appellant submitted that the Police actions were at least reckless. However, on the facts the Constable took what he considered to be the best course of action in the circumstances. He took advice from his supervisor. I do not consider the action to be deliberate, reckless or in bad faith.

(c) The nature and quality of improperly obtained evidence: the evidence

is central to the Police’s case.

(d) The seriousness of the offence with which the defendant is charged: the cultivation of cannabis is a serious charge attracting a maximum sentence of seven years imprisonment. However, the seriousness of the offending on its own should not be significant as a standalone factor, only in combination with other factors.¹²

(e) Any other investigatory techniques that were known to be available but not used: The appellant submitted that there were other options available to the constable that would have allowed him to obtain a warrant before carrying out the search. These are considered above. It is pertinent to note that the Police could have relied on s 83 SSA to conduct a warrantless search.¹³

(f) Any alternative remedies that could adequately provide redress to the defendant: there are no alternative remedies available. It was described as rare by the Supreme Court in Hamed that a court would admit the evidence and compensate the defendant for doing so.¹⁴

(g) Whether the impropriety was necessary to avoid apprehended physical danger to the police or others: a factor which influenced the

¹² _{Hamed v R, above n 11, at [65].}

13. Provided they had reasonable grounds to believe a delay would mean the destruction or concealment of evidence.

¹⁴ Hamed v R, above n 11, at [202].

Police decision was the possible risk associated with the appellant’s

uncle.

(h) Whether there was any urgency in obtaining the improperly obtained evidence: For the reasons set out above, there was a need to preserve evidence.

[44] Mr Preston had to concede that, given the appellant’s admission to the Police, his personal privacy rights could legitimately be afforded a lesser value. He referred, however, to the fact that the Police were aware the appellant had flatmates and their rights were infringed by the warrantless search.

[45] Mr Preston stressed that the Police should not be sent a message to the effect that, despite the rules, they need not follow them. Inherent in that submission, is the concept that, by allowing admission of the evidence under s 30, such a message would be sent to the Police.

[46] Overall, the right that was breached was a very important one and there are no alternative remedies available. However, there is no evidence that the police were acting in bad faith, the evidence is central to the case, the offence is a serious one, there were no other techniques reasonably available, a possible risk of danger and this was a matter of urgency. The appellant’s admissions obviously impacted on his expectations of privacy. Given these considerations, I am satisfied the exclusion of evidence would not be proportionate to the breach.

Conclusion

[47] For the reasons given, I am satisfied the criteria in s 20 of the SSA were established and the search was lawful.

[48] In the alternative, if the evidence is considered to be unlawful, the exclusion

_{of evidence would not be proportionate to the breach.}

Thomas J