Harvey v Police [2017] NZHC 2283 (20 September 2017)

Last Updated: 26 April 2022

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL THE FINAL DISPOSITION OF TRIAL [OR RETRIAL].

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CRI-2017-409-99 [2017] NZHC 2283

BETWEEN	MATTHEW ALLEN HARVEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	31 August 2017
Appearances:	R W Maze for Appellant C C White and M McClenaghan for Respondent
Judgment:	20 September 2017

JUDGMENT OF NICHOLAS DAVIDSON J

1. INTRODUCTION

• [1] The appellant has been charged with cultivation and possession of cannabis, and possession of utensils under the Misuse of Drugs Act 1975. Evidence was found when the Police executed a search warrant at his home in Middlepark Rd, Christchurch.

• [2] The Police anticipated a challenge to the search warrant and applied for an order that the evidence obtained by the search is admissible. The District Court

HARVEY v NEW ZEALAND POLICE [2017] NZHC 2283 [20 September 2017]

agreed.¹ That evidence is critical to the prosecution. Mr Maze, for the appellant, said that if the evidence is admissible, then pleas of guilty are likely, but without the evidence the Police have no case.

• [3] Mr Maze submits the Police did not have reasonable grounds to suspect the commission of an offence when they sought, then obtained, the search warrant. The Police, represented by Mr White and Mr McClenaghan, say the search warrant was lawfully issued. If not, they say the Court should exercise its discretion to admit the evidence as its exclusion would not be proportionate to any impropriety in the way the Police sought and obtained the warrant.

B. BACKGROUND

• [4] Section 6 of the Search and Surveillance Act 2012 (“the Act”) provides:

6 Issuing officer may issue search warrant

An issuing officer may issue a search warrant, in relation to a place, vehicle, or other thing, on application by a constable if the issuing officer is satisfied that there are reasonable grounds –

(a) to suspect that an offence specified in the application and punishable by imprisonment has been committed, or is being committed, or will be committed; and

(b) to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application.

(emphasis added)

The application

• [5] The application for the search warrant was made by a Senior Constable. It was issued on 13 June 2016, and executed the next day at a residential property in Middlepark Rd, Christchurch. There were four cannabis plants in a purpose built greenhouse fitted with a sheet for insulation, with a thermometer and a fan. Six medium sized cannabis plants were located inside the garage, in a refrigerator with a heat lamp. A wooden box contained dried cannabis and cannabis head in plastic zip lock bags. The cannabis head totalled 105.5 grams and the dried cannabis 81.72

¹ New Zealand Police v Matthew Allen Harvey [2017] NZDC 8668.

grams. Glass pipes and a glass bong were found. The appellant admitted ownership of some of the cannabis and utensils and said he wanted to grow a couple of plants so that he did not have to buy the drug.

• [6] The appellant was provided with a copy of the application with part redacted as it related to information received through Crimestoppers, an independent charitable trust which gives the public the opportunity to anonymously report suspected criminal activity. On 20 September 2016, His Honour Judge Couch dismissed an application for disclosure of the redacted parts. The Judge saw the unredacted copy, and said the information was very brief, that an anonymous caller reported his or her belief that cannabis was being grown at the property.

• [7] The application for the search warrant is in template form. It records that the Senior Constable had reasonable grounds to suspect cultivation of cannabis, an offence under s 9(1) of the Misuse of Drugs Act 1975. Cannabis can be grown indoors and outdoors and cultivation ranges from “simple set-ups involving a growing light” and “light in a wardrobe” to advanced operations where rooms are set up with growing lights, extractor fans, gully traps, growing facilities and nurseries.

• [8] An Appendix was attached to the application which included this information:

5. Power Usage For 63 Middlepark Road

...

• 5.5 Contact Energy supplied the billing information below which outlines the power usage and cost of the power between 28 April 2015 and 30 May 2016 for the address of 63 Middlepark Road, Christchurch.

• 5.6 Electricity suppliers in New Zealand provide electricity in units known as kilowatt hours (kWh).

• 5.7 Catherine MACE is Revenue Risk Investigations Leader at Genesis Energy. On 9 May 2016, Detective Tracey BRUCE telephoned MACE who informed her that the average electricity consumption for a family of five living in a 3 bedroom house is 20-24 kWh units a day so if you take 22 kWh as the average it comes to 669 units a month.

• 5.8 The average billing amounts vary between different power companies. The Ministry of Economic Development (MED) website states the quarterly survey of domestic electricity prices is based on a domestic customer using 8,000 kWh a year at an average cost of 22 cents a kWh. Including a 100 cent per day line charge and GST the

average annual cost to a customer would be $2,125 or $177 a month. This average is not seasonally adjusted, meaning the average spend would generally be less during the summer months and more during the winter months.

...

5.10 The Power Usage at 63 Middlepark Road is excessively high. Focusing on the kWh usage for the Autumn months of March, April and May which are 1223, 2048 and 1908 kWh respectively, they are higher than the average 669 kWh a month. Given that our Autumn months have been particularly warm, this is excessive power usage.

...

• [9] While the application (para 5.10 above) says that “Given that our Autumn months have been particularly warm, this is excessive power consumption”, no temperature data was provided.

• [10] The application describes power consumption at the property over one year.

Date	kWh used
27/05/2015	1695
26/06/2015	1971
27/07/2015	2320
27/08/2015	2244
25/09/2015	1923
27/10/2015	1547
27/11/2015	1474
24/12/2015	1068
27/01/2016	1426
26/02/2016	1236
24/03/2016	1223
27/04/2016	2048
27/05/2016	1908

• [11] Police checked the ownership of 63 Middlepark Rd to find the appellant and another were the legal owners. A Google Maps search produced the description of an “ordinary residential dwelling with no links to a business that may contribute to the high power consumption”.

• [12] The Senior Constable confirmed the truth and accuracy of the contents of the application; that she had reasonable grounds to suspect the offence of cultivation of cannabis; and to believe that a search of the property would find evidence of that. The warrant was sought to search for and seize items listed in Appendix B to the application, as evidence in support of a charge of cultivating cannabis. These items

included cannabis, equipment, instruments, correspondence and cash relating to cultivation, possession, sale and supply of use of cannabis, and records, documents and correspondence showing names, addresses or telephone numbers held manually or electronically. It also included cell phones, SIM cards and related cell phone and electronic records.

• [13] It is obvious that if the Crimestoppers information was right, and current, then unless cultivation had ceased and all vestiges removed, cannabis would be found at the address.

C. THE JUDGMENT UNDER APPEAL

• [14] The District Court Judge referred to the information obtained through Crimestoppers as different in kind to that usually provided by an informant. The latter, “human source” information, allows the Police to assess the reliability of the informant and include that assessment in the application for a search warrant.

• [15] Anonymous information must usually be verified so that, for example, a vindictive or misguided person cannot use or wrongly lead the Police to invade the sanctity of a home or other property. The authorities routinely refer to corroboration or verification. The Judge brought to account that the Police enquired if the property was occupied by the legal owners and whether there was credible evidence that electricity consumption was higher than might be expected for residential use, to support the Crimestoppers tip-off.

• [16] Mr Maze, who was also counsel in the District Court, submitted there and in this Court that the information regarding electricity consumption at the property was not capable of “logically corroborating anything”. If the tip-off was about outdoor growing then electricity consumption was irrelevant, but the Judge correctly put that aside, as he had sufficient information to know that the electricity information sought was not for outdoor growing. In other words, it was for indoor growing.

• [17] The Judge considered the evidence of average household consumption of electricity for a family of five in a three bedroom house. The Christchurch setting, the type of house and its occupation had to be considered. The national average figures

were not seasonally adjusted. There was no regional average. The application referred to a full year’s electricity consumption at the property and while there was a seasonal fluctuation, consumption exceeded the national average over the full period. The Judge rightly said the Police had not set out to mislead the issuing officer. The enquiries by the Police were to see if the information obtained through Crimestoppers was reliable and linked to the method allegedly used to cultivate cannabis.

• [18] The Judge held that the evidence of electricity consumption lent weight to the Crimestoppers information that the property was being used to cultivate cannabis. He recognised that there could be valid reasons for a spike in power consumption, but the issuing officer did not need to exclude all theoretical possibilities. The Judge was alert to the fact that while consumption in the winter months was above the national average, the property was located in a region which experiences “alpine temperatures”. There was high consumption over the “warmer” autumn months. Overall, the electricity consumption was held to support the Crimestoppers information, which together provided “reasonable grounds to suspect” cultivation of cannabis.

D. SUBMISSIONS

Leave to appeal

• [19] Mr Maze first sought leave to appeal which is required when the admissibility of evidence is challenged.

• [20] Mr White, with Mr McClenaghan, opposed leave. Mr White referred to the criteria laid down by the Court of Appeal.² There is a tenable point taken on appeal, and the idea that leave should be refused, followed by a likely plea of guilty, followed by an appeal, strikes me as circular and pointless, when the admissibility issue can be addressed now, and is central to the outcome of the prosecution. The appeal raises an issue of significance for other cases. Leave to appeal is granted.

² R v Leonard [2007] NZCA 452; (2007) 23 CRNZ 624.

Reasonable grounds to suspect

• [21] Mr Maze accepts that the electricity information was sought to see if the tip-off could be treated as reliable. He makes a meticulous analytical challenge to the conclusion that there were reasonable grounds to suspect cultivation of cannabis. I consider this is the primary issue on appeal, as on the facts of this case, if there were such grounds, then there would be reasonable grounds for belief that evidence of cultivation would be found at the address.

• [22] Mr Maze submits that the evidence of power consumption was of no value to verify or corroborate the tip-off whatsoever. I do not consider verification is a universal rule as the tip-off may be so cogent in its detail that it needs no verification but here the tip-off was not sufficient in itself and something more was needed to satisfy the issuing officer that it was “not just malicious chatter”.³

• [23] Mr Maze focused on the assertion that the electricity consumption was “excessively high”, as to be “excessive” there had to be sufficient analogous information to make a comparison.

• [24] The Police knew this was a large old ex-state house with no modern renovations, situated in an often cold climate. Electricity consumption would likely be higher than the national average on those grounds. The number and age of the occupants, and their needs, would be relevant, as would insulation and other sources. Some information might not be available, but orthodox police work would have indicated the number of rooms and the area of the house, from building records.

• [25] Mr Maze submits that power consumption increased in the winter months, lowered in spring and autumn, and followed a seasonal pattern, so was the lowest in summer, as one would expect. As the national average is calculated from the aggregation of power consumption by a family of five in three bedroomed houses throughout New Zealand, with divergent location, occupation and characteristics, he says the comparison made by the Police is “meaningless”. He says there may have been 10 people living at the house, or there may have been one.

³ R v Alsford [2015] NZCA 628 at [36].

• [26] He submits that for the Police to assert “excess” consumption that had to be set, at least, against seasonal averages, and compared with similar houses, with similar occupation, building characteristics and location. Without that the evidence was submitted to be “meaningless”. This is in effect the application of the “apples for apples” principle, comparing like with like, as far as can be done. He submits that despite there being no meaningful comparison the end result was that the Police in this case could “force entry into a private family home”.

• [27] Mr Maze submits this was a “lacklustre” investigation by people “sitting in their office”, simply going online, and making enquiries of power companies. Going online is not a valid criticism as it is how society accesses most information, but the issue for this judgment is the relevance and value of the information known to the Police.

Police

• [28] Counsel addressed the Court of Appeal judgment in Bowman v R.⁴ Mr Maze says it supports the appellant’s case, whereas Mr White says to the contrary. I return to this judgment under “Analysis”.

• [29] Mr White says the issuing officer was entitled to bring to account the power consumption being two to three times the national average, without factoring in the idiosyncrasies of the Christchurch setting. He says that the test is of reasonable grounds to suspect, not perfect grounds to suspect. There may be a lawful reason that “so much electricity” was consumed at the property, but he submits the correct test is of “inherent likelihood”. When the evidence of electricity consumption is put together with the tip-off, it was inherently unlikely that there was an innocent reason and thus inherently likely that the Crimestoppers information was reliable.

⁴ Bowman v R [2013] NZCA 459.

E. ANALYSIS

Were there reasonable grounds to suspect the cultivation of cannabis?

• [30] The appellant must show the Judge acted on some wrong principle, gave way to extraneous or irrelevant matters or failed to give sufficient weight to relevant considerations, or was plainly wrong.

• [31] Section 6 of the Act requires a sequential two limb test. First, the issuer must decide whether there are reasonable grounds to suspect an offence, then whether there are reasonable grounds to believe that a search of the property in question will find evidence of the suspected offending. Parliament has chosen to provide two different tests, suspicion and belief, and each must be satisfied before a search warrant is issued. There has been relatively little commentary about s 6 with its two limb test, and little guidance in the Parliamentary setting, other than the legislation itself.

• [32] The legislation differs from s 198 of the Summary Proceedings Act 1957 (now repealed) for which there is a good deal of authority.⁵ It (relevantly) read:

198 Search warrants

(1) Any [District Court Judge] or Justice [or Community Magistrate], or any Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place—

(a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

(b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

(c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence—

may issue a search warrant in the prescribed form.

(2) ...

⁵ R v Sanders [1994] 3 NZLR 250, (1994) CRNZ 12 (CA) at 461, 21; Seven Seas Publishing Pty Ltd v Sullivan [1948] NZLR 663 at 666.

(3) Every search warrant to search any building, aircraft, ship, carriage, vehicle, premises, or place shall authorise any constable at any time or times within one month from the date thereof to enter and search the building, aircraft, ship, carriage, vehicle, premises, or place with such assistants as may be necessary, and, if necessary, to use force for making entry, whether by breaking open doors or otherwise; and shall authorise any constable to break open any box or receptacle therein or thereon, by force if necessary.

(4) Every search warrant to search any box or receptacle shall authorise any constable to break open the box or receptacle, by force if necessary.

...

• [33] The spectrum of mental states which traverse suspicion, belief, and knowledge was discussed by the Court of Appeal in R v Crooks, although in a quite different context:⁶

There are cases, however, where the existence of the alleged belief of the defendant has given rise to arguments of some refinement, and this is because of the several gradations of mental assessment which result in the creation of suspicion, belief, or knowledge. Belief is the result of a subjective evaluation of evidence or information which was produced acceptance of a proposition, or of the existence of a set of facts. Where a belief is founded not upon evidence or information from other persons but is derived from intuitive assessment of a set of circumstances, then it is not the true sense a belief at all. It is only an opinion or, in the present context, a suspicion, and the fact that a receiver merely suspects goods to be stolen cannot make him liable.

• [34] More recently, the Court of Appeal in R v Williams referred to the difference between “reasonable grounds to believe” and “reasonable grounds to suspect”:⁷

Having ‘reasonable grounds to believe’... is a higher standard to meet than ‘reasonable ground to suspect’, the test under s 60(1) of the Arms Act... Belief means that there was to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant (See Laugalis at pp 345- 355), while suspicion means thinking that it is likely a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists (see Sanders at p 461).

• [35] In 2007, the Law Commission reported on the State’s powers of search and surveillance, in due course reflected in the 2012 Act. The Commission referred to the distinction between suspicion and belief:⁸

⁶ R v Crooks [1981] 2 NZLR 53 (CA) at 57.

⁷ R v Williams [2007] NZCA 52, [2007] 3 NZLR 207, (2007) 23 CRNZ 1 at [213].

⁸ Law Commission Search and Surveillance Powers (NZLC R 97, 2007) at 57.

In fact, we think that the distinction is better expressed in terms of degrees of likelihood. That is, a belief requires something akin to a high or substantial likelihood, while suspicion may require no more than medium or moderate likelihood. This cannot be expressed in precise terms; there is no particular percentage threshold beyond which a suspicion is converted into a belief. However, it is nonetheless a distinction with real meaning.

• [36] The threshold limb of suspicion is the first step towards the issue of a warrant. As that leads towards a breach of fundamental rights associated with privacy and private property, and not to be subject to unreasonable search or seizure, reasonable grounds for suspicion must, in my view, mean a likely state of affairs, that of criminal offending. I do not think it can be less than that, as the second limb, of reasonable belief, requires a higher degree of likelihood of a different state of affairs, that evidence will be found by the search. This in any view cannot be reached from a platform of reasonable suspicion which is simply a possibility.

• [37] The nub of this appeal lies in the information that was available to the issuer of the warrant, not the information which might have been available. It was either sufficient to found a reasonable suspicion or it was not. The measure is whether the Crimestoppers information taken in combination with the evidence of electricity consumption and what was known about the house and occupants, meant that the cultivation of cannabis was likely, before addressing whether there were reasonable grounds for belief that a search would yield evidence of that suspected offence.

• [38] I consider Mr Maze is right that the information put before the issuing officer could have been “improved”, as the electricity consumption would be better set against the average in different regions, including Canterbury, with seasonal adjustment, reference to the number of people in the house, and other heating sources such as electricity, gas, open fire and wood burners. That information would have elucidated whether the electricity consumption, clearly higher than the national average, was higher than the average for this sort of house and occupation in Christchurch.

• [39] In Bowman the Court of Appeal referred to s 198(1) of the Summary Proceedings Act, now repealed, but operative when the warrant was executed, whereby the issuing officer had to be satisfied that there were reasonable grounds to believe the premises contained evidence of a relevant offence. As the Court of Appeal

stated “suspicion is not enough”.⁹ In Bowman the Crimestoppers information was that the occupant of a property was cultivating over 100 cannabis plants in a lounge room, equipped with hydroponics, and the suspect lived there, with one flatmate and two dogs. He had a motorbike and a motor vehicle and while “registered” at another Wellington address, he did not live there. The Police viewed an aerial photograph and drove past the property, but that revealed little.

• [40] The Police tried to verify the accuracy of the tip-off but apart from a description of the property and the occupier, enquiries fell to the electricity supplier. Indoor cannabis cultivation requires a constant artificial light source and powered equipment. There was high electricity use in the month previous and since the defendant took over the account in October 2011 there were some high readings, but other electricity consumption was unremarkable. The Court said that the monthly “spikes” were significant. Further, the previous account holders’ average monthly consumption was

208.16 units but since the owner and the defendant took over, the account consumption increased four-fold and the most recent reading was well in excess of that. Energy Direct said that the rate of consumption was very high for a residential home, particularly given a gas connection.

• [41] His Honour Judge Hubble in the District Court said that the warrant would not have been issued on the basis of uncorroborated information from Crimestoppers but the tip-off led to a reasonable inference that the appellant was residing at the premises, and the evidence of power consumption provided strong corroboration that cannabis plants were being grown on the premises with hydroponic equipment. The Court of Appeal said that the purpose of the warrant was not to target particular suspects, but to authorise a search of the premises. The high consumption of electricity, particularly in the month before the issue of the warrant, and the preceding high levels were, with the Crimestoppers information, sufficient to satisfy the test of reasonable grounds for belief. Section 30 of the Evidence Act 2006 was not engaged. The Court said had it embarked on an assessment under s 30(2)(b) of the Act it would have ruled in favour of admissibility.

⁹ Bowman v R, above n 4, at [17].

• [42] This appeal, in my view, distils to whether the relative uncertainties of measuring the electricity consumption at the property against the national average means that there was no meaningful verification or corroboration of the tip-off as Mr Maze submits. The Court does not know, for example, if the average consumption in Christchurch is more or less than the national average but the reasonable inference is that it would be greater in a colder climate, compared with the warmer North Island. The Court does not know how much greater, so any comparison is imprecise.

• [43] The question then is whether there was any evidence of “excessive” consumption, as to calculate an excess there has to be a differential measure. There was no “spiking” or evidence of different power consumption by different occupiers as in Bowman. There is in the final reckoning, evidence of what it seems is the sustained high level of electricity consumption over 12 months, more than double the national average, coupled with information which directed the Police towards hydroponic cannabis cultivation. A seasonal fluctuation is to be expected given the residential use. The power consumption in December to March indicates seasonal influences and there was much increased usage in April and May 2016.

• [44] I conclude that the Judge was right, that there was such evidence, as the levels of consumption at this residential property were by a wide margin beyond the national average, and what was known of the occupiers did not explain that. The consumption is consistent with something beyond residential use and in this case an electrical heat source for cultivation. The reference to the “warm autumn months” was a valid consideration, but should have been backed up with temperature data rather than that broad statement.

• [45] I conclude that the Police could have done better but there were reasonable grounds to suspect cultivation given the tip-off and a degree of verification, as it was “likely”. It is not easy to see how the suspicion can be elevated to belief when there is nothing more on the facts to adjust the mental state from suspicion to belief until the different objects of suspicion and belief are recognised. Reasonable grounds for suspicion means that an offence is likely. Reasonable grounds for belief are that a search of a particular property will find evidence of that. Belief is of a higher

likelihood, not just “likely”, but on the facts in any case may be at the same level as suspicion.

• [46] It is but a short step from the likely cultivation of cannabis to have reasonable grounds to believe that a search would yield evidence of cultivation. The suspicion was of cannabis growing at the address, in which case there were reasonable grounds to believe that evidence would be obtained on the search. I conclude that the search warrant was lawfully issued, and thus the evidence lawfully obtained, but go on to consider the “balancing exercise” required.

The balancing exercise – Section 30(2)(b) of the Evidence Act 2006

• [47] Had I found the search unlawful, I would have allowed the evidence in under the balancing exercise for the following reasons.

• [48] Section 30 of the Evidence Act provides as follows:

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 [and] takes proper account of the need for an effective and credible system of justice.

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

• [49] This is the right to enjoy the privacy and protection of a home against unreasonable entry and search and it is a fundamental right. It counts against the exercise of discretion to admit the evidence.

(b) The nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith

• [50] If I found an impropriety it would not be of bad faith, but a shortfall in assembly and comparing evidence of electricity consumption. Otherwise, the intrusion on the property was confined to the specific purpose of the search and there was nothing about the way it was carried out to cause the Court concern.

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

• [51] The evidence is what it is – decisive proof of offending although the defendant still had to be proved to be cultivating cannabis or in possession. He was caught on the spot and admitted his role.

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

• [52] This is not inconsequential offending, but it is not commercial.

(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

• [53] There were no other investigatory techniques available, but there could have been a better and more detailed inquiry by the Police of electricity consumption.

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

• [54] There are no such remedies.

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

• [55] This is of no application.

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

• [56] There was no urgency.

• [57] The Supreme Court in Hamed v R¹⁰ was concerned with Police action which breached s 21 of the New Zealand Bill of Rights Act 1990 (“NZBORA”). Section 30(2)(b) does not expressly impose a requirement to pass on to the further question of whether the irregularity renders the search unreasonable, and in breach of s 21 of NZBORA which reads:

21 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.

• [58] In my view, s 21 NZBORA is central to the balancing act required under s 30, as to whether exclusion of evidence is proportionate to the impropriety, when measured against the need for an effective and credible system of justice. The importance of the right reflects the sanctity of private property.

• [59] As the Supreme Court said in Hamed, there is no presumption of exclusion and the system of justice must bring offenders to justice, while giving effect to human rights and the rule of law.¹¹ Police impropriety in gathering evidence is not readily condoned. The instant case must reflect a jurisprudential approach of consistent application, but in every case judgment will come down to the particular facts.

• [60] If evidence is improperly obtained by a search, the seriousness of the offending is not to be minimised, although given the appellant has no criminal history, the “seriousness” is not to be measured just in the alleged offences, but the seriousness to him of the consequence a breach of his rights.

¹⁰ Hamed v R (SC125/2010) [2011] NZSC 101, [2012] 2 NZLR 305.

¹¹ At [58]-[62].

• [61] In this case, had I decided that the search was unlawful it would have been because the conclusion with regard to the “excessive” electricity consumption was based on a generalised comparative. I do not know what would have resulted from a more thorough enquiry and analysis, looking at regional differences to understand the average consumption and temperatures in Christchurch, but it would have provided a better comparative.

• [62] Had the conclusion been different, for lack of a better inquiry, I conclude that exclusion of the evidence would not be proportionate to the impropriety as s 30(2)(b) contemplates. The Police did not act oppressively or in bad faith. At worst there was a less than thorough inquiry. Here the defendant was, it seems, caught without any obvious defence when the search revealed cultivation. His rights must be brought to account, with the need for a credible and effective system of justice. I would have come to the conclusion that the evidence derived from the search should be admitted after the balancing exercise required.

F. DISPOSITION

• [63] The appeal is dismissed. Had s 30(2)(b) been engaged, I would have found the evidence derived from the search admissible.

G. CONCLUDING COMMENT

• [64] Mr Maze for the appellant made a determined and responsible challenge to the search warrant. The Police should have gained by that challenge as discussed in this judgment.

Solicitors:

Raymond Donnelly & Co., Christchurch

.......................................................

Nicholas Davidson J

S B Law incorporating R A Fraser & Associates, Christchurch Copy to counsel:

R W Maze, Barrister, Christchurch