A v Attorney-General [2018] NZHC 986 (8 May 2018)

Last Updated: 6 June 2018

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE FIRST AND SECOND PLAINTIFFS.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV 2016-442-00030 [2018] NZHC 986

UNDER	the Judicature Act 1908, the Crown Proceedings Act 1950 and the New Zealand Bill of Rights Act 1990
IN THE MATTER	of a claim for damages arising from New Zealand police's forging and execution of a purported search warrant
BETWEEN	A First Plaintiff
AND	H LIMITED Second Plaintiff
AND	THE ATTORNEY-GENERAL Defendant

Hearing:	4-5 December 2017
Counsel:	R W Maze for First and Second Plaintiffs S K Barr for Defendant
Judgment:	8 May 2018

JUDGMENT OF ELLIS J

[1] Mr A and his company, H Ltd, bring this claim against the Attorney-General in relation to the actions of the police in executing an illegal search warrant at a storage unit which was part of a facility owned and operated by them. They sue in deceit,

A v H LIMITED [2018] NZHC 986 [8 May 2018]

trespass and for alleged breaches of the New Zealand Bill of Rights Act 1990 (the NZBORA).

Background

[2] Between November 2009 and March 2011, the Tasman Organised Crime Unit and Organised and Financial Crime Agency New Zealand (OFCANZ) conducted an investigation into the criminal activities of the Red Devils Motorcycle Club (RDMC). The investigation was named “Operation Holy”. Undercover police officers were deployed as part of that investigation, under the direction of Detective David Prentice.

[3] One of the officers deployed was a male undercover police officer using the name Michael Wiremu Wilson (Constable Wilson).¹ As part of the planned infiltration of the RDMC, Constable Wilson rented a storage unit at H Ltd, the second plaintiff. The first plaintiff, Mr A, is the sole director and operator of H Ltd.

[4] Police intelligence at that stage was that Mr A was a supporter of the RDMC. Police saw him as a suitable person to “target” for that reason and because his ownership of the storage units provided a good way for Constable Wilson to meet him. As well, Constable Wilson could use a storage unit as a means of adding verisimilitude to his fictitious back-story, namely that he was, himself, involved in criminal activity.

[5] The plan was that he would store cannabis-growing equipment in the unit and allow it to be seen by Mr A. Other items to be stored in the shed included a freezer containing a quantity of paua, laptop computers made to look stolen, resealable plastic bags of the type commonly used by drug dealers, and a quad bike (to support a back story that he would go “off-road” to check cannabis plants).²

[6] Constable Wilson paid Mr A $215 for rental of the unit on 13 November 2009. Further fees were paid between December 2009 and April 2010. The rental fees were paid in cash, provided to Constable Wilson by the police as part of the operation. During this period, Constable Wilson deliberately maintained contact with Mr A. He

¹ Not his real name.

² Mr A denies that he saw or recognised this property for what it was.

discussed the rental of a residential property, the purchase of a motorcycle from one of Mr A’s associates, and riding with him and his friends.

The “search warrant”

[7] In May 2010, the police became aware that there had been talk among the criminal fraternity that Constable Wilson was an undercover police officer. They therefore deemed it necessary to take steps to bolster his credibility by amping up his apparent criminality. It was decided that police would do this by pretending to execute a “search warrant” at Constable Wilson’s unit.

[8] By that time, the police knew that Mr A was not, in fact, aligned with the RDMC and had decided that neither he nor his acquaintances could assist the undercover police officers any further with infiltrating the gang. But in order to create useful “talk” amongst his circle of friends it was decided that Mr A should be present when the fake warrant was executed.

[9] A legitimate “search warrant” form was printed out but no search warrant application was made to a court or authorised issuing officer. The “search warrant” needed to look authentic not only to any targets but also to any police officers present at the execution of the search warrant who were not privy to Operation Holy. Detective Prentice was told to make a mark in the place of a signature to give the appearance of a signed search warrant.

[10] There were two police staff involved in the subsequent search:

(a) Detective Adlam from the Organised Crime Unit, who knew that the search was part of a fictitious scenario; and

(b) Detective Nicholls from the local CIB, who was not aware of the scenario but was under the direction and supervision of Detective Adlam.

[11] The plan was to execute the “warrant” mid-morning on 27 May 2010, during business hours. The police expected the storage unit to be open and that Mr A would
be there. But when they arrived they found the premises secured and Mr A was not there.

[12] One of the officers telephoned Mr A and discovered he was off-site, working elsewhere. The officer asked him whether a Mike Wilson had a unit at H Ltd and told him that the police had a search warrant they wished to execute. According to Mr A, he was told that if he did not return to give them access they would use force to gain entry. He also said that he asked whether the matter could wait until “after 5” and was told that it could not. So, he downed tools and returned to the storage facility. He unlocked the main gates and Constable Wilson’s unit for the police officers.

[13] When the police “searched” the unit they found the drug related paraphernalia
and “stolen” property that had been deliberately placed there. Mr A watched on.

[14] Once police left the lockup facility, Mr A telephoned Constable Wilson and advised him that police had been at the unit. The content of that conversation is disputed, and the police job-sheet recording it was the subject of an admissibility challenge because Constable Wilson (the undercover officer who made the notes) was not called to produce them. In any event, it is not necessary for me to determine that dispute as it has no bearing on the conclusions I have reached.

[15] In order to add further verisimilitude to the whole scenario, charges were subsequently laid against Constable Wilson (as Michael Wilson).

[16] Operation Holy was terminated on 11 March 2011 and various members of the RDMC were charged with criminal offending, including a (different) Mr Wilson. In the course of those prosecutions the Crown accepted that the “fake warrant” scenario constituted serious police misconduct. In terms of what happened next, I can do no better than quote from the decision of the Supreme Court in Wilson v R:³

• [3] ... As a consequence of [the police] misconduct, the defendants sought a stay of prosecution, on the ground that to put them on trial in the face of such police misconduct would undermine the integrity of the justice system. This application was heard by Simon France J.

3. Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 (footnotes omitted). The Court allowed Mr Wilson’s appeal and quashed his convictions.
   • [4] On 30 July 2012, when the stay application was part heard, the appellant sought a sentence indication and entered a plea of guilty to all charges against him. On 13 September 2012 he was sentenced by MacKenzie J to an effective term of two and a half years’ imprisonment. Subsequently, on 24 October 2012, Simon France J delivered a judgment in which he accepted that the police conduct amounted to an abuse of process sufficient to justify staying the prosecutions of the remaining defendants.

[5] The appellant then appealed to the Court of Appeal against both conviction and sentence. In his appeal against conviction, he sought to vacate his guilty plea in light of Simon France J’s decision granting a stay to the other defendants. Before his appeal was heard, the Court of Appeal issued its judgment in R v Antonievic, in which it allowed the Crown’s appeal against Simon France J’s decision and quashed the order for a stay. In light of that, the appellant abandoned his conviction appeal and proceeded only with his appeal against sentence. The Court of Appeal allowed that appeal and substituted sentences of nine months’ home detention on each charge for the sentence of two and a half years’ imprisonment. Following that, the appellant filed an application for leave to appeal to this Court against his conviction, raising as the single ground of appeal the correctness of the Court of Appeal’s decision quashing the stay granted by Simon France J. By way of relief, the appellant sought the quashing of his convictions and the granting of a stay.

[6] After the Court of Appeal’s decision quashing the stay but before this Court had determined the appellant’s leave application, the High Court determined applications by the remaining defendants for the exclusion of evidence obtained as a result of the scenario under s 30 of the Evidence Act 2006. Collins J dealt with those applications in two decisions dated 20 February 2015 and 11 March 2015 respectively. In the first, the Judge found that evidence obtained as a result of the scenario in relation to charges which were not serious should be excluded. He did so as a result of what he described as new factual information about the impact of the scenario that was not before Simon France J or the Court of Appeal. In the second decision, the Judge identified those charges that crossed the threshold of being “serious” and ordered that evidence obtained by the police between 1 June 2010 and 11 March 2011 (ie, while the scenario was operating) relating to the charges not characterised as serious be excluded

[7] In a third judgment delivered on 21 May 2015, Collins J dealt with the defendants’ applications to stay the trial of those charges characterised as serious which post-dated 1 June 2010. In light of the new evidence, the Judge granted the applications and stayed the trial of those charges.⁴

[17] I record at this point that neither Mr A nor the storage facility were named in the judgments relating to the prosecution of the RDMC members. The High Court suppressed “the name and address of the storage unit owner [ie Mr A] and his business” and ordered that that part of the High Court file could not be searched

⁴ There was no appeal against the decision of Collins J granting the stay.

without leave.⁵ The parties are agreed that the same suppression orders should apply in these proceedings.

[18] It is against this rather unusual background that the various causes of action pleaded now fall to be considered.

First, second and fourth causes of action: deceit

[19] The plaintiffs plead three separate alleged acts of deceit:

(a) the police deceiving Mr A when they forged the false search warrant (first cause of action);

(b) the police deceiving Mr A when Constable Adlam telephoned Mr A and induced him to return to the storage unit on the basis that they had a search warrant for Constable Wilson's unit (second cause of action); and

(c) the police deceiving H Storage when Constable Adlam presented the false search warrant to Mr A and induced him to let the officers enter the Constable Wilson's storage unit (fourth cause of action).

[20] At the outset, I record my agreement with Mr Barr that neither the first nor the fourth cause of action can succeed. The first must fail because the mere preparation of the false search warrant could not (without more) have any causative effect on Mr
A. The fourth cause of action must fail because Mr A’s company did not suffer any loss.⁶

[21] Accordingly, the discussion which follows focuses solely on the second cause of action.

5. R v Antonievic minute of Miller J dated 6 December 2012 at [9]. It is for that reason that Mr A can have no claim for damages based on some kind of injury to his reputation.
6. Although Mr Maze said the company should be reimbursed for the loss of Mr A’s time, his evidence was that he was working for a different company, H Services Ltd, on the day in question.

The elements of the tort

[22] In order to succeed in a claim for deceit a plaintiff must establish that:⁷

(a) the defendant has made a false representation, knowing it to be untrue, or being reckless as to whether it is true;

(b) the defendant intended that the plaintiff should act in reliance on it;

(c) the plaintiff does in fact rely on it; and

(d) the plaintiff suffers loss as a result.

Does the tort of deceit apply outside its usual commercial context?

[23] The Attorney-General accepts that the police deceived Mr A during the telephone call and when presenting the false search warrant. However, Mr Barr submitted that deceptive conduct is an integral part of undercover policing and that, in and of itself, is ill-suited to the commercial context in which the tort usually operates.

[24] According to Professor Todd, whilst not formally limited in this way, the action for deceit is commonly asserted in a commercial context.⁸ There is conflicting overseas authority as to where it can apply in a domestic context. It has been held in the UK that a false statement by a woman to her domestic partner that he was the father of her child could attract liability for deceit, but the opposite view has been taken by the majority of the High Court in Australia.⁹

[25] Mr Barr submitted that the New Zealand decision of Clayton v Currie supports the proposition that the tort might be limited in its application outside of its usual commercial context.¹⁰ In Clayton, following a major police investigation, the

⁷ Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 607 (CA) at [46].

8. S Todd and others The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at 813.
9. See P v B (Paternity Damages for Deceit) [2001] 1 FLR 104 and Magill v Magill [2006] HCA 51, (2006) 226 CLR 551.

¹⁰ Clayton v Currie [2012] NZHC 1475.

plaintiffs were charged with numerous counts involving dishonesty and receiving.¹¹ In striking out the cause of action on other grounds, Associate Judge Osborne observed:

[73] There is considerable force in the proposition that the “commercial” or “business” torts such as deceit should be confined to a commercial context. This is particularly so when other torts such as malicious prosecution and other remedies (such as under the NZBORA) have been developed with appropriate principles and thresholds to respond to situations where the administration of justice has gone wrong. It may be that this “commercial” flavour of the tort is better expressed by the required ingredient as to inducement.

[26] Mr Barr therefore submitted that the Court should not treat deceit in the undercover context in the same way it treats commercial fraud. Covert police work is inherently deceitful in nature, and can involve betrayal and even emotional distress. Without this layer of deceit, undercover police operations would never succeed.

[27] I am prepared to contemplate, without deciding, that there might be policy reasons that should ordinarily operate to preclude, or provide a defence to, a claim for deceit in relation to a legitimate undercover operation. That said, however, it is difficult to see why the police would or should not compensate an “innocent” third party who suffered financial loss as a result of such an operation.¹² And, in any event, the operation in this case has repeatedly been found to be unlawful; any carve out or immunity from suit could not, in my view, be justified.

[28] As for any clear commercial/non-commercial divide, I am unable to accept that this can be gleaned from the cases or is settled law. As I have said, there is conflicting high-level authority on the application of the tort in the domestic sphere. Associate Judge Osborne’s dicta must be viewed as obiter and understood in context; as already noted, the deceit claim was, in fact, struck out on other grounds. And in any event, it is difficult to see why the present claim would not properly be regarded as

¹¹ The claim was framed as follows at [7]: “The plaintiffs’ claims against the defendants arise from a trial miscarriage when the Judge at the trial of the defendants received from Ms Currie (prosecuting) a letter to defence counsel which was inaccurate and did not properly apprise the Judge, counsel and co-accused of the true position. A miscarriage of the trial flowed from the fact that the Judge received Ms Currie’s letter but not the full sentencing notes in relation to the co- accused”.

¹² The interlocutory decision in DIL v Commissioner of Police of the Metropolis [2014] EWHC 2184 (QB) suggests that a claim for deceit in relation to an undercover police operation is not wholly unprecedented. History does not relate, however, how that litigation ended.

“commercial”, when what Mr A is claiming for is loss suffered by him in the course of operating his business.

[29] For these reasons, I consider that the first two elements of the tort (the making of a knowingly false representation and an intention that the Mr A should act in reliance on it) are made out. So, too, am I satisfied that Mr A did rely on the representation made in the telephone call. There can be no real dispute about that.

[30] Moving now to the question of loss, the second cause of action claims:

(a) damages for economic loss of $1,000; and

(b) exemplary damages of $20,000

[31] As to the first, Mr A’s evidence did not establish losses in the order pleaded. Rather, he said that what he had lost was the money he would have been paid for the three hours’ work which he was unable to do due to being deceitfully called away.¹³ His evidence was that he was paid $35 per hour for this work and that he should also be reimbursed for the petrol used in travelling back to the units (18km at 0.73 per km
= $26.28). There was no challenge to that evidence and it follows that he is entitled to compensation in the amount of $131.28.¹⁴

[32] As to the claim for exemplary damages, the decision of the majority of the Supreme Court in Couch makes it clear that these may be awarded only where it is established that the defendant acted intentionally, or had a conscious appreciation of the risk of causing harm and chose to run that risk.¹⁵ In the latter case, liability for exemplary damages is said to require “subjective recklessness, which is the close moral equivalent of intention”.¹⁶

13. As noted earlier (above, n 6) Mr A’s evidence was that he was working at that time for H Services Limited.
14. As I understand it, there is no discretion to deny compensation where the losses established are de minimis: Todd The Law of Torts in New Zealand, above n 8, at 1313.

¹⁵ Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149.

¹⁶ At [178], per Tipping J.

[33] In Couch, which concerned negligently caused personal injury, it was held that exemplary damages could be awarded only if the defendant “deliberately and outrageously ran a consciously appreciated risk of causing personal injury to the plaintiff”.¹⁷ Whether running such a risk was to be regarded as outrageous would depend on the degree of risk that was appreciated and the seriousness of the personal injury that was foreseen as likely to ensue if the risk materialised.¹⁸

[34] Here, Mr Maze was understandably at pains to emphasise what he said was the outrageousness of the police conduct. I do not intend to express my own view on that issue, which has been amply addressed with by other Judges in the course of the criminal proceedings. Accordingly, I do no more than record the following observations made by the Supreme Court the majority in the course of their judgment in Wilson:

...There is no doubt that the fabrication and use of a search warrant by the police to further an investigation undermines important legal values, even when the warrant is used in the limited was that occurred in this case.¹⁹

... Absent explicit statutory authorisation, conduct such as the use of bogus search warrants and the institution of bogus prosecutions is unacceptable, as Mr Downs readily acknowledged. Mr Downs advised the Court that there would be no further such conduct by the police in the absence of express statutory authorisation.²⁰

... conduct of the type that occurred in this case is unacceptable and constitutes serious misconduct. ... If the public are to have confidence in the rule of law, they must have confidence in the independence of the judiciary and the genuineness of court processes. The bogus warrant/bogus prosecution scenario had the capacity to undermine that confidence significantly.²¹

... There was no evidence that the police conduct was systemic, in the sense of being simply one example of such misconduct among many. Rather, it seems to have been a “one-off” incident, which will generally be less threatening to the integrity of the criminal justice system than ingrained or regularised misconduct. ... Looking at the matter overall, we agree with the Courts below that the police acted in good faith, but consider that they should have done more to obtain a proper appreciation of the values and interest at stake. Their failure to do so was a significant oversight.²²

¹⁷ At [179], per Tipping J.

¹⁸ At [179], per Tipping J.

¹⁹ Wilson v R, above n 3, at [33].

²⁰ At [38].

²¹ At [91].

²² At [92](c).

[35] But what all that means in the context of an exemplary damages claim by a third party is less straightforward. In the end, however, I am not persuaded that the relevant threshold is made out. I say that for the following reasons.

[36] First, the deception involving the search warrant, while intentional, was (mistakenly) believed to be justified and, indeed, authorised.²³ As is clear from the Wilson and Antonievic litigation, any suggestion that the police were acting other than in good faith, has been rejected by the Courts.

[37] Secondly, it cannot fairly be said that the deception was intended to cause loss to Mr A; indeed, his absence from the storage units was unexpected. There was no evidence that police knew that requiring him to attend the storage unit would cause him to suffer any detriment, other than some minor and passing inconvenience. I am therefore unable to accept that the police had a “conscious appreciation” of a risk of harm to Mr A. Any loss caused to him was unexpected and incidental.

[38] Thirdly, the police have, already, had to bear the very real and public consequences of their mistake. While the majority of the Supreme Court in Wilson were of the view that a stay of criminal proceedings against individual RDMC members was not warranted, that was nonetheless the upshot of the Court’s decision. Had there been no stay then undoubtedly, evidence obtained as a result of the illegal actions would have been ruled inadmissible (as it was in relation to some of the charges by Collins J).²⁴ Regardless of what the theoretical underpinnings of the grant of a stay might be,²⁵ there can be little doubt that the outcome of that litigation will act both as a deterrent and a discipline to police.

[39] In all of the above these circumstances it is impossible to conclude that the police actions can fairly be viewed to have been taken in “contumelious disregard” of Mr A’s rights or interests. The claim for exemplary damages fails accordingly.

²³ In the High Court Simon France J had recorded his view that “this was a group of well intentioned officers convincing themselves that what was happening was all permissible, but always without reference to any external advice”: R v Antonievic [2012] NZHC 2686.

²⁴ R v Antonievic (No 1) [2015] NZHC 230 at [137].

²⁵ The alternatives are discussed at some length in the majority decision in Wilson v R, above n 3.

Third cause of action: arbitrary detention: s 22 NZBORA

[40] The third cause of action is said to be pleaded in the alternative to the first two. The claim is made by the first plaintiff (Mr A) only. He says that he was arbitrarily detained because he was required to attend at the premises; his compliance with the police request that he do so was coerced by the threat of forced entry and damage to his property. The claim differs from the first two in that Mr A seeks a declaration that he was arbitrarily detained and public law damages of $7,000. So notwithstanding the pleading is the “alternative” to the deceit claim I have already found proven, it appears to be necessary to consider the merits.

The s 22 NZBORA right

[41] Detention for the purposes of s 22 of the NZBORA involves a physical constraint or an assumption of control over a person’s movement; the absence of one of these elements means there is no detention for s 22 purposes. In general terms, a person will be regarded as detained within the meaning of s 22 if:²⁶

(a) there is some physical deprivation of a person’s liberty;

(b) there are statutory restraints on a person’s movement, accompanied by
penalties for non-compliance; or

(c) it is shown that, based on a mixed objective/subjective test, that a person has a reasonably held belief induced by police conduct that he or she is not free to leave.²⁷

The present case

[42] I agree with Mr Barr that it cannot be said that Mr A was arbitrarily detained. I am unable to accept that there was any relevant detention involved in his driving from his off-site work to the storage units, or in his continued presence at the storage units while the “search” was being undertaken. Not every restraint on a person’s

²⁶ R v M [1995] 1 NZLR 232, (1994) 12 CRNZ 268 (HC) at 270.

²⁷ Notwithstanding that the person has not been formally arrested or detained.

freedom of movement constitutes a “detention” under s 22. Only those amounting to a “substantial intrusion on personal liberty” will qualify.²⁸ As Richardson J said in Police v Smith (in the context of a discussion about the concept of detention in s 23 of the NZBORA):²⁹

What then is the concept of detention underlying s 23(1)? The Oxford English Dictionary (2nd ed, 1989) defines "detain" variously as "To keep from proceeding or going on; to keep waiting; to stop" and "To keep in confinement or under restraint; to keep prisoner". Clearly in the context of s 23(1) something more than merely keeping a citizen waiting is necessary. Equally the threshold should not be set as high as keeping a citizen prisoner before there will be a detention. A distinction must be drawn between deprivation of liberty on the one hand, and a mere temporary restraint of liberty on the other.

...

A common sense and practical approach is called for. Thus it will be important to consider the nature, purpose, extent, and duration of the constraint. For example, the assumption of control over a citizen's movements is very different from a pause while particulars are provided. As in many areas of the Bill of Rights the answer may involve considerations of fact and degree. At the very least something more than a temporary check, hindrance, or intrusion on the citizen's liberty is required.

[43] While I acknowledge that Mr A was deceived into returning to the storage unit premises, there was never any suggestion that his non-attendance would result in any penalty. Assuming (without deciding) that he was told that the police would force entry if he did not return to the unit, I am unable to see the subsequent act of returning as constituting a relevant “detention”. And once he had returned to the unit and permitted the police to enter, any previous threat involving the use of force could no longer be live or actuating. All Mr A was doing at that point was waiting for the search to be completed. I am unable to see any real element of compulsion in that.

[44] In the absence of any relevant detention, the issue of arbitrariness does not arise.³⁰ It is also unnecessary to consider the remedies claimed.

²⁸ Police v Smith [1994] 2 NZLR 306 (CA) at 316.

²⁹ At 316.

30. If it did arise, I would accept that the illegality of the search would likely render the detention arbitrary.

Fifth cause of action: tort of trespass

[45] The fifth cause of action is an allegation by H Ltd that the police trespassed at the storage facility property, which was owned by (and in the possession of) that company. The substantive remedies claimed are:

(a) general damages of $2,000;

(b) aggravated damages of $7,000; and

(c) exemplary damages of $20,000.

[46] This cause of action, too, is pleaded in the alternative. But given that H Ltd has advanced no other successful cause of action, I address its substance below.

The elements of the tort of trespass

[47] Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another. This is actionable per se without proof of damage and a successful plaintiff is entitled to an award of nominal damages as recognition and vindication of his or her possessory rights. A person who is on land with the permission of the person in possession of the land is not a trespasser.³¹

The terms of the rental agreement

[48] Before turning to consider the merits of the claim, it is necessary to set out the relevant terms of the relevant licence agreement:³²

Licence to use a storage unit within the facility

1. [H Ltd] grants you rights licence to use a Storage Unit specified at our storage facility ... (“Storage Facility”) upon the terms set out in this agreement.

Use of storage unit

...

³¹ Todd The Law of Torts in New Zealand, above n 8, at 482.

32. What follows are H Ltd’s standard terms and conditions which Mr A said in his evidence are identical to what would he have given to Constable Wilson.

Access to Storage Facility and Storage Unit

5. You may only access our storage Facility and the Storage Unit during the agreed operating hours.

6. We will give you a personal gate access code for the purpose of entering our Storage Facility during named operating hours. Please contact us if you forget your personal access code and we will provide you with a new gate access code.

7. If you owe us any money we may restrict access to the Storage Facility and the Storage Unit until you have paid us all amounts you owed.

8. We reserve the right to allocate you another Storage Unit to facilitate proper management of our Storage Facility.

Your responsibilities

9. You:

• Are responsible for securing and locking the storage unit and the safe custody of everything in your Storage Unit.

• Must secure and lock the Storage Unit using only one padlock attached to the locking bolt of the door to the Storage Unit

• Must keep your gate access code safe and secure
• Must keep the Storage unit clean and free of litter

• Must ensure that anything stored in the Storage Unit is dry, clean, and free from vermin and food scraps;

• Must not damage or physically alter the Storage Unit in any way including the use of tools, screws, or nails) without our prior written consent.

• Must notify us in writing of any change to your address or address for your billing details.

• Must comply with all relevant laws applicable to the use of the Storage Unit or the storage of anything in the Storage Unit.

• Must not smoke in the Storage Unit or at our Storage Facility.
• Must report any damage, spillage of substances, vermin infestation or inability to lock your storage unit or any breakages to management immediately.

...

Our rights to access the Storage Unit

20. If anything you have stored in the Storage Unit in our opinion, threatens life or property we may break open the Storage Unit and take any action we deem appropriate in our absolute discretion. When practicable we will try to contact you and give you an opportunity to give us access to the Storage Unit. If we are unable to contact you we will notify you as soon as possible of the reasons why we accessed the Storage Unit.

...

This agreement is not a lease or tenancy

24. Nothing in this agreement constitutes any lease or tenancy rights in respect of the Storage Unit or our Storage Facility.

You may not transfer or assign your rights, you may only terminate this agreement as detailed in [26] through [29].

25. This agreement is personal to you and you may not assign, transfer, or sub-licence any of your interests or obligations in this agreement.

...

The parties’ respective positions

[49] There is, of course, no dispute that the police entered onto and into the storage unit land on the day in question. Mr Maze submitted that, given that the search warrant was bogus, they had no authority, justification or excuse for such entry.

[50] But Mr Barr submitted:

(a) the police were party (as an undisclosed principal) to the storage unit agreement and were therefore entitled to be present on the land; or

(b) Constable Wilson had lawful possession of the storage unit and was entitled to invite the police onto the property to deal with the property that he had stored there; or

(c) Constable Wilson license extended to inviting others into the facility to deal with the property that he had stored there.

Discussion

[51] The starting point is that entry onto private property gained through the execution of an invalid search warrant constitutes a trespass. The question is whether any of the three matters raised by Mr Barr might constitute a defence of a claim of right.

[52] I deal with the defences raised at [50(b) and (c)] first. Both give rise to a slightly Alice in Wonderland-like conundrum. The conundrum is that regardless of the correctness of the underlying hypothetical propositions, neither of the two possible defences articulated reflect what actually occurred. While Constable Wilson was undoubtedly part of the undercover scenario and acquiesced in it, he did not in fact invite the police into the facility or into his unit. The police did not turn up at the units armed with Constable Wilson’s access card. They could not have accessed the unit without Mr A’s assistance. Indeed, the whole bogus search warrant scenario was premised on that.

[53] The question of whether the police can be viewed as Constable Wilson’s undisclosed principal is a little more difficult. I think it must be accepted that in entering the licence agreement with H Ltd, Constable Wilson was acting in his capacity as a police officer and on behalf of his employer, the New Zealand Police. The police provided Constable Wilson with the funds to make payments pursuant to the licence agreement.

[54] It is not, of course, disputed that the relationship was not known or disclosed to Mr A or his company. But if the police were, indeed, Constable Wilson’s (undisclosed) principal then I think it follows that any legal rights in relation to access and entry into the storage facility and into the unit conferred by the agreement were exercisable by the police.

[55] The only question that arises is whether there was something either about, or in, the license agreement itself that rendered it personal to Constable Wilson. If that is so then there can be no undisclosed principal.
[56] As to the first, there is, in my view, nothing inherent in a license agreement of this kind that means that Constable Wilson’s identity was critical to the decision by Mr A or his company to enter into it. The second matter involves interpreting the license agreement. If on a proper interpretation agency is excluded then there can be no undisclosed principal.

[57] Here, the clauses relied on by Mr Maze included the clause relating to the provision of a personal access card, together with those which stated:

You may not transfer or assign your rights, you may only terminate this agreement as detailed in [26] through [29].

This agreement is personal to you and you may not assign, transfer, or sub-licence any of your interests or obligations in this agreement.

[58] But these clauses are not, I think, of the kind required to exclude an agency relationship. Such a relationship does not involve an assignment, transfer or sub-licence. While the agreement refers to the licensee as “you” throughout, that descriptor does not speak to or limit the capacity in which Constable Wilson was acting. There is nothing in the agreement that says that the licensee may not provide access to others, as may be necessary.

[59] In my view, therefore, the license agreement cannot properly be interpreted as excluding the possibility of an undisclosed agency relationship or rendering it personal to Mr Wilson. On that analysis, the police (the Commissioner of Police) were the undisclosed principal to the agreement and had a right of entry onto the premises and into the unit. I am unable to see that the fact that they sought to gain entry by executing the sham search warrant makes a difference to that underlying proposition. There was, accordingly, no trespass here. The fifth cause of action must be dismissed accordingly.

Sixth cause of action: Unreasonable search: s 21 NZBORA

[60] The sixth cause of action involves an (alternative) claim by Mr A that the police's entry onto the storage facility premises was (1) a search and (2) unreasonable, in breach of s 21 of the NZBORA. The relief claimed is:

(a) a declaration that s 21 was breached;
(b) public law damages of $7,000; and

(c) exemplary damages of $20,000.

[61] I consider that this aspect of the claim can shortly be dealt with. In Hamed v R, Blanchard J affirmed that the statement of the Supreme Court of Canada in R v Wise that “if the police activity invades a reasonable expectation of privacy, then the activity is a search”.³³

[62] The Judge then immediately went on to say:³⁴

An expectation of privacy will not be reasonable unless, first, the person complaining of the breach of s 21 did subjectively have such an expectation at the time of the police activity and, secondly, that expectation was one that society is prepared to recognise as reasonable.

[63] It is, accordingly, quite clear that the relevant expectation of privacy must be possessed by the person who is complaining of the breach.

[64] Here, the object of the search was not Mr A. Mr A had no privacy interest or expectation in relation to the contents of Constable Wilson’s unit. As noted earlier, the reality was that the contents of the unit were placed there by or on behalf of the very people who executed the search. And given that the “search” occurred with Constable Wilson’s knowledge and acquiescence it could not even be said that Constable Wilson’s privacy interests were affected.

[65] There was, accordingly, no real search at all here. The question of unreasonableness does not arise.

³³ Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at [163] citing R v Wise [1992] 1 SCR 527

at 533.

³⁴ Hamed v R, above n 33, at [163].

Result

[66] The second cause of action pleaded by the first plaintiff is successful. Damages are awarded at a value of $131.28.

[67] All other causes of action fail.

[68] As to costs, therefore, it seems to me that the plaintiffs have failed as much as (if not more than) they have succeeded and costs should lie where they fall. If there is disagreement with that approach memoranda may be filed within 10 working days.

[69] I also make an order prohibiting publication of the names or identifying particulars of the first and second plaintiffs.






Rebecca Ellis J