[1] Ms Denise Elley appeals against her conviction and sentence on one charge of cultivating cannabis¹and one charge of possession of methamphetamine.²The

¹Misuse of Drugs Act 1975, s 9, maximum penalty 7 years’ imprisonment.

²Section 7(1)(a) and (2), maximum penalty 6 months’ imprisonment or $1,000 fine.

ELLEY v NEW ZEALAND POLICE [2021] NZHC 2097 [12 August 2021]

District Court convicted and discharged Ms Elley on 11 June 2020 following her entering guilty pleas.³She now appeals notwithstanding her guilty pleas on the basis that her counsel failed to advise her that she had a defence to the charges, and that given the nature of the offending she should have been discharged without conviction in any event.

[2] Counsel’s alleged error arises from a failure to advise Ms Elley that the search and seizure operation under which the evidence of the offending was obtained was unlawful, that this evidence would have been excluded if the charges had been defended and that Ms Elley would not have been convicted. The search of Ms Elley’s property was conducted on a warrantless basis under s 20 of the Search and Surveillance Act 2012 following an aerial spotter plane operation in the South Wairarapa. Under this operation properties apparently being used for cultivating cannabis were identified, and ground teams were directed to conduct searches of those properties. Another defendant whose property was identified and searched during this exercise had the evidence excluded on a similar basis to that which Ms Elley now advances.⁴Ms Elley says that her counsel should have advised her that this approach was available to her, and that if she had the charges would have been defended, the evidence excluded and no conviction would have followed. As a consequence she says that her conviction is a result of a miscarriage of justice and that her appeal should be allowed.

[3] Given that there were guilty pleas in the District Court and no evidence was led in that Court, on appeal I have received evidence in the form of an agreed summary of facts, the admission of evidence from particular witnesses by consent, and the calling in cross-examination of other witnesses, in particular those police officers who were involved in the search and seizure exercise under which the evidence was obtained. I had the advantage of written submissions filed before the hearing at which I heard the evidence, oral submissions that counsel wished to advance at that hearing, and further written submissions subsequently filed arising from the evidence that I heard.

³New Zealand Police v Elley [2020] NZDC 10673.

⁴R v Wilton [2020] NZDC 1799.

The facts

[4] I begin by outlining the relevant facts, which will include making some factual findings, although I will address the factual findings of most significance when addressing the arguments.

[5] On 21 February 2019 the police conducted a cannabis spotting “flyover” operation in the Wairarapa called Operation Piano. The operation involved a light aeroplane with police markings taking off from an aerodrome in Masterton and flying over areas in the South Wairarapa. The light aeroplane contained a pilot and a police officer — Sergeant Antony Matheson. They would fly over areas at a low height to identify cannabis being grown on both public land, and private property. Sergeant Matheson would then direct police ground teams to areas where cannabis was seen, and if that was on private property those properties would be searched by the ground teams. Sergeant Matheson was experienced in this role, and used information received from previous years’ operations to identify where cannabis was likely to be found.

[6] Some communication was possible between the aircraft and the ground teams when there was visual contact between them, but it was limited otherwise. Police used an app called “Spidertracks” to communicate. The app plotted the path of the aircraft at ground level, and markers could be added by Sergeant Matheson on his iPad. The path and the markers were displayed on the officers’ iPhones on the same app. This app used the GPS network to plot the location, but also utilised the cell phone network to communicate to the officers’ phones on the ground.

[7] Similar operations had been conducted during summer in the South Wairarapa in previous years. The operation was a version of an operation that has been operated nationally in different districts on a similar basis. This is reflected in the Operation Orders that were created for Operation Piano which were prepared based on a national precedent for such operations.

[8] The officer in charge was Detective Senior Sergeant Barry Bysouth and he had two other police officers with him in his car. There were then four other ground teams in vehicles, with three police officers in each vehicle. Including Sergeant Matheson in the light aircraft, this involved a total of 16 police officers from the Wairarapa and

Wellington. It was a resource extensive operation with the highest cost being the cost of the light aircraft for one day. The light aircraft is a police national resource.

[9] In the morning of the operation the officers involved received a briefing at 8.30 that morning which involved Detective Sergeant Bysouth reading out aloud the Operation Orders. The ground teams were then deployed, and the aircraft proceeded on a flight path at the direction of Sergeant Matheson.

[10] Ms Elley’s address is in a reasonably remote location in the South Wairarapa on Whāngaimoana Beach Road which is a no-exit road off Cape Palliser Road which ends at the southern coast in Palliser Bay. It is in a rural location and her driveway is approximately 100 metres long.

[11] At approximately 1.30 pm Sergeant Matheson observed what was thought to be three large cannabis plants growing at the rear of her property from the spotter plane. He marked this on his iPad on the Spidertracks app. The ground team comprising Detective Sergeant Matthew Wasson, Detective Sergeant William Van Woerkom and Senior Constable Laura Rhymer then identified the property on their iPhones. Sergeant Matheson also orally directed the team to the address over police radio while he was able to. They arrived at the property shortly after being so directed.

[12] There was nobody present when the three police officers arrived. They knocked on the door and no one presented themselves. Detective Sergeant Wasson then entered the house through an unsecured window. He said that there was a strong smell of cannabis inside. He confirmed that there were no persons inside the house by checking the rooms, and then opened the front door so that other police could enter. Detective Sergeant Van Woerkom and Senior Constable Rhymer then entered the house. The three officers then agreed on a plan to search the house. They identified the three plants at the rear of the property and then undertook a thorough search for evidence of cannabis offending. The light aeroplane flew off to undertake other duties once police on the ground had confirmed they had found the plants seen from the air.

[13] Detective Sergeant Wasson focussed on the main bedroom where he was looking for documents with the name of the occupant and evidence of offending. He

searched Ms Elley’s chest of drawers and her private belongings. He found a prescription pill bottle with her name on it.

[14] In a rear bedroom a polystyrene box was located in which cannabis was found. A small quantity of methamphetamine was also found in a kitchen cupboard.

[15] Detective Senior Sergeant Bysouth then arrived at the property with his team. That team had also been directed to the property through the Spidertracks app. At approximately 2.55 pm a further ground support team led by Detective Raewyn Smellie also arrived. Sergeant Basher then arrived from another ground support team towing a trailer for the police exhibits. Later at 3.55 pm Senior Constable Timothy Wilson, the Wairarapa Scene Crime Officer also arrived at Ms Elley’s property.

[16] After Detective Senior Sergeant Bysouth’s team had arrived and began searching the property, one of them noticed a fan running in the back wall of a small garage on the property. Entry was obtained by the use of bolt cutters. On entry into that shed they identified what Detective Sergeant Wasson described as a “very tidily constructed cannabis cultivation setup”. There were lots of plants, fans and charcoal filters.

[17] Ms Elley arrived home between 3.35 and 3.45 pm. By that stage police had been searching her property for some two hours. One of Detective Senior Sergeant Bysouth’s team first communicated with Ms Elley and then introduced her to Detective Sergeant Wasson. Detective Sergeant Wasson was advised that Ms Elley had been informed of her rights under the Bill of Rights Act. He then confirmed and reiterated her Bill of Rights and she confirmed that she understood them. He told her that the search was being conducted as cannabis plants had been seen at the back of her house. He then asked her detailed questions about the cannabis plants at the back of the house, in the bedroom inside the house and those located in the shed. She gave detailed answers to the effect that they were her plants and that she had been growing them. She also admitted to possessing the small quantity of methamphetamine. Detective Wasson recorded the questions and answers in his notebook. Following that he provided his notebook for her to read and make any alterations, and then asked her to sign it alongside a statement saying that she confirmed the truth and accuracy of the

statement. Ms Elley duly did so. No formal videotaped interview was raised in this process.

Counsel error affecting guilty plea as ground of appeal

[18] As s 232 of the Criminal Procedure Act 2011 recognises, a miscarriage of justice can arise even when a person has pleaded guilty.⁵But the Court proceeds on the basis that an appeal against conviction will only be considered after a guilty plea has been entered in exceptional circumstances. In Whichman v R the Court of Appeal explained:⁶
- [35] Three broad categories of relevant exceptional circumstance were identified by this Court in R v Le Page to which a fourth was added in Merrilees v R:⁷

(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;

(b) where on the admitted facts the appellant could not in law have been convicted of the offence charged;

(d) where trial counsel erred in advising as to the non-availability of certain defences or potential outcomes, or where counsel wrongly induces a decision to plead guilty under a mistaken belief or assumption that no tenable defence existed or could be advanced.

[36] The overriding consideration whether the plea has produced a miscarriage of justice. This protean juristic concept is given modest definition in s 232(4) of the Criminal Justice Act.⁸ It is not to be thrust into an over- defined straightjacket. The categories of exceptional circumstance justifying a vacation of plea after entry of a guilty plea are neither closed nor complete.

The Supreme Court recognised that reality in Wilson v R.⁹

[19] The ground relied on here is counsel error, and this has been the focus of the evidence and arguments.

⁵Criminal Procedure Act 201, s 232(4) and (5).

⁶Whichman v R [2018] NZCA 519.

⁷R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at 849; and Merrilees v R [2009] NZCA 59 at [35].

⁸See [33] above.

⁹Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].

[20] In her submissions following the evidential heading Ms Mobberley sought to argue that the case came within a fifth category recognised by the Supreme Court in R v Wilson — where there has been an abuse of process by police or prosecuting authorities which justified a stay. Mr Neild objected to this ground being pursued as it had not been set out in the particulars of the appeal required to be given under r 8.7 of the Criminal Procedure Rules 2012. Although Ms Mobberley sought leave to amend her notice of appeal, I accept Mr Neild’s point is well-founded as a more extensive evidential exercise would have been required to deal with the abuse of process ground. In addition, the circumstances which I address in more detail below are well short of the requirements for establishing an abuse of process. It is also unnecessary to explore that ground as the appellant’s key complaint is well encompassed within the primary ground of appeal advanced.

[21] I do not accept Mr Neild’s related objection that the appeal is only focused on the search by the police officers on the ground, and does not encompass a challenge to the initial visual searching by the officer in the aircraft. The particulars of the appeal were sufficiently broad to encompass all aspects of the search and seizure at Ms Elley’s property. His complaint that counsel did not give notice that the officer in the spotter plane be available for cross-examination under r 8.7(4) is not well-founded. The fact that the agreed statement of facts referred to this evidence shows that the visual searching was an inter-related part of the matters addressed as part of the appeal, and the decision not to challenge that evidence simply means it is received by the Court unchallenged.

[22] I also do not accept Mr Neild’s further argument — described by him as a “jurisdiction” argument — that in the present case Ms Elley’s guilty plea was a genuine admission of guilt such that no appeal should properly be entertained.¹⁰As the authorities recognise an erroneous evidential ruling that leaves the defendant no real option but to plead guilty is accepted as being potentially within the circumstances where an appeal may be allowed notwithstanding that plea.¹¹The same must be so if the error is made by counsel rather than the Court.

¹⁰Relying on R v Chalkley [1997] EWCA Crim 3416; [1998] QB 848 at 864 (CA), referred to in R v Le Page, above n 7 – Leave to appeal declined [2005] NZSC 48.

¹¹See Le Page, above n 7, at [20]–[21].

[23] The Court of Appeal in Whichman addressed the requirements for establishing the counsel error in relation to advice about sentencing stating:¹²

[41] An appeal based on trial counsel error in advising as to sentence raises a number of distinct thresholds, all of which must be crossed before a guilty plea should be vacated and the consequent conviction quashed. Those thresholds are these:

(a) first, the advice given was erroneous;

(b) secondly, there is or was a genuine prospect of acquittal at trial had the plea not been entered; and

We think the second element is best described in this way. If the first threshold has been crossed, we do not think an appellate court should overanalyse the merits of available defences. To do so risks eroding the essential responsibility of a first appeal court under s 232(4) to concern itself with whether the error “created a real risk that the outcome of the trial was affected”. What matters is whether a genuine prospect of acquittal has been lost as the result of a process failure in the criminal justice system. As T (CA662/2012) v R demonstrates, it is very much a matter of impression as to whether justice has or has not been done in the particular case.

[24] Although this was said in relation to erroneous advice about sentencing, it seems to me to provide an appropriate framework for erroneous advice as to the availability of a defence.

[25] In applying that approach I first accept the unchallenged evidence from Ms Elley’s counsel in the District Court that it did not occur to her to question the search at Ms Elley’s property before the entry of guilty pleas on 20 May 2019. Her counsel explains that the night before her sentencing on 11 June was the first occasion where she began to think about the requirements for a warrantless search, and that she “had heard or read about other cases involving the same flyover cannabis operation” and that she concluded on reflection that this was a situation where the search could have been challenged. But her evidence is that she only raised this with Ms Elley when the decision by the Court on discharge without conviction was being awaited, and only on the basis that it was a potential ground of appeal. I am satisfied that Ms Elley was deprived of the opportunity to consider this defence to the charges

¹²Whichman v R, above n 6 (footnote omitted).

before she entered her guilty plea, and that the advice she received was inadequate. I also accept her evidence that she would not have entered that plea if she was aware that this defence was available to her.

[26] In applying the general approach referred to in Whichman, the key question then becomes whether there would have been a genuine prospect of acquittal. If the search was unlawfully undertaken, and the evidence would have been excluded, then acquittal may have been a real prospect. Ms Elley had no option but to plead guilty to the charges given that evidence, and if it was inadmissible then a miscarriage of justice may have occurred.

Warrantless search

[27] Section 20 of the Search and Surveillance Act 2012 provides:

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.

[28] That section requires the searching police officer to have the following states of mind on reasonable grounds:

(a) a belief that the drugs or substances referred to are in or on the place;

(b) suspicion that an offence has been, is being, or is about to be committed in relation to that drug or substance;

(d) a belief 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.

[29] It is only the last two requirements that are in issue here. It is accepted that the first two were satisfied.

[30] It is the officer who carries out the search who must have the necessary states of mind.¹³It must be demonstrated that that officer or officers held those beliefs, and that there were reasonable grounds for them. The Court of Appeal said in Devich v_R_:14

[26] In relation to the “reasonable grounds to believe” standard, the Law Commission commented that the grounds for action are assessed on the basis of an objective standard. That is, the grounds upon which the enforcement officer has applied for a warrant or has exercised a warrantless power must be determined by reference to whether a reasonable person, with “the experience and training” of an enforcement officer, rather than an uninformed bystander, could have reached the same conclusion, in terms of both the facts and the inferences to be drawn from those facts.

[31] In McGarrett v R the Court of Appeal addressed the requirement that there be reasonable grounds to believe it is not practicable to obtain a warrant stating:¹⁵

[24] The first prerequisite created more difficulties. We accepted a police officer is not bound to obtain a warrant every time he or she has sufficient information to justify the issue of a warrant, as this would place improper

¹³R v Taylor [1993] NZCA 69; (1993) 10 CRNZ 393 (CA).

¹⁴Devich v R [2014] NZCA 386, (2014) 27 CRNZ 154 (footnote omitted).

¹⁵McGarrett v R [2017] NZCA 204.

constraints on police investigation work.¹⁶ Instead, as this Court commented in R v Williams:¹⁷

Regard must be had to the practicalities of policing, including whether a property can be kept under surveillance, and the resources available to officers at that time, in assessing whether the situation faced by a police officer made it reasonable to invoke a warrantless power ...

[25] Nevertheless, there needs to be some evidential basis for finding that the practicalities of policing make obtaining a warrant unreasonable. ...

[32] Here the first searching officer was Detective Sergeant Wasson, albeit a significant number of other officers subsequently joined in the searching of Ms Elley’s property. Having considered the evidence from the searching police officers, including the cross-examination of Detective Sergeant Wasson and Detective Senior Sergeant Bysouth, I am satisfied that the two necessary elements to authorise a warrantless search in dispute were absent — the requirement that the searching officers reasonably believed that if the entry and search was not carried out immediately evidential material would be lost, and the requirement to have reasonable grounds to believe that it was not practicable to obtain a warrant. Those two requirements were not met for two independent, albeit related reasons. First none of the searching officers formed the requisite beliefs. Secondly, even if they had formed the beliefs there were no reasonable grounds for them.

[33] I deal first with the question of whether there were reasonable grounds for a belief that evidence would be lost if a search did not take place. That could arise if there was evidence that there was someone at the house who would destroy, conceal, alter or damage the evidence. Sergeant Matheson in the spotter plane gave evidence that he saw nobody at the property when he saw what he thought were three cannabis plants in pots at the rear of Ms Elley’s property. He directed the ground teams to the address. Detective Sergeant Wasson gave evidence that when they approached the property nobody appeared to be present. There were no signs of anybody when they approached the house. Nobody responded when the door was knocked. An unsecured window was identified, and Detective Sergeant Wasson was then lifted up by another police officer and made entry through that window. He said that he was not sure that someone might still be inside, and so he proceeded cautiously. But that was only a

¹⁶Hughes v R [2011] NZCA 661 at [33].

¹⁷R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [24].

possibility. There were no reasonable grounds to believe that there was someone in the house or otherwise on the property. This is confirmed by the evidence of the next two searching officers. Detective Sergeant Van Woerkom said in his evidence that “[u]pon approaching the address we identified that no one was home” and Senior Constable Rhymer similarly gave evidence that “upon our arrival it became apparent that there was no-one at home ...”.

[34] Even if there were reasonable grounds to believe that someone was present there were no reasonable grounds to believe that if police did not immediately enter the house (and later the shed) that evidential material relating to the suspected offence would be destroyed, concealed, altered or damaged. After Detective Sergeant Wasson entered the house, he said he established there was nobody there, and it was then that he let the other police officers in. It is clear by that stage that none of the three officers had reasonable grounds to believe that if they did not proceed with a search, evidence would be lost in the way required by s 20. In fact their evidence is to the opposite effect. For example Detective Sergeant Van Woerkom stated in his evidence that “[a]fter confirming no one was at home we undertook a search of the property”.

[35] Not only were there no reasonable grounds to establish the belief that evidence would be lost if the search did not take place, but I also find that none of the searching officers held that belief at any stage. When pressed on that matter Detective Sergeant Wasson accepted that if he did consider the requirements of s 20 it would only have been “fleeting”, and he was unable to say when this occurred in the chronology of events — approaching the house, entering through the window, looking through the rooms, or then when opening the door. I find that he did not form the beliefs required by s 20, and neither did the other two officers.

[36] The position is even clearer in relation to the further police officers that arrived thereafter and conducted the continued search of Ms Elley’s property for the period of approximately two hours before she returned. They did not have reasonable grounds to believe that if they did not do the searching the evidence would be lost in the manner required, and neither did they form those beliefs.
[37] Neither do I accept that there were reasonable grounds to believe that it was impracticable to obtain a warrant, or that any of the searching officers actually formed that belief. I agree with Judge Mill who found in similar circumstances that the Police could have obtained a search warrant, including by oral application under s 100 of the Search and Surveillance Act, and that if necessary the property could have been secured in the meantime under s 117.¹⁸A warrant could have been obtained if any attention had been given to that possibility as part of the planning for this exercise. The realities were that the Operational Orders did not contemplate the obtaining of search warrants. The operation proceeded on the basis that the searches that would be undertaken would be performed on a warrantless basis. There were no procedures set out in the Operational Orders for obtaining warrants as there would realistically need to have been if they were contemplated. Indeed at one point the Orders refer to the ground teams as “s20 teams”. There was reference in the Operational Orders to the requirements of s 20, but in my view they were referred to as a formality, with the requirements of s 20 referred to in a purely notional way.

[38] The whole operation assumed that warrantless searches would take place. Detective Bysouth confirmed that he had no recollection of warrants ever being obtained for this annual operation with one exception. That was in 2020, only after the challenge to warrantless searches had already been raised in criminal proceedings, and even then, only in a case where it appears that an initial warrantless search had already taken place. Detective Bysouth accepted that it would be more difficult to engage in this operation at all if search warrants were contemplated.

[39] I accept that there have been situations where it is likely that the s 20 power has rightfully been exercised with operations of this kind. Evidence was given of situations where occupants of properties have seen the spotter plane and realised it was a police aircraft there to identify cannabis, where the occupants proceed to begin destroying the cannabis, and therefore the evidence. That occurred in relation to one of the other properties identified this day. But the potential for this to occur does not mean that the criteria for a warrantless searching were satisfied in relation to all properties where evidence of cannabis is obtained by the aerial search.

¹⁸R v Wilton, above n 4, at [36]–[41].

[40] For these reasons the search and seizure was unlawful, and the evidence improperly obtained

Is the evidence inadmissible?

[41] The next question is whether the evidence would have been inadmissible. The approach the Court takes to the admissibility of evidence that is improperly obtained is prescribed by s 30 of the Evidence Act 2006 which provides:

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.

(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:

(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 that 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

(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police 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.

[42] Subsections (2) and (3) involve a balancing exercise that has been considered in a number of cases, including the decisions of the Supreme Court in Hamed v R¹⁹ and Wilson v R.²⁰I will not lengthen this judgment by a discussion of the case law as it seems to me that the exercise here is relatively straight forward.

[43] First, I accept that there was a significant invasion of Ms Elley’s privacy involved in the unlawful search and seizure. A large number of police officers went comprehensively through her property over a lengthy period of time searching for evidence. This involved searching her personal belongings, her dresser, and items such

¹⁹Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

²⁰Wilson v R, above n 9.

as personal correspondence and medication. The search was extensive, extending even to burned documents in her fireplace.

[44] I also accept that the search and seizure operation can be described systemically unlawful as the operation contemplated warrantless searches as part of the modus operandi without any proper attempt at compliance with the legal prerequisites for such searches. I do not find that the search and seizure was in bad faith – the failures can be thought of as involving errors of judgment, and a failure to take proper care to check the legalities of the operation, but I do not accept that it involved knowing illegality. But given it was pre-organised, and involved a nationally based investigation technique, the breaches are to be regarded as serious ones. They were not just breaches by the individual officers exercising the searches, but extend to those who planned and put in place the operation.

[45] Further, whilst cannabis cultivation offending of the kind potentially discovered would be regarded as serious offending, this is not so in Ms Elley’s case where the seriousness of her conduct is reflected in her being convicted and discharged, in part because of an agreement between the prosecution and defence about her position, and the seriousness of her conduct. In addition there was no physical danger to the police or others, or urgency in obtaining the evidence in terms of the other criteria listed in s 30(3).

[46] In terms of countervailing considerations, I accept that there would have been a good prospect of the evidence being obtained by obtaining a search warrant which, assuming the spotter plane surveillance was lawful, could have been obtained. But otherwise there is not much that can be said by the police in favour of an argument that the evidence was nevertheless admissible.

[47] Weighing these considerations I conclude that, had the point been taken, the evidence obtained under the search and seizure exercise would not only have been ruled to be unlawfully obtained, but that it would have been concluded that the evidence was inadmissible.
[48] These conclusions coincide with those reached by Judge Mill in the case of another defendant who challenged the evidence obtained by the search and seizure exercise that day.²¹

Was the aerial surveillance a search?

[49] The conclusions I have reached above mean that it is unnecessary for me to address whether the initial surveillance exercise undertaken by the police spotter plane amounted to an unreasonable search.

[50] That position has been addressed in two decisions of the Court of Appeal, R v Peita²²and McIntyre v R.²³In McIntyre the Court of Appeal most recently said:

[39] In the case of the aerial surveillance, we acknowledge the appellants’ concession that the police reconnaissance in the spotter aircraft for the purpose of detecting possible cannabis plots did not amount to an unreasonable search.

[40] That conclusion follows from this Court’s decision in R v Peita, where it was held that an aircraft operating in accordance with Civil Aviation Authority requirements, flying at approximately 500 feet above ground level and where the cannabis which was seen “could be seen by anyone flying over it and knowing what to look for” did not constitute an unreasonable search.²⁴ Consequently, the evidence was not obtained in breach of s 21.²⁵ However, that decision left open both whether the overflight was a search, and whether the way in which surveillance is carried out in any particular case would in fact infringe the s 21 right.²⁶ It seems to us that there would be a point at which aerial surveillance by the police constitutes a search which is unreasonable, for example because of the proximity and duration of the surveillance, or the intrusiveness of the technology employed.

[41] We consider the next phase of operation, involving aerial spraying and photographing of the plants, did reach that threshold. Having a helicopter flying over private property at 30 to 40 metres above ground level and photographing what was seen, for a duration of almost three hours,²⁷ did invade a reasonable expectation of privacy and therefore was a search.

[51] The Court’s earlier decision in R v Peita captured the reasons why such aerial surveillance would not be unreasonable, and therefore would not be inconsistent with s 21 of the New Zealand Bill of Rights Act 1990. But in that decision the Court left

²¹R v Wilton, above n 4.

²²R v Peita [1999] NZCA 157; (1999) 17 CRNZ 407 (CA).

²³McIntyre v R [2020] NZCA 503.

²⁴R v Peita, above n 22, at [10].

²⁵At [16].

²⁶At [14]–[15].

²⁷Being the duration of the operation prior to the search warrant being obtained.

key questions undecided, and in McIntyre the Court indicated that there could be a stage where such surveillance would amount to an unreasonable search.

[52] It seems to me that there are arguments to say that the kind of exercise that was involved here may amount to an unreasonable search. Whilst the expectations of privacy for private areas of a property such as back yards are not as great as within a house, there are still legitimate privacy interests. What was involved here was a community-wide visual police search of such areas. If random searching of back yards had been done by police officers on the ground this would be seen to involve unreasonable searching, including because such activity would involve a trespass. That would also likely be the case if police deployed a drone to fly over properties at a low height to seek to identify such unlawful activities, or if enhanced visual technology was involved. I am not convinced that so much should turn on the more technical point that under civil aviation law an aircraft flying above 500 feet does not engage in a trespass. The concern about the searching arises from the overall nature and purpose of the exercise — an indiscriminate search of the normally more private back areas of properties for evidence of offending.

[53] It may also be significant that the factors which influence the Court in Peita to say that the exercise was not unreasonable are now factors that can be addressed in the subsequent decision on admissibility under s 30 of the Evidence Act. It may be that it is at that stage where these factors more strongly resonate, rather than being reasons why the aerial surveillance is not a search at all, or if so that it is not an unreasonable one.

[54] I note that one argument to the opposite effect is that the power to authorise by warrant the surveillance of “the curtilage of private premises” under s 46 of the Search and Surveillance Act only applies when the surveillance is for 8 hours in total, or for 3 hours in any 24 hour period. This may imply that surveillance for lesser periods do not require a warrant. But this does not necessarily mean that aerial surveillance, including that below 500 feet, does not amount to an unreasonable search under the Bill of Rights Act, or that such a warrant cannot be obtained to authorise such activities.
[55] But as I say it is unnecessary for me to reach any conclusions on this aspect of the case, which would better await a case where they are more squarely in issue.

Admissibility of admissions

[56] The fact that I have concluded that Ms Elley’s counsel failed to advise her of a potential defence arising from the inadmissibility of the evidence obtained by the search, that such evidence was in fact inadmissible, is not the end of the required analysis. It also needs to be demonstrated that there was a genuine prospect of acquittal. There was additional evidence of her guilt, namely the admission that she made in the statement given to Detective Sergeant Wasson which she confirmed and signed. At the evidential hearing I raised the question whether her admissions contained in that statement would remain admissible, and whether for that reason her conviction following her guilty plea would properly stand.

[57] Two matters were raised in the submissions subsequently advanced by counsel.

Compliance with Practice Note

[58] First, Ms Mobberley contended that the admissions in the statement were also inadmissible. In particular she argued that the evidence was unfairly obtained under s 30(5)(b) and (6) of the Evidence Act, including for failure to comply with the Chief Justice’s Practice Note on Police Questioning referred to in s 30(6).²⁸That Practice Note materially provides:

(5) Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording, unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.

[59] It is clear here that there was sufficient evidence to charge Ms Elley before she was interviewed. There was no suggestion that Detective Sergeant Wasson’s interview

²⁸Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

of Ms Elley would be recorded by way of video, or that they would later arrange a time at a police station to conduct a formally recorded interview. They were at Whāngaimoana some distance away from the nearest police station. I accept it would not have been practicable to have a recorded interview if the interview was to proceed there and then. This gives rise to a possible issue as proceeding with the interview there and then was more likely to lead to admissions by Ms Elley given the circumstances she was presented with. She had just returned home to find a very large number of police present at her property engaging in a thorough searching exercise that had discovered a significant cannabis growing operation. Those circumstances by themselves would create a degree of pressure on her to admit to the offending that appeared from the circumstances.

[60] But the Practice Note does not require a video interview of suspects in these circumstances. It is only stated to be a preference. It does not need to occur when it is impractical. What the Practice Note mandates is that any statement be recorded by audio or in writing, and if recorded in writing that the interviewee be given an opportunity to review the written statement, correct any errors, or add anything further. She must then be given an opportunity to confirm whether the record is correct by signing it. The fact that the Practice Note contemplates the written statement alternative means that it can properly be implemented if these steps are taken.

[61] I accept that it was not practicable to perform a video interview at this time, and that the requirements of the Practice Note for a written statement were met. Detective Sergeant Wasson recorded his questions and Ms Elley’s answers in writing, he then gave her an opportunity to read through what he had written and make any alterations or additions, and she was then asked to confirm the accuracy of the record by signing it, which she did.

[62] I accept Ms Mobberley’s submission that the Court responds firmly to any situations that emerge where the Practice Note is not complied with.²⁹But I conclude that the Practice Note was complied with, and I reject her argument for this reason.

²⁹Jones v R [2016] NZCA 185; Denney v R [2017] NZCA 80.

Admissions consequent on breach

[63] There is, however, a further basis upon which the admissions can be excluded. Under s 30(5)(a) evidence is improperly obtained if it is obtained “in consequence of a breach” of a rule of law. I raised at the hearing whether Ms Elley’s admissions arose as a consequence of the unlawful searching exercise. Ms Elley was presented with a large number of police officers conducting a comprehensive search of her property, this searching was unlawful, and it might be said that her admissions were a consequence of the unlawful search. In other jurisdictions such evidence is sometimes referred to as the “fruit of the poisonous tree”.³⁰

[64] In Mr Neild’s submissions he relied on the Supreme Court’s decision in R v Chetty which held that there must be a causative connection between a breach and the admissions sought to be excluded.³¹He argued that there was no such causation here.

[65] The issue of causation has been addressed in a number of authorities. The Supreme Court in Chetty referred to R v Williams where the Court of Appeal said:³²

[79] The issue of the effect of a breach on downstream evidence is a subset of the vexed question of causation. The test in New Zealand for causation is whether there is a real and substantial connection between the breach and the obtaining of the evidence – see R v Te Kira [1993] 3 NZLR 257 at 261 (per Cooke P), 272 (per Richardson J, Casey J concurring), 277 (per Hardie Boys

J) and 281 (per Thomas J) (CA). It is clear that where the evidence is obtained in the course of a single transaction which includes an unreasonable search, there will be a sufficient connection between the breach and the evidence for the evidence to be excluded. For examples of this principle, see Bainbridge, R v Thomas (2001) 19 CRNZ 392 (CA), R v Ratima (1999) 5 HRNZ 495 (CA) and R v Pou [2002] 3 NZLR 637 at [43] (CA).

[80] More difficult issues arise when there is a time gap between the breach and the obtaining of the evidence. ...

[66] Here it can be said that the unlawful search and the admissions were part of a single transaction. There was no time gap. This approach is consistent with the most relevant of the cases referred to in the above passage — R v Thomas.³³Here the police had engaged in an unlawful stopping and searching of a vehicle and found drugs. An

³⁰See R v Shaheed [2002] 2 NZLR 377 at [71] (SC) by reference to Weeks v United States 252 US 383 (1914).

³¹R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26.

³²R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.

³³R v Thomas (2001) 19 CRNZ 392.

occupant of the vehicle also made admissions when questioned. The Court of Appeal overturned the Judge’s ruling that the admissions were admissible. The Court said:

[11] We disagree with the Judge's analysis. Not only was the initial stopping unlawful, it was also, in our view, inextricably linked with the questioning of the appellant by the constable which immediately followed. Both had the unauthorised purpose of precluding the appellant from proceeding about his business in order to facilitate inquiry by the constables into what at that time was a suspicion, based on no more than a hunch, that the appellant might be in possession of controlled drugs. ...

[67] In my view a similar situation arises here. There were a large number of police officers at Ms Elley’s property conducting an unlawful search over a significant period of time. They were not lawfully present within Ms Elley’s home. Ms Elley was interviewed as part of this searching exercise. Faced with that situation Ms Elley made her admissions. Part of the reason why the police conducted an interview there and then would have been to increase the likelihood of admissions. Had a later interview been arranged at the police station in accordance with the Practice Note admissions would have been less likely, and there may also have been a break in the chain of causation between the unlawful search and the admissions.

[68] The position might be distinguishable from Thomas to the extent that, assuming the aerial surveillance was lawful, a warrant could have been obtained by police leading to the same consequential pressures on Ms Elley when she returned to her home to find police searching under warrant. But I see that argument as speculative, and that the requisite link between the unlawful search and the admissions remains. For that reason I conclude that the admission is also unlawfully obtained under s 30(5)(a) as it was a consequence of the unlawful search.

[69] In terms of the analysis of the admissibility of the evidence under s 30(3)(b) I see the analysis as very similar to that which I have already engaged for the purposes of the unlawful search. The admissions were the product of an unlawful search and seizure operation where there are no significant countervailing circumstances that suggest the evidence should still be admitted. The Supreme Court in Chetty, referring to Williams, indicate that the strength of the causative link may be relevant to the balancing exercise.³⁴Given the contemporaneous nature of the interview and the

³⁴R v Chetty, above n 31, at [61].

unlawful search, and the fact that the police were unlawfully present on Ms Elley’s property, I see the causative link as strong.

[70] It also seems to me to be relevant that the subject matter of the interview is inherently interlinked with the items discovered through the unlawful search. Indeed it may be difficult to make full sense of the admissions if the underlying evidence to which they relate cannot be referred to. This seems to me to be another reason for concluding that the unlawful search and seizure is inherently interlinked with the interview.

[71] For these reasons I conclude that the admissions were unlawfully obtained, and that they are also inadmissible. The consequence is that there would have been no admissible evidence of her alleged offending had the point been taken.

Conclusion

[72] I accept that Ms Elley’s guilty plea arose because she did not receive appropriate advice from her counsel. She should have been advised that the evidence against her could be challenged, and if she had been advised of that I accept that she would have entered not guilty pleas and challenged the evidence. Had the evidence been challenged both the search and seizure at her property and the admissions she made during that search and seizure would have been held to have been unlawfully obtained, and also would have been determined to be inadmissible. The consequence would have been that there would have been no evidence on which the prosecution could advance the charges.

[73] For the above reasons the appeal will be allowed, the conviction quashed and no retrial directed.

Cooke J

Solicitors:

A Mobberley, Masterton for Ms Elley

Luke Cunningham Clere, Wellington for Crown

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