R V WILLIAMS And Ors CA CA372/05, CA373/05, CA374/05 [29 November 2006]

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT, THEREASONS FOR JUDGMENT AND ANY PART OF THE PROCEEDINGS(APART FROM [8] - [153], [209] - [253], [258] - [292] AND [297] IN NEWS

MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN

LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA372/05, CA373/05, CA374/05CA375/05, CA376/05, CA377/05CA378/05, CA379/05, CA380/05

CA381/05, CA382/05[2007] NZCA 52

THE QUEEN

v

CHRISTOPHER DAVID WILLIAMSDALE ARTHUR WILLIAMS

SHANE EDWARD WILLIAMSSCOTT JAMES CORLESS

JOHN IVAN SIMETIJOSEPH ABRAHAM ANAE

KURA TIRINGA WILLIAMSPHILLIP ROBARTS

BRIAN SYDNEY MCLAUGHLINJULIE KAREN NIBLET

JOHN MALCOLM TE MONI

Hearing: 18 May 2006

Court: William Young P, Glazebrook and Hammond JJ

Counsel: J C Pike and M D Downs for CrownC P Comeskey for Respondent C D WilliamsNo appearance for Respondent D A WilliamsL B Cordwell for Respondent S E WilliamsR M Mansfield for Respondent S J Corless

C B Cato for Respondents J I Simeti and P RobartsP J B Winter for Respondent J A AnaeP H H Tomlinson for Respondent K T WilliamsG N Bradford for Respondents B S McLaughlin and J K NibletA G Speed for Respondent J M Te Moni

Judgment: 29 November 2006

Reasons for Judgment: 7 March 2007 at 12.30pm

JUDGMENT OF THE COURT

A The application of the Solicitor-General for leave to appeal is granted.

B The appeal is allowed to the extent set out in C and D below.

C The determination of the High Court that the evidence gained from the

Patiki Road search not be led at trial is confirmed.

D The evidence gained from the subsequent searches is admissible at trial,

subject to this evidence being able to be given and understood without

reference to the Patiki Road search and subject to any other

considerations which have not been raised before this Court.

E Publication of the judgment, the reasons for judgment and any part of

the proceedings (apart from [8] - [153], [209] - [253], [258] - [292] and

[297] in the news media or on the internet or other publicly accessible

database is prohibited until the final disposition of the trial. Publication

in law reports or law digests is permitted.

REASONS

William Young P and Glazebrook J [1]

Hammond J [258]

WILLIAM YOUNG P AND GLAZEBROOK J

(Given by Glazebrook J)

Table of Contents

Para NoIntroduction [1]What are the principles that should apply in search andseizure cases? [8]

Overview [8]The link between unlawfulness and unreasonableness [12]When can bad faith render a warrant unlawful? [25]Who can complain about a breach of rights? [47]The effect of a breach on downstream evidence [79]How should the Shaheed balancing test be conducted? [104]

NATURE OF THE RIGHT [106]EXTENT OF ILLEGALITY [110]NATURE OF PRIVACY INTEREST [113]AGGRAVATING FACTORS [116]MITIGATING FACTORS [122]NEUTRAL FACTORS [130]SYSTEMATIC ANALYSIS [132]PUBLIC INTEREST FACTORS [134]SERIOUSNESS OF OFFENDING [135]NATURE AND QUALITY OF EVIDENCE [140]PROPORTIONALITY [142]EVIDENCE ACT 2006 [149]ADDITIONAL REMEDIES [153]

Was the Patiki Road warrant unlawfully obtained? [154]Did police bad faith render the search of Patiki Road unlawful? [167]Was the search of Patiki Road unreasonable? [182]Whose rights were breached? [185]Were subsequent searches tainted by the Patiki Road search? [188]How does Shaheed apply to the Patiki Road search? [195]How does Shaheed apply to the subsequent searches? [199]Search warrant applications [208]

General principles [209]Common errors [223]

Summary of what an application should contain [224]Summary of the principles of search and seizure dealt with inthis judgment [226]

Link between unlawfulness and unreasonableness [226]When bad faith can render a warrant unlawful [231]Claiming a personal remedy for breach [235]Effect of a breach on downstream evidence [241]Conduct of the Shaheed balancing test [245]

Conclusion and result [254]

Introduction

[1] The police received information from an anonymous informant that there was

a methamphetamine manufacturing operation being conducted in an industrial unit in

Patiki Road, Avondale. It is common ground that this information was not sufficient

to found an application for a search warrant.

[2] Two plain-clothed detectives made a preliminary reconnaissance of the

precincts of what, on the basis of the information given, they assumed to be the unit.

These detectives were “warned off” by individuals they encountered in the carpark

which adjoins that building. In the course of that reconnoitre, the detectives had

noted the registration numbers of vehicles parked in the carpark. One of the vehicles

was subsequently reported stolen that day. The police sought and obtained a search

warrant in relation to the stolen vehicle and the adjoining unit. An extensive police

search of the premises was then mounted.

[3] Incriminating evidence was located, implicating a number of the respondents

in methamphetamine manufacture. Subsequent to the initial warrant, the police

accumulated further evidence of methamphetamine manufacture from the execution

of further search warrants, call data warrants and an interception warrant issued by a

Judge of the High Court. As a result, ten of the respondents were charged with

conspiracy to manufacture methamphetamine. There were also charges against some

of the respondents for manufacturing methamphetamine and conspiracy to supply

methamphetamine.

[4] At their trial, the respondents challenged the admissibility of all of the

evidence against them on the basis that the Patiki Road search was unlawful and

unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill

of Rights) and that this tainted all subsequently obtained evidence. Section 21 of the

Bill of Rights provides:

Everyone has the right to be secure against unreasonable search or seizure,whether of the person, property, or correspondence or otherwise.

[5] Heath J, in a ruling delivered on 6 September 2005 (Ruling (No. 8) in

CRI-2004-404-3697), excluded the evidence of the Patiki Road search. He held that

the police had acted in bad faith in obtaining the warrant with regard to the stolen car

when their real purpose had been to search for drugs. In a judgment delivered on

28 September 2005, he confirmed his earlier ruling and also excluded all of the

subsequent evidence. He held that the subsequent evidence had been obtained as a

direct result of the Patiki Road search and it was therefore tainted by the finding of

bad faith with regard to that search. Given the nature of the original breach, he did

not consider that the evidence should nevertheless be admitted under the balancing

test in R v Shaheed [2002] 2 NZLR 377 (CA).

[6] The Solicitor-General applies for leave to appeal against the 28 September

ruling. The issues that arise are:

(a) What are the principles that should apply in search and seizure cases?

(b) Did police bad faith render the search of Patiki Road unlawful?

(c) Was the warrant otherwise unlawfully obtained?

(d) Was the search of Patiki Road unreasonable?

(e) Whose rights were breached?

(f) Was the subsequent evidence tainted by the Patiki Road search?

(g) How does Shaheed apply to the Patiki Road search?

(h) How does Shaheed apply to the subsequent searches?

(i) What should search warrant applications contain?

[7] At the end of the judgment, we provide a summary of the principles on search

and seizure dealt with in this judgment – see at [226] - [253] below.

What are the principles that should apply in search and seizure cases?

Overview

[8] The Bill of Rights is now over 15 years old. One might think that the

principles that apply in search and seizure cases would be well settled by now. That

is not the case. There remain inconsistencies between the cases in some areas.

There is also uncertainty about the continued applicability of a number of the cases

decided before this Court introduced the balancing test in Shaheed. We were not

asked to and neither would it be appropriate for us (given that it was a seven judge

bench) to revisit the Shaheed test. In any event, the Evidence Act 2006 effectively

enshrines Shaheed in legislation. It may nevertheless be time to refine the test in

light of subsequent experience and academic commentary. Further, the issue as to

the continued application of the pre-Shaheed cases needs resolution.

[9] The areas of uncertainty and inconsistency that we propose to attempt to

resolve in this part of the judgment are as follows:

(a) The link between unlawfulness and unreasonableness;

(b) When bad faith can render a warrant unlawful;

(c) Who can complain about a breach of s 21 of the Bill of Rights;

(d) The effect of a breach of s 21 of the Bill of Rights on downstream

evidence; and

(e) How the Shaheed balancing test should be conducted.

[10] There are no doubt other areas of uncertainty and inconsistencies in relation

to search and seizure cases, but we have limited our discussion to those that are

relevant in this case. If issues that are dealt with in this judgment arise in the future,

however, the Court is unlikely to find reference to earlier authorities helpful.

Reference to this judgment would normally suffice.

[11] As indicated above, for the convenience of readers, a summary of the

principles on search and seizure is provided at the end of the judgment. The relevant

summaries are set out in the following paragraphs:

(a) The link between unlawfulness and unreasonableness, at

[226] - [229];

(b) When bad faith can render a warrant unlawful, at [231] - [233];

(c) Who can complain about a breach of s 21 of the Bill of Rights, at

[235] - [239];

(d) The effect of a breach of s 21 of the Bill of Rights on downstream

evidence, at [241] - [243]; and

(e) How the Shaheed balancing test should be conducted, at

[245] - [252].

The link between unlawfulness and unreasonableness

[12] Since R v Jefferies [1994] 1 NZLR 290, this Court has recognised that

legality and reasonableness, while related, are distinct concepts. In Jefferies, four of

the judges stated that an unlawful search could nevertheless be reasonable but only

where the illegality arose as a result of a technical or inconsequential procedural

breach or in the case of an emergency – see Cooke P (discussing exceptionality only

at 296), Casey J (at 312), Hardie Boys J (at 315) and Thomas J (at 320). Although

concurring in the result in that case, McKay J considered that an unlawful search

must, by that very fact, be unreasonable (at 315 – 316).

[13] In R v Grayson and Taylor [1997] 1 NZLR 399, this Court widened the

grounds for holding that an unlawful search could nevertheless be a reasonable one.

The Court in that case took into account factors such as the extent of the invasion of

privacy, the manner of conducting the search, the length of the search, the good faith

of the officers, what type of evidence was uncovered by the search, whether the

police had additional material not disclosed in the warrant application, and the fact

that the search took place in the course of the investigation of possibly serious

criminal activity (in that case cannabis cultivation).

[14] The next relevant development was this Court’s decision in Shaheed. Before

Shaheed, this Court applied what was known as a prima facie exclusion rule. Under

the rule as originally conceived, evidence obtained in breach of s 21 of the Bill of

Rights was inadmissible, except where there was good reason to admit it. The rule

had, however, in practice become effectively an automatic exclusion rule. The

majority in Shaheed (Elias CJ dissenting) replaced the prima facie exclusion rule

with a new balancing test. The purpose of that balancing test is to determine whether

the exclusion of evidence is a proportionate response to the breach in question.

[15] One of the reasons for the introduction of the new balancing test was the

perception that frequently a balancing exercise was carried out in the fact-finding

process or in the determination of whether a search was reasonable. Blanchard J (in

a judgment joined by Richardson P and Tipping J) considered that this may have led

to some distortion. In Blanchard J’s view, there were cases in which it would have

been preferable to mark the breach of s 21 by a statement from the Court that the

search and seizure was unreasonable and then to determine, by means of a principled

balancing exercise, whether the evidence ought nevertheless to be admitted – see at

[141]. Of the other three concurring judges, two said that they agreed with the

reasons expressed by Blanchard J (see McGrath J at [192] and Anderson J at [201]).

Gault J did not expressly adopt Blanchard J’s reasoning for the introduction of the

balancing test, although he did say that he had little to add on that aspect of the

case – see at [169] - [170].

[16] While the Court in Shaheed did not explicitly overrule Grayson and Taylor,

the reasoning in that case supports the transfer of most of the factors considered in

Grayson and Taylor to the balancing phase under Shaheed – see at [106] - [131]

below. These factors will be relevant to the assessment of the seriousness of the

breach. In our view, the necessary implication from Shaheed therefore is that an

unlawful search will normally be an unreasonable search. This is supported by the

comments of this Court in R v Maihi (2002) 19 CRNZ 453 at [31]. Subsequent

cases, such as R v Abraham CA253/05 30 August 2005, R v Magan CA252/03

29 September 2003 and R v Hardy CA307/02 27 November 2002, which have

referred to the wider factors considered in Grayson and Taylor, in the context of

assessing the reasonableness of a search or seizure, are thus, post-Shaheed, no longer

to be followed.

[17] Transferring the wider Grayson and Taylor factors to the balancing phase

under Shaheed has the advantage of requiring those factors to be explicitly weighed

in assessing the proportionality of the remedy to the breach rather than being factors

leading to automatic admissibility of evidence through a finding of reasonable search

and seizure. It also has the advantage of simplifying the inquiry and eliminating the

double counting that concerned the Chief Justice in Shaheed (see at [19] of that

decision). In addition, it avoids the incongruity of characterising breaches of the law

by those charged with the enforcement of the law as reasonable and, in cases where

warrants are required, reinforces the fundamental requirement of judicial

pre-authorisation.

[18] This approach to Grayson and Taylor is supported by a number of the

commentators – see for example, Butler and Butler The New Zealand Bill of Rights

Act: A Commentary (2005) at 575, Mahoney “Evidence” [2006] NZ Law Review

112 at 116. See also Optican “Search and Seizure in the Court of Appeal – An Essay

On the Uses and Misuses of Section 21 of the Bill of Rights” (1999) 18 NZULR 411

at 419 and Optican “Lessons from Down Under: A Dialogue on Police Search and

Seizure in New Zealand and the United States” (2005) 3 Ohio St J Crim L 257 at

268. We also refer to the comments of this Court in R v Savelio CA234/96 5 August

2005 at [51].

[19] The next task is to identify any remaining exceptions to the general rule that

unlawfulness equates with unreasonableness. This Court in Jefferies indicated two

possible exceptions. The first was where the search takes place in the context of an

emergency and the second was where the error is minor or technical – see the

discussion at [12] above.

[20] We do not think that the first of these exceptions should survive Shaheed. In

many cases of emergency or threats to public safety, warrantless searches will be

lawful (see for example s 60 of the Arms Act 1983), as will warrantless entries and

arrests in certain circumstances (see s 317 of the Crimes Act 1961). Furthermore,

the Court has recognised that, in some circumstances, police entry onto property will

be lawful under the common law justification of necessity. Where the police have

good reason to fear that public safety may be at risk, or that a person may be in need

of assistance following serious physical harm, they will have authority to locate any

persons in trouble, as well as any person or thing representing a danger to

anyone - see R v Fraser [2005] 2 NZLR 109 (CA), at [37] especially, and

R v Findlay CA410/05 14 March 2006. For the purpose of assessing the

admissibility of evidence, we consider it better, outside of these situations which

have been sanctioned by Parliament or by the common law, for an unlawful search to

be held to be unreasonable even in the case of an emergency. The fact that a search

or seizure took place in an emergency situation will, however, be relevant when

assessing the magnitude of the breach under the Shaheed balancing test. This seems

to be the approach envisaged by Blanchard J in Shaheed – see at [147] of that

decision. See also s 30(3)(h) of the Evidence Act 2006.

[21] It is, however, appropriate that the second of the exceptions set out in

Jefferies should survive Shaheed. If even minor or technical breaches lead to a

finding of breach of s 21 of the Bill of Rights, this risks trivialising the right – see

also Shaheed at [146]. Even where a breach is minor or technical, a search or seizure

will not normally be held to be reasonable, however, if the police realised the error

existed before the search or seizure was undertaken.

[22] What is minor or technical should not be given an expansive interpretation.

An example of what has been seen as a minor and technical breach is R v Smith

(1996) 13 CRNZ 481 (CA), where there had been a failure to file a report after the

exercise of a warrantless search under s 18(2) of the Misuse of Drugs Act 1975. By

contrast, mistakes such as specifying the wrong property in a warrant would not

normally be considered a minor or technical breach, even where the intended

property is in fact searched. See for example R v Kappely [2001] 1 NZLR 7 (CA)

and R v Te Whatu (2002) 6 HRNZ 673, the latter involving the search of a Ford

camper-van when the warrant authorised a search of a Nissan vehicle with a different

registration number. For completeness, we note that in neither case was the warrant

able to be saved by s 204 of the Summary Proceedings Act 1957 – see Kappely at

[13] and Te Whatu at [9].

[23] Further, the failure to follow the identification requirements in, for example,

s 18(4) of the Misuse of Drugs Act 1975, is also unlikely to be a minor or technical

breach. Section 18(4) requires police officers, when exercising powers of search

under s 18(2) and (3) of the Misuse of Drugs Act, to identify himself or herself to

any person searched, and to any person present on the property being searched where

that person questions the right of the officer to conduct the search. As was noted in

Smith at 483 – 484, the identification requirement in s 18(4) is concurrent with the

exercise of the search power under s 18(2) or s 18(3). Despite what was said by

some members of the Court in Jefferies, we consider that the same applies to the

identification requirement in s 60(3) of the Arms Act 1983. In our view, provisions

such as s 18(4) of the Misuse of Drugs Act and s 60(3) of the Arms Act are

important. Requiring a person to submit his or her body or property to a search is a

restraint on their freedom. Identification provisions provide the target of the search

with the reason why his or her person or property is being invaded – see

Perkins v Police [1988] 1 NZLR 257 at 262 (CA). If the police, however, indicate

the general source of the power or permit the suspect to contact a lawyer at the time

of the search, this may allow the breach to be regarded as minor or trivial – see

Butler and Butler at 572.

[24] Finally on this topic, it is a necessary consequence of the fact that lawfulness

and reasonableness are distinct concepts that a lawful search may nonetheless be an

unreasonable search in terms of s 21 of the Bill of Rights, although this will be rare.

This could occur where a lawful search is conducted in an unreasonable manner. For

example, see R v Pratt [1994] 3 NZLR 21 (CA), where a strip search conducted in

public view was legal but unreasonable due to the time, place and disregard for

dignity. Likewise, where a warrant was readily obtainable and there was no question

of urgency (such as the threatened loss of evidence), a search conducted pursuant to

a warrantless power may be lawful, but unreasonable – see R v Laugalis (1993)

10 CRNZ 350 at 355 – 356 (CA) and R v H [1994] 2 NZLR 143 at 148 (CA).

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 – see, for example, Smith at 485 and Kappely at [20].

When can bad faith render a warrant unlawful?

[25] In this case, Heath J defined bad faith (see footnote 26 of his ruling of

6 September 2005) as meaning:

[A] deliberate decision to apply for a warrant for purpose A, while intendingit to be used for purpose B, when the applicant knew the evidence wasinsufficient to justify an application to search for purpose B.

[26] The Crown submitted that this definition is too wide. In its submission, there

is nothing wrong with law enforcement officers having a dual purpose in applying

for a warrant. In support of this proposition, the Crown cited R v Coveny CA351/05

11 April 2006 (CA), a case decided after Heath J’s ruling.

[27] The respondents argued that Coveny was wrongly decided and that Heath J’s

formulation of the test for bad faith should be preferred. As an alternative, they

argued that, if Coveny was correctly decided, it only applies where the search was

genuinely conducted for the purpose for which the warrant was issued and not where

that purpose was a mere ruse.

[28] This Court in Coveny held that a search pursuant to a valid warrant was not

unreasonable where one of the officers had another purpose in executing that

warrant, despite the fact that there was no proper basis for any search with regard to

that other purpose. At issue in Coveny was the admissibility of evidence of stolen

property obtained when a fines seizure warrant was executed. The fines seizure

warrant had been executed by a bailiff of the District Court accompanied by local

police officers. For present purposes it suffices to say that, as well as owing money

on fines, Ms Coveny had been identified as a suspect in relation to a number of

burglaries and one of the police officers executing the fines seizure warrant had

recently reviewed the burglary files.

[29] The District Court Judge in Coveny had ruled the search unreasonable on the

basis that he had a strong suspicion that the police assistance to execute the fines

seizure warrant in that case was only a ruse to get a foot in the door of Ms Coveny’s

house. This Court agreed that, when the police officer in question attended the

address, she was “motivated by the hope that a search of the premises would link

Ms Coveny with the burglaries” – see at [31]. The Court held, however, that there

was no basis for concluding (or even suspecting) that the execution of the fines

seizure warrant was only a ruse to get into Ms Coveny’s house. This was because it

was perfectly clear that there was a bona fide intention to execute the fines seizure

warrant and indeed, property subject to that warrant was seized. The Court

concluded that the officer had a dual purpose in attending at the execution of the

warrant. The first was to facilitate the execution of the warrant and the other was to

look for evidence linking Ms Coveny with the burglaries.

[30] The Court in Coveny had not been referred to any New Zealand cases

addressing the issue of admissibility of evidence where there was such a dual

purpose, but noted that evidence had been held to be admissible in such

circumstances in the United States and Canada – see United States of America

v Ewain 88 F 3d 689 (9th Cir 1996) and the decision of the British Columbia Court of

Appeal in R v Krist (1998) 130 CCC (3d) 347. However, we note that the ulterior

motive was not the focus of the decision in Krist and that a contrary decision was

reached in R v Caron (1982) 31 CR (3d) 255 (Ont Dist Ct). The Court also noted

that there is no general principle applicable to the criminal law which outlaws the use

of law enforcement powers for dual purposes, referring to R v Chalkley [1998] 2 All

ER 155 (CA), Keenan v Attorney-General [1986] 1 NZLR 241 (CA) and R v Te

Kahu [2006] 1 NZLR 459 at [76] (CA).

[31] The Court considered that there had been no appreciable adverse impact on

Ms Coveny’s privacy rights as, by her non-payment of fines, she had exposed herself

to the execution of a fines seizure warrant. Her privacy would have been invaded

even if the sole purpose of the officer had been to execute the fines seizure warrant.

The finding of the stolen items did not require a more intrusive search than was

permitted by the fines seizure warrant. The Court also remarked that the victims of

the burglaries warranted consideration and they could reasonably expect the police to

take advantage of lawful opportunities to search in places where it was likely that

property which had been stolen from them might be located. The Court was thus

satisfied that the search was reasonable.

[32] Usually, the seizure of property not referred to in an authorising power (such

as a warrant) will be illegal – see Barnett and Grant v Campbell (1902) 21 NZLR

484 (CA) and McFarlane v Sharp [1972] NZLR 838 (CA). Unlike Canada and the

United States, New Zealand does not have a general doctrine of “plain view” seizure.

However, where the property seized is stolen, as it was in Coveny, this Court has

taken the view that no element of illegality in relation to the seizure arises,

effectively creating a limited plain view seizure doctrine. The person in possession

of stolen goods cannot have an interest in the goods entitling him or her to hold them

as against the true owners – see R v Thomas CA173/05 7 July 2005.

[33] Also relevant, but not referred to in Coveny, are R v Stockdale [1995]

2 NZLR 129 (CA) and R v Gillies CA470/05 4 April 2006. In Stockdale, bags of

heroin were discovered in the appellant’s excrement while he was held on remand in

a prison facility. The prison superintendent then gave this heroin to the police,

believing that he could not actively destroy such evidence. While the police had

suspected the appellant of concealing heroin, the Court accepted that the prison

authorities’ surveillance of him was for the purpose of ensuring his safety, while also

preventing the introduction of heroin into the prison system. The Court (and the

Crown) accepted, however, that, if the prison authorities had colluded with the police

to gather evidence in an attempt to avoid the limited powers available to police in

such instances, the evidence should not be admitted – at 132 and 133 – 134.

[34] In Gillies, the High Court had formed the view that the officer’s entry into the

applicant’s car was unlawful for several reasons, one of which was the officer’s dual

motive. The officer not only wished to enter the vehicle in order to effect its

impounding, he also wished to obtain information about the vehicle’s owner (the

police held the suspicion that the vehicle might be stolen). The officer smelt

marijuana and after invoking s 18(2) of the Misuse of Drugs Act 1975, discovered

various drugs. This Court viewed the entry as clearly lawful, being a necessary

requirement of placing the vehicle into safe storage. Having focused on the clear

legality of the officer’s actions, the Court’s discussion of dual motives was brief,

stating at [15]:

[I]t may well be that the police had more than one motive for entering thevehicle. It does not matter whether one reason was bad and the other good;so long as one of the reasons was good and permitted lawful entry, that willsuffice.

[35] As indicated above, at [27], the respondents’ first submission was that

Coveny was wrongly decided and that Heath J’s approach should be preferred. Even

if we considered that to be the case, there would be no grounds for overruling

Coveny. It is a recent decision of this Court and followed full argument. There are

no conflicting decisions of this Court of which we are aware, we have not been

pointed to any academic criticism of the decision and there has been no relevant

social change or contrary decisions in other jurisdictions since Coveny was

decided - see R v Chilton [2006] 2 NZLR 341 at [83] – [90] (CA).

[36] In any event, we consider Coveny, Gillies and Stockdale to have been

correctly decided on the dual purpose point. While we accept that in extreme cases

police bad faith may render an otherwise lawful search unreasonable, merely having

a dual purpose for a search is not sufficient, even where there are insufficient

grounds for applying for a warrant for one of those purposes. It will not be

uncommon, as the Crown pointed out, for police officers to have prior knowledge of

possible offending falling short of providing proper grounds to apply for a warrant

and for those officers to be aware of the possibility that evidence of this offending

may come to light when conducting a search pursuant to a warrant lawfully obtained

for another purpose. We accept the Crown’s submission that the police cannot be

precluded from exercising a power of search in such circumstances. The key point is

that, as long as the search is not wider than would be allowable in relation to the

purpose for which the warrant was obtained, the lawful invocation of alternative

search powers will occur in a situation where there has been no greater infringement

of privacy than would have occurred in any event. To the extent that Frost v Police

[1996] 2 NZLR 716 (HC), R v Hetaraka and Thomas HC WHA CRI 2004-029-931

5 May 2005 (cited by Heath J at [111] of his 6 September 2005 ruling) and any

similar cases are inconsistent with these views, they are overruled.

[37] We add a caveat. Any collateral purpose for conducting a search should be a

legitimate law enforcement purpose. If a warrant were obtained or a search

conducted for an illegitimate purpose, such as to harass an ex-partner or for

discriminatory purposes contrary to s 19(1) of the Bill of Rights, then, where that

illegitimate purpose is anything more than incidental, any resulting search would in

our view be unreasonable in terms of s 21 of the Bill of Rights. We see this caveat

as consistent with the principles enunciated by Lockhart J in Crowley v Murphy

(1981) 34 ALR 496 at 521 (FCA), cited with approval in Wilson v Maihi (1991)

7 CRNZ 178 at 180 - 181 (CA). Lockhart J considered that, amongst other things:

[T]he power must be exercised for the purpose for which it was conferred. Itmust not be used for some ulterior purpose. If, for example, it is used topunish the person whose premises are to be entered and searched, plainlythat is an ulterior purpose.

[38] We also consider that, where any collateral purpose is strong, its existence

should ideally be disclosed in any warrant application and it should also be disclosed

that there was not sufficient evidence to seek a warrant for that collateral purpose.

[39] The respondents’ next submission was that cases where the purpose for

which the warrant was obtained is a mere ruse are not covered by Coveny. In their

submission, where that is the case, the search should be held to be unreasonable. It

is true that this Court in Coveny rejected the submission that the fines seizure warrant

was a mere ruse. It thus did not have to decide whether it would have made any

difference to the reasonableness of the search if the execution of the fines seizure

warrant had been a mere pretext for the search in relation to the burglaries.

[40] On this point, Heath J had been referred to Whren v United States 517 US

806 (1996) and to the earlier Supreme Court case of Horton v California 496 US 128

(1990) on this point. In Whren, plain clothes policemen were patrolling a high drug

risk area in an unmarked vehicle. They observed a traffic violation and stopped the

vehicle involved, allegedly to speak to the driver about that violation. On

approaching the vehicle, the officers saw plastic bags of crack cocaine in

Mr Whren’s hands and he and the driver were arrested. The petitioners sought to

have the evidence excluded on the basis that the asserted ground for stopping the

vehicle was a mere pretext. The Supreme Court held that ulterior motives cannot

invalidate police conduct which is justified on the basis of probable cause, in this

case probable cause to believe that a traffic violation had occurred. Outside

inventory searches or administrative inspection, the Court said that it had always

held that an officer’s motive could not invalidate objectively justifiable behaviour –

see, for example, United States v Villamonte-Marquez 462 US 579 (1983), United

States v Robinson 414 US 218 (1973) and Gustafson v Florida 414 US 260 (1973).

[41] The Supreme Court in Whren also rejected an approach whereby an officer’s

conduct would be judged on the basis of standard police practice. The petitioners had

submitted that, in order to prevent police stopping cars based on an ulterior motive or

pretext, the test should be whether a reasonable officer would have stopped the car

for the purposes of enforcing the traffic violation at issue. The Supreme Court was

concerned that there could be variations in police practice from place to place and

from time to time. It also considered that it would be very difficult to ascertain such

practice. There would be little of objective assistance and a court would be reduced

to speculating about the hypothetical reaction of a hypothetical constable, an exercise

the Court called “virtual subjectivity” - see at 815.

[42] Heath J considered that Whren did not apply when a warrant is actually

sought to conduct a different type of search and not for the purpose for which the

warrant was granted. We are not able to read down Whren in that manner. The very

basis of the petitioners’ argument in that case was that the real purpose of stopping

the vehicle was to search for drugs. It was alleged that a reasonable officer would

not have stopped the car for the traffic violation and that the traffic violation was a

pretext or ruse. Despite this, the Supreme Court held that, apart from in exceptional

cases, the test was whether objectively there was probable cause to stop the vehicle.

The officers’ subjective purpose was irrelevant. It must follow that it did not matter

whether or not the officers used the traffic violation as a pretext or ruse for stopping

the vehicle.

[43] The issue is whether we should adopt the Supreme Court’s approach in New

Zealand. We consider that the approach in the United States is too extreme. In our

view, members of the New Zealand public would expect that their privacy would

only be invaded where it was lawful to do so and where the purpose for that lawful

invasion of privacy was genuine and not a mere ruse. We would, however, expect a

conclusion that the purported purpose for a lawful search was a ruse to be very rarely

drawn.

[44] Whether or not something is a mere ruse should be judged from the totality of

the circumstances, taking into account both subjective and objective factors. It

should be judged from the perspective of the operation as a whole and not just from

the perspective of the individual officer who applies for the warrant or those who

execute it. The words and actions of the officers at the time of applying for any

warrant and in conducting the search will clearly be relevant to the assessment. We

also consider that, if, in the circumstances of the case, it would be standard police

practice to conduct a search, then this would be a very telling factor against a finding

that the purported purpose for the search was a ruse, provided the practice is itself

reasonable. New Zealand is a smaller country than the United States with one police

force and so the difficulties which led the Supreme Court in Whren to reject the

consideration of standard police practice do not apply with such force in this country.

[45] The cases of R v Bainbridge (1999) 5 HRNZ 317 (CA), R v Koroheke

CA193/00 7 September 2000, R v Thomas (2001) 19 CRNZ 392 (CA) and Jones v

Attorney-General [2004] 1 NZLR 433 (PC) are examples of cases where the

purported purpose was no more than a pretext. Broadly, these cases concerned a

police officer’s power to stop a driver for the purposes of exercising any powers

under the Land Transport Act 1998 and to obtain the driver’s personal details – most

notably s 114 of that Act. The Court was dealing with officers who had no intention

of using the Land Transport Act powers. As these cases make clear, s 114 cannot be

used for a non-road transport purpose, such as a hunch that a driver possesses drugs

(Koroheke at [19] and Thomas at [10]), and the officer must also always act within

the scope of the authorising power (Jones at [4] and Bainbridge at [29]).

[46] In summary, we consider that the definition of bad faith used by Heath J

(above at [25]) is too wide. If there is a collateral purpose (even a dominant purpose)

for a search, this does not make the search unreasonable as long as the search is

lawful, not unreasonably executed and does not extend further than to fulfil the

lawful purpose. Any collateral purpose must be a legitimate law enforcement

purpose and the lawful purpose must not be a mere ruse in the sense described

above.

Who can complain about a breach of rights?

[47] It has long been established that breaches of other people’s rights under the

Bill of Rights cannot be relied upon by third parties – see R v Wilson [1994] 3 NZLR

257 at 259 (CA). This concept is often couched in terms of standing, although the

term is rather inapt for this subject-area. It is more helpful to define the issue as

being whether or not a person is able to claim a personal remedy (i.e. exclusion of

evidence) under the Bill of Rights. The purpose of that remedy is to provide

vindication of an individual’s rights. If that individual’s rights have not been

breached then there is nothing to vindicate.

[48] A touchstone of s 21 of the Bill of Rights is the protection of reasonable

expectations of privacy – see R v Fraser [1997] 2 NZLR 442 at 449 (CA). It is thus

only where a person’s privacy interest has been breached that his or her rights under

s 21 of the Bill of Rights have been breached and a personal remedy is available.

The issue therefore is in what circumstances an individual’s privacy interest arises.

[49] The Supreme Court of Canada has answered this (by majority) by a test

which considers the totality of the circumstances – see R v Edwards [1996] 1 SCR

128 at [45] per Cory J, drawing from United States v Gomez 16 F 3d 254 at 256

(8th Cir 1994). Factors to be considered include:

(a) presence at the time of the search;

(b) possession or control of the property or place searched;

(c) ownership of the property or place;

(d) historical use of the property or item;

(e) the ability to regulate access to the property or place;

(f) the existence of a subjective expectation of privacy; and

(g) the objective reasonableness of that expectation.

[50] In Edwards drugs were found, after what was alleged to be an unlawful

search in the apartment of Mr Edwards’ girlfriend. Mr Edwards was held to have no

relevant privacy interest (possessory or proprietary) in the drugs in question, having,

until the Supreme Court hearing, denied ownership. He was also held to have no

privacy interest in his girlfriend’s apartment. Although he had a key and occasionally

stayed over, he did not live there or contribute financially to the upkeep and had no

right to regulate access to the apartment, the latter being seen as an especially

important factor – see at [48] - [50] of the judgment. As Mr Edwards had no

relevant privacy interest, he was held to have no standing to challenge the

unreasonable search.

[51] The Supreme Court rejected the proposition that an accused should have

automatic standing where the Crown alleges that he or she was in possession of

property that was discovered and seized in the course of an unlawful search. This

was because the United States Supreme Court and most State courts in the United

States had resiled from an automatic standing rule of this nature and because such a

rule was inconsistent with the remedy section in the Canadian Charter of Rights and

Freedoms (the Charter) which applies only to those whose rights have been breached

– see at [52] – [54] of the judgment. It was, however, recognised that there could be

rare cases where the invasion of the privacy of innocent third parties may be

constitutionally relevant to an assessment of reasonableness (although arguably only

where standing has been established). The Court gave the example of a flagrant

abuse of an individual’s right to privacy or a potentially massive invasion of third

party rights as occurred in R v Thompson [1990] 2 SCR 1111.

[52] La Forest J wrote strongly in dissent. At [59], he said that the protection

accorded by the Charter was not limited to searches of premises over which an

accused has a personal right to privacy in the sense of some direct control or

property interest. Rather, the Charter was intended to protect the public generally

from unreasonable searches or seizures. Unlike the majority, he would have

extended the cases where an invasion of privacy is constitutionally relevant to other

situations where the public right to be secure against unreasonable search and seizure

has been infringed, such as the wilful and forcible breaking into the home of a person

other than the accused – see at [64]. La Forest J considered it unfortunate that the

majority had decided to follow the United States approach which was the product of

history and which had been the subject of stringent criticism in that country – see the

discussion at [66] – [68] of his judgment.

[53] A similar result was reached in R v Belnavis [1997] 3 SCR 341, where Cory J

again gave the leading majority judgment. In that case, Ms Belnavis was driving a

car that she had borrowed from a friend. The car was pulled over by police. While

an officer was talking to one of the passengers, a Ms Lawrence, he noticed some

rubbish bags in the back seat containing garments with price tags hanging from

them. A search of the car boot revealed five more such bags.

[54] The majority held that, apart from her presence at the time of the search,

there were few other factors which would suggest that the passenger, Ms Lawrence,

had an expectation of privacy in the vehicle. She did not own it, being merely a

passenger in a car driven by a friend of the owner. There was no evidence that she

had control of the vehicle or that she could regulate access to it. She had no past

connection with the vehicle and had not shown any relationship with the owner or

driver which would have given her some special access to or privilege in regard to

the vehicle (such as marriage or as fellow travellers on an extended journey sharing

expenses and the driving responsibilities). She also could not demonstrate any

reasonable expectation of privacy in the seized merchandise or the rubbish bags in

which that merchandise was contained. She thus had no standing to challenge the

search – see at [22] – [23] of the judgment.

[55] By contrast, the majority recognised that Ms Belnavis, driving with the

apparent permission of the owner, did have a reasonable expectation of privacy in

the vehicle. The evidence, however, was held admissible against Ms Belnavis as its

exclusion would cause harm to the administration of justice, given that the quantity

of merchandise suggested more than a random act of petty theft, the evidence was

essential to the prosecution, it was reliable and any breach was not serious – see at

[46] of the judgment. The car had been stopped lawfully, the officer treated the

appellants politely, the breach was isolated and brief and the officer acted in good

faith – see at [41] – [42]. There was also a lesser expectation of privacy in a car than

in a home or office – see at [38] – [39].

[56] Again La Forest J strongly dissented. He said (at [50]) that the majority’s

approach interpreted the reasonable expectation of privacy protected by the Charter,

not by reference to what a citizen should expect in a free society, but by reference to

legalistic property concepts. These, he went on to say, would favour the

economically advantaged – see at [66] of his judgment. The majority’s approach

also drew, in his view, unwarranted distinctions which depended on the personal

relationships between individuals – see at [67] of his judgment. La Forest J agreed

that there is a reduced expectation of privacy in a motor vehicle. However, he said

(at [55] – [56]) that taking a drive with one’s spouse, friends or anyone else

permitted to do so by the owner or driver, is a common and perfectly legitimate

activity in a free society. It is an activity which the citizen should normally be left

free to pursue in the reasonable expectation that he or she would be left alone and for

their possessions in the car to be likewise left alone, except where there are

legitimate public safety reasons to stop the vehicle.

[57] The approach of the majority in Edwards and Belnavis has been criticised on

several grounds. For instance, commentators argue that, in relying on United States’

case law, the Canadian Supreme Court has failed to account for the difference in

remedies between the two jurisdictions – see Stuart “The Unfortunate Dilution of

Section 8 Protection: Some Teeth Remain” (1999) 25 Queen’s LJ 65 at 70 and Lawn

and Bernstein “Primacy to Privacy? The Supreme Court and the Privacy Threshold

in Edwards” (1997) 55 U Toronto Fac L Rev 341 at 345. While the Canadian

jurisdiction provides for the exclusion of evidence in the interests of justice (s 24(2)

of the Charter), the United States Supreme Court has adopted an automatic rule of

exclusion to evidence obtained in breach of an accused’s rights – Weeks v United

States 232 US 383 (1914). The United States Supreme Court’s cases concerning

standing are fundamentally driven by the desire to avoid the “social costs” of the

exclusionary rule – see Rakas v Illinois 439 US 128 at 137 (1978) per Rehnquist J.

The individualistic bias of the United States approach to Fourth Amendment

standing, adopted in Canada, has also been criticised for its focus on property rights

and the individual’s ability to regulate access and exclude not just governmental

incursion, but the world at large – see, for example, Dawe “Standing to Challenge

Searches and Seizures under the Charter: the Lessons of the American Experience

and their Application to Canadian Law” (1993 - 1994) 52(1) U Toronto Fac L Rev

39 at 54.

[58] We now come to the position in New Zealand. This is an area where there

have been inconsistent decisions by this Court. In R v Pointon (1998) 5 HRNZ 242

at 248, this Court left open the question of whether the approach to standing in

Belnavis should be adopted because the question did not arise in the particular

circumstances of the case. The Court said that, in a case where it did arise, it would

be necessary to consider the minority opinions in Belnavis and similar United States

Supreme Court cases in order to decide what connection, in the absence of any

proprietary interest in the vehicle or property contained in it, is sufficient to give a

passenger standing to complain of unreasonable search and whether physical

presence at the time of the search by the person claiming standing is required.

[59] The next case is R v Anderson (2005) 21 CRNZ 393 (CA). In Anderson the

police stopped a vehicle that they suspected had been involved in a hit and run in the

area. After examining the car and ruling out its involvement, the police nevertheless

decided to search the vehicle because the occupants fitted the description of a group

of males dressed in dark clothing who had been acting suspiciously in the vicinity of

a car parked outside a cinema. The cinema was some distance away from where the

car was stopped. In the course of the search, the police found burglary instruments,

offensive weapons and drugs which led them to invoke warrantless search powers.

[60] The Court held that the search of the vehicle was clearly unlawful. The

police officers in question, purporting to rely on s 225 of the Crimes Act 1961, had

no reason to believe that the car contained stolen goods. The Crown had, however,

submitted, on the basis of Belnavis, that only the driver of the car had standing to

complain about the search – see [44] of the judgment. The Court rejected that

submission. It held that there was a clear inference that the passenger was in the

vehicle with the consent of the driver, who in turn had the permission of the owner to

drive the car. The Court said that there was nothing to suggest that the passenger’s

right to be in the vehicle was any different from that of the driver and there was no

basis for distinguishing between them as to a reasonable right to privacy when

neither was unlawfully within the vehicle. In the circumstances of the case, the

Court considered that there would be a perversion of justice if the driver had

standing for the purpose of s 21 of the Bill of Rights but the passenger did not – see

at [45] – [46] of the judgment.

[61] This Court in Savelio, without referring to Anderson, took a different

approach. There had been an armed robbery of a bank and Mr Savelio was a

suspect. A police officer had seen Mr Savelio going into his father’s house a few

hours after the robbery. A search warrant was obtained and incriminating items were

found in the garage, including a pencil case hidden under a couch containing

substantial amounts of money, a black jersey with one sleeve missing (matching a

balaclava found earlier in the abandoned getaway car) and a sawn-off shotgun under

the floorboards.

[62] The Court held, following the approach of the majority in Edwards, that

Mr Savelio had no standing to argue that the search breached s 21 of the Bill of

Rights. Although there was evidence that Mr Savelio used the garage to “bunk up”

on occasions, there was no evidence that he had permission to use the garage for any

other purpose, let alone the concealment of a weapon. There was also nothing to

show that he had any authority to prevent anyone entering the garage and he had not

shown any proprietorial or possessory interest in the pencil case in which the money

was found. Savelio was applied in R v Williams CA63/05 9 December 2005 and R v

Sua CA365/05 9 December 2005.

[63] In our view, the approach in Anderson is to be preferred over that in Savelio,

Edwards and Belnavis. It was, in any event, decided before Savelio. The Court in

Savelio took a formal proprietary approach to the inquiry, which we consider

inappropriate for the reasons outlined by La Forest J in Belnavis. The Bill of Rights

should not become dominated by formal proprietary notions given the universal

nature of the rights it protects. The Court also focused on the criminal activity being

undertaken in assessing the privacy interest involved. Section 21 provides protection

of the rights of the general public. Privacy interests in premises should thus be

assessed objectively without any concentration on property rights, or the activities of

the accused.

[64] The fact that any licence terms have been breached (for example, by

engaging in illegal activity) should have no bearing on whether there is a legitimate

privacy interest. The words of La Forest J in R v Wong [1990] 3 SCR 36 at 50 are

apposite:

[I]t would be an error to suppose that the question that must be asked inthese circumstances is whether persons who engage in illegal activity behindthe locked door of a hotel room have a reasonable expectation of privacy.Rather, the question must be framed in broad and neutral terms so as tobecome whether in a society such as ours persons who retire to a hotel roomand close the door behind them have a reasonable expectation of privacy.

[65] As Mahoney points out, in “Evidence” [2006] NZ Law Review 105 at 115,

taking into account the use to which the property is put would leave little room for

anybody but the property owner to be granted standing. The only lease or licence

holders to have standing might be those who have been granted a lease or licence to

use the premises as a base for criminal activity which, as Mahoney points out, is an

ironic choice for the beneficiary of the protection of the Bill of Rights.

[66] Further, the concentration on criminal activity at this point in the analysis is

in our view akin to saying that the end will, in all cases, justify the means. Taking

account of the seriousness of the offence as a factor in the Shaheed analysis – see at

[135] – [139] below acknowledges that sometimes the end cannot be ignored but this

is only after a proper balancing of all relevant factors. Having “standing” as an “all

or nothing” concept risks encouraging unlawful behaviour on the part of the

police - see Pointon at 249, Bainbridge at [36], R v Thomas (2001) 19 CRNZ 392 at

[18] - [20] (CA), Shaheed at [24] per Elias CJ, and Anderson at [33]. In a civilised

society, it is vital that those entrusted with the enforcement of the law be required to

follow it themselves.

[67] We have rejected the totality of the circumstances approach of the majority in

Edwards. Despite this, we consider that the factors identified in Edwards - (see at

[49]) above are useful factors to be considered individually and disjunctively. This

means that everyone actually present at premises which are the subject of a search

must be taken to have a reasonable expectation of privacy if they can be seen to be

there with the acquiescence of anyone having any sort of licence to be present at the

property.

[68] The “gatecrasher”, not expressly invited to a social occasion, would, on the

view we have adopted, be able to raise a breach of s 21. Whether this extends to a

pure trespasser on the premises for unlawful purposes, such as a burglar, has been

raised in the United States context. For instance, in Rakas v Illinois, Rehnquist J for

the majority considered that such a trespasser could not be said to have a legitimate

expectation of privacy. The burglar’s expectation of privacy is, in the United States,

variously described as “wrongful” and not “one that society is prepared to recognize

as ‘reasonable’”, especially given that the burglar does not have the right to exclude

others from the property – see Rakas v Illinois at 142 n 12. We consider that the

same approach is likely to apply here.

[69] For those not present at a search, any type of licence to occupy the premises,

however bare, and any type of possessory or proprietorial interest in any property

searched or seized would give rise to an expectation of privacy. Although

Jones v United States 362 US 257 (1960) has been overruled by subsequent cases

(see below at [73]), we agree with the Supreme Court’s statement at 266 of that case:

[I]t is unnecessary and ill-advised to import into the law surrounding theconstitutional right to be free from unreasonable searches and seizures subtledistinctions, developed and refined by the common law in evolving the bodyof private property law … . Distinctions such as those between ‘lessee’,‘licensee’, ‘invitee’ and ‘guest’, often only of gossamer strength, ought notto be determinative in fashioning procedures ultimately referable toconstitutional safeguards.

[70] The next question is whether the accused must prove a connection with the

property or at least be able to point to an evidential basis for such connection. As it

was not the subject of full argument, we leave this question open. In Canada at least,

the accused, in order to persuade a judge to hold a voir dire as to the admissibility of

evidence, bears the burden of providing an evidentiary basis for a claim that his or

her Charter right was violated – see R v Pugliese (1992) 8 OR (3d) 259 at 267 (Ont

CA) and Edwards at [43] and [45]. This requires, in most instances, positive

evidence (see R v Khuc (2000) 142 CCC (3d) 276 (BCCA)), unless the accused

adopts the Crown’s position that he or she was connected to the property in a way

which gives rise to a claim for standing – see R v Chan [2003] OJ No 188 (Ont SCJ)

at [24] - [34].

[71] The argument that an accused must provide an evidential basis for a relevant

connection to the property before being able to claim a personal remedy may be in

line with the approach in R v Te Kira [1993] 3 NZLR 257 per Cooke P. In that case,

it was held (in a different context) that it was up to the accused to point to an

evidential foundation for a breach of the Bill of Rights and then for the Crown to

disprove that breach on the balance of probabilities – see Te Kira at 261 per Cooke

P. Also, in R v Mallinson [1993] 1 NZLR 528 at 531 (CA) the Court considered

that, where admissibility of a statement following a breach of s 23(1)(b) of the Bill of

Rights is put in issue by the accused, the burden of establishing admissibility rests

with the Crown– see also Attorney-General v Udompun [2005] 3 NZLR 204 at

[119] - [120] (CA). In that case it was said that, where a claimant at the time in

question acknowledged an understanding of their right to consult and instruct a

lawyer (s 23(1)(b)), they must put forward an evidential basis other than mere

assertion when claiming that they in fact did not understand the right at the time.

Once an evidential basis is established, it is for the Crown to prove understanding.

For the position under the new Evidence Act, see s 30(1)(a) and (b).

[72] The other possible approach is to give automatic “standing” where it is part

of the Crown case that property seized has a connection to the accused or

alternatively that the accused has a connection to the premises where the items

seized were found. The argument in favour of that approach is that the Crown

should not be able to have it both ways, by asserting a connection but requiring the

accused effectively to accept that part of the Crown case before being able to claim a

remedy. This may be seen as an unjustified intrusion into the accused’s right to

remain silent – see R v Gaston [2003] AJ No 295 (Alta CA) at [2] and Luther “Of

Excision, Amplification and Standing: Making Sense of the Law of Evidence in the

Context of Challenges to Warranted Searches” (2006) 11 Can Crim LR 1 at 20 – 21.

[73] Concerned about this problem, the United States Supreme Court had

originally adopted a rule of automatic standing for anyone charged with crimes of

possession – see Jones v United States at 263 – 264. In United States v Salvucci

448 US 83 at 85 (1980), the Supreme Court overruled its decision in Jones.

However, the Court’s analysis in Salvucci has been criticised by commentators – see,

for example, Doernberg “‘The Right of the People’: Reconciling Collective and

Individual Interests Under the Fourth Amendment” (1983) 58 NYU L Rev 259 at

264 n 26 and 268 – 269 and MacDonald “Standing to Challenge Searches and

Seizures: A Small Group of States Chart their Own Course” (1990) 63 Temp L Rev

559 at 585 - 586 and 589 – 590.

[74] While we have defined privacy interests broadly, the strength of any privacy

interest is a factor to be taken into account under the Shaheed balancing test in

assessing the seriousness of the breach. This will depend both on the strength of a

person’s links to the property and also on the type of property being searched (with a

greater privacy interest in a residential as against a commercial property for

example). Moving these considerations to the Shaheed balancing phase has the

support of Mahoney – see “Evidence” [2006] NZ Law Review 112 at 116.

[75] Finally on this topic, we discuss the position of a person with no personal

claim under the Bill of Rights. The common law jurisdiction to exclude evidence on

the basis of unfairness and/or abuse of process runs parallel to the Bill of Rights –

see Shaheed at [62] - [65]. Although those with no reasonable expectation of

privacy may not be able to claim a personal remedy under the Bill of Rights, he or

she could avail himself or herself of the common law jurisdiction (or, when it comes

into force, the Evidence Act 2006, which incorporates and modifies the common law

jurisdiction – see below at [77]. This Court recognised in R v Wilson [1994]

3 NZLR 257 at 259 that whether someone else’s rights have been infringed under the

Bill of Rights may be a material factor in exercising that common law jurisdiction.

This is appropriate, given that the rights and freedoms enshrined in the Bill of Rights

are fundamental ones that underpin our society, as Gault J said at [171] of Shaheed.

[76] We consider that it would be a highly relevant factor, when undertaking the

common law analysis, if an accused were jointly charged with a person able to claim

a personal remedy under the Bill of Rights. It would not seem either fair or readily

comprehensible to a jury for evidence to be inadmissible in those circumstances

against the person who would usually have the strongest connection to that evidence

but admissible in respect of the other accused. This applies with even greater force

where the charge is one of conspiracy. We note that in Wilson the persons whose

rights had allegedly been breached were not complaining about the breach and they

were not jointly charged – see at 259.

[77] The new Evidence Act, codifying much of Shaheed (see below at

[149] - [152]), provides for the possible exclusion of “improperly obtained

evidence”. As well as evidence obtained in breach of any enactment by a person to

whom s 3 of the Bill of Rights Act applies, (see s 30(5)(a) of the Act), “improperly

obtained evidence” is defined in s 30(5)(c) as evidence that was obtained “unfairly”.

This must encompass the common law jurisdiction to exclude evidence on that

ground. It seems to us, therefore, that a defendant who wishes to raise the breach of

a third party’s right would still, under the new Evidence Act, be able to argue that the

evidence was obtained unfairly because it was obtained in breach of another person’s

rights.

[78] In any event, it is arguable that the new Evidence Act abolishes any question

of “standing”. Section 30(1)(a) states that the issue of improperly obtained evidence

can be raised by “the defendant against whom the evidence is offered”. Section

30(5)(a) states that improperly obtained evidence includes evidence obtained in

breach of any enactment or rule of law by a person to whom s 3 of the Bill of Rights

applies. Neither subsection requires that the defendant personally be the victim of

any breach. However, the degree of connection of a defendant to the property

searched or the objects seized would remain relevant to the determination of the

seriousness of the breach – see s 30(3)(a) of the Evidence Act and below at [124].

The effect of a breach on downstream evidence

[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. This was the situation in Shaheed and it caused major

division in this Court. In that case, the admissibility of two pieces of evidence was

challenged: evidence obtained from DNA profiling of the accused (after a

compulsion order had been made by the High Court for the taking of a fresh blood

sample) and the complainant’s identification of the accused from a photo-montage.

Both pieces of evidence would not have been obtained but for Mr Shaheed having

been identified as the possible attacker through an unlawful and unreasonable

search - the taking of his blood other than in conformity with s 30 of the Criminal

Investigations (Blood Samples) Act 1995 (now the Criminal Investigations (Bodily

Samples) Act 1995). The crime at issue was the abduction and rape of a 14 year old

schoolgirl on her way to school. The unlawful blood sample was taken a year later

when he was arrested for accosting a 16 year old schoolgirl walking to the same

school.

[81] There were five judgments in Shaheed. Four of these were individual

judgments (Elias CJ, Gault , McGrath and Anderson JJ) and one a joint judgment of

Richardson P, Blanchard and Tipping JJ, delivered by Blanchard J. We start with

that joint judgment.

[82] The Judges subscribing to the joint judgment would have excluded both the

DNA and the photo-montage evidence. Blanchard J said at [163] that, although the

High Court in making the compulsion order had relied on evidence other than the

databank sample, that evidence had come to light only because of the matching of

the unlawfully gained sample and the identification by the complainant which

followed. He accepted that the identification was based on the complainant’s own

memory but Mr Shaheed’s photograph would not have appeared in the

photo -montage used for identification “were it not for the DNA match derived from

the databank sample.” There was therefore a real and substantial connection

between the breach and the evidence, notwithstanding the intervening compulsion

order.

[83] Blanchard J considered that the breach did more than merely provide an

opportunity for testimony which could be said to be truly independent of the breach,

as happened in United States v Ceccolini 435 US 268 (1978) and R v Hearne-Smith

CA104/01 23 July 2001. In Ceccolini, (discussed in more detail in Shaheed at

[75] - [77]) the evidence of a witness interviewed the day following an unlawful

search was ruled admissible. This was because the witness was already known to the

police, she was not referred in the interview to anything seen in the unlawful search

and she was completely willing to offer evidence. Furthermore, in the context of the

United States exclusionary rule, the search did not exhibit any form of bad faith.

The case of Hearne-Smith (discussed in Shaheed at [130] – [132]) was slightly

different in that the witness was unlikely to have been interviewed had it not been for

the unlawful search. The witness’s evidence about the subject matter of the unlawful

search was held inadmissible as the accused’s rights could not be properly vindicated

if, by a route really and substantially connected, the witness’s evidence could be

tendered in substitution for the product of the unreasonable search. The witness was

also, however, able to give independent evidence of other offending by the accused.

That evidence was held admissible as having no substantial connection to the breach.

The Court in that case noted, at [27], that it was a step removed both in terms of

connection and vindication.

[84] Blanchard J’s approach was thus to consider whether the evidence would not

have been obtained but for the breach. This is subject to the qualification that

evidence will be admissible if it is from a witness who can give evidence without

taking advantage of the material gleaned from the unlawful and unreasonable search

(such as occurred in Ceccolini) or if the evidence relates to offending independent of

that uncovered by the breach (such as in Hearne-Smith).

[85] Blanchard J recognised too that there may be situations where the connection

between the breach and the evidence is so attenuated that it cannot be seen as

causative of the evidence being obtained – see at [146] of his judgment. Blanchard J

also said in that paragraph that there will be no relevant link between a breach and

evidence where the discovery of the evidence by legitimate means was bound to

have occurred. We consider that Blanchard J had in mind the situation where the

downstream evidence could be said to be independent of the breach, such as in

Ceccolini, rather than a general doctrine of inevitability of discovery. See below at

[126] - [129] for our discussion of the inevitability doctrine and why it should be

treated as a balancing factor in the Shaheed analysis.

[86] The other Judges took a different view on admissibility from that in the joint

judgment delivered by Blanchard J. Elias CJ, Gault and Anderson JJ would have

held both the DNA evidence and the photo montage evidence admissible. McGrath J

regarded the photo montage evidence as admissible but agreed with Blanchard J that

the DNA evidence was inadmissible. We now examine their reasoning in more

detail.

[87] Elias CJ considered, at [9] - [10], that a real and substantial connection

between the breach and the challenged evidence is not difficult to discern where the

evidence is seized during the course of a single transaction. Indirectly obtained

evidence may also be so connected with a breach that its acquisition would

effectively perfect the breach of right. However, in her view, a real and substantial

connection is not established simply because the evidence came to light through a

sequence of events which included an earlier breach. If that were so, the knowledge

would become “sacred and inaccessible”, a result which would undermine the public

interest in the detection and prosecution of crime and “would be disproportionate to

the affirmation and protection of the right” – see at [10].

[88] The Chief Justice went on to state that sufficiency of connection is a matter

of degree. She articulated a twofold test. Subsequent lawfully obtained evidence

will not have a sufficient connection with a breach where it is not dependent for its

proof or cogency on the admissibility of the earlier evidence obtained in breach of a

right, and where it has not been obtained through bad faith in exploitation of the

original breach. The Chief Justice also considered that remoteness from the breach

achieved by lapse of time or by intervening events was significant – see at [11] of

her judgment.

[89] Gault J doubted that it was possible to lay down a test for the kind or degree

of connection that would so link a suspect’s rights with an earlier breach that the

balancing test should be invoked – see at [179]. However, he said that there “should

be a point of remoteness beyond which the issue of balancing does not arise.” Even

where the balancing test is reached, however, the nature of the link and its

relationship to the evidence must be taken into account. He continued, at [180], to

say that he saw an analogy in the civil context in which a distinction is drawn

between causing loss and creating the opportunity for loss to be suffered. In a

criminal investigation, it is one thing to cause evidence to be obtained. It is another

to provide a line of inquiry which presents an opportunity to obtain evidence. In the

first situation, the evidence itself (its content) flows from the breach. In the second

situation, the content of the evidence may be independently volunteered. Such

evidence would be the same whether or not the earlier breach had occurred. Gault J

noted that the position would be different if the probative value of the evidence could

be realised only by adducing evidence of the product of the earlier breach. If this

were the case, the balancing test should be applied to determine admissibility – see at

[181].

[90] Applying these arguments to the case, Gault J considered that the compulsion

order had been obtained on the basis of independent evidence which, in his view,

sufficiently severed it from the breach. The only link was that the independent

evidence would not have been assembled had there not been the earlier breach. Even

were he wrong on that point he would have admitted the evidence under the

balancing test, given its extremely high apparent reliability. In his view, the

exclusion of the evidence would be disproportionate to the breach, although, like

Elias CJ, he considered that the situation would have been different had there been

bad faith or deliberate abuse of Mr Shaheed’s rights by the police – see at

[185] - [190].

[91] McGrath J distinguished between the DNA evidence and the photo montage

evidence, excluding the former and admitting the latter. With regard to the DNA

profile, the crucial factor for McGrath J (set out at [193]) was the fact that the

subsequent compulsion order was sought by the police only after they had breached

Mr Shaheed’s rights and become aware that the unlawfully obtained DNA sample

matched that earlier found on the complainant. In those circumstances, he

considered that, in reality, the evidence was derived from the breach even though the

order itself was ultimately made by the Judge on the basis of other material and in

particular the identification evidence. The balancing test was therefore required. He

agreed that the outcome of the balancing approach should be to exclude that

evidence, primarily because of the policy of the Criminal Investigations (Bodily

Samples) Act – see at [194].

[92] McGrath J, however, held (at [195]) that the complainant’s identification

evidence was not so sufficiently connected with the breach of Mr Shaheed’s rights as

to require application of the balancing process to determine its admissibility. He said

that a distinction must be drawn between the identification evidence given by the

complainant and the opportunity that arose for her to give it. The complainant’s

capacity to give evidence of the offending, including that relating to the identity of

the alleged perpetrator, arose at the time of the assault. Her mental awareness

existed prior to the breach of the accused’s rights when the first blood sample was

taken. Likewise, the awareness of the police of the complainant’s version of events

and her availability as a potential witness existed prior to the breach of the accused’s

rights. To this extent, the evidence the complainant could give was independent of

the breach of the accused’s rights under s 21 of the Bill of Rights. The only

connection between the breach of rights and the complainant’s identification

evidence was that the breach resulted in the accused becoming the suspect of the

police so that they knew to ascertain whether the complainant could identify

him - see at [197]. In McGrath J’s view, such a connection was too remote.

[93] If a balancing exercise had been necessary McGrath J would have admitted

the identification evidence – see at [198]. Significantly for him, the admission of

such evidence would not offend against the policy of the Criminal Investigations

(Bodily Samples) Act. To exclude the identification evidence would, in his view,

have serious implications as it would effectively give an immunity in cases where a

breach of rights does no more than lead to the suspect. He considered this to be a

disproportionate outcome in a case where the police have been acting in good faith.

[94] Anderson J said that whether a link is sufficient and, if it is, how its nature

and relationship to the evidence should be weighed in the balance, will depend on

the facts of a particular case – see at [200]. In his view, if there is no logical

connection of a real and substantial kind, the exclusion of evidence would be

unreasonable as it would tend to accord permanent immunity from prosecution. He

agreed with Gault J that the evidence sought to be adduced in the instant case was

not obtained in breach of Mr Shaheed’s rights – see at [206].

[95] If there were a sufficient link so as to call for a balancing exercise,

Anderson J considered that the unlawful nature of the first sample was outweighed

by the attenuation of the link and public interest factors such as the gravity of the

crimes, their relevance to public safety and the crucial nature and cogency of the

evidence that Mr Shaheed was the offender – see at [213]. He also considered that

our system of justice risked its credibility if it allowed such compelling evidence of

guilt of such serious crimes to be excluded – see at [215]. He had, however, earlier

said that, if a violation of the right was deliberate, cynical or gross, that would weigh

heavily on the balancing process as that process should not depreciate rights or lend

encouragement to official abuse of them – see at [203].

[96] In summary, Elias CJ, Gault and Anderson JJ, although expressing the point

in slightly different ways, were agreed that evidence is not considered “sufficiently

connected” to a breach where:

(a) there is some break in causation through time or intervening events;

and

(b) the cogency of the subsequent evidence is not dependent on the

earlier breach; and

(c) there is no bad faith on the part of the police.

[97] Gault and Anderson JJ did, however, leave open the possibility that the

balancing test may need to be applied in some cases. If that were the case, the extent

of the link of the downstream evidence to the breach would be a relevant factor.

Elias CJ of course did not consider the balancing test as it was her view that the

prima facie exclusion rule should remain.

[98] Blanchard J (joined by Richardson P and Tipping J) used a slightly attenuated

“but for” test to hold that subsequent evidence was obtained in breach of s 21 of the

Bill of Rights. Under this test, subsequent evidence that would not have been

obtained but for the breach must be considered to have a real and substantial

connection to that breach. It would therefore be unreasonably obtained on that basis.

This test will not be met, however, where the obtaining of the evidence can be seen

as being independent of the breach. It also does not apply where the link between

the breach and the evidence is so remote that it cannot sensibly be seen as causative

of the obtaining of the evidence.

[99] McGrath J used a “but for” test for the DNA evidence but not for the

identification evidence. The main reason he would have held the identification

evidence admissible was the fact that it had been in existence prior to the breach.

The breach of Mr Shaheed’s rights only gave rise to the opportunity for the

complainant to draw on her independent recollections. While he does not say so, it

thus appears that he considered the identification evidence to be akin to the evidence

in Ceccolini and Hearne-Smith.

[100] In our view, McGrath J’s approach best equates with that of Blanchard J in

the joint judgment, rather than with that of Elias CJ, Gault and Anderson JJ. This

means that the majority in Shaheed used Blanchard J’s slightly attenuated “but for”

test, set out above at [98].

[101] A generous approach to causation at the point of deciding whether there is an

unreasonable search is in line with that taken by the Supreme Court of Canada in

R v Bartle [1994] 3 SCR 173 at 208 – 209. That case held that all that is required is

for the subsequent evidence to be part of the “chain of events” involving the Charter

breach, except where it is “too remotely connected with the violation”.

[102] The presence and strength of the causal connection will, however, be a

relevant factor when deciding whether or not to exclude the evidence under the

Shaheed balancing test. The factors identified by Elias CJ, Gault and Anderson JJ

(see at [96] above) will be relevant at the balancing stage in assessing the strengths

of those links (apart from police misconduct which is dealt with separately under the

Shaheed test). In addition, we consider it relevant to an assessment of the strength of

the causal connection that an accused has engaged in further acts of illegality, such

that police focus on an accused is generated, heightened, or enlarged. While the

accused may come to the attention of the police through an initial breach, he or she

should not be afforded automatic immunity in relation to further offending – see also

the comments of Elias CJ, McGrath and Anderson JJ in Shaheed at [87], [93] and

[94] above.

[103] Treating attenuation of causation as a factor in the balancing exercise has the

support of commentators – see Optican and Sankoff “The New Exclusionary Rule:

A Preliminary Assessment of R v Shaheed” [2003] NZ Law Review 1 at 35,

Mahoney “Evidence” [2003] NZ Law Review 141 at 152 and Rishworth and others

The New Zealand Bill of Rights (2003) at 801 – 802.

How should the Shaheed balancing test be conducted?

[104] The aim of the Shaheed balancing test is to assess whether exclusion of

evidence in the circumstances is a balanced and proportionate response to the

circumstances of the breach. That there has been a breach is given considerable

weight as a very important but not necessarily determinative factor. The balancing

exercise must be carried out conscientiously so that, even if the evidence is

ultimately ruled admissible, it will be clear that the right has been taken seriously –

see at [143] – [144] of Shaheed.

[105] In this judgment we have taken a broad view of what might constitute an

unreasonable search under s 21 of the Bill of Rights and moved many of the factors

previously taken into account in deciding whether a search was reasonable under

s 21, to this balancing phase where they can be taken into account as diminishing the

seriousness of any breach. This enables a proper assessment to be made of the

proportionality of any remedy to a breach rather than there being an all or nothing

approach.

NATURE OF THE RIGHT

[106] The starting point in the balancing exercise is the nature of the right and the

nature of the breach. The more fundamental the right and the more serious the

breach, the less likely it is that the balancing test will result in the evidence being

admitted. Concentration on the nature of the right has been criticised by

commentators on the basis that this encourages the grading of rights – see, for

example, Mahoney “Evidence” [2003] NZ Law Review 141 at 143 - 144 and

Rishworth and others The New Zealand Bill of Rights at 784 - 785.

[107] International law does, however, recognise the gradation of rights in that

some rights are non-derogable, even in cases of emergency – see Article 4(2) of the

International Covenant on Civil and Political Rights. This would mean, for example,

that the fundamental and non-derogable right to be free from torture (see

Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 at [51] (SC)) would not allow

any confession obtained as a result of torture to be admitted, even under the Shaheed

balancing test. See also s 29 of the new Evidence Act, which provides for the

exclusion of statements influenced by oppressive, violent, inhuman or degrading

conduct towards, or treatment of, the defendant or another person, or the threat of

such conduct or treatment unless a Judge is satisfied beyond reasonable doubt that it

was not so influenced.

[108] It may well be that confessional evidence generally is in a special category,

especially where any breach of rights throws doubt on the reliability of the evidence.

This will certainly be the case under the new Evidence Act, where s 28 provides that

confessional evidence must be excluded unless the Judge is satisfied on the balance

of probabilities that the circumstances in which the statement was made were not

likely to have adversely affected its reliability. Further, there is the broader notion,

underpinning rules preventing self-incrimination, that a person should not be

enlisted, through a breach of his or her rights, to participate in his or her prosecution

– see Lam Chi-ming v R [1991] 2 AC 212 at 220 (PC).

[109] In most circumstances, however, the nature of the right will not be considered

separately but as part of assessing the seriousness of the breach. This is the case for

search and seizure cases where the nature of the privacy interest will be one of the

important factors influencing how seriously the breach is regarded.

EXTENT OF ILLEGALITY

[110] Assessing the seriousness of any breach involves a number of steps. Where

the search and/or seizure were unlawful, the first task is to assess the extent of the

illegality. This involves an assessment of how far the grounds for search and/or

seizure fell short of what was required for them to be lawful. For example, a

situation of borderline illegality, where reasonable minds could differ as to whether

sufficient grounds existed, would be regarded as less serious than one where the

grounds clearly fell short. As a further example, an unlawful seizure following a

lawful search will, in similar cases, be regarded as less serious than where the entry

too is unlawful. The seriousness of the unlawful seizure may in such circumstances

be lessened also by the existence of an alternative lawful power overlooked by the

police - see R v Power (1999) 17 CRNZ 662 at [11] (CA) and R v Taylor CA384/05

3 May 2006 at [28] - [29].

[111] Where the search requires a warrant, the assessment of seriousness will

involve an assessment as to how deficient the warrant application was. As a general

rule, misleading applications, which have left out material that may have led to the

warrant being refused, or which have included misleading material will be regarded

more seriously than merely deficient applications. Equally, a warrant obtained on

deficient grounds, where the police held no further information which could have

justified the application, is worse than a search where the police officer preparing the

warrant had information which, if it had been included in the warrant, would have

made the search lawful. Although the existence of such material does not make the

warrant lawful or reasonable, a baseless search must be worse than one where there

were in fact sufficient grounds to justify an invasion of privacy.

[112] Such a concession is not designed to encourage a general fishing through of

police files for information that might have justified the application if the officer

preparing the warrant had bothered to seek it out. It is confined to information that

the particular officer applying for the warrant had at the time. It is also not designed

to allow an ex post facto justification for a search on the basis of after-acquired

material, although after-acquired material may be relevant to the question of

inevitability discussed later – see below at [125] - [129]. The concession is also not

to be taken as suggesting that it is acceptable for the police not to put forward proper

grounds in their warrant applications or for judicial officers to issue warrants on

insufficient grounds. Indeed, seriously inadequate warrant applications can lead to a

finding of police misconduct which in itself can lead to exclusion of the

evidence - see below at [119] - [121] and [127]. It would tend to subvert the quasi-

judicial process involved in the issue of search warrants if wholly inadequate

information is later supplemented by a claim that the police in fact possessed

information that would have justified the issue of a search warrant – see R v Pineaha

(2001) 19 CRNZ 149 at [8].

NATURE OF PRIVACY INTEREST

[113] It is now necessary to assess the nature of the privacy interest involved. The

highest expectation of privacy relates to searches of the person and particularly

intimate searches, such as strip searches (as in Pratt), or invasive procedures, such as

DNA testing (as in Shaheed). In terms of searches of property, residential property

will have the highest expectation of privacy attached to it - see, for example,

R v McManamy (2002) 19 CRNZ 669 (CA). There will be some gradation even

within a residential property, however. The public areas will invoke a lesser

expectation of privacy than the private areas of the house - see Fraser at 453 (CA).

Inaccessible areas such as drawers and cupboards (particularly ones where one

would expect to find private correspondence or intimate clothing) would count as

private areas. There will be less privacy expected in the garden, particularly in the

front garden. The same applies to garages or outbuildings. There is also a lesser

expectation of privacy in vehicles (see, for example, R v Jefferies at 327 per

Thomas J and R v Firman CA351/04 16 December 2004 at [25]), in commercial

premises (see, for example, Thomson Newspapers Ltd v Canada (Director of

Investigation and Research, Restrictive Trade Practices Commission) [1990] 1 SCR

425 and Hoechst AG v Commission [1989] ECR 2859 at 17 - 18) and on farmland,

apart from the areas around the farm residences (see, for example, R v Williams at

[83]).

[114] Although we have recapitulated this Court’s consistent view that assessing

the privacy interest involves a contextual analysis, this should not be taken as license

to intrude into the citizen’s reasonable expectation of privacy. “Lesser expectation

of privacy”, in the context of this gradation, is a relative term. It is not intended to

suggest that an unlawful intrusion into a garden is not serious. It is just less serious

than an unlawful intrusion into a person’s bedroom. Furthermore, the above are

examples of the gradation of privacy interests in respect of particular types of

property and are not meant to be rigid classifications. As indicated above at [63]

[66], privacy interests are largely assessed objectively and are not influenced by the

type of activity being conducted. There may, however, be outward signs of an

increased (subjective) expectation of privacy (such as signs, barricades or security)

which should be taken into account. This includes where the implied license to enter

property has been revoked - see, for example, Ratima. As matters are to be judged

objectively, even where such signs give rise to a suspicion of criminal activity (as in

Grayson and Taylor at 410 and R v Gardiner (1997) 4 HRNZ 7, these

circumstances, in our opinion, will not lead to a diminished expectation of privacy.

[115] The extent of the illegality and the nature of the privacy interest have to be

combined in order to assess the seriousness of the breach. For example, a mid-range

illegality relating to a search of the person or a residential property is likely to be

regarded more seriously than a more serious breach relating to open farmland.

AGGRAVATING FACTORS

[116] The next step in the process is to ascertain if there are factors that reduce or

increase the seriousness of the breach. Factors that can increase seriousness are non-

compliance with a statutory code, conducting a search in an unreasonable manner

and police misconduct. We prefer to use the term police misconduct rather than bad

faith as it covers a wider range of conduct. The term bad faith is not apt in cases

where the officers do not know they are acting illegally or where they might be

acting for what seems to them (mistakenly) to be a proper motive. We refer to

“police” misconduct to recognise that it is the police who most often undertake a

search or seizure, but the concept of misconduct extends to all searchers.

[117] Non-compliance with a statutory code can increase the seriousness of a

breach where the breach is substantive and where the code is one in which

Parliament has carefully, and in detail, prescribed the circumstances in which

searches can take place. This applies with particular force to a code that regulates

invasive procedures relating to personal bodily integrity such as the taking of blood

samples – see Shaheed at [166] per Blanchard J and at [194] per McGrath J; and R v

Hoare CA310/04 21 April 2005 at [36] and [42]. We pause to note that a related

argument is often made that admitting evidence obtained in breach of statutory

requirements, in all cases, challenges parliamentary sovereignty. We do not

subscribe to this view. Many of the statutes authorising searches pre-dated the Bill

of Rights and were thus passed in the knowledge that, under the old common law

tests, illegally obtained evidence was admissible, subject to a discretion to exclude it

in the interests of justice. While the breach of a statutory requirement is in all cases

highly relevant (giving rise to unlawfulness), it cannot lead to an automatic result

under the balancing test.

[118] If a search is conducted in an unreasonable manner, this also increases the

seriousness of the breach. An example of such conduct would be the police

persisting with an unlawful search and/or seizure over the rightful objection of the

accused – see R v Maihi at [30]. Where the search is conducted in such a manner

that it would be held to be unreasonable under s 21 of the Bill of Rights, even though

it was lawful (see above at [24]), then this will be a stand-alone and often very

weighty factor.

[119] As to police misconduct, if the police officers conducting a warrantless

search or those applying for a warrant know that the grounds are insufficient, then

this will markedly increase the seriousness of the breach. This is likely to be a

controlling factor as to whether the evidence should be excluded. Misleading

applications, which have left out material that may have led to the warrant being

refused, or which have included misleading material, will often be a hallmark

of knowledge that the grounds might be insufficient – see, for example,

Solicitor-General v Schroder (1996) 3 HRNZ 157 (CA) and R v McColl (1999)

5 HRNZ 256 at [23] - [29] (CA).

[120] We include in police misconduct situations where the officers were reckless

in the sense that they were indifferent as to whether the grounds were insufficient or

not. We also include gross carelessness on the part of the police as an aggravating

factor. There will be times when the police, although not “consciously reckless”,

have significantly strayed from the dictates of prudent police action. In Shaheed,

Blanchard J pointed out for instance, that gross carelessness does not extend to the

police officer operating under a genuine misunderstanding of a difficult legal

complication – see at [148]. We would add that mere sloppiness in drafting an

application, particularly where circumstances dictate haste, will not amount to gross

carelessness. The practical realities of policing must be borne in mind. Gross

carelessness would, however, usually be assumed to be present when the grounds for

a search are seriously deficient. Police officers should make sure that they properly

turn their minds to whether or not proper grounds exist and that they make the proper

inquiries of an appropriate person as to the legal position if they are not sure.

Shaheed itself provides an example of police action characterised as grossly careless.

The police in that case failed to inform Mr Shaheed of his right to counsel and his

right to refuse to give the police a blood sample under the Criminal Investigations

(Bodily Samples) Act 1995. In the words of Blanchard J at [164], the police “must

have known” about the detailed prescriptions set down by Parliament.

[121] In assessing the existence and extent of police misconduct (or indeed the

extent of the illegality of a search), the police must be regarded as a body. It is thus

irrelevant that the officers actually executing a warrant may have had no knowledge

of the deficiencies in the application and may have been acting in good faith on the

assumption that the warrant was validly issued. The granting of a warrant should not

be treated as a “rubber stamp process” - see Schwartz “The Short Happy Life and

Tragic Death of the New Zealand Bill of Rights Act” [1998] NZ Law Review 259 at

275 - 279 and Mahoney “Evidence” [2006] NZ Law Review 105 at 112 - 114. In

this regard we consider that R v Lerm CA52/05 23 May 2005, R v Rushton CA94/01

21 June 2001 at [27] especially and R v Hooker (1997) 4 HRNZ 1 (CA) should no

longer be followed. In our view, these cases cannot stand beside Shaheed, which

held, at [149], that good faith should be viewed as a neutral factor - see below at

[130] also.

MITIGATING FACTORS

[122] We now turn to those factors that can diminish the seriousness of a breach.

The main ones are where the search takes place in a situation of urgency, where the

strength of the connection between the person and the property searched or seized is

weak and where there has been attenuation of the link between the breach and the

evidence.

[123] Breaches that take place in situations of urgency, particularly where a

person’s safety might be in jeopardy, must be regarded as less serious than those

where there was proper time for reflection and the taking of advice - see also

Shaheed at [147]. The possible destruction of evidence is also a matter that can

alleviate the type of illegality that occurred in Te Whatu, although the possibility of

the destruction of evidence would not normally even partially excuse a more serious

breach.

[124] Given that the purpose of the exclusion of evidence under the Bill of Rights

is to vindicate individual rights, the strength of the privacy interest of the individual

involved will be of major significance. This will be judged by the degree of

connection to the premises or land involved or to the property searched or seized in

those premises. Obviously the person with a bare licence, whether or not they are

present at the search, will have a lesser expectation of privacy than a person who is

the owner or exclusive occupier of the premises or land – see above at [67] - [69]

and [74].

[125] The next possible mitigating factor is any attenuation in causation. As

indicated above at [102], matters such as whether or not the evidence can be given

without referring to the earlier breach, the length of time between the breach and the

obtaining of the evidence, the existence of intervening events (including fresh

illegalities) and any other factors attenuating the link will be relevant considerations.

It is also of significance in relation to causation whether the evidence was brought

into existence as a result of the breach (such as a sample taken for DNA testing as in

Shaheed) or merely brought to light because of it – see above at [89].

[126] The final factor is inevitability of discovery. The inevitability of obtaining

evidence will only count in favour of admitting evidence if the Crown shows that the

police would, on the balance of probabilities, have obtained the evidence by lawful

and proper means and that they did not undertake a deliberate (or, we would add,

reckless or grossly careless - see at [120] above) course of conduct in contravention

of the rights of the accused - see R v Butcher [1992] 2 NZLR 257 at 267 (per Cooke

P), Te Kira at 261 (per Cooke P), at 275 (per Richardson J) and 276 (per Hardie

Boys J) and R v H at 150.

[127] The fact that there were other investigatory techniques available, which were

not used, may be classed as police misconduct if there had been a deliberate, reckless

or grossly careless decision not to employ those other techniques – see Shaheed at

[150] per Blanchard J. It would therefore be an aggravating factor rather than a

mitigating one.

[128] Although we recognise that the inevitability doctrine has been applied outside

of the balancing exercise in cases post-Shaheed (see, for example, R v Greer

CA162/03 24 May 2004), we prefer to consider the inevitability of obtaining

evidence as another factor in the Shaheed balancing exercise. Crucially, when

adopting an argument of “independence”, or “inconsequentiality” (see at [84], [85]

and [98] above), the Court is accepting that there was no causative link between the

breach of the right and the obtaining of evidence. When evidence was discovered as

a result of a breach but would have “inevitably” been discovered by other means,

there remains a very real causative link to the breach. As there remains a causative

link, it is more principled, in our view, to consider inevitability as a factor in the

balancing test. This is also Mahoney’s recommendation – see “Problems with the

Current Approach to s. 24(2) of the Charter: An Inevitable Discovery” (1999)

42 Crim LQ 443 at 471, as well as Rishworth and others The New Zealand Bill of

Rights at 810.

[129] Inevitability of discovery, even as a factor in the balancing process, should be

used with caution. The concept is a difficult one as it will always involve an element

of speculation. It could also encourage short cuts to be taken by police and can be

seen as rewarding the careful criminal who hides evidence well - see the criticisms in

Rishworth and others at 807 - 810. In our view, this factor will mainly be of

relevance for downstream evidence.

NEUTRAL FACTORS

[130] We now come to factors that are neutral. These include a number of matters

taken into account in Grayson and Taylor (and indeed by the Canadian Supreme

Court in Belnavis - above at [55]). Good faith on the part of the police is expected,

as is courtesy in executing a warrant. While overbearing and rude behaviour may

make matters worse, politeness can never be seen as ameliorating the unlawful or

unreasonable nature of the search – see R v Reid CA108/98 30 July 1998.

[131] We also do not consider that the fact that a search might have taken place in

the course of the investigation of possibly serious criminal activity (referred to in

Grayson and Taylor at 410) is a factor that should be taken into account at this

point – see above at [63] – [66]. A focus on criminality can unduly limit the scope

of protection under s 21 of the Bill of Rights. Furthermore, under the Shaheed

balancing exercise, the seriousness of the criminality has always been taken into

account in the balancing exercise when assessing the public interest factors on the

other side of the ledger. The addition of this Grayson and Taylor factor at the point

of assessing the seriousness of any breach could therefore lead to unnecessary double

counting.

SYSTEMATIC ANALYSIS

[132] The assessment of the seriousness of the breach should be conducted in a

systematic manner following (as appropriate to the particular case) the steps set out

above. All of the factors discussed above, to the extent they are relevant, should be

enumerated and reasons given at each stage for the conclusion reached in relation to

each factor and the effect that that factor has on the assessment of the seriousness of

the breach. An overall conclusion would then be drawn, taking all of the factors in

combination, as to the seriousness of the breach in relation to the particular

individual and the particular items of evidence involved.

[133] It might be helpful to consider each step against a scale that ranges from

extremely serious through very serious, serious, moderately serious, moderate to

minor. For example, there might be a very serious illegality but it might be reduced

to serious because the search was of open fields. It might be further reduced to

moderately serious because it was only remotely causative of the obtaining of the

evidence and reduced still further to moderate because the particular accused had a

minimal connection to the property at issue. We are not, however, intending to

suggest that the approach is linear or that the scale can be anything other than a

rough tool. The exercise in assessing seriousness is evaluative and the level of

seriousness must depend on the particular combination of features in the specific

case.

PUBLIC INTEREST FACTORS

[134] The next stage is to balance the breach against public interest factors pointing

towards admitting the evidence, such as the seriousness of the offence, the nature

and quality of the evidence and the importance of that evidence to the Crown’s case.

It is the combination of those factors that will be of significance in any balancing

exercise rather than any one factor taken on its own. The aim is to assess whether

the exclusion of the evidence is a proportionate response to the particular breach in

question. In conducting the balancing exercise, however, due weight has to be given

to the fact that there has been a breach (however serious) of what has been called a

quasi-constitutional right - see Shaheed at [143] per Blanchard J.

SERIOUSNESS OF OFFENDING

[135] As a guideline, an offence can be considered serious if the sentencing starting

point (in the sense the term is used in R v Taueki [2005] 3 NZLR 372 at [8]) for the

relevant accused is likely to be in the vicinity of four years imprisonment and over.

This would have to be assessed on the basis of the Crown case. An offence could

also be seen as serious, even if the likely penalty was less, if the offence involved a

threat to public safety, such as the carrying of a loaded weapon in public. The more

serious the offence, the more weight it has. It has been suggested that there has been

a more benign attitude in the courts to drug offences because they are “victimless”

crimes. We consider that any benign attitude to drug offences has usually been

where there has been low level cannabis cultivation – see, for example, R v

Hjelmstrom (2003) 20 CRNZ 208 at [20] (CA). We make it clear, however, that we

do not see drug offences as victimless crimes. Even where no specific victim can be

identified in relation to the specific offending, potential individual victims exist and

society at large suffers.

[136] The use of the seriousness of the offence as a balancing factor has been

criticised on the basis that the more serious the offence, the greater the need for

procedural safeguards for an accused – see, for example, Optican and Sankoff at 24.

We would agree that this should be taken into account when considering

confessional evidence - (see at [108] above for a discussion of the special nature of

confessional evidence). While the Shaheed balancing exercise still applies, to admit

confessional evidence obtained in breach of an accused’s rights risks eroding

procedural safeguards that pre-date the Bill of Rights and that are fundamental to our

society. Particularly where there are doubts as to reliability of confessional

evidence, the admission of that evidence could potentially detract from the

credibility of the justice system – see, for example, R v Kokiri (2003) 20 CRNZ 1016

at [23] – [24] (CA) and Haapu v R CA88/02 26 September 2002 at [27] and [29].

This is likely to mean that the admission of confessional evidence obtained in breach

of an accused’s rights under the Bill of Rights would be rare.

[137] Different considerations apply, however, to real evidence which is not

brought into existence but only brought to light as a result of a breach. Where

undoubtedly reliable, the use of such evidence does not affect the accused’s

procedural (trial) safeguards. In this regard, although Blanchard J said that the

reliability of confessional evidence obtained by means of a breach of a right will

often give rise to concerns that its use at trial would be unfair, the Canadian approach

of extending the concept of trial unfairness to include real evidence of undoubted

reliability emanating from the accused is not the law in New Zealand - see Shaheed

at [151]. No issue of self-incrimination arises in such circumstances.

[138] Weight is given to the seriousness of the crime not because the infringed right

is less valuable to a person accused of a serious crime but in recognition of the

enhanced public interest in convicting and confining those who have committed

serious crimes, particularly if they constitute a danger to public safety - see Shaheed

at [152]. The public might justifiably think it too great a price to pay for evidence,

which is reliable, highly probative and central to the Crown case, to be excluded in

such cases. Weight is also given to the seriousness of the crime in recognition of

victims’ rights, particularly where the crime involves a serious invasion of bodily

integrity of a victim or presages danger to a possible future victim. After all, the Bill

of Rights, in ss 8 and 9, affirms the right to life and the right to be free from torture

and from cruel and degrading treatment. We recognise that Blanchard J stated in

Shaheed at [143] that victims’ rights are subsumed in society’s rights, but this does

not mean that their interests are not relevant to an assessment of what is needed to

maintain confidence in the integrity of the criminal justice system.

[139] The seriousness of offending is a matter taken into account in Canada, for

example, albeit only in respect of non-conscriptive evidence (ie evidence that does

not emanate from the accused as a result of the breach) – see R v Collins [1987]

1 SCR 265 at [39] per Lamer J. It is also taken into account in the United

Kingdom – see Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91 at

118 per Lord Steyn, discussed in Shaheed at [106] - [110].

NATURE AND QUALITY OF EVIDENCE

[140] The next factor to consider is the nature and quality of the evidence. This

includes its probative value, its relevance to the case and its reliability. The

probative value of any evidence is a very important factor. The more cogent the

evidence, the more likely it is that the accused committed the crime and the stronger

the public interest in conviction. Evidence from searches will be real evidence and

so its reliability will rarely be an issue unless it has been compromised by the breach

itself in some manner (such as through damage in the search process or possible

breaks in the chain of custody). The question of reliability will have more relevance

in relation to admissions. If there were a significant issue of unreliability because of

the breach, then the balancing test would clearly come down in favour of

exclusion - see at [108] and [136] above.

[141] The final factor is how crucial the evidence is to the Crown case. The more

crucial the evidence is, the more the public interest in conviction is engaged. We

note, however, that this factor was removed from s 30 of the Evidence Act 2006 on

the recommendation of the Justice and Electoral Select Committee in its final report.

In the Select Committee’s view, the seriousness of the offence is the main issue of

relevance - see Justice and Electoral Select Committee “Evidence Bill” (24 October

2006) at 4. In our view, however, the centrality of the evidence to the prosecution

may still be of some relevance when assessing the nature and quality of the evidence.

PROPORTIONALITY

[142] As we indicated above, the aim of the balancing exercise is to assess whether,

after giving any breach of the Bill of Rights its proper weight (taking into account its

quasi-constitutional nature), the remedy of exclusion of evidence is proportionate to

the breach. Strict rules cannot be laid down, given that the result of the balancing

exercise will depend on the individual case, but some generalisations can be made

with regard to cases at each end of the scale of seriousness.

[143] As Blanchard J said in Shaheed at [148], a system of justice, which readily

condones serious breaches of rights committed deliberately or in reckless disregard

of the accused’s rights or where police conduct has been grossly careless, will not

command the respect of the community. On the other hand, the administration of

justice could be brought into disrepute if every breach leads inevitably to the

exclusion of crucial evidence, which is reliable and probative of serious crime.

[144] Thus, where a breach is minor, the balancing exercise would often lead to

evidence being admissible where the crime is serious and the evidence is reliable,

highly probative and crucial to the prosecution case. The exclusion of evidence in

such cases would properly be seen as unbalanced and disproportionate to the

circumstances of the breach.

[145] By contrast, if the illegality or unreasonableness is serious, the nature of the

privacy interest strong, and the seriousness of the breach has not been diminished by

any mitigating factors such as attenuation of causation or a weak personal connection

to the property searched or seized, then any balancing exercise would normally lead

to the exclusion of the evidence, even where the crime was serious. This result would

be almost inevitable where the breach was deliberate, reckless or grossly careless on

the part of the police – see Shaheed at [148] – [149].

[146] We say almost inevitable because we cannot rule out a possibility that, even

in such cases, where the evidence is reliable, highly probative and crucial to the

Crown case, the public interest may be seen to outweigh the breach in cases

involving very serious crimes and especially those involving major danger to public

safety, such as a possible serial rapist or murderer or a major drugs offender. Even

in such cases, however, due consideration would need to be given in the balancing

exercise to the risks to the integrity of the system. A system that condones deliberate

breaches of the law, for whatever motive, risks losing moral authority.

[147] One of the main criticisms levelled at the Shaheed balancing approach is the

perception that, although numerous factors are to be taken into account, it is

uncertain what weight should be given to each factor – see Optican and Sankoff at

23 - 24. We have attempted in this section of the judgment to lay down a structured

approach to the Shaheed exercise that should lead to more consistent results. In so

doing, we have emphasised that in many cases significant weight should be given to

particular factors.

[148] The nature of the right and the seriousness of the breach are of fundamental

importance. For example, if the reliability of evidence is questionable then this

would clearly favour exclusion – see above at [140]. Police misconduct will often be

a controlling factor in favour of exclusion (see above at [119]) and may be assumed

where there is a serious deficiency in any search warrant application – see above at

[120]. We have also attempted to provide generalisations at each end of the scale of

seriousness – see above at [142] - [146]. The exclusion or otherwise of evidence

under the Shaheed balancing test, however, must be tailored to the circumstances of

each case and the decision remains an evaluative one for the individual Judge.

EVIDENCE ACT 2006

[149] We have alluded to the new Evidence Act several times throughout this

section. Section 30 of the Act in large part reproduces the Shaheed test in

legislation. Section 30(3)(a) refers to “the importance of any right breached by the

impropriety and the seriousness of the intrusion on it”. In effect, this is the initial

step in the Shaheed balancing exercise, discussed above at [106] - [133]. Our

discussion also encompasses police misconduct (s 30(3)(b)), the availability of

alternative investigatory techniques known to the police (s 30(3)(e)) and situations of

urgency or emergency (s 30(3)(g) and (h)). Attenuation of causation (see at [125]

above) and inevitability of discovery (see at [126] - [129] above) are not explicitly

mentioned, but s 30(3) provides that the list of relevant factors is not exhaustive.

This is also the case in Shaheed (at [145]), although we are unaware of any other

factors that have been enumerated in any of the cases to date.

[150] We do not consider that anything we have said with regard to the balancing

exercise conflicts with the new Act. Indeed, the guidance we have provided should

assist trial judges in determining the weight and relevance to be given to each

statutory factor in the circumstances of a particular case. We do not claim, however,

that this judgment authoritatively addresses all questions that will arise under s 30.

As noted above at [77], there is the question of how the common law jurisdiction is

modified by the Act’s inclusion of “unfairly” in the definition of “improperly

obtained evidence”. At common law all relevant evidence was admissible unless the

judge exercised his or her discretion to exclude the evidence on unfairness or abuse

of process grounds – see R v Coombs [1985] 1 NZLR 318 (CA), R v Smith

(Malcolm) [2000] 3 NZLR 656 (CA) and Shaheed at [63] - [65]. Now, all questions

of admissibility for “improperly obtained evidence” will be considered under s 30 of

the Act, which requires the balancing exercise for all evidence. Given that the

importance of any right breached is a factor under s 30(3)(a), however, evidence

obtained in an improper manner other than through a breach of the Bill of Rights

may be more likely to be admitted under the balancing exercise.

[151] In addition to the common law fairness jurisdiction, s 30(6) of the Evidence

Act provides that the judge, when considering “unfairly” obtained statements, must

take into account guidelines set out in practice notes issued by the Chief Justice.

Writing in 1999, the Law Commission originally conceived that the Judges’ Rules

would provide a guide for determining whether evidence had been unfairly obtained

– see New Zealand Law Commission Evidence: Evidence Code and Commentary

(NZLC 55 Vol 2 1999) at 87. The explicit incorporation of practice notes as

guidelines, introduced by the Select Committee prior to the third reading of the then

Evidence Bill –(see Justice and Electoral Select Committee at 4) may, however,

extend beyond simply incorporating the Judges’ Rules into the admissibility

analysis.

[152] We also note that s 30(3)(f) of the new Evidence Act provides that the judge

must consider “whether there are alternative remedies to exclusion of the evidence

which can adequately provide redress to the defendant”. Whether this requires

modification to the position that exclusion of evidence is the only adequate remedy

in the criminal context (see Shaheed at [153] – [155] per Blanchard J) may need to

be addressed.

ADDITIONAL REMEDIES

[153] Finally on this topic, even where the individual’s right is vindicated by the

exclusion of evidence, we do not see this as excluding the possibility of courts

making declarations of breach and/or referring breaches to the Police Commissioner

and, in extreme cases, to the Police Complaints Authority. This would enable the

public nature of the right to be recognised, systemic difficulties to be recognised and

addressed and individual transgressors to be dealt with in an appropriate manner

(including by the retraining of individual officers).

Was the Patiki Road warrant unlawfully obtained?

[154] We now move on to the application of principles to this case. The first matter

is the lawfulness or otherwise of the Patiki Road warrant. Mr Pike, for the Crown,

conceded that the warrant was unlawfully obtained, although he did not concede that

it was obtained in bad faith. The concession as to illegality was well made. It is

nevertheless necessary to deal with this point as the extent of unlawfulness has an

effect on the Shaheed balancing process.

[155] The application for the warrant was drafted by Detective Reardon, and sworn

by him. It follows the form prescribed by s 198 of the Summary Proceedings Act

1957. It is expressed to be an application for a search warrant relating to the search

of the Patiki Road premises in Avondale. The detective deposed to having learned

from an informant that there were persons manufacturing methamphetamine at

40 Patiki Road. He swore that he had visited the property and had been warned off,

and that he had noted a Subaru Legacy motor vehicle which subsequent enquiries

had confirmed as having been stolen. The detective then deposed:

13. I believe the said address is being used by persons for criminalpurposes.

14. I believe a search of the address will reveal the vehicle SK6602, aSubaru Legacy. I also believe a search of the address will revealdocumentation in either hard or electronic forms relating to the theftand use of stolen vehicles and the criminal associations of theoccupants of the address who may be involved in the theft and use ofstolen vehicles.

[156] Heath J held that there was evidence justifying the issue of the search warrant

in respect of the vehicle that had been reported as missing. However, all that was

apparent to the issuing officer was the single and recent theft of a motor vehicle.

There was nothing in the application to suggest that the occupants of the particular

unit, with which Detective Reardon was concerned, had any knowledge of the theft

of the particular motor vehicle. In the Judge’s view, there were no reasonable

grounds for the Detective’s belief that documents of the type suggested would be

found at the premises. Further, the suggestion of a car ring operating, made in [14] of

the application, was purely speculative.

[157] We agree with Heath J that the reference to motor vehicles in the plural in

[14] of the affidavit does suggest a car ring and that this was pure speculation. The

information held by the police was limited to a single recent theft of a motor vehicle.

Detective Reardon’s alleged belief that there would be multiple stolen vehicles was

based on no more than suspicion, if that. However, given that the stolen vehicle was

parked with a number of other vehicles in the carpark adjoining the unit, in our view

there could, however, be a reasonable belief that the theft might be connected to

somebody connected with that unit. Unlike Heath J, we consider that a warrant in

such circumstances can legitimately extend to at least a limited search of premises

outside which the vehicle was located. As the Crown submitted, there could, in

addition to documents, be items such as keys or other property in associated

premises.

[158] Apart from the evidence of Detective Reardon on this point, there was also

evidence from Detective Sergeant McHattie, a police officer of some fifteen years

experience, who was at the time with the officers based in Avondale and was called

in to assist in the search. He said that he was not surprised to find that the warrant

covered more than merely the vehicle. He would expect that documents from inside

the vehicle might be found in associated premises and that they might also assist

with fingerprint identification. He said:

Look at exhibit 1 [the search warrant]. Did that authorise the seizure of thevehicle and search of the address at 40 Patiki Road in relation todocumentation associated … Yes it did.

Did that surprise you at all … No.

Had you had experience with searching for stolen cars prior to that … Yesconsiderable.

If you knew of the location of a vehicle that you believed was stolen wouldyou be interested in the premises at which the vehicle was found … Yes verymuch so.

Explain why you would be interested in the premises … Commonly itemsinside the vehicle may be inside the address where it is located, evidenceidentifying who the occupants of the vehicle may be and indicatingassociation with the vehicle found, items from the vehicle could includedocuments or lawful user of that vehicle and items of that type. I have beeninvolved in investigations where plans of theft if you like or where theydevelop when they will commit the offence has been located.

In contrast [to] that would [you only be interested in] looking at the vehicleand taking it away … No definitely not.

[159] In this case, however, the affidavit did not even explain where the vehicle

was parked in relation to the unit or why it might be reasonable to believe that it was

associated with that unit. There was also nothing in the affidavit to suggest what the

police hoped to find in the unit that related to that particular vehicle and why. It did

refer to the possibility of finding documentation that might be associated with a car

theft ring but, as indicated earlier, the suggestion of a car ring was pure speculation.

We thus agree with Heath J that the application was minimalist and fatally deficient.

[160] There are some further aspects of the search and its continuation the

following day which are also of concern, although, as we did not hear full argument

on them, we mention them relatively briefly. On arrival at the unit, there was an

initial sweep through the unit and the occupants were all taken outside. The men

were asked to turn out their pockets and subjected to a pat down search. In the course

of that exercise, some white powder in a snap lock bag, a knife and a (crushed) glass

pipe of the type used for smoking methamphetamine was found on Mr Fred Robarts

and Mr Christopher Williams. Detective Reardon then says that he invoked s 18(2)

of the Misuse of Drugs Act to conduct a search of vehicles belonging to those men

(although the respondents do not accept that s 18(2) was mentioned). Detective

Sergeant McHattie appears to have been of the view that s 18(2) had been invoked in

relation to the search of the unit as well but Detective Reardon insisted in evidence

that the search of the unit was covered by the warrant.

[161] After the pat down search, the search of the premises was resumed. Detective

Brown, another of the drug squad members, found two large jars with “dark brown

stuff” in them in a corner under a tablecloth. Also found were some two-layered

liquids in a refrigerator and some glassware. A number of the officers also gave

evidence of a strong chemical smell in the unit. Detective Reardon took the view that

these matters were consistent with drug manufacturing and, after consultation with

an ESR scientist, shut and secured the site. He instructed Detective Brown to prepare

a search warrant application specifically directed to the drug operation. As it was late

at night she did that the following morning and the warrant was issued the following

afternoon. In the meantime, Detective Reardon, purportedly in reliance on the

Hazardous Substances and New Organisms Act 1996 (the Hazardous Substances

Act) and s 18(2) of the Misuse of Drugs Act, had returned that morning with an ESR

scientist to resume the search.

[162] The first question is whether there was any basis for the actions of the police

in asking for the pockets to be turned out and for the pat down search. It is clear that

the men were not under arrest (and indeed there would have been no grounds for

arrest in any event) and so the power to search on arrest did not arise. Unlike in the

United States and Canada, no power of search consequent on investigative detention

has been recognised. In any event, any detention, if the men were in fact detained,

would have been unlawful.

[163] Detective Reardon said in evidence that the turning out of the pockets was

consensual. Mr Christopher Williams, the only one of the accused to give evidence,

said that he turned out his pockets because he was told to and that he was not going

to argue with the police, some of whom were armed. Heath J in his 28 September

2005 judgment, at [74], accepted this evidence. This means that the police created a

situation where Mr Christopher Williams, at least, considered that he had no choice

but to consent to the search. In the circumstances therefore his consent would be

legally ineffective – see, for example, Hjelmstrom at [13] - [14].

[164] It is possible that, given there were concerns about possible gang connections

which led to some of the search police being armed, there might have been a

justification for the searches under the Arms Act but none of the formalities

associated with that Act were complied with. There is in any event conflicting

evidence on why the police asked the men to turn out their pockets and why they

conducted the pat down search. The most common explanation was that it was

standard procedure to ensure police safety (but seemingly without any idea of the

legal basis for that procedure). However, Detective Miller, the drug squad member

who searched Mr Christopher Williams, said that he had a dual motive – to see if

Mr Williams had the car keys to the stolen car and also to make sure he was not

carrying any weapons. Searching Mr Williams for the car keys clearly had no legal

basis, absent consent.

[165] As an aside, we remark that, if indeed it is standard police procedure to

conduct pat down searches in these circumstances, then the legal basis for this should

be investigated and proper training given to officers conducting such searches as to

the limits of their powers.

[166] The next issue relates to the invocation of s 18(2) of the Misuse of Drugs Act.

At the time of the search, methamphetamine was not a drug listed in the relevant

schedule to the Act. Thus there was no power to conduct a warrantless search. As we

heard no argument on the Hazardous Substances Act, we cannot be definitive but we

doubt that this Act provided any justification for the police actions. The later drug

search warrant was also tainted by the illegality of the motor vehicle search warrant

(as appears in any event to have been accepted by the Crown).

Did police bad faith render the search of Patiki Road unlawful?

[167] It is appropriate now to consider the question of police bad faith as this was

the primary basis for Heath J’s conclusion as to the legality of the Patiki Road search

and his finding that evidence from the subsequent searches was inadmissible. The

respondents supported the decision of Heath J that the warrant issued in relation to

the stolen car and the resulting search of Patiki Road was illegal because the police

had a collateral motive in securing and executing the search warrant, namely a search

for drugs. The police were, they submitted, acting in bad faith.

[168] For purposes of the following discussion, we will assume that the application

for the search of the premises was not deficient and that the search was lawful. In

accordance with the principles discussed above at [25] – [46], the fact that there is

another purpose for a search cannot invalidate a lawful search, even where there

would be insufficient grounds to search for the other purpose. Exceptions are where

the other purpose is not a legitimate law enforcement purpose, the search goes

further than would be justified by the lawful purpose, and where the lawful purpose

is a mere ruse.

[169] In this case, the other purpose for the search (drugs) was a legitimate law

enforcement purpose. If the search warrant in relation to the stolen motor vehicle had

been lawfully issued, however, any search inside the unit would have been for

documentation and items associated with that vehicle. While searching the premises,

it appears that the police opened refrigerators and searched under furniture, places

that, it might be thought, would have been unlikely to have held such documentation.

To this extent therefore the search may have gone too far. This would have

invalidated the search only to the extent it went too far, however.

[170] The issue remains as to whether the search relating to the stolen car was a

mere ruse in the sense described above at [43] – [44]. In Ruling No 8 of

6 September 2005, Heath J held that Detective Reardon, the officer in charge,

deliberately used information received fortuitously about a report of a missing car to

procure a search warrant designed to search for drugs. This was when he knew that

the information he held was insufficient to get a warrant for that purpose. He rejected

the Detective’s evidence that the search for the stolen vehicle would have been

conducted by members of the drug squad even if the police had had no intelligence

of drug manufacture having taken place at those premises. At most, relevant

information relating to the stolen vehicle would have been passed to the police at

Avondale to investigate.

[171] In Heath J’s view, a further indication that the search was for drugs was the

manner of execution of the warrant. Approximately eight police officers attended

the scene, two of them armed. That was entirely consistent with a search for drugs

but was not consistent with the search for a vehicle known to be located outside the

premises. In addition, the Judge pointed out that no attempt had been made on

arrival to secure the vehicle, even though it was plainly in view. He also noted that

there appeared to have been no steps taken when first entering the unit to locate

documentation of the type described in the application. In the Judge’s view, further

investigations should have been carried out before any attempt to conduct a search

was made. There was nothing in the evidence to suggest any urgency about the

investigation. Even after the Patiki Road searches were completed, no further search

warrants were executed until 23 May 2002.

[172] The Judge said that he was not prepared to countenance admission of

evidence when a warrant to conduct a search had been procured cynically for an

ulterior purpose. He rejected the submission that the search was a dual purpose

search. He accepted that the police intended to make cursory searches of the vehicle

and for documentation but, in his view, this was to ensure that the terms of the

warrant were seen to be executed. He held that the search for the vehicle and

associated documentation was a de minimis purpose. The real purpose of the search

was to find drugs.

[173] We can understand why Heath J was unimpressed with Detective Reardon’s

evidence that the drugs squad would have been involved in the obtaining and

execution of the warrant relating to the stolen car, even if they had not suspected the

presence of a clandestine methamphetamine laboratory at the premises. Looked at

from another angle, however, it would not have been appropriate, given their

suspicion that a clandestine laboratory may have been in operation, merely to have

handed the information on to the Avondale police. There would have been very real

dangers to persons and property if a laboratory had been found in the course of any

search and not properly dealt with.

[174] Such safety considerations and the suspicion that there were gang links also

diminish the inference that Heath J drew from the numbers of officers, some of them

armed, involved in the search. While the suspicions as to drug and gang links did not

suffice to found an application for a warrant, there would have been nothing wrong

with those factors being taken into account in the execution of a valid warrant. Thus

there would have been nothing wrong in having enough police to deal with possible

difficulties in the execution of the warrant as well as having specialist drug officers

in attendance to deal with any laboratory. Indeed, it would in our view have been

irresponsible for the police to have acted otherwise.

[175] As to Heath J’s concern that there was no attempt to secure the stolen car on

arrival at the unit, Detective Reardon provided an explanation for the delay in the

time it took to clear the premises and to conduct the pat down search. He said that it

is standard procedure to clear the premises in order to make sure that there is no

opportunity to destroy evidence and to ensure the safety of those searching and the

occupants. The unit was then searched but, on finding evidence that suggested drug

manufacturing, the scene was shut down.

[176] Heath J’s comments that the intention of the police was to make cursory

searches of the vehicle merely sufficient to justify the search warrant seem to have

been directed at Detective Reardon and we can see why Heath J came to that view.

Detective Reardon dealt with Mr Fred Robarts when the premises were first cleared.

He said that he did not recall if he spoke to Mr Robarts about the stolen car or not.

When asked whether he had tasked anyone with questioning any of the occupants

about the stolen car, Detective Reardon answered that he had not done so specifically

as they were all of sufficient experience to make up their own minds in that regard.

[177] It is, however, necessary to look at the operation as a whole. Detective

Miller, who searched Mr Christopher Williams, did ask him about the stolen vehicle,

being met by the answer that he, Mr Christopher Williams, knew nothing about it

and that he was only an occasional visitor to the property. Mr Christopher Williams

confirmed in his evidence that he was asked one question about the stolen car.

Detective Brown, one of the other drug squad detectives, said that she saw her task at

the unit as being to search for a stolen vehicle, documents relating to a stolen vehicle

and she thought also car keys. She busied herself checking registration numbers of

some of the other 20 cars that were located outside or in the unit, while she was

waiting for the scene guards to arrive. It thus cannot be said that none of the drug

squad officers were concerned with the stolen vehicle.

[178] Further, Detective Reardon had enlisted the help of the Avondale police for

the search. It was those officers who, it appears, primarily dealt with the stolen motor

vehicle. Detective Sergeant McHattie and his colleague Detective Constable Welch

did a cursory search of the vehicle where it was parked with four other cars in front

of the unit. It was getting dark and they were concerned about contamination of

evidence, however, and so they arranged to have the vehicle towed to the police

station at about 9.50 pm. The keys were not in the vehicle and a search inside the

unit did not reveal them. Some two or three days later the vehicle was searched fully

and fingerprinted. Insufficient evidence was, however, found to lay charges in

relation to the theft of the vehicle.

[179] There was also evidence from a number of the officers about the briefing

given at the Avondale police station before the search. The briefing appears to have

concentrated largely on the stolen car, the possibility that there were other stolen cars

at the unit and the possible gang connections of the occupants. There is no doubt,

however, that at least the drug squad officers were aware of the possibility of

methamphetamine manufacturing at the premises.

[180] Looking at the operation as a whole, it is not possible to come to the

conclusion that the police were not interested in the stolen vehicle or that any search

of the premises was not directed to items relating to that vehicle. It seems, for

example, that there had been a search for the car keys in the unit – see above at

[178]. Proper measures appear to have been taken to ascertain those responsible for

the theft. We also differ from Heath J’s conclusion that there was no urgency in the

search. While that was no doubt true in relation to any possible drug search, it was

not the case with regard to the stolen motor vehicle. The owners of the vehicle were

entitled to expect that their stolen car would be dealt with urgently. There was no

suggestion that it would not have been standard police practice to seek a search

warrant in relation to a stolen car. Thus, even without the desire to search for drugs,

the premises would have been searched.

[181] Taking all these factors into account, this is not, in our view, one of those rare

cases where the search in relation to the stolen motor vehicle could be said to be a

“mere ruse”.

Was the search of Patiki Road unreasonable?

[182] The Crown argued that the search, while unlawful, was nonetheless

reasonable as there were reasonable grounds to believe that the vehicle was stolen

and it was not unreasonable to assume that there would be associated documentation

or items such as car keys in the adjoining unit.

[183] Under the principles we have articulated above at [12] - [24], unlawfulness

leads automatically to unreasonableness except where the breach is technical or

trivial. Here the breach was substantive, given the minimalist nature of the

application and the suggestion of a car ring when this was pure speculation. There

were also the further illegalities in relation to the pat down search, the turning out of

the pockets and the reliance on s 18(2) of the Misuse of Drugs Act.

[184] For completeness we note, however, that, for the reasons outlined above at

[173] - [174], we do not consider that the manner of conducting the search was in the

circumstances unreasonable.

Whose rights were breached?

[185] The Crown submitted that only Mr Dale Williams had standing to complain

about the Patiki Road breach as he was the only one of the respondents who

(probably) lived in the unit. Even that link was tenuous as the property was leased to

a Mr Viles who, to the owner’s knowledge but not with the owner’s consent, was

possibly sharing the unit with Messrs Dale and Christopher Williams, the latter

denying having any real connection with the unit.

[186] In accordance with the principles set out above at [63] – [69], those who are

able to claim a personal remedy are those who were present at the time of the search

of the property and those who had any licence at all to use the property, as well as

those who had a possessory interest in the material seized at Patiki Road. Messrs

Dale and Christopher Williams, on the basis of the landlord’s evidence, seem to have

some kind of licence to use the property. Mr Phillip Robarts, along with his brother

Fred, were present at the search.

[187] These men therefore can claim a personal remedy for the breach in the form

of exclusion of evidence (subject to the Shaheed balancing). Whether any of the

other respondents could claim a possessory interest in the material seized was not

argued before us, perhaps understandably given the difficulties discussed above at

[70] – [73]. The other respondents are therefore limited to the common law test for

the exclusion of evidence but, as they are jointly charged with those who are able to

claim a personal remedy under the Bill of Rights, the common law test would

exclude the evidence if it were excluded against the others – see at [75] - [76] above.

Were subsequent searches tainted by the Patiki Road search?

[188] The Crown’s position was that the subsequent searches were independent of

the Patiki Road search and thus were not tainted by it. After the Patiki Road search,

the police had received specific information that Mr Shane Williams had a “secret

room beneath his garage at Blockhouse Bay which is accessed through the garage

floor” and which contained “a lot of his drugs”. The information earlier provided by

the Patiki Road informant, while insufficient in itself to provide the police with

reasonable grounds to search Patiki Road, was, in the Crown’s submission, available

to corroborate the information relating to Mr Shane Williams obtained later from a

different informant. The police were thus, in the Crown’s submission, justified in

proceeding to search his property at Blockhouse Bay. The Crown accepted,

however, that, if the Blockhouse Bay evidence was tainted, then the evidence

gathered after that search was similarly tainted.

[189] In accordance with the principles discussed above at [98], it is only if the

subsequent evidence was obtained independently of the Patiki Road breach that it

was not tainted by the Patiki Road breach. In his judgment of 28 September 2005

Heath J concluded that the Blockhouse Bay search warrant could not have been

obtained without the evidence gathered during the Patiki Road search.

[190] The application for the Blockhouse Bay warrant was again sworn by

Detective Reardon. In his affidavit, he referred to the informant evidence in respect

of Patiki Road and what had been found in the course of that search. He stated that

the Patiki Road unit had been occupied by a number of persons, including Messrs

Phillip Robarts, Fred Robarts, and Christopher Williams. The application then

referred to information from an anonymous informant to another constable about the

involvement of Mr Fred Robarts and Mr Shane Williams with the manufacturing and

selling of drugs at some Auckland schools and to the information relating to

Mr Shane Williams’ secret room.

[191] The application stated that the informant had given other personal details

relating to Mr Robarts and Mr Williams that would not necessarily be known unless

the informant was their direct associate and it was stated that those details have now

been corroborated by police. It was said that both Mr Fred Robarts and Mr Shane

Williams had brothers who were associated with the Head Hunters gang which is

well documented as having a heavy involvement in the manufacture and distribution

of methamphetamine.

[192] In his judgment, Heath J noted first that, although the application for the

Blockhouse Bay search was made about seven months after the Patiki Road search,

there was no reference to any further inquiries made by the police in that period. He

noted further that the evidence from the anonymous informant was not entirely fresh,

having been received almost a month earlier, and that there were scant details about

how the information came to the police or why the informant was considered

reliable. There was nothing in the application to suggest what the other personal

details were that allegedly showed the reliability of the informant or how the details

given had been corroborated by the police (and no further evidence on that matter

had been led before him). In addition, no specific details were given about the

allegations that drugs were being manufactured and sold to some Auckland schools.

[193] The Judge accepted that there was reference to police intelligence linking

each named person with a brother who had suspected involvement in the

manufacture and distribution of methamphetamine but, in his view, this was of

limited value. In any event, the ability to make these links arose from the Patiki

Road search. Before that search, Detective Reardon, although having intelligence of

a “Dale” being involved in methamphetamine manufacturing, did not know his

surname. Further, he did not know that Mr Dale Williams and his family occupied

the Patiki Road property until he went there to execute the warrant in relation to the

stolen vehicle. Finally, no further information had been put forward in evidence

before Heath J that might have justified the Blockhouse Bay search.

[194] We agree with Heath J, for the reasons he gives, that the information held by

Detective Reardon was insufficient to justify the issue of a search warrant for the

Blockhouse Bay property without the tainted evidence obtained during the course of

the Patiki Road search (and we agree that this includes the names of the occupants of

Patiki Road). This means that that the evidence gained from that search must be

considered tainted by the Patiki Road breach on a “but for” analysis. We must move

to the Shaheed analysis in relation to both the Patiki Road evidence and the

subsequently obtained downstream evidence.

How does Shaheed apply to the Patiki Road search?

[195] The Crown submitted that the application of the Shaheed balancing test with

regard to Patiki Road should result in the admission of the evidence. The

respondents take the opposing position.

[196] The first stage is to assess the extent of the illegality. Although a search of

the unit could have been justified on the basis of the stolen vehicle, the warrant

application failed to provide the proper justification for this. Worse, it suggested the

existence of a car ring, which was pure speculation. The unlawfulness was

exacerbated by the pat down searches and the wrongful reliance on s 18(2) of the

Misuse of Drugs Act. The premises were to all outward appearances commercial

rather than residential but they were used for residential purposes (at least by

Mr Dale Williams). In those areas used for residential purposes, therefore, there was

objectively a high expectation of privacy. A lesser expectation of privacy would

apply to the workshop and storage areas. The intrusion was, however, a major one,

given the number of police involved, some of whom were armed. Further, the pat

down search affected the personal bodily integrity of those searched.

[197] The combination of those factors in our view renders the breach moderately

serious on the scale set out at [133]. As to aggravating factors, while we have

determined that the actions of the police were not irredeemably coloured by a “bad

faith” ulterior motive, there was still an element of exaggeration in the application

for the warrant (with the suggestion of a car ring). This would raise the level of

breach to serious. On the other hand, it is a mitigating factor that the connection of

all but Mr Dale Williams (and possibly Mr Christopher Williams) to the property

was very weak. This lowers the level of breach back to moderately serious for all

but Mr Dale (and possibly Mr Christopher) Williams.

[198] On the other side of the ledger, the crime is serious (see R v Fatu [2006]

2 NZLR 72 (CA)) but the evidence, taken alone, was not central to the Crown case

and not highly probative insofar as it relates to the offences with which the

respondents are currently charged. Giving due weight to the quasi-constitutional

character of the breach and its seriousness, the balancing test results in the exclusion

of this evidence. We thus uphold Heath J’s decision that the evidence obtained from

the Patiki Road search should not be admitted under the Shaheed balancing test,

although our reasoning differs from his.

How does Shaheed apply to the subsequent searches?

[199] The Crown argued that the exclusion of the subsequent evidence would be

disproportionate to that breach and would effectively provide immunity from

prosecution for the fresh acts of illegality committed. The respondents supported

Heath J’s conclusion that the evidence obtained after the Patiki Road search should

be excluded because of its substantial connection with the Patiki Road breach.

[200] Heath J’s conclusion that the subsequent evidence was inadmissible was

based largely on his finding of bad faith in relation to the Patiki Road search. We

have differed from his finding in that regard. We have nevertheless found the breach

in relation to Patiki Road to have been serious (for two of the respondents) and

moderately serious for the others. With regard to the Blockhouse Bay search, while

the warrant application had its difficulties (see at [192] - [193] above), in our view it

would have (just) supported the issue of a warrant had the reliance on the Patiki

Road information been valid. The case was run before us on the basis that, if the

Blockhouse Bay search was upheld, then the subsequent searches and interception

warrants were lawful and reasonable and so we deal in this section only with the

Blockhouse Bay search.

[201] The severity of the breach with regard to that search is to be judged largely

by reference to the Patiki Road breach but taking into account any added features

related to the Blockhouse Bay property and those affected by that search. The only

added features are the nature of the Blockhouse Bay property (purely residential as

against Patiki Road which was mixed residential/industrial) and the greater

expectation of privacy those living at the Blockhouse Bay property would have. The

former would not be sufficient to change the assessment of seriousness (at least

when comparing the residential parts of Patiki Road) and the latter will only do so

for those who were living at the Blockhouse Bay property. It seems to us too, that

the fact that there would have been a proper basis for the Patiki Road search, had the

application been drafted with more care, may legitimately be seen as having a greater

mitigating effect on subsequent searches than it did on the Patiki Road search.

[202] In assessing the seriousness of the Blockhouse Bay (and subsequent)

breaches, a further factor is any attenuation of the links between that evidence and

the Patiki Road breach. The first issue in this regard is whether the cogency of the

subsequent evidence is dependent on the Patiki Road breach (see factor (b) above at

[96]). As we understand it, that is not the case and the subsequent evidence can be

given without any reference to the Patiki Road search. Indeed, as we understand it,

the subsequent evidence relates to subsequent actions of the respondents, rather than

to added proof of the Patiki Road offending. As the Crown pointed out, exclusion of

the evidence from the subsequent search would effectively give the respondents

immunity for their criminal conduct after the Patiki Road search.

[203] The next relevant issue is whether the evidence was brought into existence as

a result of the breach or merely brought to light as a result of the breach – see above

at [89] and [125]. Most of the evidence would be seen as having been brought to

light as a result of the breach. However, given the nature of interception warrants, it

may be that these are in the same category as the DNA testing in Shaheed and thus

may be seen as arising directly from the breach.

[204] The third factor is the separation in time and intervening events between the

breach and the obtaining of the evidence (see factor (a) above at [96]). As indicated

above, there is a long gap between the Patiki Road warrant and the Blockhouse Bay

warrant but we have no indication of any police activity during that period. This

therefore is a neutral factor, except to the extent that there were fresh illegalities

during the later period of investigation, which in our view seriously attenuate the

link. As the Crown pointed out, police attention continued to be directed towards the

respondents because of their ongoing offending and not merely because of the Patiki

Road information. There was also the informant evidence about Mr Shane Williams,

which, although not enough in itself without the Patiki Road evidence to render the

Blockhouse Bay warrant lawful, does nevertheless serve to attenuate the link.

[205] All of the above factors in our view reduce the seriousness of the breach in

relation to the subsequent evidence to minor for all those not living at either Patiki

Road or Blockhouse Bay and to moderate for those who were.

[206] On the other side of the ledger, these offences are serious. We understand the

evidence, particularly arising out of the interception warrants, to be highly probative

and the evidence is central to the Crown case. Crown counsel acknowledged that, in

the event the ruling is upheld, “it is inevitable that all 11 accused will no longer [be]

troubled by the serious allegations in the indictment”. While the exclusion of

evidence from Patiki Road recognises the failings of the police with regard to that

search (and in particular the elements of exaggeration), the subsequent evidence

gathered from later searches is removed from the breach both in terms of connection

and vindication. In our view, the original breach with regard to Patiki Road is

sufficiently vindicated by the exclusion of the Patiki Road evidence. Even giving the

breaches of the Bill of Rights due weight, the exclusion of the subsequent evidence

would not be proportionate to the breaches and our system of the administration of

justice could be brought into disrepute if it were excluded.

[207] The final point is that those with no ability to claim a personal remedy, in the

sense described above at [67] - [69], would not get to this stage. All of the evidence

would be admissible against them unless the common law test of exclusion was met

– see at [75] - [76] above. We do not decide this point as it was not raised before us

and we therefore heard no argument on it but we remark that our preliminary view is

that the common law test would be unlikely to be met in relation to the subsequent

evidence, given that it is more stringent than the Shaheed balancing test and the

application of that test has resulted in the admission of the subsequent evidence

against those who are able to claim a personal remedy under the Bill of Rights.

Search warrant applications

[208] Despite the continued exhortations of this Court, woefully inadequate

applications (such as those at issue in this case) continue to be drafted and warrants

continue to be issued on the basis of inadequate applications. Warrants also continue

to be too widely drawn, even when based on adequate material. Below we set out

the principles for the drafting of such applications and give examples of common

failures.

General principles

[209] The matters set out in the application must provide the person issuing the

warrant with evidence that meets the statutory criteria. In this section we concentrate

on s 198 of the Summary Proceedings Act 1957. In that context, the applicant must

provide evidence that would afford the issuing officer with reasonable grounds to

believe that there will be at or in a stated location an item (or items) that will be

evidence of, that are intended to be used for or that have been used in, the

commission of an offence.

[210] A warrant must be “as specific as the circumstances allow” – see Tranz Rail

Ltd v Wellington District Court [2002] 3 NZLR 780 at [41] (CA) and Director of the

Serious Fraud Office v A Firm of Solicitors [2006] 1 NZLR 586 at [71] (CA). It

follows that the same must apply to the application that forms the basis upon which

the warrant is issued.

[211] The application must therefore accurately describe the offence and the

specific incident or incidents to which the search relates. It is not sufficient to say

that among a large group of people, over a large period of time, an offence must have

occurred – R v Sanders [1994] 3 NZLR 450 at 461 (CA) and Auckland Medical Aid

Trust v Taylor and Ors [1975] 1 NZLR 728 at 736, 740 and 749 (CA). A warrant

will generally be found to be invalid where it fails adequately to specify the

particular offence(s) to which the warrant relates – R v Baptista (2005) 21 CRNZ

479 at [24] (CA).

[212] The application must also be limited to the places where the items are

expected to be found (see R v Chapman CA241/02 4 November 2002 and Baptista)

and the things the application alleges will be found must be sufficiently defined. The

search must be more than a fishing expedition with nothing in particular in

mind - see Sanders at 461.

[213] Having “reasonable grounds to believe”, the test under s 198 of the Summary

Proceedings Act, is a higher standard to meet than “reasonable ground to suspect”,

the test under s 60(1) of the Arms Act for example – see R v Karalus (2005)

21 CRNZ 728 at [27] (CA). Belief means that there has 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 354 - 355), while suspicion means thinking that it is likely that 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 461.

[214] While there is nothing to stop an applicant for a warrant expressing an

opinion on whether there are reasonable grounds, the primary task is to set out the

evidence for the issuing officer – see Sanders at 460. In general, an applicant’s job

is to provide all the facts that may be relevant to the issuing officer’s decision to

issue the warrant – see Tranz Rail at [21] and R v Butler CA439/00 10 April 2001 at

[31]. It is important that the applicant does not present only selected facts, or leave

out things that the applicant thinks may mean the issuing officer is less likely to issue

the warrant – see Butler at [4]. The applicant officer must give the issuing officer

the full picture – see R v McColl .

[215] Applicants for a search warrant must state that they personally believe in the

truth of the facts they are including in the application, or it must be obvious to

someone reading the warrant that the applicant personally believes the facts to be

true – see Sanders at 460. The person applying for the warrant does not need to have

personal knowledge of the facts set out in the application. However, where he or she

does not have personal knowledge, the basis for believing in the truth of the facts

must be set out. Where an applicant relies on information of which he or she does

not have personal knowledge, the source of that information must be clearly stated so

that the issuing officer may assess its reliability and cogency – see Baptista at [9]

and Sanders at 460.

[216] There is often a particular difficulty with warrant applications based on

information provided by informants. In such cases, there has to be some

accompanying evidence in the application suggesting why the informant should be

considered reliable and why the informant’s assertions are solidly grounded in more

than mere suspicion, rumour or gossip – see R v Condren CA233/96 10 September

1996. Evidence of an informant’s reliability could be that the source has supplied

reliable information in the past particularly if information provided by them

previously has resulted in the conviction of other offenders – see R v Burns (Darryl)

[2002] 1 NZLR 204 at [16] (CA) and R v Hepi and Anor CA382/03 5 April 2004, or

that their part of the story has been confirmed by police inquiries – see R v Debot

(1986) 30 CCC (3d) 207 (Ont CA), upheld by the Canadian Supreme Court in

R v Debot [1989] 2 SCR 1140.

[217] The source and nature of the information itself may affect reliability. For

example, an eyewitness account will be more reliable than information passed

through multiple sources and then onto the police – see Burns at [16]; R v Black

CA50/06 20 July 2006; and R v Thompson [2001] 1 NZLR 129 at 144 (CA).

Information from an informer close to the alleged offender such as a family member,

colleague or friend will generally be considered more reliable than information from

a more distant source (see Black at [19]), as will be information from a participant in

an illegal transaction, as opposed to a spectator – see R v Groves CA210/03

23 September 2003.

[218] Where aspects of an informant’s story unrelated to the alleged offending,

such as personal details about the offender, are able to be verified through other

inquiries the informant will be considered more reliable – see Groves and Hepi.

Links between the alleged offender and the address stated in the warrant (see Butler

and Hepi), accurate reports of the alleged offender’s previous convictions (see

Groves), and facts that are able to be independently checked, such as power bills

consistent with hydroponic cannabis growing operations as alleged by the informant

(see Butler and Thompson), are examples of information that, where confirmed, has

been found to increase an informant’s reliability.

[219] Particularly in cases where only general or brief information is provided by

the informant, it must be supported by information from the police about the source

and the reliability of the informant in order to be considered reliable – see

R v Harrison CA20/01 23 May 2001. It is not possible for the reliability of an

informant to be assessed if their statements as recorded in the affidavit are

conclusory. There must be some evidence provided to show that the statements are

based on more than suspicion, rumour or gossip – see R v Kahika CA200/97 31 July

1997.

[220] As well as the effect the external factors discussed above will have on

reliability, the way in which the applicant records the information received from the

informant will affect its reliability. The applicant should give the date when

information from any informant was supplied. If the information was given not to

the applicant him or herself but rather to another member of the police, that other

officer should be named or should swear their own affidavit in support of the

application. The applicant should use direct speech where possible indicating

exactly what the informant told the police – see R v Poelman (2004) 21 CRNZ 69 at

[27] - [28] (CA).

[221] There is a public interest in the protection of police informers. The Court

will prevent the disclosure of identifying information to an accused where that is

necessary to protect an informant’s identity and it will use a confidential filing

system. The issuing officer must, however, be given all information held by the

police when deciding whether to issue the warrant, no matter how sensitive the

information might be – see Poelman at [35].

[222] As a general check, an applicant should scrutinise the grounds on which he or

she applies for a warrant and consider, taking the role of devil’s advocate, whether

the grounds provide a sufficient basis for a warrant to be issued – see Savelio at [35].

Unless not practical, as a matter of best practice, applicants should also have the

application checked by a superior officer or a legal advisor to ensure that it meets the

statutory criteria for the issue of a warrant.

Common errors

[223] We provide below some examples from the case law which illustrate

common errors:

(a) Applicants should not apply for too wide a warrant.

Example One: In Chapman, the applicant officer had received

reliable information that cannabis was being cultivated on a

specific part of a large farm, in an area of gorse a few hundred

metres from the accused’s house. On its face, the warrant

requested in the application, and ultimately issued, authorised a

search of the whole farm and the accused’s house. The Court

found that the warrant authorised a search only on the part of the

farm supported by the information provided in support of the

application. The police in this case should have restricted their

application and search to the area for which they had reasonable

grounds to believe cannabis was growing, on the basis of the

information received. The search of the house was held to be

unlawful and the evidence found in the course of this part of the

search was excluded.

Example Two: In Baptista, this Court criticised the warrant as

being too widely drawn in several respects. This was largely due

to the construction of the application. First, although the true

intention of the police was to search for evidence supporting

offending relating to precursor substances, the affidavit

supporting the warrant application referred to much wider

potential offending. The Court found that this confused and

generalised the picture, making it difficult to link the evidence in

the affidavit and the specified alleged offences to what was

sought – at [14]. Second the warrant authorised a search of a wide

range of financial documents and other materials. Third, the

warrant authorised a search of an aircraft, ship or carriage where

there was no suggestion that such a vehicle was at the address or

involved in the offending – at [18]. The Court found there was no

justifiable basis for such a wide search on the evidence presented

in support of the warrant application, and said “[t]his was no

more than a fishing expedition” – at [19].

(b) Applicants should not state conclusions without saying why.

Example: In Pineaha, the applicant officer stated in his affidavit

“police have established that… ‘Boss GILLIES’…resides with

Missy Murray on Ruaroa Road near Takahue.” The affidavit did

not state any facts that provided a basis for this belief, or

established a link between the accused and the premises. The

Court held that the warrant was invalid. The applicant should

have said why he believed that the accused lived at the address.

For example, the applicant may have made corroborating

inquiries such as checking the electoral roll, or the accused’s

neighbours may have confirmed the applicant’s belief.

(c) Applicants should not include standard form material on the criminal

activity being investigated unless it is relevant to the particular

application.

Example: In R v Cummings CA105/06 6 July 2006, the applicant

officer began his search warrant application with a large amount

of standard form background information relating to cannabis and

methamphetamine offending. The Court reiterated that it frowns

upon the use of “cut and paste” techniques in affidavits

supporting applications for a search warrant. In any event, the

officer did not state his expertise to give the standard form

information on the drugs.

(d) Applicants must explain any delay in applying for a warrant.

Example: In McColl, the police had received information that the

accused was selling cannabis from his home address. When

making the application, the applicant police officer did not tell the

issuing officer that the information had been supplied two and a

half months earlier. The Court found that the issuing officer

would probably not have issued the warrant if he or she had

known the length of delay between the receipt of the information

and the application. The warrant was held to be invalid.

(e) Applicants should not leave out relevant information.

Example One: In Tranz Rail Ltd, the applicant (the Commerce

Commission) sought a warrant to search Tranz Rail’s offices.

The applicant failed to disclose in its application the extent to

which Tranz Rail had previously co-operated with the

Commission in interviews and in voluntarily handing over

documentation – see at [23]. Section 98A(2) of the Commerce

Act 1986, under which the warrant was sought, authorises the

issuance of a warrant only where there are reasonable grounds for

believing a search is “necessary”. The previous co-operation of

the appellant was relevant to the necessity of the search and

should therefore have been disclosed.

Example Two: In R v H CA340/00 27 September 2000, the

applicant officer sought a warrant to search the accused’s address

for firearms that were ultimately linked to bullet fragments found

in the deceased’s head. The application stated that the accused

admitted leaving the house where the deceased was last seen alive

with the accused. The application failed to record, however,

further details of the accused’s version of events, being that

although he had left the house with the deceased, the deceased

had then dropped the accused off in Wellington. The application

also failed to disclose that the deceased, when found, was lying

on a rifle. The Court in this case, however, upheld the warrant on

other grounds.

Example Three: Similarly, in R v Fountain and Ors CA176/05

10 August 2005, the Court criticised the failure of the applicant

officer to include in his application explanations given by the

suspect, which tended to undermine her alleged involvement in

drug related offending. He also made unqualified assertions that

a “pencil burner” was used to consume methamphetamine and

that 6g of methamphetamine was located in her handbag (when

no tests had been done to verify this). The applicant also did not

record that one of the accused’s associates had claimed ownership

of some of the drug paraphernalia cited in the application as

evidence of her involvement in drug offending. This Court

agreed with the trial Judge’s analysis that the applicant had not

“fairly and fully disclosed the basis for his belief as to [the

suspect’s] involvement in the manufacture and distribution of

methamphetamine”. However, sufficient other information was

included in the application to save the warrant from invalidity.

(f) Applicants should not include misleading information.

Example: In Schroder, the applicant officer stated in his

application “I received information from an informant who has

previously given me drug-related information which has proved

to be 100 per cent reliable. I trust this informant emphatically”.

In fact, the informant referred to was another police officer, so

could not properly be referred to as an informant. The Court

found that the applicant had deliberately set out to mislead the

issuing officer and thus the warrant was invalid.

(g) Applications must say why the applicant believes an informant is

reliable.

Example One: In Kappely, the applicant police officer applied for

a warrant on the basis of information passed from an unknown

informant to a reliable informant – see at [10]. The applicant did

not give any reason why the unknown informant should be

believed. The warrant was held to be invalid.

Example Two: In R v Cook CA70/99 6 May 1999, a bare,

unsubstantiated assertion that an informant was reliable meant

that the Court did not uphold the warrant as valid.

(h) Applicants should not describe the belief of “the police” or the belief of

another person. Applicants must describe their own personal belief in a

state of affairs justifying the issue of a warrant and the facts that make

them hold that belief – see at [215] above. If applicants refer to the

belief of another police officer, or information received by another

police officer, that police officer should be identified.

Example: In Kappely, the affidavit in support of the warrant

application stated “that police believe that a search of the

address will result in the discovery of cannabis plant

material”. This Court criticised the reference to “the

amorphous ‘Police’” (at [10]), considering it to be

“unhelpful”. It also criticised the fact that the affidavit did not

identify the police officer who received the relevant

information from an informer. These references, and the error

referred to at [223](g) above, combined to render the warrant

invalid.

Summary of what an application should contain

[224] In summary, applicants for warrants should:

(a) Accurately describe the offence they believe the search relates to.

(b) Explain what it is they expect to find and why, and where they expect

to find it and why. Applicants should be as specific as possible.

(c) Make sure they describe the place where they expect to find the item

accurately, such as the correct address of a house or registration

number of a car.

(d) Include a description of all relevant information held or received

(whether favourable or unfavourable) and all relevant inquiries made.

(e) When describing the information received, state the date when each

piece of information was received, who received the information, and

in what circumstances. Provide an assessment (with reasons) of the

significance and reliability of the information.

(f) Describe the relevant inquiries that have been made. State the date on

which each inquiry was made, who made it, how each inquiry was

conducted, and the circumstances in which it was conducted. Explain

(with reasons) the significance of those inquiries.

(g) Explain any delay between the last receipt of information and/or the

last inquiry and the application for a warrant. If there has been a

delay in applying for a warrant, make any necessary inquiries to

ensure everything contained in the application is current and explain

why that is so.

(h) If information relied on is from an informant, give as much

information about the informant as possible, including the informant’s

name, address and relationship to the suspect (if known) and any

specific information on past reliability.

(i) Indicate in the application who received the information from the

informant, when and in what circumstances.

(j) As far as possible, report information received from an informant in

the informant’s own words. Consider attaching the original notes of

the conversation to the application.

(k) Disclose all relevant information, even if confidential. Confidential

information (for example as to an informant’s identity) does not have

to be disclosed to the suspect (even if later he or she is charged) but it

must be disclosed in the warrant application. If applicants are

concerned about inadvertent disclosure of confidential information,

they should consider putting it in an attachment to the affidavit,

sealed and marked confidential. Applicants should refer in the

affidavit to the attachment and swear to their belief in its accuracy.

(l) Explain the reason for every expression of belief in the affidavit.

Applicants should never express a conclusion without saying why.

(m) Scrutinise the grounds on which they apply for a warrant and

consider, taking the role of devil’s advocate, whether the application

meets the statutory criteria.

(n) Where practical, refer the application to a superior officer or legal

advisor for checking before it is submitted to the judicial officer.

[225] A significant departure from the above guidelines risks there being a finding

that the warrant (and therefore the search) is unlawful. This in turn may lead to the

exclusion of evidence under the Shaheed balancing test.

Summary of principles of search and seizure dealt with in this judgment

Link between unlawfulness and unreasonableness

[226] Legality and reasonableness, although related, are distinct concepts.

[227] A lawful search may be an unreasonable search where it is conducted in an

unreasonable manner (such as being conducted with excessive force).

[228] For the purpose of assessing the admissibility of evidence, an unlawful search

or seizure will, however, be unreasonable and therefore in breach of s 21 of the Bill

of Rights, except where:

(a) the error is minor or technical; and

(b) the error is not noticed before the search or seizure is undertaken.

[229] After Shaheed, the factors identified in Grayson and Taylor (including

urgency – see at [20] above) will not be relevant to an assessment of reasonableness

but most will move to the balancing phase under Shaheed, where they will be taken

into account in assessing the seriousness of any breach.

[230] For a fuller discussion, see at [12] - [24] above.

When bad faith can render a warrant unlawful

[231] The existence of a collateral purpose (even if that purpose is dominant) does

not render a search unreasonable where the search is otherwise lawful and reasonable

and as long as the scope of the search covers only what is necessary to fulfil the

lawful (authorising) purpose for the search – see at [36] above.

[232] Any collateral purpose must, however, be a legitimate law enforcement

purpose. If the collateral purpose is illegitimate, such as to harass an ex-partner or is

discriminatory in terms of s 19(1) of the Bill of Rights, then this would render the

search unreasonable if that collateral purpose is more than incidental – see at [37]

above.

[233] Further, if the lawful purpose is a mere ruse, then the search will be

unreasonable. A conclusion that the purported purpose for a lawful search was a

mere ruse should not be lightly drawn. It should be judged from the perspective of

the operation as a whole and not from that of individual officers. The circumstances

of applying for any warrant and of the execution of the search should be taken into

account, along with considerations of standard police practice – see at [43] - [45]

above.

[234] For a more detailed discussion, see above at [25] – [46].

Claiming a personal remedy for breach

[235] Breaches of other people’s rights under the Bill of Rights cannot be relied

upon by third parties to claim the personal remedy of exclusion of evidence under

the Bill of Rights see at [47] above.

[236] The main aim of s 21 of the Bill of Rights is to protect privacy interests. It is

only where a person’s reasonable expectations of privacy have been breached that a

personal remedy under the Bill of Rights (i.e. exclusion of evidence) is available.

The reasonable expectation of privacy enjoyed by a person is to be judged largely

objectively. A broad view of privacy interests should be taken – see at [48] and [63]

above.

[237] Everyone actually present at a search of private property has a reasonable

expectation of privacy, with the likely exception of pure trespassers on a property for

unlawful purposes such as burglars. For those not present at a search, any type of

licence to occupy the premises searched (however bare) and any type of proprietary

or possessory interest in property searched or seized would give an expectation of

privacy – see at [67] - [69] above. The fact that any lease or licence terms have been

breached (e.g. by engaging in illegal activity) has no bearing on whether there is an

expectation of privacy – see at [64] - [66] above.

[238] The strength of the privacy interest is a factor to be taken into account under

the Shaheed balancing test. This will depend both on the strength of the links of the

person to the property involved and on the type of property being searched. For

example, there is a greater privacy interest in a residential property as against a

commercial one – see at [74] above.

[239] The common law exclusion rules survive where the Bill of Rights is not

engaged. Whether there have been breaches of other parties’ rights that have led to

evidence being obtained against a person will be relevant to the application of the

common law test for the exclusion of evidence. This is particularly the case where a

person is jointly charged with another who has the right to claim a personal remedy

under the Bill of Rights for the relevant breach. – see at [75] - [76] above.

[240] Our complete discussion on this topic is at [47] - [78] above.

Effect of a breach on downstream evidence

[241] Where evidence is obtained in the course of a single transaction which

includes an unreasonable search in breach of the Bill of Rights, there will be a

sufficient connection between the breach and the evidence for that evidence to be

tainted by the breach – see at [79] above.

[242] In cases where there is a gap in time between the breach and the gathering of

the evidence, if that evidence would not have been obtained but for the breach, then

the subsequent downstream evidence is tainted by the original breach – see at [98]

and [100] above. Any subsequent searches are unreasonable on that basis, except:

(a) where the evidence can be seen to be independent of an earlier breach

as in Hearne-Smith (a known witness offering evidence of unrelated

offending) and Ceccolini (a witness offering unprompted evidence

based on independent recollection); or

(b) where the connection between the breach and the evidence is so

attenuated that the breach cannot sensibly be considered as having

caused the evidence to be obtained.

[243] The strength of the links of the subsequent evidence to the breach is taken

into account when assessing the seriousness of the breach under the Shaheed

balancing test. Factors to be taken into account include (see at [96], [102] and [125]

above):

(a) whether the evidence can be given without referring to the earlier

breach;

(b) the length of time between the breach and the obtaining of the

evidence;

(c) the existence of intervening events (including fresh illegalities);

(d) whether the evidence was brought into existence as a result of the

breach or merely brought to light; and

(e) any other factors that attenuate causation.

[244] Our complete discussion on this topic is found at [79] - [103] above.

Conduct of the Shaheed balancing test

[245] The first step in the Shaheed balancing test is to assess the magnitude of the

breach – see at [115] above. This involves assessing (in combination):

(a) the extent of the illegality – see above at [110] - [112];

(b) the nature of the privacy interest considered objectively – see above at

[113] - [114];

(c) any aggravating or mitigating factors.

[246] Factors that can aggravate a breach include:

(a) a substantive breach of a specific statutory code – see above at [117];

(b) conducting a search in an unreasonable manner – see above at [118];

and

(c) police misconduct – see above at [116] and [119] - [121].

[247] The main factors mitigating the seriousness of a breach are:

(a) where the search takes place in a situation of urgency – see above at

[123];

(b) where the strength of the connection between the person and the

property searched or seized is weak – see above at [124]; and

(c) where there has been attenuation of the link between the breach and

the evidence – see above at [125] and [243];

(d) where there is inevitability of discovery, the onus being on the Crown

to prove this. It must also be shown that the police did not undertake

a deliberate (or reckless or grossly careless) course of conduct in

contravention of the rights of the accused, which, in the balancing

exercise, would aggravate any breach and result in a finding of police

misconduct. The inevitability factor should be used with caution and

would primarily be relevant to downstream evidence – see above at

[126] - [129].

[248] Police good faith, the courtesy with which a search is conducted and the fact

that the unlawful or unreasonable search takes place in the context of the

investigation of serious criminal activity are all neutral factors – see above at

[130] - [131].

[249] The assessment of the seriousness of the breach should be conducted in a

systematic manner. The extent of the illegality, the nature of the privacy interest and

any aggravating and mitigating factors should be considered in turn and then in

combination to reach an overall conclusion on seriousness – see at [132] - [133]

above.

[250] Having assessed the seriousness of the breach, the next stage is to balance the

breach against the public interest factors pointing away from the exclusion of the

evidence. These factors are considered in combination and not in isolation – see at

[134] above. They are:

(a) The seriousness of the crime. A crime is considered serious if the

starting point of any sentence is likely to be in the vicinity of four

years or more or where there are elements of a threat to public safety

involved, such as the carrying of a loaded weapon in public. The more

serious the crime the more weight this factor is accorded. Crimes

involving a serious incursion into the personal bodily integrity of the

victim, particularly where there is a significant risk of there being

further victims, are regarded as particularly serious – see above at

[135] – [139].

(b) The nature and quality of the evidence. The more probative, reliable

and crucial the evidence is, the more likely it is that the public interest

in the conviction of criminals might outweigh the breach of rights.

Conversely, where there is a significant issue of unreliability because

of the breach, the balancing test would come down in favour of

exclusion – see above at [140] – [141].

[251] The aim of the balancing exercise is to assess whether the remedy of

exclusion of evidence is proportionate to the breach. The fact that there has been a

breach of a quasi-constitutional right and the seriousness of the particular breach in

question must be given due weight. Strict rules cannot be laid down. The exclusion

of evidence under the Shaheed balancing test must be tailored to the circumstances

of each case and it remains an evaluative decision for the individual judge – see

above at [134], [142], [147] and [148].

[252] Generalisations can be made, however. The reliability and probative value of

the evidence will often outweigh a minor breach where the crime is of a serious

nature – see above at [144]. When the illegality or unreasonableness is serious,

however, and supported by a strong privacy interest, then, in the absence of any

mitigating factors such as attenuation of causation or a weak personal connection to

the property searched or seized, any balancing exercise would normally lead to the

exclusion of the evidence, even where the crime was serious. This result would be

almost inevitable where the breach was deliberate, reckless or grossly careless on the

part of the police – see above at [145] – [146].

[253] Our complete discussion of the Shaheed balancing test is at [104] - [153]

above.

Conclusion and result

[254] On 29 November 2006 the application of the Solicitor-General for leave to

appeal was allowed. The appeal was also allowed to the extent set out below.

[255] The determination of the High Court Judge that the evidence gained from the

Patiki Road search be excluded at trial is confirmed.

[256] The evidence gained from the subsequent searches is admissible. This is

subject to the subsequent evidence being able to be given and understood without

reference to the Patiki Road search and to any other considerations which have not

been raised before this Court.

[257] The publication of the judgment, the reasons for judgment and any part of the

proceedings (apart from [8] – [153], [209] - [253], [258] - [292] and [297]) in the

news media or on the internet or other publicly accessible database is prohibited until

the final disposition of the trial. Publication in law reports or law digests is

permitted.

HAMMOND J

Table of Contents

Para No

Introduction [258]The central problems in the law of search and seizure Introduction [260] The norm of judicial pre-authorisation [261] But what if the law as to search warrants is not observed? [271] Some field problems [280]

The importance of process [290]Police misconduct and the exclusion of evidence [292]

Introduction

[258] I agree with the outcome of the application of the R v Shaheed [2002]

2 NZLR 377 (CA) test to these particular appeals. I therefore support the result in

these appeals propounded by Glazebrook J and set out in points C to E inclusive of

the judgment of the Court. I also agree with the discussion of the law set out in the

judgment of Glazebrook J, which I have read in draft, and commented on.

[259] However, given the importance of the issues raised in this case I propose to

add some short observations of my own. This is because I consider that the

difficulties in cases of this kind in New Zealand repose more in their “operational”

aspects, than the doctrinal state of the law, and a failure to adhere firmly to the

necessity for, and requirements of, a norm of judicial pre-authorisation for a search.

The central problems in the law of search and seizure

Introduction

[260] The law of search and seizure has generated a vast amount of case law and

commentary in all the common-law jurisdictions. However, the essential concepts

are not complex, and tend to get lost sight of somewhat in the myriad of cases. It

may be useful, therefore, to restate what I think are the bedrock principles.

The norm of judicial pre-authorisation

[261] For centuries there has been a tension between the rights of individuals to

have the privacy of their own “home” respected and the abilities of the state and its

agencies to “intrude” into that home to search for incriminating evidence related to

crime.

[262] Search warrants seem to have been unknown in the early common law, but

they crept in, in particular to permit searches for stolen property. Then, in a dark

chapter of English legal history, the Star Chamber gave rise to the practice of issuing

general warrants to search for libellous matter. The famous cases of Wilkes v Wood

(1765) 19 St Tr 1153; Lofft 1; 98 ER 489 and Entick v Carrington (1765) 19 St Tr

1030; 2 Wils KB 275; 95 ER 807 held these general warrants to be illegal.

Lord Camden ruled that for a search to be valid, a warrant must be issued by a

judicial officer having jurisdiction, and it must be a special warrant on probable

cause, distinctly describing the individual or place to be searched and things to be

seized.

[263] What occurred thereafter in the western world to protect the individual, but at

the same time recognise the need to repress crime, was the furtherance of this

concept of judicial pre-authorisation. The recognition was that what was required

was a prophylactic device against unjustified state intrusion before a search takes

place. And meaningful judicial pre-authorisation necessarily requires a neutral third

party, capable of acting as a true intermediary between the rights of the individual

and the interests of the state. This concept subsequently found its way into

legislation around the western world (for instance, in New Zealand, what is now

s 198 of the Summary Proceedings Act 1957).

[264] It is true that a particularly nasty form of general warrant - the Writ of

Assistance - has lived on, particularly in North America. This open-ended warrant,

which required all parties to support the officer to whom it was issued, was a device

particularly used in custom and excise inspections. It authorises an officer to search

any person or place, and generally does not expire. Ultimately the use of such writs

had much to do with the loss to Great Britain of the American colonies. They

remain something of a controversy today in some countries (for instance, attempts

have been made in recent times to utilise them in relation to customs and RCMP

officers who are enforcing drug and import laws at the Canadian border).

[265] It is also true that New Zealand law - as in other countries - has statutes

granting police and sometimes other officials the power to search without a warrant.

It was inevitable that, in some circumstances, warrantless searches would have to be

countenanced, but they should not be the norm in practice, or indeed anything like it.

Both the history of the development of the concept of judicial pre-authorisation, and

the terms of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights)

itself point unerringly, in my view, to that conclusion. And it is extremely difficult

to make out policy arguments for an expansive view of the ability to resort to

warrantless searches, other than in such obvious areas as exigent searches.

[266] Where there is a warrantless search, s 21 of the Bill of Rights applies. As

was said, forcefully and unanimously, by the Judicial Committee of the Privy

Council in P F Sugrue Ltd v Attorney-General [2006] 3 NZLR 464 at [23] per

Lord Carswell:

Constitutional provisions such as s 21 of the Bill of Rights Act are primarilydirected towards preventing the invasion of personal freedom and privacy.(Emphasis added).

[267] It is not necessary, for the purposes of this case, to consider where the limits

of warrantless searches are. My short points are the simple ones that the route of

judicial pre-authorisation is preferable; and, where the law enforcement agency takes

that route, the task must be undertaken with proper care.

[268] At the very heart of the requirements of the concept of judicial

pre-authorisation is a recognition by Parliament and the courts that a Justice or a

Judge should be placed in a position to independently determine how persuasive the

evidence already gathered is. That is why the search warrant applicant must set out

the officer’s sources of evidence and information. And in those cases where the

source cannot be named (as in the case of tipsters and confidential informers) the

requisite affidavit must put the judicial officer in a position to make an assessment of

the source before any weight can be given to that evidence.

[269] The Federal Court of Australia has captured this critical role in Parker

v Churchill (1985) 9 FCR 316 at 322. The process is “not some quaint ritual of the

law, requiring a perfunctory scanning of the right formal phrases, perceived but not

considered, and followed by an inevitable signature”. The judicial officer must:

[S]tand between the police and the citizen, to give real attention to thequestion whether the information proffered by the police does justify the

intrusion they desire to make into the privacy of the citizen and the inviolatesecurity of his personal and business affairs.

(per Burchett J).

[270] These things are of the utmost importance to the development and

administration of our law. The rights of citizens to be free from unjustifiable

government intrusion are predicted on a system of prior authorisation, not

subsequent validation. And there must inevitably be elements of caprice,

uncertainty, and variation in the balancing process between citizen and state where

the enforcement authorities are themselves permitted a large licence to conduct

warrantless searches. The states’ interest in detecting and preventing crime only

begins to prevail over the individual’s right in being left alone at a point where a

soundly based probability assessment overtakes suspicion. This is an objective

assessment, and the legal process would not normally leave such a decision in the

hands of the “suspecter”, who, to quote Jackson J in Johnson v United States 333 US

10 at 14 (1948) is “engaged in the often competitive enterprise of ferreting out

crime”. This, in and of itself, offends the usual norms of legal decision-making.

But what if the law as to search warrants is not observed?

[271] There is then a difficult problem as to what is to be done if the application for

a search warrant is deficient, for some reason or another. The dilemma was well

stated by Cardozo J in People v Defoe 150 NE 585 at 589 (1926):

No doubt the protection of the [search warrant] statute would be greater fromthe point of view of the individual whose privacy had been invaded if thegovernment were required to ignore what it had learned through theinvasion. The question is whether protection for the individual would not begained at a disproportionate loss of protection for society. On the one side isthe social need that crime shall be repressed. On the other, the social needthat law shall not be flaunted by the insolence of office. There are dangersin any choice.

[272] The range of choices is relatively obvious. The law could take the attitude

that if the warrant and the search were not in all respects lawful, then any evidence

gained thereby is not admissible in court. This was essentially the position taken

under the Fourth Amendment in the United States of America in Weeks v United

States 232 US 383 (1914) and Mapp v Ohio 367 US 643 (1961).

[273] In more recent decisions, the United States Supreme Court has stripped this

“exclusionary” rule of its constitutional underpinnings by turning it into a

court-created discretionary remedy. And at least the majority of the Justices of the

United States Supreme Court in recent years have proceeded to define how a court

should exercise its discretion by reducing the purpose of the rule to the single one of

deterrence of future police misconduct (see Elkins v United States 364 US 206

(1960). That is, they have rejected any consideration of the rule as, more broadly,

vindicating the constitutional right of the individual, or as essential to preserve

judicial integrity by not having courts condone police illegality by letting police

benefit from the fruits of their unlawful conduct. (I am also here thinking of cases

such as United States v Calandra 414 US 338 (1974) and United States v Janis 428

US 433 (1976)).

[274] The exclusionary rule has been rejected in Canada (see s 24(2) of the

Canadian Charter of Rights and Freedoms and R v Collins [1987] 1 SCR 265). As

the matter was concisely put by Dickson CJ a year or so later in R v Simmons [1988]

2 SCR 495 at [60]:

Section 24(2) [which is the remedy provision of the Canadian Charter]rejects the American rule that automatically excludes evidence obtained inviolation of the Bill of Rights: see, for example, Weeks v US, 232 US 383(1914), and Mapp v Ohio, 367 US 643 (1961). It also shuns the position atcommon law that all relevant evidence is admissible no matter how it wasobtained: see R. v Wray, [1970] 4 CCC 1, 11 DLR (3d) 673, [1971] SCR272. Evidence may be excluded under s 24(2) if, having regard to all thecircumstances, it is established that the admission of it would bring theadministration of justice into disrepute.

[275] In New Zealand, as is carefully set out by Glazebrook J, the approach to the

exclusion of evidence is now governed by a “balancing test” under Shaheed which

has been endorsed by Parliament in the Evidence Act 2006. The essential purpose of

that approach is to ascertain whether the exclusion of the evidence would be

proportionate to the breach of the right.

[276] There still continues to be, from time to time, strong protests by senior jurists

against the disappearance of the exclusionary rule, and its cousin, a prima facie

exclusionary rule.

[277] For instance, Justice Brennan, dissenting in United States v Leon 468 US 897

at 928 - 929 (1984), pronounced the following epitaph to the exclusionary rule in the

United States:

Ten years ago in United States v. Calandra … I expressed the fear that theCourt’s decision “may signal that a majority of my colleagues havepositioned themselves to reopen the door [to evidence secured by officiallawlessness] still further and abandon altogether the exclusionary rule insearch and seizure cases.” … Since then, in case after case, I have witnessedthe Court’s gradual but determined strangulation of the rule. It now appearsthat the Court’s victory over the Fourth Amendment is complete. Thattoday’s decision represents the pièce de résistance of the Court’s past effortscannot be doubted, for today, the Court sanctions the use in the prosecution’scase-in-chief of illegally obtained evidence against an individual whoserights have been violated - a result that had previously been thought to beforeclosed.

[278] In New Zealand, Elias CJ in Shaheed argued for the merits of a “rule

certain”, in supporting the continuation of a prima facie exclusionary rule.

[279] That said, a Full Court of this Court (comprising Judges who now make up

the Supreme Court of this country) and the Parliament of New Zealand have

endorsed the discretionary approach in Shaheed. The real problems are now

therefore, how best to make Shaheed work, in the field; and even more

fundamentally, how to avoid the necessity to have to resort to that formula.

Some field problems

[280] Unfortunately, as is routinely the case in New Zealand, we have very little

information in the way of systematic empirical studies as to how things are working

out in the field with search warrants.

[281] A survey conducted by the New Zealand police indicated that at least

three-quarters of search warrant applications are presently made to District Court

Registrars - see New Zealand Police, A short study on the search warrant

application process (2006) at 4. Of these, the police survey showed that registrars

declined 7 per cent of applications made in Wellington - see at 3.

[282] Records of the number of warrants issued by Justices of the Peace are

apparently not kept, but a survey conducted in 2005 reported that in a 12-month

period 91 Justices of the Peace had presented to them 1,031 warrants in the

Auckland metropolitan area - see Auckland Justices of the Peace Association (Inc)

Report on a Survey of Search Warrant Trained JPs conducted in January and

February 2005 (2005). Of those, 1,023 were presented by the police, one was from

the Department of Conservation, one from Maritime, and six were presented by the

Serious Fraud Office. There is a “preferred” list of JPs to deal with search warrants,

with 100 names on it.

[283] Judicial experience as to what happens in real life may not be entirely without

value. It strikes me that in this subject area there are some unfortunate features

which are contributing to the ongoing run of cases in the trial courts, and in this

Court.

[284] The first issue appears to be an insufficient appreciation by some police

officers of the fundamental importance of the concept of and requirements for

judicial pre-authorisation which I have endeavoured to outline earlier in this

judgment. There are too many inadequately or badly drafted warrants, and Crown

counsel are too often put in the invidious position of having to defend, as best they

can, the indefensible. Inappropriate cutting and pasting is endemic. The present

case provides an unfortunate example.

[285] Several points can be made here. It is obvious from other areas of “search”

law, that the police are capable of doing quality work. For instance, in my years on

the High Court bench I never had a warrant application for an interception warrant

under Part 11A of the Crimes Act 1961 which was not immaculately prepared.

Sometimes questions had to be asked going to (say) the extent of the intrusion

sought in the warrant, but overall the work was exemplary.

[286] Of course, interception warrants are in a different category. Almost

invariably they arise in relation to quite serious crime, usually under very careful

consideration by a metropolitan unit, and under the direct control of a senior police

officer. More commonplace search warrants usually arise in a different context

altogether. There may be a sole police officer in a remote part of New Zealand who

finds it necessary to make an application (often with limited administrative

resources) to a Justice of the Peace who rarely sees such applications. It would be

surprising if errors did not sometimes occur in such circumstances.

[287] Overall however, it appears to be the case that there are more errors than

there should be. This in turn gives rise to forensic difficulties, and considerable

expense to the public purse in resolving the arguments as to whether the evidence

gained should or should not then be admissible.

[288] This leads to the second main area of contemporary concern. There is a

tendency on the part of some members of the defence bar to overreach in objections

to the admissibility of evidence in search warrant cases. It is easy to understand their

dilemma. Faced with a distinctly problematic “defence”, which may have little

merit, counsel endeavour to clear away, and understandably so, any evidence they

can. That said, the present rule is not an exclusionary one. This Court went to

considerable pains in Shaheed to outline the factors which ought to be taken into

account. In most cases, when those factors are faithfully applied, there is not a lot of

room for debate about where a particular case ought to come out. Yet trials have

been badly delayed and courts tied up in unnecessary and extensive arguments under

this head, as for instance, in the present case. Given the prevalence of drug

manufacturing offences in New Zealand such arguments have exacerbated the delay

in the disposal of a significant number of cases.

[289] The short point here is that these police errors have a significant ripple effect

on the day to day administration of justice.

The importance of process

[290] The New Zealand Law Commission has this subject area under consideration,

and is understood to be nearing at least a draft report. In case it should be of

assistance in relation to the future development of New Zealand law, it strikes me

that the process involved in obtaining warrants may be every bit as important as the

substantive law in this subject area. For instance, one of the reasons that the

procedure relating to interception warrants has been successful is that there is a

limitation on the range of personnel who are involved in that process. There may be

something to be said for restricting the range of personnel who can issue general

search warrants, and for some degree of “specialisation”. For instance, the issuance

of warrants in suspected drug manufacturing cases raises other concerns. And it

seems plain enough that a substantial number of the search warrants issued in

New Zealand emanate from the signature of a District Court Registrar (which

includes an Assistant Registrar), which may be thought to be a matter for concern.

[291] In any event, I have said enough to indicate that I have a real degree of

hesitation as to whether further refinement of the substantive law relating to searches

is going to achieve all that much, given that the basic framework has been adjudged

to be sound. Closer consideration of the actual process by which warrants issue,

with input from the police, the Crown, the defence bar, the District Court and the like

as to improved processes may produce sounder long-term operational effects.

Police misconduct and the exclusion of evidence

[292] A decision to exclude or not exclude evidence under the Shaheed test is the

exercise of a judicial discretion. In accordance with the usual rules pertaining to

appeals, the exercise of a discretion of that character will not be interfered with

unless it can be demonstrated that the Judge was plainly wrong, in the sense of that

term as understood in appellate courts.

[293] In this instance, an experienced High Court Judge took a very dim view

indeed of Detective Reardon’s conduct. He held that although the warrant sought

was to authorise the search for and seizure of a stolen car and associated

documentation, “the true [and seemingly the Judge thought “the only”?] purpose for

which that warrant was obtained was to search for equipment relating to the

manufacturing of methamphetamine” (at [6] of Heath J’s No 8 Ruling). And further,

the detective “deliberately used information received fortuitously about a report of a

missing car to procure a search warrant … to search for drugs. That conduct is

unacceptable. The ends did not justify the means” (at [8]). The Judge went on to

say that he was “not prepared to exercise a residual discretion in favour of admission

of the evidence. Exclusion is required to mark serious misconduct on the part of the

police” (at [7]). Later the Judge said (at [109]):

Although there are significant factors in favour of admission of the evidence,I am not prepared to countenance admission of evidence when a warrant toconduct the search has been procured cynically for an ulterior purpose. Thisis one of those rare cases in which the credibility of the criminal justicesystem depends upon exclusion of evidence of this nature both to mark theCourt’s disapproval of the conduct of the police and to ensure the conduct isnot repeated.

[294] Like my colleagues I have great difficulty in seeing that the conduct of the

police officer in this instance amounted to “bad faith”, as that term is commonly

used for legal purposes, even if that was a relevant factor.

[295] But even assuming, solely for the purpose of argument, that there was

relevant police misconduct in this case, in my view the Judge misapprehended - as a

matter of principle - the appropriate approach to the balancing test under Shaheed.

The issue of police conduct in the search and seizure process does not exist in a

vacuum as a sort of single determinative factor which is capable in and of itself of

turning the outcome one way or the other. Police conduct must surely be examined

within the totality of the circumstances disclosed on the evidence before the Court in

any given case. Its value in the judicial determination of a s 21 case is the effect that

it will have when assessing the factor of the “seriousness" of the violation.

[296] It seems to me that what the Judge did in this case - after coming to the

conclusion that there were in fact substantial reasons to admit the evidence - was to

say that he thought there was police misconduct which was, in and of itself,

dis-entitling. The overall evaluation which was needed had to be broader, and more

nuanced, than that.

[297] This leads to a final point. Sometimes counsel try to turn exercises of the

present kind into a full scale review of what the police did, and urge the

“disciplining” of the police. That is not what these cases are about. The master of

evidence, Henry Wigmore, rightly reminded us that “[t]he judicial rules of evidence

were never meant to be used as an indirect method of punishment” (Wigmore on

Evidence (Chadbourn rev 1970) at Vol 8 §2183.) Instead, the overarching issue to

be resolved in an allegation of an unreasonable search is a balancing of interests:

once determined to be a breach of s 21, the court must consider whether exclusion of

evidence as a vindication of the accused’s right would be a proportionate response to

the breach. As has been stated, this includes assessing the individual’s privacy

interest, the manner in which it was intruded on, and the government interest in

adducing the evidence in question.

Solicitors:Crown Law Office, Wellington