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Hunt v R [2010] NZCA 528; [2011] 2 NZLR 499 (19 November 2010)

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ORDER RESCINDING EXISTING SUPPRESSION ORDERS IN RESPECT OF THE JUDGMENT OF 19 NOVEMBER 2010, MADE BY THE HIGH COURT ON 15 SEPTEMBER 2011. IN PLACE OF THOSE ORDERS, ORDERS PROHIBITING PUBLICATION OF THE ORIGINAL JUDGMENT IN NEWS MEDIA, ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASES OR PUBLICATION BY ANY OTHER MEANS UNTIL FINAL DISPOSITION OF THE TRIAL.

REDACTED VERSION MAY BE PUBLISHED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA809/2009, CA812/2009, CA813/2009
CA814/2009, CA815/2009, CA820/2009
CA821/2009, CA822/2009, CA825/2009
CA832/2009, CA28/2010, CA37/2010

CA38/2010, CA75/2010, CA146/2010 [2010] NZCA 528

BETWEEN RAUANATIRI HUNT MARAMA MAYRICK MARAKI TEEPA TAME WAIRERE ITI RAWIRI KIYOMI ITI VALERIE MORSE

EMILY FELICITY BAILEY JAMIE BEATTIE LOCKETT OMAR HAMED

TEKAUMARUA WHAREPOURI WATENE MCCLUTCHIE

TRUDI PARAHA

TE RANGIKAIWHIRIA KEMARA TUHOE LAMBERT

PHILLIP PUREWA Appellants

AND THE QUEEN Respondent

Hearing: 8 and 9 June 2010

_{Court: William Young P, Glazebrook and Ellen France JJ}

RAUANATIRI HUNT V R COA CA809/2009, CA812/2009, CA813/2009 [19 November 2010]

Counsel: R E Harrison QC for Appellants Hunt, Mayrick, Tame Iti, Rawiri Iti, Morse, Bailey, Lockett, Hamed, Wharepouri, McClutchie, Paraha, Kemara, Lambert and Purewa

A T I Sykes and T M Wara for Appellant Teepa

J C Pike and A R Burns for Respondent

Judgment: 19 November 2010 at 2.30 pm

Reissued: 20 September 2011 : see minute of 20 September 2011

Effective Date

of Judgment: 19 November 2010

_{JUDGMENT OF THE COURT}

A We refuse leave to appeal in relation to the text messages.

2. We grant leave to appeal in relation to the results of the surveillance (in- person and by stationary camera) and the physical searches, but dismiss

_{the appeal.}

REASONS OF THE COURT

_{(Given by William Young P)}

Table of Contents

_{Para No}

Introduction [1] The facts in summary [6] Our summary of the issues raised by the appeal [13] The validity of the search warrants [14] Areas of controversy [14]

Were the warrants illegitimately anticipatory? [16] Alleged collateral purpose [24] Conclusion as to the search warrants [32]

The extent to which the search warrants authorised surveillance

operations [33]

Surveillance operations under the November 2006 warrant [33]

Surveillance operations under the later search warrants [36]

The need for statutory authority for operations in open country [43] Overview [43] Whether police surveillance operations in open country are

properly characterised as searches for the purposes of

s 21 of NZBORA [45]

The circumstances in which police activities or operations

may be covered by an implied licence [50]

Standing [58] The 16 May 2007 reconnaissance exercise [60] Installation of a stationary camera beside and trained on Reid Road [67] The walkover of the area at the end of Whetu Road [70] The s 30 balancing exercise [75] The relevance of the exercise [75]

The terms of the section [78] The approach of the Judge [79] Criticisms of the Judge’s approach and our responses [82] Our evaluation [88]

Disposition [93]

Introduction

[1] The case relates to what the Crown maintains were quasi-military training camps on land owned by Tuhoe trusts near Ruatoki in September and November

2006 and January, April, June, August, September, and October 2007. Firearms and Molotov cocktails were used. All appellants are alleged to have participated in these camps and they face charges under the Arms Act 1983. Some are also charged with participation in an organised criminal group under s 98A of the Crimes Act 1961.

[2] In the High Court, the appellants challenged the admissibility of evidence consisting of:

(a) the results of surveillance (both in person and using stationary cameras) and physical searches of the areas where the camps and training took place; and

(b) text messages obtained by the use of search warrants.

Depending on the outcome of these challenges, there may be scope for other downstream evidential challenges.

[3] The judgments under appeal dealt, respectively, with challenges to the propriety of police actions in obtaining evidence and the admissibility of the evidence considered to have been improperly obtained.¹ Winkelmann J held that all of the disputed evidence was admissible as either lawfully obtained or, if not, pursuant to s 30 of the Evidence Act 2006. The appellants now challenge her conclusions.

[4] The challenges to the use of search warrants granted under s 198 of the Summary Proceedings Act 1957 to obtain text messages are, in substance, re-runs of arguments rejected in previous decisions of this Court in R v Cox,² R v Taui,³ R v Javid,⁴ and R v Sanders.⁵ Given this and the reality that even if we were persuaded that we should revisit those decisions and that they are wrong (and we are not), it is

practicably inevitable that the s 30 discretion would be exercised in favour of the Crown (given that the processes followed by the police were in conformity with practices which have been upheld by this Court). In those circumstances we decline leave to appeal in relation to the text messages.

[5] That leaves in play the evidence obtained by the police in relation to the training camps, to which we now turn.

The facts in summary

[6] The police received information suggesting that the appellant Tame Iti and a number of other people were engaged in what appeared to be military training in the Urewera Ranges. The police obtained warrants (in May, July, September and October 2006) for text messages between those suspected of involvement and also (in October 2006) for call data information. Based on the information thus obtained and other inquiries, the police formed the view that a training camp had taken place in September 2006 and that a further camp was planned for November 2006 in the

_{Urewera Ranges but they did not know the precise location of the planned camp.}

¹ R v Bailey HC Auckland CRI-2007-085-7852, 7 October 2009 [Bailey – Propriety]; R v Bailey

_{HC Auckland CRI-2007-085-7842, 15 December 2009 [Bailey – Admissibility].}

² _{R v Cox (2004) 21 CRNZ 1.}

³ _{R v Taui [2007] NZCA 233.}

⁴ _{R v Javid [2007] NZCA 232.}

⁵ R v Sanders [1994] 3 NZLR 450.

[7] A search warrant was obtained on 15 November 2006 in relation to a large area of land around Ruatoki. Pursuant to this warrant, police officers entered the general area between 16 and 19 November and set up operations posts. They also set up movement detection devices on the track system around Paekoa Track (which is to the South West of Ruatoki). On 20 November the police heard live firing exercises taking place with a variety of weapons being used including military style semi-automatic firearms. Approximately 180–200 rounds were fired. The police had originally intended to stay in the area and to carry out a physical search of the site after the camp had finished but, in view of the gunfire, decided to withdraw.

[8] Subsequently, in December 2006, the police re-entered and searched the site of the camp which the November exercise had enabled them to locate.

[9] Subsequent search warrants were obtained ahead of planned camps. Pursuant to these warrants, police would set up stationary cameras where they thought the next camp would take place. Some in-person surveillance also took place prior to April 2007. After the camps had taken place, the police would return to uplift any footage which had been captured (and sometimes the cameras). They would also search the area of the camp (in instances where the camp had taken place in the location anticipated by the police). As might be expected, the warrant applications tended to follow a pattern, with each successive application generally incorporating, but also updating, what had gone before. In each of the warrant applications after November 2006, the police referred to their intention to install surveillance cameras and sought permission to do so. None of the warrants as issued purported to give such authority but they did authorise the uplifting of surveillance film.

[10] The post-November 2006 camps took place between:

(a) 11 and 13 January 2007 (in the Paekoa Track area);

(b) 27 and 28 April (in the Rangitihi area to the East of Ruatoki);

(d) 17 and 18 August (in the Whetu Road area adjacent to the Whakatane

River);

(e) 14 and 15 September 2007 (in the Whetu Road area); and

(f) 12 and 13 October 2007 (in the Whetu Road area).

A camp planned for early March 2007 was cancelled at the last minute.

[11] The information available to the police did not enable them to predict with accuracy where the camps would take place. They did not know in advance of the location of the April camp (which was the first of the Rangitihi camps) or the August camp (which was the first of the Whetu Road area camps) and thus obtained no surveillance evidence of those camps. Location by the police of the Rangitihi site involved, inter alia, a reconnaissance exercise in the area on 16 May 2007 and identification of the Whetu Road site was at least assisted by a walkover by police of the relevant area on 21 August 2007.

[12] Finally, we note that ahead of at least some of the camps the police placed a stationary camera on Reid Road, to the North of Ruatoki, with a view to filming cars coming in and out of Ruatoki.

Our summary of the issues raised by the appeal

[13] We consider that we can most simply deal with the arguments of counsel by addressing the case under the following headings:

(a) the validity of the search warrants;

(b) the extent to which the search warrants authorised surveillance operations;

(d) the 16 May 2007 reconnaissance exercise;

(e) installation of a stationary camera beside and trained on Reid Road; (f) the walkover of the area at the end of Whetu Road; and

(g) the s 30 balancing exercise.

The validity of the search warrants

Areas of controversy

[14] Winkelmann J held that a number of the search warrants were invalid. Although she did not quite put it this way in her judgment, this was essentially because she saw them as purely anticipatory and for this reason not authorised by s 198 of the Summary Proceedings Act. She otherwise dismissed the challenges to the warrants.

[15] The appellants seek to uphold the Judge’s conclusions in relation to the warrants which she held were invalid but also challenge the warrants (with the exception of the one issued in November 2006) on the basis that the police were affected – indeed driven – by collateral motives.

Were the warrants illegitimately anticipatory?

[16] As already noted, the warrants were issued ahead of planned camps and very much by reference to those camps. This has led to the argument that the warrants were illegitimately anticipatory.

[17] To put this argument in its legal context, it is necessary to set out the relevant provisions of s 198 of the Summary Proceedings Act. This section relevantly provides:

198 Search warrants

(1) Any District Court Judge ... who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place—

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

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

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

may issue a search warrant in the prescribed form.

...

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

...

(5) Every search warrant shall authorise any constable to seize any thing referred to in subsection (1) of this section.

(Emphasis added)

[18] The way in which s 198 is expressed has given rise to two different, but overlapping, timing issues:

(a) The first is whether the repeated use of the word ―is‖ in s 198(1) means that a search warrant can only be granted on establishing reasonable ground for believing that there is evidential material in the area to be searched at the time the warrant is granted, as opposed to reasonable ground for believing that such material will be in situ when the warrant is executed.

(b) The second is whether s 198(5) authorises the seizure of only evidential material which could reasonably be believed to have been

in situ when the warrant was granted, as opposed to all evidential material which was present when the warrant is executed.

Both issues featured in argument in the High Court.

[19] On the second issue, and despite the view to the contrary expressed by Richmond J in Auckland Medical Aid Trust v Taylor,⁶ it is now well established that s 198(5) permits the seizure of all physical evidence which is found on execution of the warrant even if there were not reasonable grounds for believing it to have been in situ when the warrant was granted.⁷ This is what Winkelmann J held⁸ and we agree with her.

[20] The first of the issues identified in [18] is the more important. On a literal approach to s 198(1), a warrant may not be granted on a purely anticipatory basis, that is, on the basis there are reasonable grounds for belief that when the warrant is executed there will be evidential material in situ. This literal approach finds some support in the authorities, see for instance the judgment of Richmond J in Auckland Medical Trust already referred to, the judgment of McMullin J in the same case,⁹ and the High Court judgment under appeal in R v Zutt, (albeit that this Court on appeal expressed no view on the point¹⁰). As well, in relation to broadly similar legislation, the same approach was taken by the British Columbia Court of Appeal in R v Cameron.¹¹ Further, the New Zealand Law Commission in its June 2007 report

on search and seizure concluded that anticipatory warrants are not provided for¹² but

has recommended that the law be altered to permit such warrants to be granted.¹³

[21] Winkelmann J took the literal approach we have just discussed. This meant that the search warrants which were issued ahead of planned camps were not able to

⁶ _{Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA) at 739–740.}

⁷ See the tentative view of McCarthy P in Auckland Medical Aid Trust at 738 where he doubted Richmond J’s approach to this issue. This view was adopted and approved in Rural Timber Ltd v Hughes [1988] NZCA 238; [1989] 3 NZLR 178 (CA), where the warrant was not purely anticipatory in the sense discussed below at [20].

⁸ _{See Bailey – Propriety at [83]–[88].}

⁹ _{At 744.}

¹⁰ _{R v Zutt (2001) 19 CRNZ 154 (CA) at [5].}

¹¹ _{R v Cameron (1984) 16 CCC (3d) 240.}

¹² _{Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [4.127].}

¹³ See recommendation 4.27 at 119. This recommendation is reflected in the Search and

Surveillance Bill 2009 (45-2), cl 6, which is currently before Parliament.

be justified by reference to the likely presence, at the time when the warrants were to be executed, of evidential material which was not thought to be present when the warrants were granted. Very significantly, however, she also assumed that where warrants were issued in respect of areas which had earlier been searched the police would have removed all items of evidential interest. She considered that it was an

―obvious inference ... that if a camp site has been searched, the evidence from that camp has already been collected‖.¹⁴ On this basis she concluded that warrants which authorised a second (or subsequent) search of an area which had already been searched were invalid.

[22] Contrary to the assumption of the Judge, the police did not, when searching camp sites, seize all items of evidential interest. Had they done so, this would have carried the risk of alerting those engaged in the training camps to the police interest in what was going on. The police wished to investigate what they considered to be scenes of criminal activity – activities which had started before the warrants had been applied for and was understood to be continuing. At the time the warrants were applied for, evidential material was in situ and more such material was likely to come onto the sites within the one month period during which the warrants could be executed. Accordingly, when the warrants which the Judge held to be invalid on this ground were issued, there was in situ at each site evidential material which was within s 198(1) and, properly construed, the material supplied to the issuing officers provided reasonable grounds for believing this to be so. This means that even on a literal approach to the use of the present tense in s 198(1) there was a jurisdictional basis for issuing the warrants – they were not purely anticipatory.

[23] More significantly, we are satisfied that s 198(1) should not be construed literally. There is no good policy reason why anticipatory warrants should not be able to be granted.¹⁵ Indeed, the invasion of privacy associated with a search under

_{warrant can only be rationally justified by reference to probable presence of}

¹⁴ _{Bailey – Propriety at [55].}

¹⁵ As noted, the Law Commission has recommended legislative change to provide explicitly for them in New Zealand resulting in cl 6 of the Search and Surveillance Bill 2009 (45-2) currently before Parliament. Anticipatory warrants are also permitted elsewhere, including Canada and the United States, albeit in the context of rather different legislative or constitutional provisions, see R v Noseworthy (1997) 116 CCC (3d) 376 (ONCA) and United States v Grubbs 547 US 90 (2006).

evidential evidence in situ at the time of the search. So the probable presence of evidential material when the warrant is granted is of no justificatory moment unless there are also reasonable grounds for belief that such material will be there when the warrant is executed. The use of the present tense in legislation has frequently led to interpretative difficulties and there are many cases in which courts have interpreted words expressed in the present tense or referring to contemporaneity as also

incorporating either a past¹⁶ or a future¹⁷ state of affairs. Interpreting s 198(1) in

accord with the direction in s 5 of the Interpretation Act 1999, we are satisfied that it permits warrants to be granted on a purely anticipatory basis, that is where there are reasonable grounds for belief that evidential material will be in situ when the warrant is executed, which must be within one month of the warrant being granted.

Alleged collateral purpose

[24] The major complaint of the appellants is based on the contention that the police sought the warrants with a view to providing a semblance of cover for their use of stationary cameras and in-person covert surveillance. This complaint is premised on the assumption that the search warrants did not authorise surveillance

operations. As will become apparent, we do not subscribe to this assumption.¹⁸ But

because we accept there is scope for argument as to whether a search warrant can authorise surveillance, we think it right to address the collateral purpose argument assuming for these purposes that the search warrants could not authorise surveillance.

[25] There can be no doubt that the police wished to search the camp sites. The search warrants they obtained were addressed to facilitating such searches and, except where there was no point in executing a search because the anticipated camp

_{had taken place elsewhere, all sites were searched. But that said, from the point of}

¹⁶ One example is Re M (a minor) (care order: threshold conditions) [1994] 2 AC 424 (HL) where Lord Templeman observed at 438; ―[T]his appeal is an illustration of the tyranny of language and the importance of ascertaining and giving effect to the intentions of Parliament by construing a statute in accordance with spirit rather than the letter of the Act‖. Another example is Relaxion Group plc v Rhys-Harper [2003] UKHL 33; [2003] 4 All ER 1113 (HL).

¹⁷ See for example Attorney-General’s Reference (No 2 of 1994) [1995] 2 All ER 1000 (CA)

_{(dealing with the words ―on taking the sample‖ and ―there and then‖).}

¹⁸ See below at [36]–[42].

view of the police, surveillance evidence (whether derived by in-person observations or by the use of stationary cameras) was of far greater significance than anything likely to be found at the sites of the training camps. Indeed, given the risks associated with police operations on the land in question (including but perhaps not confined to the possibility of alerting those involved in the training camps to police interest), the police would perhaps not have bothered with entries onto the land for the sole purpose of carrying out physical searches (by which we mean locating evidential material and either photographing it or seizing it).

[26] In the case of each of the warrants after November 2006, the police sought permission in their applications to install stationary cameras and, as well, to collect later any footage recorded. As noted, the warrants as granted did not purport to provide explicit permission to install cameras but they did authorise collection of the footage. There was no other statutory process available to the police by which they could obtain authority to go on to Tuhoe-owned land for the purposes of surveillance.

[27] According to the appellants and building on the considerations just referred to, ―there can be no doubt that the dominant purpose of the warrant applications and the warrants themselves was to authorise or facilitate the ongoing covert surveillance activities on private land‖.

[28] We disagree.

[29] The argument for the appellants overlooks an important distinction between why the police went onto the land and why they sought search warrants. The police certainly had reasons for going on the land which went beyond (and were, in their eyes, more important than) a desire to conduct physical searches of camp-sites. But of the activities which they did intend to conduct, it was these physical searches which most obviously required warrants. As well, the physical searches were undoubtedly able to be authorised under s 198. It is not tenable to regard the

_{relevant police actions as being in the nature of a ―ruse‖.}¹⁹ _{Further, when executing}

¹⁹ See R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [39]–[46].

the warrants they obtained, the police were perfectly entitled to use their eyes and ears for law enforcement purposes. Such purposes are not illegitimately collateral.²⁰

[30] It is not usual police practice to seek search warrants for operations in open country. Although the police seemed to have believed that there is no power under s 198 to authorise surveillance operations, they can hardly have been certain as to this and in any event it was not clear to them that any authority was required for such operations to be lawful in the open country around Ruatoki.

[31] In this situation the police seem to have adopted the approach that they would investigate first and argue about it all later, which is hardly surprising given the very legitimate fears they had as to the potential for loss of life. But ahead of the obviously anticipated later arguments, they sought to obtain the greatest possible statutory authority for what they proposed to do and, at the same time, always dealt with the issuing officers with candour as to the investigative methods they intended to employ. This, in effect, is what the Judge concluded and we agree with her. That, of course, leaves the status and propriety of the surveillance operations for separate determination. But as the Judge held, those arguments raise discrete issues. They provide no basis for impeaching the validity of the search warrants themselves on the grounds that they were merely a mechanism for providing cover for the (allegedly improper) collateral purpose of carrying out surveillance.

Conclusion as to the search warrants

[32] Accordingly we are of the view that all of the search warrants were valid.

The extent to which the search warrants authorised surveillance operations

Surveillance operations under the November 2006 warrant

_{[33] In R v Grayson and Taylor, this Court observed that s 198:}²¹

²⁰ _{See R v Williams at [37] and [46].}

²¹ R v Grayson and Taylor [1997] 1 NZLR 399 at 408.

... expressly contemplates multiple entries and searches. The circumstances may call for surveillance, planning and entries, searches and seizures, each extending over several days. The requirement is that all the authorised steps be completed within one month of the issue of the warrant.

[34] Against the background of what was said in Grayson and Taylor, surveillance and associated entries on to privately owned land are authorised by a search warrant if they are intended to facilitate a later authorised search²² (perhaps by locating the appropriate area).

[35] We see the actions of the police in November 2006 as being within this principle. These actions helped to identify the precise location of the November

2006 camp which also happened to be where the September 2006 camp had taken place. This operation was thus fairly incidental to the execution of the warrant which occurred in December when the site of the camp was searched. While the police operation was also addressed to obtaining observation evidence, we can see nothing objectionable in this. The police objectives were directed to law enforcement and thus constituted the sort of dual purpose which is legitimate.²³

Surveillance operations under the later search warrants

[36] There is much more scope for argument as to whether the later search warrants authorised the surveillance operations that were carried out. Indeed Winkelmann J was of the view that they did not, and this view was not really challenged in this Court by the Crown. We, however, are of the view that the relevant operations were in fact authorised. Because statutory authorisation of surveillance is likely to be the subject of express legislative provision in the near

future,²⁴ we will express our reasons for this conclusion reasonably succinctly.

[37] The view that surveillance operations are not authorised by s 198(1) is based on a literal reading of the section, particularly its focus on the tangible exemplified by the repeated use of the words, ―Any thing‖. We agree that this focus on the

_{tangible cannot be ignored. But providing police operations are fairly referable to}

²² _{Being a search which is carried out within one month of the warrant being granted.}

²³ _{See R v Williams at [26]–[38].}

²⁴ See the elaborate provisions as to surveillance in the Search and Surveillance Bill 2009 (45-2).

tangible ―things‖ of evidential significance which are or will be (within one month of the granting of the warrant) in situ, we consider that they can be justified under a search warrant.

[38] The police had reasonable ground for believing that evidential material was on the land and on this basis, even on the literal view of s 198(1) already discussed, the warrants were properly authorised. They also had reasonable ground for believing that within the life of the warrants (ie within one month of each being granted) further evidential material would come to be on the land. On our conclusions as to the legitimacy of anticipatory warrants,²⁵ that also provided an appropriate basis for granting search warrants. In respect of each of the warrants relevant to the current discussion, that further material included surveillance camera footage. As well, the warrants authorised the seizure of any material evidence

located on site irrespective of whether there were reasonable grounds to believe it to have been there when the warrants were granted.²⁶

[39] Under the warrants the police were authorised to go onto the land, search for evidence and seize evidence. The police were not confined to a single visit under each warrant. They were thus entitled to go onto the land to look (for instance to ascertain the location of ―things‖), to return later to search and to return again to seize or photograph what was physically on the site. As this Court explained in

R v Sanders:²⁷

A search warrant authorises three acts: an entry, a search, and a seizure. Each of those powers is a discrete one. There is nothing in s 198 indicating that they can be exercised only in combination. Each would seem to be capable of being exercised independently of the others as long as exercised solely for a purpose contained in the warrant.

[40] Once it is appreciated that a search warrant is not confined to the seizure of evidential material and steps incidental and preliminary to such seizure, it follows that police can, in the lawful execution of a warrant, go onto the property to collect as much information as possible about that material. We consider that this includes

_{finding out who is associated with the evidential material. In this case, that in}

²⁵ _{See above at [22]–[23].}

²⁶ _{See above at [19].}

²⁷ At 473.

substance was the purpose of the surveillance operations. For instance if the police are aware of the location of a cannabis plantation, and obtain a warrant in relation to it, they can maintain a watch of the plantation to see who comes to tend the plants. In relation to both the hypothetical cannabis plantation just postulated and the training camps in the present case, we consider that surveillance of the kinds

discussed is capable of being authorised by a search warrant.²⁸

[41] If the police can look personally (ie conduct surveillance at the relevant location) there seems to us to be no logical reason why they cannot carry out the same sort of surveillance through surveillance cameras.

[42] We accept that the use of search warrants to authorise surveillance justifies particular judicial scrutiny. An intention to conduct surveillance operations should be disclosed in the application for a warrant. And the more the proposed surveillance operation will engage privacy interests, the greater the caution required of the issuing officer. We envisage that a warrant might legitimately authorise surveillance of say a yard which is readily visible from the street or adjacent properties. On the other hand, we find it difficult to envisage circumstances which would justify camera surveillance of (and particularly in) a bedroom. These caveats, however, are of no particular moment in this case. The intention to use cameras for surveillance was disclosed in the applications and, given the nature of the areas where the surveillance took place, the relevant privacy interests were limited. It follows that, in respectful disagreement with the conclusions of the Judge, we are satisfied that the warrants in question authorised surveillance both in person and by camera.

The need for statutory authority for operations in open country

Overview

[43] On the approach taken by the Judge to the search warrants, some of the searches and all of the surveillance operations after November 2006 were not

²⁸ On this point we refer to what was said in Hodgkinson v R [2010] NZCA 475 at [42] – [45].

covered by the warrants. On the basis of our approach (along with the conclusions which we have reached as to the 16 May reconnaissance exercise²⁹) the only police actions which were carried out otherwise than as authorised by warrant were the placing of the camera beside Reid Road and the Whetu Road walkover. The legal issues around police activities in open country are thus of less significance for the purpose of our judgment than they were for Winkelmann J.

[44] The issues which arise are:

(a) whether police surveillance operations in open country are properly characterised as searches for the purposes of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA);

(b) the circumstances in which police activities may be covered by an implied licence; and

(c) standing.

Whether police surveillance operations in open country are properly characterised as searches for the purposes of s 21 of NZBORA

[45] As is apparent, each of the areas in which police operations took place had an open country character.

[46] Based largely on the very particular wording of the Fourth Amendment to the United States Constitution (which applies to ―persons, houses, papers, and effects‖), American courts routinely accept into evidence the results of trespassory police searches of land which can be categorised as ―open fields‖. This approach in effect confines the operation of the Fourth Amendment to land immediately surrounding, and associated with, houses.³⁰

[47] Section 21 of NZBORA is expressed more generally than the Fourth

_{Amendment and the American open fields doctrine is not directly applicable in}

²⁹ _{Discussed below at [60]–[66].}

³⁰ See Oliver v United States [1984] USSC 75; 466 US 170 (1984).

New Zealand. But the idea that restrictions on search are based in large measure on reasonable expectations of privacy is common to both the Fourth Amendment and s 21. And in her judgment, Winkelmann J approached the issue of whether the police actions were searches for the purposes of s 21 of NZBORA very much on the basis that this depended on whether the actions of the police were in breach of the

appellants’ reasonable expectations of privacy.³¹

[48] In marginal cases the question of whether police actions fall to be considered under s 21 may well depend on whether they trench on reasonable expectations of privacy.³² Indeed, there is authority for the view that a personal remedy under NZBORA (such as exclusion of evidence) is only available to someone whose personal privacy interest (defined broadly) has been breached.³³ As well, the current approach of the Supreme Court of Canada is consistent with the approach favoured by Winkelmann J. Thus in R v Patrick^,,³⁴ a police seizure of a garbage bag which was on the suspect’s property but awaiting collection was not a search (and thus did not require a warrant) because, despite the trespass involved (when the police officer put his arm over the boundary to pick up the bag), the suspect had abandoned his privacy interest in the contents of the bag when he put it out for collection.

[49] There is obviously scope for argument whether the approach taken in Canada should be adopted here.³⁵ But given that there is presently before Parliament a Bill which addresses search and surveillance powers comprehensively and that the associated legislative process has provided ample opportunity for informed comment and submission, we see no point in deciding in a definitive way the circumstances in which surveillance operations in open country constitute a ―search‖ for the purposes of s 21. Rather we propose to act on the assumption that s 21 is engaged where police investigations of kind which (without undue stretching of language) can be

regarded as a search take place on private property. Obviously, where such actions take place with the permission of the owner or occupier, so that the police actions are

_{lawful, they will accordingly usually also be reasonable. On this approach, and}

³¹ _{Bailey – Propriety [144]–[155] (discussion) and [156]–[171] (application).}

³² _{Compare what was said in R v Fraser [1997] 2 NZLR 442 (CA) at 448–452.}

³³ _{See Williams at [48] and [74].}

³⁴ _{See R v Patrick [2009] 1 SCR 579.}

³⁵ For a criticism of Patrick, see William MacKinnon ―Discarding Reasonable Expectations of

Privacy: A Critique of R v Patrick‖ (2010) 47 Alberta LR 1037.

leaving aside the particular situation which arises where the person under investigation is a trespasser,³⁶ reasonable expectations of privacy will be primarily relevant as to significance of breach and remedy.

The circumstances in which police activities or operations may be covered by an implied licence

[50] In the present case, none of the actions of the police could be justified by the implied licence recognised in Robson v Hallett,³⁷ that is, to walk up a drive or path to the door of a house for the purpose of speaking to an occupier. But the concept of implied licence is not confined to the law enforcement contexts exemplified by Robson v Hallett and the present case.

[51] The law as to implied licence was initially developed in the context of occupier liability claims – that is, claims for damages for personal injury by those who had been injured while visiting the property of others. The extent of the duty of care of an occupier of land to those who come onto the land has always depended on whether such they have been invited or permitted to do so.³⁸ Trespassers (including young children) could not normally recover damages, even for serious injury caused by the careless conduct of occupiers of land. Unsurprisingly, the courts struggled, sometimes a little artificially, to avoid categorising injured plaintiffs, particularly

children, as having been trespassers. As Lord Denning MR candidly explained in Pannett v McGuinness & Co Ltd, ―One of the most useful fictions was that by which we used to turn child trespassers into licensees.‖³⁹

[52] The implied licence relied on by plaintiffs was not always artificial, as exemplified by Lowery v Walker⁴⁰ where the House of Lords held that the plaintiff who, in common with many others, used the defendant’s unfenced land as a short cut

_{was a licensee and was thus entitled to damages against the occupier who had}

³⁶ _{See below at [58]–[59].}

³⁷ _{Robson v Hallett [1967] 2 QB 939.}

³⁸ The Occupiers’ Liability Act 1962 partly codified current New Zealand law, albeit that this is of

_{little practical moment given the ACC system.}

³⁹ _{Pannet v McGuinness & Co [1972] 3 WLR 386 (CA) at 606.}

⁴⁰ Lowery v Walker [1910] UKHL 1; [1911] AC 10 (HL).

allowed what he knew to be a dangerous animal to roam on the property despite knowing that it was used freely by the public.

[53] The fact that it may not be practicable for an owner of property to prevent trespass does not, in itself, create an implied licence. And where land is used by its owner for commercial purposes (for example, farming or forestry) which may be adversely affected by public access, the courts are most unlikely to recognise that members of the public have an implied licence to go over it. On the other hand, where land, although privately owned, is customarily used by the public, it may well be in accord with the practical realities of the situation to recognise an implied licence.

[54] In her judgment, Winkelmann J held that the police did not have an implied licence to go on to the land in the Paekoa Track and Rangitihi areas but did have such a licence in relation to the end of Whetu Road. We agree with her in relation to all areas, but need only, in this judgment, explain why in relation to Whetu Road which we do below at [70]–[74].

[55] Implied licence arguments are sometimes met with the counter-argument that the purpose of the police officer claiming an implied licence lay outside the scope of the licence. This was the conclusion of a 4:3 majority in the Supreme Court of Canada in R v Evans⁴¹ where police officers who walked up to the appellant’s house had the dual purposes of speaking to her and sniffing for cannabis once the front door was open. This, however, is not the approach which is taken in New Zealand, where the courts have generally upheld the view that a police officer has the same implied licence as anyone else to go on to a property and speak to the occupier,

notwithstanding the that the office’s purpose in doing so is investigative (and thus one which might not be welcome from the point of view of the occupier).⁴²

[56] We accept, of course, that those who grow cannabis in their homes cannot sensibly be regarded as wanting police officers to come on to their properties for

⁴¹ _{R v Evans [1996] 1 SCR 8.}

⁴² See Tipa v Ministry of Transport CA 348/88 17 February 1989), Edwards v Police [1994]

2 NZLR 164 R v Bradley (1997) 15 CRNZ 363 (CA), R v Soma (2004) 21 CRNZ 23 (CA) and

Tararo v R [2010] NZCA 287, (2010) 24 CRNZ 888.

investigative purposes. But the Robson v Hallett licence is frequently successfully relied on by police officers. This is because this licence has never been confined in its scope to those whom the occupier would subjectively have wanted to come on to the property or for purposes which are social (or otherwise for the benefit of the occupier). The fact that a particular occupier of land is generally antagonistic to the police does not, as a matter of policy, preclude police officers acting in the same way (ie physically entering onto the occupier’s property and walking to the door) as other members of the public may, and while they are doing so, using their senses of sight, smell and hearing with a view to detecting evidence of crime.

[57] We accept that even where the police have an implied licence to go onto land, the actions of the police officer may go beyond the scope of what is permitted. In the present case, Winkelmann J held that while the police officers had an implied licence to go onto the land at the end of Whetu Road, they did not have an implied licence to set up surveillance cameras. We agree with her on this issue but of course, and for reasons already given, we are of the view that the setting up of the surveillance camera was authorised by warrant.

Standing

[58] Where the police actions complained about occur in open fields, it is sometimes the case that those who were investigated were trespassers.⁴³ On the approach taken by Winkelmann J, this was material to her conclusions as to the Paekoa Track area. There, all those at the camps were trespassers. Despite concluding that some of the relevant police activities were not authorised by the warrants, Winkelmann J nonetheless held that the appellants who were there were not entitled to a remedy under s 21 of NZBORA.

[59] As is apparent, we are of the view that the police actions in question were authorised by the warrants, so this issue does not arise. We note, however, that this

_{Court has previously inclined to the view that pure trespassers on premises for}

⁴³ See for example the situation in R v Lauda (1997) 122 CCC (3d) 74 (ONCA).

unlawful purposes are not entitled to claim a remedy under s 21 of NZBORA,⁴⁴ a view which we accept.

The 16 May 2007 reconnaissance exercise

[60] It will be recalled that the police had not accurately predicted the location of the April training camp. They had assumed that it would be in the Paekoa Track area when in fact it took place in the Rangitihi area (East of Ruatoki) on Tuhoe- owned land.

[61] On 16 May 2007, two police officers entered this area. There they found two huts set out in marae fashion as a wharenui and a wharekai. It was clear from what they saw that the April training camp had been based there. They acted on the basis of an interception warrant which was obtained on 16 May (ie on the same day as the reconnaissance). The purpose (or at least a significant purpose) of the reconnaissance exercise was to assist in deciding where the interception devices should best be placed. The police had in fact gone onto Tuhoe-owned land before the warrant was obtained but had not got as far as the wharenui and wharekai.

[62] The relevant police actions were criticised by counsel for the appellants primarily on the basis that if the interception warrant had not been obtained for some reason, it would not have been practicable to withdraw the police officers.

[63] It is not clear to us where this complaint leads to.

[64] The Judge does not seem to have made explicit findings as to the admissibility of the photographs taken this day (and in fact may not have been invited to do so).

[65] We do not see the 16 May reconnaissance as having particular significance in terms of the general course of events which followed. Although the application for the June search warrant refers to the police engaged on the reconnaissance exercise

_{having seeing evidence of earlier camp activity in the Rangitihi area, the police}

⁴⁴ See Williams at [68].

independently had evidence of this anyway, as indicated by their ability to obtain the

16 May interception warrant.

[66] In any event, all of this is of little moment. The reality is that by the time the officers were in the area of the wharenui and wharekai (where privacy expectations were greatest) they had statutory authority, under the interception warrant, to be there. We therefore see the timing challenge by the appellants as de minimis. For the purposes of the present exercise we propose to act on the basis that the relevant police actions involved no impropriety

Installation of a stationary camera beside and trained on Reid Road

[67] It appears, although the evidence as to this was not very precise, that this stationary camera was placed on Tuhoe-owned land beside Reid Road. We are content to proceed on the basis that the placement of the camera thus involved a trespass, and that the footage was accordingly improperly obtained and subject to s 30 of the Evidence Act.⁴⁵ But, because the camera was trained on the road, the Judge held that there was no breach of reasonable expectations of privacy and thus no search.⁴⁶

[68] We broadly agree with the conclusion of the Judge albeit perhaps for slightly different reasons.

[69] We accept that the police could not be said to acting with the implied licence of the owners of the land on which they apparently placed the stationary camera. So there was a trespass. But the essential police activity involved filming what was happening on a public road. We simply do not accept that this amounts to a search. When an observer watches what is going happening on a road, the relevant actions are not properly described as a search. Taking photographs of what is happening on the road is likewise not a search. In this context, the precise location of the observer or camera (whether it be on public or private land) is irrelevant. And where that

_{location is on private land, the inherent quality of the actions (ie whether they}

⁴⁵ _{See [75] below.}

⁴⁶ Bailey – Propriety at [167]–[169].

amount to a search or not) do not depend upon whether the permission of the owner was obtained. So the location of the camera (and the associated assumed trespass) is not sufficient to transform into a search what would otherwise not be a search.⁴⁷

The walkover of the area at the end of Whetu Road

[70] On 21 August 2007 police officers drove to the end of Whetu Road which finishes at the banks of the Whakatane River. They walked around to see what was there and seized some shotgun shells. They formed the view that a training camp had taken place in that area.

[71] The legality of this search was challenged in both the High Court and before us. From the point of view of the appellants, the significance of this challenge lies not so much in the evidence directly obtained on 21 August 2007 but rather in terms of its possible downstream effect on later warrants which were obtained partly on the basis of what was discovered on 21 August.

[72] Photographs of the area reveal the sort of riverside area which is common in New Zealand. There is a shingle riverbed, a river which presumably shifts its course from time to time on that river bed, many tracks on the shingle surface indicating vehicle movements, and trees and other vegetation on the banks. Some unwanted items have been dumped there. Although the river bed is in Tuhoe ownership, there is no indication of any attempt to keep members of the public away and the area is used without restriction for recreational purposes. The Judge concluded, and we agree, that there was thus an implied licence under which members of the public could walk across this area of land.

[73] She also held that the relevant police actions were covered by this implied licence⁴⁸ and, again, we agree with her.

⁴⁷ Although we have left open the question whether New Zealand courts should follow R v Patrick on whether expectations of privacy are the critical issue in determining whether there is a search (see [49]), the case does illustrate the reality that an element of trespassory conduct on the part of the police may be of only peripheral importance and is not itself controlling; see the remarks of Binnie J at [45].

⁴⁸ See [121]–[122], [126], [166], [171].

[74] The police officers who went to this area did so in the guise of runners looking for tracks to run along. Their actions (walking in the area and looking around) were the sort of actions which seem to us to be covered by the general implied licence to which we have referred under which actions of this kind were permitted. The facts are not entirely dissimilar to those in Lowery v Walker.⁴⁹ That the police took advantage of this implied licence with investigative intent did not put them outside the scope of that licence. In saying this we recognise that they picked up some items of interest, but these had been abandoned and in any event the

relevant actions are immaterial in the context of the case as a whole.

The s 30 balancing exercise

The relevance of the exercise

[75] On the basis of what we have already held, nearly all the evidence in issue was lawfully obtained – the only exception being the footage obtained from the Reid Road stationary camera. This footage was obtained as a result of activities by the police which were not in breach of s 21 of NZBORA (as they did not involve a search) but, being derived from trespassory activity by persons within s 3 of NZBORA) was nonetheless ―improperly obtained‖ for the purposes of s 30 of the

Evidence Act.⁵⁰

[76] Thus on our approach to the case, the s 30 balancing exercise is of limited significance in the context of the case as a whole. In contradistinction, it was more significant for the purposes of the judgment of Winkelmann J because, on her approach, the pool of improperly obtained evidence was much larger.

[77] We accept that there is scope for debate as to a number of aspects of the case, particularly as to anticipatory warrants and as to the extent to which search warrants can authorise surveillance operations. For this reason we will discuss the s 30

_{balancing exercise in a way which goes beyond the Reid Road camera footage.}

⁴⁹ _{Referred to above at [52].}

⁵⁰ Evidence Act 2006, s 30(5)(a). See also Williams at [75]–[78].

The terms of the section

[78] Section 30 provides:

30 Improperly obtained evidence

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

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

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

(2) The Judge must—

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

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

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

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

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

(c) the nature and quality of the improperly obtained evidence: (d) the seriousness of the offence with which the defendant is

^charged:

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

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

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

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

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

...

The approach of the Judge

[79] The Judge acknowledged that those who attended the June Rangitihi camp had reasonable expectations of privacy which had been breached, albeit that their actions were not private in nature, having occurred in open country and thus being open to observation by the many people who had rights to be on the land. She accepted too that police trespass on to Tuhoe land caused distress given what she called ―the particular history of the region‖.⁵¹ She also took into account, against the police, what she considered were defects in the applications (flowing from her incorrect assumption that all evidential material had been collected from the camp-

sites when they were first searched).

[80] On the other side of the ledger were the serious nature of the offences under investigation, the risk to public safety, the reliability of the evidence, the reality that the police sought to obtain as much legal authority for their actions as they could and the Judge’s conclusion that the misconduct she attributed to the police was not

―flagrant‖. Of these considerations, it seems that the public safety issues were the most significant.

[81] She concluded that the public interest in prosecution and disposition through fair trial process of the charges was such that the evidence should not be excluded; this on the basis that exclusion was not necessary to give proper weight to the impropriety and would not be consistent with the maintenance of an effective and

_{credible justice system.}⁵²

⁵¹ _{Bailey – Admissibility at [100].}

⁵² The Judge’s overall reasoning concerning the section 30 balancing exercise is laid out in Bailey

– Admissibility at [99]–[108].

Criticisms of the Judge’s approach and our responses

[82] The main criticisms advanced by counsel for the appellants of the approach taken by the Judge were as follows:

(a) the contention that the Judge seems to have assumed that the

―effective and credible justice system‖ criterion was applicable only in favour of admission of evidence whereas properly construed it also enables effect to be given to the desirability of the police not overstepping the mark in terms of their powers;

(b) a complaint that the Judge’s focus on s 21 of NZBORA and particularly on whether there had been breaches of reasonable expectations of privacy meant that the significance of police trespassory activity was not sufficiently allowed for;

(c) argument that the Judge did not allow sufficiently for breaches of tikanga and the significance of the land to Tuhoe; and

(d) a suggestion that the Court simply should not countenance illegal activities of the scale involved in this case.

The last of these points is simply a general challenge to the balancing exercise but the other contentions justify a brief discussion.

[83] In the context of s 30(2)(b) and the ―balancing process‖ it provides for, it is obvious that the legislature saw the relevant impropriety as falling onto one side of the notional set of scales with ―the need for an effective and credible system of justice‖ on the other side. That is not to say that the Court cannot take into account systemic considerations in a way which might favour excluding evidence. For instance, if evidence has been obtained by torture, the prosecution will not be able to rely on ―the need for an effective and credible system of justice‖ for reasons which include the consideration that a system of justice which relies on such evidence is

neither effective nor credible. At a broad and practical level, however, we see no difficulty with the approach taken by the Judge.

[84] A particular feature of the present case is the unhappy history between Tuhoe and the Crown. Relevant to this is Tuhoe involvement in the 1864 battle at Orakau, the 1865 killing of the missionary Carl Volkner and the Crown agent James Fulloon, unjustified suspicion that Tuhoe had been involved in the killing of Mr Volkner, government reactions to these events including raids which, while ostensibly to catch the killers of Messrs Volkner and Fulloon were also punitive in character, and the subsequent substantial land confiscations of much of the best and most important Tuhoe land. Further issues arose when Tuhoe sheltered Te Kooti after he had escaped in 1868 from the Chatham Islands. Between 1869 and 1872, Government forces and the Maori allies sought to recapture Te Kooti and to turn Tuhoe away from him. In doing so, they engaged in what was effectively a scorched earth campaign resulting in the death and imprisonment of a significant number of people and much destruction. As well, in 1916, a large and armed police party came on to Tuhoe land and arrested the prophet Rua Kenana leading to a gun battle which

resulted in deaths and injuries.⁵³

[85] The Judge heard a good deal of evidence as to:

(a) the significance to Tuhoe of the land in question and the many important sites, including wahi tapu, which are situated there;

(b) the attitude of Tuhoe to Crown incursions on to their property; and

(c) what was required in accordance with Tuhoe tikanga when visitors came to Tuhoe lands.

[86] The Judge was obviously aware of the distress which police actions

(including but not confined to those in issue in this appeal) had caused. Although this is an important consideration it is not necessarily of controlling importance. Her

⁵³ See generally the relevant history as outlined in the Waitangi Tribunal’s report Te Urewera (WAI

894), parts one and two of which are currently available in pre-publication form at

<www.waitangitribunal.govt.nz>.

task was to engage in what the legislature has explicitly recognised is a balancing process. The factors which favoured admission to which she referred were plainly capable of being seen, as indeed she saw them, as justifying the evaluative conclusion that exclusion of the evidence would be disproportionate to the relevant impropriety. We think the Judge was entitled to place less weight on impropriety based only on trespass than impropriety involving an unreasonable search and seizure. Exclusion of evidence has always been a recognised remedy for breach of s 21 whereas it is not easy to find cases in which evidence has been excluded solely because a police officer was committing a trespass when the evidence was gathered.

[87] As is no doubt apparent, we have not been persuaded that the Judge was materially in error in her carrying out of the balancing exercise.

Our evaluation

[88] As the admissibility issue is one of law, we must independently address it. [89] On our approach to the case, police impropriety was confined to the placing

of the camera beside Reid Road and given our general approval of the way in which the Judge carried out the balancing exercise on the basis of her view that there were far more improprieties than we have found, the conclusion that the evidence is admissible is obvious.

[90] What we should make clear, however, is that even if we had concluded that the powers conferred by the search warrants were not as extensive as we have found, we would, in conformity with the approach taken by the Judge, have held that all the evidence was admissible.

[91] (...Suppressed...) The police had some other investigative techniques available and indeed deployed them but these were insufficient for the police to be sure that they had a complete grasp on the plans of those running the group. In the absence of surveillance in the areas where the training was taking place, the police were not able to monitor what was going on (...Suppressed...) In those

circumstances the police sought to obtain the maximum statutory authority for what they intended to do and they disclosed their intentions to the issuing officers.

[92] We also comment on the s 30(3) criteria:

(a) We consider that the rights primarily breached by the police were of property (ie to be free of trespass). None of the appellants enjoyed this right in relation to the Paekoa Track area (as trespassers themselves) and such rights were not held at all by many of the appellants in relation to the Rangitihi or Whetu Road areas. To the extent that there was any breach of reasonable expectations of privacy (and this is primarily in relation to the Rangitihi area), those expectations were limited.

(b) The significance of any police impropriety is heavily mitigated by the exigencies of the situation they faced, their attempts to obtain as much statutory authority as possible and their candour with the issuing officers.

(c) All the evidence is of high significance.

(d) The offences alleged against the appellants are serious.

(e) There were no other investigatory techniques which were practically open to the police in terms of monitoring what was going on and securing evidence against those involved.

(f) From the point of view of the appellants, there are no practical remedies for what has happened other than exclusion of evidence. That this is so, however, is largely a reflection of the reality that their personal rights have not been significantly interfered with.

(g) (...Suppressed...).

(h) There was initially a perceived need for urgency (...Suppressed...).

Disposition

[93] Accordingly we refuse leave to appeal in relation to the text messages. In relation to the results of the surveillance (in-person and by stationary camera) and the physical searches, we grant leave to appeal, but dismiss the appeal.

Solicitors:

Crown Law Office, Wellington for Respondent