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Milligan v Police [2017] NZHC 836 (28 April 2017)

Last Updated: 20 August 2018

JUDGMENT OF CULL J PRE-TRIAL RULING APPEAL

[1] Ms Milligan (the appellant) appeals a pre-trial ruling by Judge Morris delivered on 19 October 2016, regarding the lawfulness of a police search of her house and the admissibility of evidence of drug related items found in the course of that search.¹

[2] The present proceeding comprises first, an application for leave to appeal against the pre-trial ruling pursuant to ss 215 and 217(2)(b) of the Criminal Procedure Act 2011 and, secondly, if leave is granted, the appeal to set aside the pre- trial ruling.

[3] The key issues to be determined on the second part of the proceedings are:

¹ Police v Keen [2016] NZDC 20313.

MILLIGAN v NEW ZEALAND POLICE [2017] NZHC 836 [28 April 2017]

(a) whether the Judge erred in finding that the entry and first search were reasonable and the evidence obtained was admissible; and

(b) whether the Judge correctly applied the test under s 30 of the Evidence Act 2006 to determine that, even if the evidence was improperly obtained, excluding the evidence would not be proportionate to the impropriety.

Background facts

[4] Following a complaint to the police call centre about a strong smell of cannabis coming from the appellant’s address on 5 November 2015, the police arrived at a house occupied by the appellant and her partner, Tony Keen, at approximately 11.35 am. The police officers investigating the complaint were Constable Bunny and Detective Constable Flowers. At this stage, they were not aware that a search warrant had already been sought and issued at 8.45 am that same day, in respect of the same premises for alleged drug possession and drug transactions occurring at that address. They had decided to visit the address, under the guise of a boy-racer problem in the area.

[5] Upon arriving at the address, both officers said they could smell cannabis emanating from the house as they stood in the driveway. Constable Bunny phoned his supervisor to advise him and he was then made aware that a search warrant was being prepared in respect of the address. After talking to Mr Keen about the boy- racer problem at the front door of the house, Constable Bunny visited other properties in the area and returned to his car. He then telephoned his supervisor for advice on how to proceed, given that he was aware a search warrant was being prepared. While he was on the phone, Mr Keen came out of the house, saw Constable Bunny in his car and then returned inside.

[6] The officers were concerned that Mr Keen had seen them outside the address and may subsequently remove items from the address. As a result of this, they decided to enter the address for the purposes of holding it, until the search warrant was executed. They did not purport to exercise their powers of a warrantless search, as a search warrant had already been issued and was awaiting execution.
[7] During the initial search, the officers entered and walked through the house to ensure their safety and that evidence was not being concealed (the First Search). As part of this process, Detective Constable Flowers opened the door to a bedroom and found it had been converted to a “growing room” with numerous cannabis plants inside and there were fans, lamps and other items to assist in indoor cultivation. The two officers then waited in the lounge for the search warrant to arrive.

[8] A full and detailed search of the house was then conducted under the authority of the search warrant (the Second Search). This search was considered extensive and invasive by the Judge, particularly since the appellant, who was at home sick at the time, was taken out of bed to allow the second Search to take place. Additional items, including cannabis oil, were located as a result of the Second Search.

[9] The appellant subsequently faces one charge of permitting premises to be used for the purpose of commission of an offence under s 12 of the Misuse of Drugs Act 1975. The defendant, Mr Keen, was charged with producing cannabis oil, possessing cannabis oil for supply, cultivating cannabis, possession of cannabis for supply and possessing a utensil for the purpose of smoking methamphetamine. No order was made for the joinder of these charges and the pre-trial applications for both defendants were heard together.

[10] Following the Judge’s pre-trial ruling on 19 October 2016, Mr Keen pleaded guilty to the charges of cultivation and possession of cannabis and was sentenced to six months community detention and nine months supervision.

District Court decision

[11] The Judge ruled that the search warrant authorising the Second Search had not been lawfully issued, as it was based on insufficient evidence to meet the reasonable suspicion and belief requirements under s 6 of the Search and Surveillance Act 2012. The further items recovered during the extensive and invasive Second Search were ruled inadmissible at trial, as the Second Search was not lawful or reasonable.
[12] In relation to the entry and the First Search, the Judge found that the police officers could not rely on their powers of a warrantless search under s 20 of the Search and Surveillance Act, as a search warrant had been obtained at the time of the First Search.² Therefore, a warrantless search had not been conducted.

[13] Further, the Judge found that the special powers under s 117 of the Search and Surveillance Act, justifying a search where an application for a search warrant is pending, could also not apply here. Those powers were found to apply, where an application for a search warrant “is about to be made or has been made and has not yet been granted or refused”. Here, at the time of the First Search in this case, a search warrant had actually been issued and s 117(1) could not apply. The Judge highlighted the “semantic lacuna” in the law, or the “hybrid of powers” in ss 20 and 117 of the Search and Surveillance Act, observing that those provisions did not seem to cover the situation in this case.³

[14] While neither ss 20 or 117 were held to apply, the Judge noted that the police were acting “in the spirit” of both provisions, in that they believed evidence might be destroyed or concealed prior to the arrival of the warrant. Consequently, they did not have time to wait for the warrant to arrive.

[15] The Judge ruled that the entry to the house and the First Search were unlawful, because they did not technically satisfy the requirements under either ss 20 or 117.

[16] However, the Judge ruled that despite being unlawful, the entry and First Search were reasonable. The evidence obtained during the First Search, namely, the growing cannabis plants, was therefore admissible, taking into account the following factors:

(a) the purpose of the First Search was simply to prevent anyone endangering the police or hiding evidence in circumstances where the

2. Search and Surveillance Act 2012, s 20 grants police powers to search where a warrant has not been obtained, or it is impracticable to obtain one, but here the Constable knew one had been obtained.

³ Keen, above n 1, at [45].

police reasonably believed an offence of cannabis cultivation was being committed within the house. There was a degree of urgency to this search, because there was a real risk that Mr Keen could have concealed or destroyed evidence;

(b) there was no search in the traditional sense, as it was simply a visual scan of the property. Nothing was opened or touched and the cannabis plants seen in this search were in plain sight; and

(c) the paradox is that if no warrant had been obtained at all then the police officers would have been entitled to enter the house and immediately search it under s 20 of the Search and Surveillance Act.

[17] In the event that the Judge was wrong in respect of the reasonableness of the search, she further ruled that any exclusion of improperly obtained evidence found during the First Search would be disproportionate to the moderately serious offending in the case, pursuant to s 30 of the Evidence Act.

[18] The Judge examined the factors to be taken into account in s 30 in light of the decision of R v Williams.⁴ The Judge highlighted the importance of the right to freedom from unlawful and unreasonable search in one’s own home. However, the magnitude of breaching this right was low, in light of the officers’ belief that a moderately serious offence was occurring, namely, cultivation of cannabis; that the evidence was likely to be concealed and removed; and the urgency of the situation. It is this ruling that is the primary focus of the appellant’s submissions.

Leave to appeal

[19] This appeal was filed out of time but the Crown takes no objection to the appeal being heard.⁵

⁴ R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.

5. A notice of application for leave to appeal must be filed within 20 working days after the date of the decision to which the appeal relates, pursuant to Criminal Procedure Act 2011, s 220(2). Judge Morris’ decision was made on 19 October 2016, and any application ought to have been filed by the 16 November 2016. This application was filed by Ms Milligan’s counsel on 6 December 2016.

[20] Before turning to the substantive appeal, it is necessary to determine whether leave should be granted to bring the appeal against a pre-trial ruling. Sections 215 (for a Judge-alone trial) and 217(2)(b) (for a jury trial) of the Criminal Procedure Act specify that a defendant or prosecutor may, with leave from the appellate court, appeal to that court against a decision making or refusing to make a pre-trial order about admissibility of evidence.⁶ It is unclear from the parties’ submissions whether the trial in respect of the appellant will take place as a Judge-alone or jury trial, and so both provisions are relevant.

[21] The relevant factors for determining a leave application are canvassed in R v Leonard and affirmed in Hohipa v R.⁷ Those cases confirmed that one factor pointing to leave being granted is if the application involves the admissibility of evidence that is important to one of the parties. However, leave should not be granted if the issue will need to be revisited at trial or is best dealt with in the context of the trial, or where the application involves the admissibility of evidence that would not make a significant difference to the course of the trial and is unlikely to lead to post conviction appeal success.

[22] I consider leave to appeal should be granted, because this application involves the admissibility of evidence that is crucial to the prosecution case against the appellant. The primary evidence in this case is the cannabis found during the First Search. As the Judge stated: “this was irrefutable real evidence that was located that is the whole case for the Crown on a relatively serious charge”.⁸ Thus, determining this issue will make a significant difference to the course of the trial and leave is granted.

Appellant’s position

[23] The appellant submits the Judge erred in finding that the First Search was reasonable and that evidence of cultivation was admissible under s 30 of the Evidence Act.

6. A pre-trial order relating to admissibility of evidence in a trial is made pursuant to s 79 (for a Judge-alone trial) or s 101 (for a jury trial) of the Criminal Procedure Act 2011.

⁷ R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13]–[14]; Hohipa v R [2015] NZCA 73

at [25]–[27].

⁸ Keen, above n 1, at [67].

[24] First, the appellant submits that in carrying out the balancing exercise under s 30, the Judge failed to distinguish between the criminality alleged against the appellant and that against Mr Keen. It is not disputed that the offending of Mr Keen comes within the meaning of “moderately serious offending”. However, the pre-trial hearing for both defendants took place together. The appellant submits that there were actually two separate pre-trial hearings running simultaneously and the balancing exercise under s 30 ought to have been determined separately for each defendant.

[25] The charge against the appellant for permitting premises to be used for the purpose of commission of an offence carries a maximum term of imprisonment of three years.⁹ However, Mr Keen was charged with very different offences of producing cannabis oil, possessing cannabis oil for supply, cultivating cannabis, possession of cannabis for supply, and possessing a utensil for the purpose of smoking methamphetamine.

[26] Second, the appellant submits that the Judge was wrong in determining, pursuant to s 30, that the “real evidence of moderately serious offending” disclosed by the First Search outweighed the unlawfulness of that search.¹⁰ Had Judge Morris not conflated the criminality of Mr Keen with the appellant, it would have been apparent that the appellant’s lesser criminality did not outweigh the illegality of the search. The appellant relies on the approach outlined by the Court of Appeal in Williams, which involves an assessment of the level of seriousness of the illegality or unreasonableness of the search against the level of offending.¹¹

[27] Even if the appellant had been charged with the cultivation of cannabis, the appellant says, that would not be seen as a serious charge in this context.¹² Further, the actual charge faced by the appellant is well below that level.

9. Misuse of Drugs Act 1975, s 12(2)(c) applies to Class C controlled drugs such as cannabis. The appellant’s submissions incorrectly states that the maximum term of imprisonment for this offence is six months. The police charging document also incorrectly stated that the maximum term of imprisonment for this offence was six months.

¹⁰ Keen, above n 1, at [69].

¹¹ Williams, above n 4, at [110] and [142]–[146].

¹² Relying on R v Hjelmstrom (2003) 20 CRNZ 208 (CA) at [20].

[28] Third, the appellant challenges the Judge’s determination that the officers’ entry to the house was reasonable. Having found there was no lawful basis for the issue of the warrant the Judge should not have found it was reasonable to enter the appellant’s private home. If there been any real concern as to the destruction of evidence, which was the basis of the finding of reasonableness of the entry, the appellant says, the warrant could have been brought to the property within less than five minutes.¹³ Instead, the appellant points to the twenty minute delay between the entry of the two officers and the arrival of the warrant.¹⁴ The appellant submits that regardless of the perception of the officers as to Mr Keen’s activities, there was no evidential basis for a warrantless entry because of urgency.

[29] The appellant contrasts the case before this Court with the situation before the Court of Appeal in R v Pou where a lawful search warrant was obtained and evidence gathered in execution of that warrant was held to be admissible, whilst evidence obtained before the warrant was issued was held to be unlawful and inadmissible.¹⁵ The appellant suggests that unlike Pou, there was no lawful search warrant obtained in the case before this Court, so all evidence is inadmissible. The entry to the house was unreasonable because it was supporting a search pursuant to an unlawful warrant.

[30] The appellant says this was a situation of gross carelessness on the part of the police involving a series of unlawful acts, an invasion into a private home and removing the appellant from her bedroom and formally detaining her. Therefore, the evidence was improperly obtained pursuant to s 30(5) of the Evidence Act and was in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). The exclusion of the evidence is thus submitted to be proportionate to the appellant’s impropriety.

¹³ In support of this timing issue, the appellant refers to the transcript of the evidence given by Constable Bunny and Detective Constable Flower in the District Court hearing. Constable Bunny confirmed that the police station was only a five minute drive from the premises in question (at 13) and that at 12.17 pm he received a call from Detective Sergeant Wasson, and at

12.20 pm the two officers entered the property to conduct the First Search (at 11). This evidence was confirmed by Detective Constable Flower (at 29).

¹⁴ Keen, above n 1, at [52].

¹⁵ R v Pou [2002] 3 NZLR 637 (CA). It should be noted that this case was decided before the introduction of the Evidence Act 2006 and it does not examine the approach required in s 30 of that Act.

[31] Counsel for the appellant, Mr Blathwayt summarised the appellant’s case at
the beginning of the hearing like this:

• The entry into the house by the officers was unlawful.

• If the entry was unlawful, then evidence was improperly obtained. Therefore it cannot be reasonable.

• Section 30(5) of the Evidence Act comes into play, as the evidence was improperly obtained because the police cannot rely on s 117 of the Search and Surveillance Act and s 20 of that Act was not invoked.

Approach to analysis on search and seizure evidence

[32] The appellant’s submission on the correct approach to the evidence in this case needs to be examined in light of R v Williams, where the Court of Appeal set out the approach when dealing with the admissibility of evidence in search and seizure cases.¹⁶ The Court applied the following steps to the analysis of the evidence:

(a) Was the search unlawful?¹⁷

(b) Was the search unreasonable? If the search was unlawful, it will be unreasonable and in breach of s 21 of NZBORA, except where:¹⁸

(i) the error is minor or technical; and

(ii) the error is not noticed before the search or seizure is undertaken.

(c) Is the evidence nonetheless admissible? If the search is unlawful and unreasonable then any evidence obtained therein has been “tainted by the breach”.¹⁹ The admissibility of evidence of this kind, which has

¹⁶ R v Williams, above n 4.

¹⁷ At [12]–[46], [226] and [231]–[233].

¹⁸ At [12]–[24] and [228].

¹⁹ At [79] and [241].

been “improperly obtained”, falls to be assessed under s 30 of the
Evidence Act.²⁰

[33] A lawful search may be an unreasonable search where it is conducted in an unreasonable manner (such as with excessive force).²¹

[34] A similar approach was adopted by the Supreme Court in the case of Hamed v R.²² Elias CJ noted in her judgment:²³

[16] Before dealing with the application of s 30 [of the Evidence Act 2006], it is necessary for me to explain first why I consider that police search which is not authorised by law is unlawful and that unlawful police search is itself unreasonable search, contrary to s 21 of the New Zealand Bill of Rights Act. Both considerations affect the balancing of interests I undertake in application of s 30.

[35] Blanchard J, writing for the majority in Hamed, also adopted a similar approach to the Court of Appeal in Williams, first determining the lawfulness of the search, then whether the search was unreasonable under s 21 of NZBORA and, finally, whether the evidence ought to be excluded under s 30 of the Evidence Act.
Blanchard J stated:²⁴

[174] Normally, a conclusion that there is a breach of s 21 should follow once it is found that the police have acted unlawfully in relation to a search, leaving the consequence of the unreasonableness of the search to be considered under s 30. An exception can be made in cases where the breach is minor or technical or perhaps where the police had a reasonable (although erroneous) belief that they were acting lawfully.

[36] The Supreme Court has affirmed that:²⁵

In considering the question of unreasonableness, it is necessary to look at the nature of the place or object which was being searched, the degree of intrusiveness into the privacy of the person or persons affected and the reason why the search was occurring.

²⁰ Here, the Court of Appeal was dealing with the test in the case of R v Shaheed [2002] 2 NZLR 377 (CA), but the Court noted that s 30 of the Evidence Act 2006 effectively enshrines Shaheed in legislation: Williams, above n 4, at [8] and [149]–[150].

²¹ Williams, above n 4, at [227].

²² Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

²³ At [16].

²⁴ At [174].

²⁵ At [172].

[37] Following the introduction of the Search and Surveillance Act 2012, the lawfulness of police search and surveillance is to be assessed in light of this legislation.²⁶

[38] The approach on the above authorities differs from that submitted by the appellant, in that if a search was unlawful, the question is not whether the evidence was therefore improperly obtained, but whether the search was reasonable. If the search was reasonable, s 30 of the Evidence Act and the balancing process is unnecessary.

[39] In this case, the Judge found that the search was reasonable, even though unlawful, but nevertheless embarked on an assessment under s 30 of the Evidence Act, in the event she was found to be wrong that the initial search was reasonable. The first question to be determined therefore is whether the Judge erred in finding the entry and First Search reasonable.

Were the entry and First Search reasonable?

[40] The finding by the Judge that the entry to the house and the First Search was unlawful was not the subject of challenge in this appeal. In any event, the question of legality is separate from the question of whether a search was unreasonable under s 21 of NZBORA.²⁷ That provision reads:

21 Unreasonable search and seizure

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

[41] In the case of R v Jeffries, Richardson J noted that the test of unreasonableness requires consideration of the values underlying the s 21 right and a balancing of the relevant values and public interests involved.²⁸ Richardson J identified that the guaranteed right under s 21 reflects an amalgam of values: property, personal freedom, privacy and dignity.

²⁶ Laws of New Zealand: Police (online loose leafed, LexisNexis) at [51].

27. Hamed, above n 22, at [161] per Blanchard J; which affirms the principles of R v Jeffries [1994] 1 NZLR 290 (CA). See also R v Williams, above n 4, at [12] and [226].

²⁸ R v Jeffries, above n 27, at 301–302.

[42] Blanchard J confirmed this approach in the Supreme Court case of Hamed, where he stated that “the touchstone of the section is the protection of reasonable expectations of privacy”²⁹. Blanchard J confirmed that under s 21 a court must engage a two-step process:³⁰

(a) Was what occurred a search or seizure?

(b) If so, was that search or seizure unreasonable?

[43] If the answer to both questions is yes, then there has been a breach of s 21 of NZBORA and the search is unreasonable.

[44] In this case, the Judge found that the entry and First Search did not amount to a search in the traditional sense but was simply a visual scan. However, the physical entry by the police onto the property did amount to an invasion of a reasonable expectation of privacy by entering and inspecting Mr Keen’s and the appellant’s home.³¹ The activity can therefore be considered a search.

[45] The next question is whether the search was unreasonable.

[46] The Judge found that the entry and First Search, albeit unlawful, were reasonable. The Judge specifically canvassed the wording of ss 20 and 117 of the Search and Surveillance Act and, on the wording of those sections, held that the entry by the officers was not lawful. However, the Judge found that whilst the entry was technically illegal, it was nevertheless reasonable, when the officers had reasonable grounds to believe that they did not have time to wait for the warrant to arrive at the address. I concur with the Judge’s approach, where, but for the wording to cover a situation where a warrant had been sought, ss 20 or 117would have applied. In that sense, this was a technical breach. Aptly, the Judge put it like this:³²

I found the “search” was technically illegal but the cannabis was discovered during a nevertheless reasonable search.

²⁹ Hamed, above n 22, at [161] and [165].

³⁰ At [162].

³¹ This was the meaning adopted of a search in Hamed, above n 22, at [163].

³² Keen, above n 1, at [66].

[47] Although the appellant submits that the entry to the house was unreasonable because it was undertaken pursuant to an unlawful warrant, the Judge correctly noted that the fact that the search warrant was later deemed unlawful does not impact the reasonableness of the entry and First Search at the time it was conducted. At that time, the officers believed the warrant was lawful.³³

[48] The appellant challenges the lack of evidential basis for urgency to secure the premises, when the police station (and the warrant) was only located five minutes away. Although the evidence from both officers confirm that the house was only five minutes from the station, this does not necessarily confirm that the warrant could be provided within five minutes. Detective Constable Flower addressed this in her evidence, stating that “depending on what the staff were doing. It’s a five minute drive, correct, yes”³⁴. There is no guarantee, however, that the warrant could have arrived in this short timeframe. Hence, the officers believed at the time, that they needed to secure the property immediately, particularly considering Mr Keen had come out after the initial contact with the officers and saw the officers in the police car outside his property.

[49] The breach in this case occurred by entering a private home. The nature of the place being searched was therefore what s 21 NZBORA was designed to protect. However, the breach can be considered minor on two grounds. First, the degree of intrusiveness during the entry and First Search was limited, as the officers only visually scanned each room to search for people rather than evidence of offending. Once the occupants had been located, the police stayed with them and did not move until the warrant arrived. Second, the search occurred because the officers held a genuine belief, at the time, that evidence might be tampered with, irrespective of when the warrant was available to be brought to the property.

[50] I respectfully concur with the Judge’s determination that the entry and First Search were reasonable. On that basis, evidence from the First Search was therefore not improperly obtained and did not breach the s 21 NZBORA right to be secure against unreasonable search and seizure. On that finding, the balancing process

³³ At [48].

³⁴ Notes of Evidence taken before Judge Morris, at 29.

under s 30(2)(b) of the Evidence Act, in respect of improperly obtained evidence, did not need to be considered. However, the Judge undertook the balancing exercise in the event that she was wrong in finding that the First Search was reasonable. This leads to the next question as to whether s 30 of the Evidence Act was correctly applied in admitting the evidence from the First Search.

Was s 30 of the Evidence Act correctly applied?

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

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

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

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

(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 that can adequately provide redress to the defendant:

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

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

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

(5) For the purposes of this section, evidence is improperly obtained if it is obtained—

(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.

...

[52] Although the Judge found that the search was reasonable and the evidence obtained was admissible, the Judge undertook the balancing process pursuant to s 30(2)(b), consistent with the Court’s approach in R v Liu.³⁵

[53] The balancing exercise requires the Judge to consider whether or not the exclusion of the improperly obtained evidence is proportionate to the impropriety. The factors in s 30(3) may be taken into account, including the seriousness of the offence with which the appellant is charged.

[54] The appellant submits that there was no distinction drawn between the different levels of seriousness or criminality between Mr Keen and the appellant. It is correct that the Judge did not specifically distinguish between the criminality of the appellant and that of Mr Keen, nor did she consider the different maximum

³⁵ R v Liu [2015] NZHC 732, at [192]–[193].

penalties of the charges in relation to the s 30(2)(b) proportionality test, but she did consider the seriousness of the offending. The Judge was hearing the pre-trial application in respect of both Mr Keen and the appellant and focussed on the evidence at issue, namely, what was seen in the growing room. The Judge found what was seen was “real evidence” and that the cultivation of cannabis at this level was of moderate seriousness. In those circumstances, the Judge found that where there is real evidence of moderately serious offending, the exclusion of it would not be proportionate to that impropriety.³⁶

[55] It is correct that as a result of the pre-trial ruling, Mr Keen took responsibility for the cultivation and possession of cannabis. However, the appellant is charged with permitting premises to be used for the purpose of a commission of an offence. In this case, a dedicated room in her home was being used for the purposes of cultivation of a significant amount of cannabis. Her role in the overall offending is a matter properly addressed at trial. However, in respect of the exclusion of the “real evidence” of cultivation of cannabis at this level, with the appellant’s knowledge, was part of the consideration the Judge gave to the seriousness of the offending, taking place in the appellant’s home.

[56] The Court of Appeal has reinforced that seriousness does not take primary consideration over the other factors. In Underwood v R, the Court said of the s 30(3) criteria:³⁷

... seriousness should be treated, like other s 30(3) criteria, as an evaluative consideration. Penalty need not be used to gauge seriousness, although judges may sometimes find it appropriate. ... [T]he assessment requires a long-term perspective of the administration of justice, in which trials generally should be conducted on their merits but systemic integrity is paramount; that being so, seriousness cannot take primacy over other considerations, seriousness does not justify admission where the breach of rights causes an unfair trial...

[57] I consider that any omission to make the distinction between the two individuals’ offending in this case is unlikely to have made a difference to the outcome. The charging document misidentifies the maximum period of imprisonment, as did the appellant, for the offence with which she was charged

³⁶ Keen, above n 1, at [68] and [69].

³⁷ Underwood v R [2016] NZCA 312, [2017] 2 NZLR 433 at [49].

(Misuse of Drugs Act 1975, s 12). Under s 12(2)(c) the maximum period of imprisonment for this offence with respect to a Class C drug is three years imprisonment.

[58] Although the specific penalty for an offence need not be used to gauge seriousness as the Court cautioned in Underwood, this is a serious offence, where the appellant was complicit in allowing the cultivation and possession of significant amounts of cannabis to occur in her home. In R v Grayson, the Court of Appeal held that cannabis cultivation was serious criminal activity in the assessment of whether an unlawful search was justified as reasonable.³⁸

[59] The Judge took into account the following relevant factors which may be considered under s 30(3), for the purposes of the s 30 balancing exercise. They were:

(a) the importance of the right to be free from unreasonable serious in a private home and the fact that the appellant was removed from her sick bed elevated the seriousness of the consequences of the breach;

(b) the technical nature of the unlawfulness of the First Search, the reason for the search and the limited extent of it as well as that any breach of the s 21 NZBORA right was not of a high magnitude as it was not deliberate, reckless or done in bad faith;

(c) the quality of the evidence was strong as it was irrefutable real evidence;

(d) the seriousness of the offence with which the appellant is charged is only one criteria to be taken into account, and although the different charges between Mr Keen and the appellant were not addressed, knowingly permitting premises to be used for significant cannabis cultivation with a dedicated growing room, complete with equipment, is still a moderately serious charge;

³⁸ R v Grayson [1997] 1 NZLR 399 (CA) at 410 as cited in R v Williams, above n 4, at [13].

(e) the police were acting on the understanding that a valid search warrant was imminently arriving and for that reason they did not exercise their powers of warrantless search;

(f) that there was no other remedy aside from exclusion of evidence that would adequately compensate the defendants;

(g) the police officers acted sensibly in ensuring the physical safety of the officers; and

(h) there was a requirement for urgency in relation to the likelihood of concealment of evidence.

[60] The Judge determined that even if the First Search was deemed unreasonable, it would not be proportionate to the impropriety of the offending to exclude the evidence.

[61] I consider that the Judge correctly determined that the First Search was reasonable. With that finding, the s 30 Evidence Act analysis was not needed. However, I also consider that the Judge’s s 30 analysis finding, that the exclusion of the evidence would not be proportionate to the impropriety of the offending was appropriate and not in error. This was the appellant’s home, with a dedicated room in which a significant amount of cannabis was being cultivated. I am satisfied that the evidence of the cannabis plants obtained as a result of the First Search should not be excluded, as that would be disproportionate to the impropriety of the offending. The Judge’s finding is upheld accordingly.

[62] The appeal is dismissed and the Judge’s finding that the entry and First Search were reasonable is confirmed. Although no further consideration of s 30 of the Evidence Act is required on a finding of reasonable search, the Judge’s application of s 30 was appropriate. I am satisfied that the evidence should not be excluded, as that would be disproportionate to the impropriety of the offending.

Result

[63] The application for leave to appeal is granted.

[64] The appeal is dismissed.

[65] For fair trial reasons, an order is made prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or digest permitted.

Cull J

Solicitors:

J Blathwayt, WCM Legal S Ellis, Crown Law