ELLEY v NEW ZEALAND POLICE [2021] NZHC 2097

ELLEY v NEW ZEALAND POLICE [2021] NZHC 2097 [12 August 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-435-4[2021] NZHC 2097DENISE HUIA ELLEYvNEW ZEALAND POLICEHearing: 29 June 2020Appearances: A K Mobberley for AppellantD P Neild for RespondentJudgment: 12 August 2021JUDGMENT OF COOKE JTable of ContentsThe facts [4]Counsel error affecting guilty plea as ground of appeal [18]Warrantless search [27]Is the evidence inadmissible? [41]Was the aerial surveillance a search? [49]Admissibility of admissions [56]Compliance with Practice Note [58]Admissions consequent on breach [63]Conclusion [72][1] Ms Denise Elley appeals against her conviction and sentence on one charge ofcultivating cannabis1 and one charge of possession of methamphetamine.2 The1 Misuse of Drugs Act 1975, s 9, maximum penalty 7 years' imprisonment.2 Section 7(1)(a) and (2), maximum penalty 6 months' imprisonment or $1,000 fine.District Court convicted and discharged Ms Elley on 11 June 2020 following herentering guilty pleas.3 She now appeals notwithstanding her guilty pleas on the basisthat her counsel failed to advise her that she had a defence to the charges, and thatgiven the nature of the offending she should have been discharged without convictionin any event.[2] Counsel's alleged error arises from a failure to advise Ms Elley that the searchand seizure operation under which the evidence of the offending was obtained wasunlawful, that this evidence would have been excluded if the charges had beendefended and that Ms Elley would not have been convicted. The search of Ms Elley'sproperty was conducted on a warrantless basis under s 20 of the Search andSurveillance Act 2012 following an aerial spotter plane operation in the SouthWairarapa. Under this operation properties apparently being used for cultivatingcannabis were identified, and ground teams were directed to conduct searches of thoseproperties. Another defendant whose property was identified and searched during thisexercise had the evidence excluded on a similar basis to that which Ms Elley nowadvances.4 Ms Elley says that her counsel should have advised her that this approachwas available to her, and that if she had the charges would have been defended, theevidence excluded and no conviction would have followed. As a consequence shesays that her conviction is a result of a miscarriage of justice and that her appeal shouldbe allowed.[3] Given that there were guilty pleas in the District Court and no evidence wasled in that Court, on appeal I have received evidence in the form of an agreed summaryof facts, the admission of evidence from particular witnesses by consent, and thecalling in cross-examination of other witnesses, in particular those police officers whowere involved in the search and seizure exercise under which the evidence wasobtained. I had the advantage of written submissions filed before the hearing at whichI heard the evidence, oral submissions that counsel wished to advance at that hearing,and further written submissions subsequently filed arising from the evidence that Iheard.3 New Zealand Police v Elley [2020] NZDC 10673.4 R v Wilton [2020] NZDC 1799.The facts[4] I begin by outlining the relevant facts, which will include making some factualfindings, although I will address the factual findings of most significance whenaddressing the arguments.[5] On 21 February 2019 the police conducted a cannabis spotting "flyover"operation in the Wairarapa called Operation Piano. The operation involved a lightaeroplane with police markings taking off from an aerodrome in Masterton and flyingover areas in the South Wairarapa. The light aeroplane contained a pilot and a policeofficer — Sergeant Antony Matheson. They would fly over areas at a low height toidentify cannabis being grown on both public land, and private property. SergeantMatheson would then direct police ground teams to areas where cannabis was seen,and if that was on private property those properties would be searched by the groundteams. Sergeant Matheson was experienced in this role, and used information receivedfrom previous years' operations to identify where cannabis was likely to be found.[6] Some communication was possible between the aircraft and the ground teamswhen there was visual contact between them, but it was limited otherwise. Police usedan app called "Spidertracks" to communicate. The app plotted the path of the aircraftat ground level, and markers could be added by Sergeant Matheson on his iPad. Thepath and the markers were displayed on the officers' iPhones on the same app. Thisapp used the GPS network to plot the location, but also utilised the cell phone networkto communicate to the officers' phones on the ground.[7] Similar operations had been conducted during summer in the South Wairarapain previous years. The operation was a version of an operation that has been operatednationally in different districts on a similar basis. This is reflected in the OperationOrders that were created for Operation Piano which were prepared based on a nationalprecedent for such operations.[8] The officer in charge was Detective Senior Sergeant Barry Bysouth and he hadtwo other police officers with him in his car. There were then four other ground teamsin vehicles, with three police officers in each vehicle. Including Sergeant Mathesonin the light aircraft, this involved a total of 16 police officers from the Wairarapa andWellington. It was a resource extensive operation with the highest cost being the costof the light aircraft for one day. The light aircraft is a police national resource.[9] In the morning of the operation the officers involved received a briefing at 8.30that morning which involved Detective Sergeant Bysouth reading out aloud theOperation Orders. The ground teams were then deployed, and the aircraft proceededon a flight path at the direction of Sergeant Matheson.[10] Ms Elley's address is in a reasonably remote location in the South Wairarapaon Whāngaimoana Beach Road which is a no-exit road off Cape Palliser Road whichends at the southern coast in Palliser Bay. It is in a rural location and her driveway isapproximately 100 metres long.[11] At approximately 1.30 pm Sergeant Matheson observed what was thought tobe three large cannabis plants growing at the rear of her property from the spotterplane. He marked this on his iPad on the Spidertracks app. The ground teamcomprising Detective Sergeant Matthew Wasson, Detective Sergeant William VanWoerkom and Senior Constable Laura Rhymer then identified the property on theiriPhones. Sergeant Matheson also orally directed the team to the address over policeradio while he was able to. They arrived at the property shortly after being so directed.[12] There was nobody present when the three police officers arrived. Theyknocked on the door and no one presented themselves. Detective Sergeant Wassonthen entered the house through an unsecured window. He said that there was a strongsmell of cannabis inside. He confirmed that there were no persons inside the houseby checking the rooms, and then opened the front door so that other police could enter.Detective Sergeant Van Woerkom and Senior Constable Rhymer then entered thehouse. The three officers then agreed on a plan to search the house. They identifiedthe three plants at the rear of the property and then undertook a thorough search forevidence of cannabis offending. The light aeroplane flew off to undertake other dutiesonce police on the ground had confirmed they had found the plants seen from the air.[13] Detective Sergeant Wasson focussed on the main bedroom where he waslooking for documents with the name of the occupant and evidence of offending. Hesearched Ms Elley's chest of drawers and her private belongings. He found aprescription pill bottle with her name on it.[14] In a rear bedroom a polystyrene box was located in which cannabis was found.A small quantity of methamphetamine was also found in a kitchen cupboard.[15] Detective Senior Sergeant Bysouth then arrived at the property with his team.That team had also been directed to the property through the Spidertracks app. Atapproximately 2.55 pm a further ground support team led by Detective RaewynSmellie also arrived. Sergeant Basher then arrived from another ground support teamtowing a trailer for the police exhibits. Later at 3.55 pm Senior Constable TimothyWilson, the Wairarapa Scene Crime Officer also arrived at Ms Elley's property.[16] After Detective Senior Sergeant Bysouth's team had arrived and begansearching the property, one of them noticed a fan running in the back wall of a smallgarage on the property. Entry was obtained by the use of bolt cutters. On entry intothat shed they identified what Detective Sergeant Wasson described as a "very tidilyconstructed cannabis cultivation setup". There were lots of plants, fans and charcoalfilters.[17] Ms Elley arrived home between 3.35 and 3.45 pm. By that stage police hadbeen searching her property for some two hours. One of Detective Senior SergeantBysouth's team first communicated with Ms Elley and then introduced her toDetective Sergeant Wasson. Detective Sergeant Wasson was advised that Ms Elleyhad been informed of her rights under the Bill of Rights Act. He then confirmed andreiterated her Bill of Rights and she confirmed that she understood them. He told herthat the search was being conducted as cannabis plants had been seen at the back ofher house. He then asked her detailed questions about the cannabis plants at the backof the house, in the bedroom inside the house and those located in the shed. She gavedetailed answers to the effect that they were her plants and that she had been growingthem. She also admitted to possessing the small quantity of methamphetamine.Detective Wasson recorded the questions and answers in his notebook. Following thathe provided his notebook for her to read and make any alterations, and then asked herto sign it alongside a statement saying that she confirmed the truth and accuracy of thestatement. Ms Elley duly did so. No formal videotaped interview was raised in thisprocess.Counsel error affecting guilty plea as ground of appeal[18] As s 232 of the Criminal Procedure Act 2011 recognises, a miscarriage ofjustice can arise even when a person has pleaded guilty.5 But the Court proceeds onthe basis that an appeal against conviction will only be considered after a guilty pleahas been entered in exceptional circumstances. In Whichman v R the Court of Appealexplained:6[35] Three broad categories of relevant exceptional circumstance wereidentified by this Court in R v Le Page to which a fourth was added inMerrilees v R:7(a) where the appellant did not appreciate the nature of, or did notintend to plead guilty to, a particular charge;(b) where on the admitted facts the appellant could not in law havebeen convicted of the offence charged;(c) where the plea was induced by a ruling which embodied awrong decision on a question of law; and(d) where trial counsel erred in advising as to the non-availabilityof certain defences or potential outcomes, or where counselwrongly induces a decision to plead guilty under a mistakenbelief or assumption that no tenable defence existed or could beadvanced.[36] The overriding consideration whether the plea has produced amiscarriage of justice. This protean juristic concept is given modest definitionin s 232(4) of the Criminal Justice Act.8 It is not to be thrust into an over-defined straightjacket. The categories of exceptional circumstance justifyinga vacation of plea after entry of a guilty plea are neither closed nor complete.The Supreme Court recognised that reality in Wilson v R.9[19] The ground relied on here is counsel error, and this has been the focus of theevidence and arguments.5 Criminal Procedure Act 201, s 232(4) and (5).6 Whichman v R [2018] NZCA 519.7 R v Le Page [2005] 2 NZLR 845 (CA) at 849; and Merrilees v R [2009] NZCA 59 at [35].8 See [33] above.9 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].[20] In her submissions following the evidential heading Ms Mobberley sought toargue that the case came within a fifth category recognised by the Supreme Court in Rv Wilson — where there has been an abuse of process by police or prosecutingauthorities which justified a stay. Mr Neild objected to this ground being pursued asit had not been set out in the particulars of the appeal required to be given under r 8.7of the Criminal Procedure Rules 2012. Although Ms Mobberley sought leave toamend her notice of appeal, I accept Mr Neild's point is well-founded as a moreextensive evidential exercise would have been required to deal with the abuse ofprocess ground. In addition, the circumstances which I address in more detail beloware well short of the requirements for establishing an abuse of process. It is alsounnecessary to explore that ground as the appellant's key complaint is wellencompassed within the primary ground of appeal advanced.[21] I do not accept Mr Neild's related objection that the appeal is only focused onthe search by the police officers on the ground, and does not encompass a challengeto the initial visual searching by the officer in the aircraft. The particulars of the appealwere sufficiently broad to encompass all aspects of the search and seizure at Ms Elley'sproperty. His complaint that counsel did not give notice that the officer in the spotterplane be available for cross-examination under r 8.7(4) is not well-founded. The factthat the agreed statement of facts referred to this evidence shows that the visualsearching was an inter-related part of the matters addressed as part of the appeal, andthe decision not to challenge that evidence simply means it is received by the Courtunchallenged.[22] I also do not accept Mr Neild's further argument — described by him as a"jurisdiction" argument — that in the present case Ms Elley's guilty plea was agenuine admission of guilt such that no appeal should properly be entertained.10 Asthe authorities recognise an erroneous evidential ruling that leaves the defendant noreal option but to plead guilty is accepted as being potentially within the circumstanceswhere an appeal may be allowed notwithstanding that plea.11 The same must be so ifthe error is made by counsel rather than the Court.10 Relying on R v Chalkley [1998] QB 848 at 864 (CA), referred to in R v Le Page, above n 7 – Leaveto appeal declined [2005] NZSC 48.11 See Le Page, above n 7, at [20]–[21].[23] The Court of Appeal in Whichman addressed the requirements for establishingthe counsel error in relation to advice about sentencing stating:12[41] An appeal based on trial counsel error in advising as to sentence raisesa number of distinct thresholds, all of which must be crossed before a guiltyplea should be vacated and the consequent conviction quashed. Thosethresholds are these:(a) first, the advice given was erroneous;(b) secondly, there is or was a genuine prospect of acquittal at trialhad the plea not been entered; and(c) thirdly, there is credible evidence that but for the erroneousadvice, the guilty plea would not have been entered.We think the second element is best described in this way. If the first thresholdhas been crossed, we do not think an appellate court should overanalyse themerits of available defences. To do so risks eroding the essential responsibilityof a first appeal court under s 232(4) to concern itself with whether the error"created a real risk that the outcome of the trial was affected". What mattersis whether a genuine prospect of acquittal has been lost as the result of aprocess failure in the criminal justice system. As T (CA662/2012) v Rdemonstrates, it is very much a matter of impression as to whether justice hasor has not been done in the particular case.[24] Although this was said in relation to erroneous advice about sentencing, itseems to me to provide an appropriate framework for erroneous advice as to theavailability of a defence.[25] In applying that approach I first accept the unchallenged evidence fromMs Elley's counsel in the District Court that it did not occur to her to question thesearch at Ms Elley's property before the entry of guilty pleas on 20 May 2019. Hercounsel explains that the night before her sentencing on 11 June was the first occasionwhere she began to think about the requirements for a warrantless search, and that she"had heard or read about other cases involving the same flyover cannabis operation"and that she concluded on reflection that this was a situation where the search couldhave been challenged. But her evidence is that she only raised this with Ms Elleywhen the decision by the Court on discharge without conviction was being awaited,and only on the basis that it was a potential ground of appeal. I am satisfied thatMs Elley was deprived of the opportunity to consider this defence to the charges12 Whichman v R, above n 6 (footnote omitted).before she entered her guilty plea, and that the advice she received was inadequate. Ialso accept her evidence that she would not have entered that plea if she was awarethat this defence was available to her.[26] In applying the general approach referred to in Whichman, the key questionthen becomes whether there would have been a genuine prospect of acquittal. If thesearch was unlawfully undertaken, and the evidence would have been excluded, thenacquittal may have been a real prospect. Ms Elley had no option but to plead guilty tothe charges given that evidence, and if it was inadmissible then a miscarriage of justicemay have occurred.Warrantless search[27] Section 20 of the Search and Surveillance Act 2012 provides:20 Warrantless search of places and vehicles in relation to someMisuse of Drugs Act 1975 offencesA constable may enter and search a place or vehicle without a warrantif he or she has reasonable grounds—(a) to believe that it is not practicable to obtain a warrant and that inor on the place or vehicle there is—(i) a controlled drug specified or described in Schedule 1 ofthe Misuse of Drugs Act 1975; or(ii) a controlled drug specified or described in Part 1 ofSchedule 2 of the Misuse of Drugs Act 1975; or(iii) a controlled drug specified or described in Part 1 ofSchedule 3 of the Misuse of Drugs Act 1975; or(iv) a precursor substance specified or described in Part 3 ofSchedule 4 of the Misuse of Drugs Act 1975; and(b) to suspect that in or on the place or vehicle an offence against theMisuse of Drugs Act 1975 has been committed, or is beingcommitted, or is about to be committed, in respect of thatcontrolled drug or precursor substance; and(c) to believe that, if the entry and search is not carried outimmediately, evidential material relating to the suspected offencewill be destroyed, concealed, altered, or damaged.[28] That section requires the searching police officer to have the following statesof mind on reasonable grounds:(a) a belief that the drugs or substances referred to are in or on the place;(b) suspicion that an offence has been, is being, or is about to be committedin relation to that drug or substance;(c) a belief that it is not practicable to obtain a warrant; and(d) a belief that if the entry and search is not carried out immediately,evidential material relating to the suspected offence will be destroyed,concealed, altered or damaged.[29] It is only the last two requirements that are in issue here. It is accepted that thefirst two were satisfied.[30] It is the officer who carries out the search who must have the necessary statesof mind.13 It must be demonstrated that that officer or officers held those beliefs, andthat there were reasonable grounds for them. The Court of Appeal said in Devich vR:14[26] In relation to the "reasonable grounds to believe" standard, the LawCommission commented that the grounds for action are assessed on the basisof an objective standard. That is, the grounds upon which the enforcementofficer has applied for a warrant or has exercised a warrantless power must bedetermined by reference to whether a reasonable person, with "the experienceand training" of an enforcement officer, rather than an uninformed bystander,could have reached the same conclusion, in terms of both the facts and theinferences to be drawn from those facts.[31] In McGarrett v R the Court of Appeal addressed the requirement that there bereasonable grounds to believe it is not practicable to obtain a warrant stating:15[24] The first prerequisite created more difficulties. We accepted a policeofficer is not bound to obtain a warrant every time he or she has sufficientinformation to justify the issue of a warrant, as this would place improper13 R v Taylor (1993) 10 CRNZ 393 (CA).14 Devich v R [2014] NZCA 386, (2014) 27 CRNZ 154 (footnote omitted).15 McGarrett v R [2017] NZCA 204.constraints on police investigation work.16 Instead, as this Court commentedin R v Williams:17Regard must be had to the practicalities of policing, including whethera property can be kept under surveillance, and the resources availableto officers at that time, in assessing whether the situation faced by apolice officer made it reasonable to invoke a warrantless power [25] Nevertheless, there needs to be some evidential basis for finding thatthe practicalities of policing make obtaining a warrant unreasonable. [32] Here the first searching officer was Detective Sergeant Wasson, albeit asignificant number of other officers subsequently joined in the searching of Ms Elley'sproperty. Having considered the evidence from the searching police officers,including the cross-examination of Detective Sergeant Wasson and Detective SeniorSergeant Bysouth, I am satisfied that the two necessary elements to authorise awarrantless search in dispute were absent — the requirement that the searchingofficers reasonably believed that if the entry and search was not carried outimmediately evidential material would be lost, and the requirement to have reasonablegrounds to believe that it was not practicable to obtain a warrant. Those tworequirements were not met for two independent, albeit related reasons. First none ofthe searching officers formed the requisite beliefs. Secondly, even if they had formedthe beliefs there were no reasonable grounds for them.[33] I deal first with the question of whether there were reasonable grounds for abelief that evidence would be lost if a search did not take place. That could arise ifthere was evidence that there was someone at the house who would destroy, conceal,alter or damage the evidence. Sergeant Matheson in the spotter plane gave evidencethat he saw nobody at the property when he saw what he thought were three cannabisplants in pots at the rear of Ms Elley's property. He directed the ground teams to theaddress. Detective Sergeant Wasson gave evidence that when they approached theproperty nobody appeared to be present. There were no signs of anybody when theyapproached the house. Nobody responded when the door was knocked. An unsecuredwindow was identified, and Detective Sergeant Wasson was then lifted up by anotherpolice officer and made entry through that window. He said that he was not sure thatsomeone might still be inside, and so he proceeded cautiously. But that was only a16 Hughes v R [2011] NZCA 661 at [33].17 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [24].possibility. There were no reasonable grounds to believe that there was someone inthe house or otherwise on the property. This is confirmed by the evidence of the nexttwo searching officers. Detective Sergeant Van Woerkom said in his evidence that"[u]pon approaching the address we identified that no one was home" and SeniorConstable Rhymer similarly gave evidence that "upon our arrival it became apparentthat there was no-one at home ".[34] Even if there were reasonable grounds to believe that someone was presentthere were no reasonable grounds to believe that if police did not immediately enterthe house (and later the shed) that evidential material relating to the suspected offencewould be destroyed, concealed, altered or damaged. After Detective Sergeant Wassonentered the house, he said he established there was nobody there, and it was then thathe let the other police officers in. It is clear by that stage that none of the three officershad reasonable grounds to believe that if they did not proceed with a search, evidencewould be lost in the way required by s 20. In fact their evidence is to the oppositeeffect. For example Detective Sergeant Van Woerkom stated in his evidence that"[a]fter confirming no one was at home we undertook a search of the property".[35] Not only were there no reasonable grounds to establish the belief that evidencewould be lost if the search did not take place, but I also find that none of the searchingofficers held that belief at any stage. When pressed on that matter Detective SergeantWasson accepted that if he did consider the requirements of s 20 it would only havebeen "fleeting", and he was unable to say when this occurred in the chronology ofevents — approaching the house, entering through the window, looking through therooms, or then when opening the door. I find that he did not form the beliefs requiredby s 20, and neither did the other two officers.[36] The position is even clearer in relation to the further police officers that arrivedthereafter and conducted the continued search of Ms Elley's property for the period ofapproximately two hours before she returned. They did not have reasonable groundsto believe that if they did not do the searching the evidence would be lost in the mannerrequired, and neither did they form those beliefs.[37] Neither do I accept that there were reasonable grounds to believe that it wasimpracticable to obtain a warrant, or that any of the searching officers actually formedthat belief. I agree with Judge Mill who found in similar circumstances that the Policecould have obtained a search warrant, including by oral application under s 100 of theSearch and Surveillance Act, and that if necessary the property could have beensecured in the meantime under s 117.18 A warrant could have been obtained if anyattention had been given to that possibility as part of the planning for this exercise.The realities were that the Operational Orders did not contemplate the obtaining ofsearch warrants. The operation proceeded on the basis that the searches that would beundertaken would be performed on a warrantless basis. There were no procedures setout in the Operational Orders for obtaining warrants as there would realistically needto have been if they were contemplated. Indeed at one point the Orders refer to theground teams as "s20 teams". There was reference in the Operational Orders to therequirements of s 20, but in my view they were referred to as a formality, with therequirements of s 20 referred to in a purely notional way.[38] The whole operation assumed that warrantless searches would take place.Detective Bysouth confirmed that he had no recollection of warrants ever beingobtained for this annual operation with one exception. That was in 2020, only afterthe challenge to warrantless searches had already been raised in criminal proceedings,and even then, only in a case where it appears that an initial warrantless search hadalready taken place. Detective Bysouth accepted that it would be more difficult toengage in this operation at all if search warrants were contemplated.[39] I accept that there have been situations where it is likely that the s 20 powerhas rightfully been exercised with operations of this kind. Evidence was given ofsituations where occupants of properties have seen the spotter plane and realised itwas a police aircraft there to identify cannabis, where the occupants proceed to begindestroying the cannabis, and therefore the evidence. That occurred in relation to oneof the other properties identified this day. But the potential for this to occur does notmean that the criteria for a warrantless searching were satisfied in relation to allproperties where evidence of cannabis is obtained by the aerial search.18 R v Wilton, above n 4, at [36]–[41].[40] For these reasons the search and seizure was unlawful, and the evidenceimproperly obtainedIs the evidence inadmissible?[41] The next question is whether the evidence would have been inadmissible. Theapproach the Court takes to the admissibility of evidence that is improperly obtainedis prescribed by s 30 of the Evidence Act 2006 which provides:30 Improperly obtained evidence(1) This section applies to a criminal proceeding in which theprosecution offers or proposes to offer evidence if—(a) the defendant or, if applicable, a co-defendant againstwhom the evidence is offered raises, on the basis of anevidential foundation, the issue of whether the evidencewas improperly obtained and informs the prosecution ofthe grounds for raising the issue; or(b) the Judge raises the issue of whether the evidence wasimproperly obtained and informs the prosecution of thegrounds for raising the issue.(2) The Judge must—(a) find, on the balance of probabilities, whether or not theevidence was improperly obtained; and(b) if the Judge finds that the evidence has been improperlyobtained, determine whether or not the exclusion of theevidence is proportionate to the impropriety by means of abalancing process that gives appropriate weight to theimpropriety and takes proper account of the need for aneffective and credible system of justice.(3) For the purposes of subsection (2), the court may, among anyother matters, have regard to the following:(a) the importance of any right breached by the improprietyand the seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it wasdeliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtainedevidence:(d) the seriousness of the offence with which the defendant ischarged:(e) whether there were any other investigatory techniques notinvolving any breach of the rights that were known to beavailable but were not used:(f) whether there are alternative remedies to exclusion of theevidence that can adequately provide redress to thedefendant:(g) whether the impropriety was necessary to avoidapprehended physical danger to the Police or others:(h) whether there was any urgency in obtaining the improperlyobtained evidence.(4) The Judge must exclude any improperly obtained evidence if, inaccordance with subsection (2), the Judge determines that itsexclusion is proportionate to the impropriety.(5) For the purposes of this section, evidence is improperlyobtained if it is obtained—(a) in consequence of a breach of any enactment or rule of lawby a person to whom section 3 of the New Zealand Bill ofRights Act 1990 applies; or(b) in consequence of a statement made by a defendant that isor would be inadmissible if it were offered in evidence bythe prosecution; or(c) unfairly.(6) Without limiting subsection (5)(c), in deciding whether astatement obtained by a member of the Police has been obtainedunfairly for the purposes of that provision, the Judge must takeinto account guidelines set out in practice notes on that subjectissued by the Chief Justice.[42] Subsections (2) and (3) involve a balancing exercise that has been consideredin a number of cases, including the decisions of the Supreme Court in Hamed v R19and Wilson v R.20 I will not lengthen this judgment by a discussion of the case law asit seems to me that the exercise here is relatively straight forward.[43] First, I accept that there was a significant invasion of Ms Elley's privacyinvolved in the unlawful search and seizure. A large number of police officers wentcomprehensively through her property over a lengthy period of time searching forevidence. This involved searching her personal belongings, her dresser, and items such19 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.20 Wilson v R, above n 9.as personal correspondence and medication. The search was extensive, extendingeven to burned documents in her fireplace.[44] I also accept that the search and seizure operation can be describedsystemically unlawful as the operation contemplated warrantless searches as part ofthe modus operandi without any proper attempt at compliance with the legalprerequisites for such searches. I do not find that the search and seizure was in badfaith – the failures can be thought of as involving errors of judgment, and a failure totake proper care to check the legalities of the operation, but I do not accept that itinvolved knowing illegality. But given it was pre-organised, and involved a nationallybased investigation technique, the breaches are to be regarded as serious ones. Theywere not just breaches by the individual officers exercising the searches, but extend tothose who planned and put in place the operation.[45] Further, whilst cannabis cultivation offending of the kind potentiallydiscovered would be regarded as serious offending, this is not so in Ms Elley's casewhere the seriousness of her conduct is reflected in her being convicted anddischarged, in part because of an agreement between the prosecution and defenceabout her position, and the seriousness of her conduct. In addition there was nophysical danger to the police or others, or urgency in obtaining the evidence in termsof the other criteria listed in s 30(3).[46] In terms of countervailing considerations, I accept that there would have beena good prospect of the evidence being obtained by obtaining a search warrant which,assuming the spotter plane surveillance was lawful, could have been obtained. Butotherwise there is not much that can be said by the police in favour of an argumentthat the evidence was nevertheless admissible.[47] Weighing these considerations I conclude that, had the point been taken, theevidence obtained under the search and seizure exercise would not only have beenruled to be unlawfully obtained, but that it would have been concluded that theevidence was inadmissible.[48] These conclusions coincide with those reached by Judge Mill in the case ofanother defendant who challenged the evidence obtained by the search and seizureexercise that day.21Was the aerial surveillance a search?[49] The conclusions I have reached above mean that it is unnecessary for me toaddress whether the initial surveillance exercise undertaken by the police spotter planeamounted to an unreasonable search.[50] That position has been addressed in two decisions of the Court of Appeal, R vPeita22 and McIntyre v R.23 In McIntyre the Court of Appeal most recently said:[39] In the case of the aerial surveillance, we acknowledge the appellants'concession that the police reconnaissance in the spotter aircraft for the purposeof detecting possible cannabis plots did not amount to an unreasonable search.[40] That conclusion follows from this Court's decision in R v Peita, whereit was held that an aircraft operating in accordance with Civil AviationAuthority requirements, flying at approximately 500 feet above ground leveland where the cannabis which was seen "could be seen by anyone flying overit and knowing what to look for" did not constitute an unreasonable search.24Consequently, the evidence was not obtained in breach of s 21.25 However,that decision left open both whether the overflight was a search, and whetherthe way in which surveillance is carried out in any particular case would infact infringe the s 21 right.26 It seems to us that there would be a point at whichaerial surveillance by the police constitutes a search which is unreasonable,for example because of the proximity and duration of the surveillance, or theintrusiveness of the technology employed.[41] We consider the next phase of operation, involving aerial spraying andphotographing of the plants, did reach that threshold. Having a helicopterflying over private property at 30 to 40 metres above ground level andphotographing what was seen, for a duration of almost three hours,27 didinvade a reasonable expectation of privacy and therefore was a search.[51] The Court's earlier decision in R v Peita captured the reasons why such aerialsurveillance would not be unreasonable, and therefore would not be inconsistent withs 21 of the New Zealand Bill of Rights Act 1990. But in that decision the Court left21 R v Wilton, above n 4.22 R v Peita (1999) 17 CRNZ 407 (CA).23 McIntyre v R [2020] NZCA 503.24 R v Peita, above n 22, at [10].25 At [16].26 At [14]–[15].27 Being the duration of the operation prior to the search warrant being obtained.key questions undecided, and in McIntyre the Court indicated that there could be astage where such surveillance would amount to an unreasonable search.[52] It seems to me that there are arguments to say that the kind of exercise that wasinvolved here may amount to an unreasonable search. Whilst the expectations ofprivacy for private areas of a property such as back yards are not as great as within ahouse, there are still legitimate privacy interests. What was involved here was acommunity-wide visual police search of such areas. If random searching of back yardshad been done by police officers on the ground this would be seen to involveunreasonable searching, including because such activity would involve a trespass.That would also likely be the case if police deployed a drone to fly over properties ata low height to seek to identify such unlawful activities, or if enhanced visualtechnology was involved. I am not convinced that so much should turn on the moretechnical point that under civil aviation law an aircraft flying above 500 feet does notengage in a trespass. The concern about the searching arises from the overall natureand purpose of the exercise — an indiscriminate search of the normally more privateback areas of properties for evidence of offending.[53] It may also be significant that the factors which influence the Court in Peitato say that the exercise was not unreasonable are now factors that can be addressed inthe subsequent decision on admissibility under s 30 of the Evidence Act. It may bethat it is at that stage where these factors more strongly resonate, rather than beingreasons why the aerial surveillance is not a search at all, or if so that it is not anunreasonable one.[54] I note that one argument to the opposite effect is that the power to authorise bywarrant the surveillance of "the curtilage of private premises" under s 46 of the Searchand Surveillance Act only applies when the surveillance is for 8 hours in total, or for3 hours in any 24 hour period. This may imply that surveillance for lesser periods donot require a warrant. But this does not necessarily mean that aerial surveillance,including that below 500 feet, does not amount to an unreasonable search under theBill of Rights Act, or that such a warrant cannot be obtained to authorise suchactivities.[55] But as I say it is unnecessary for me to reach any conclusions on this aspect ofthe case, which would better await a case where they are more squarely in issue.Admissibility of admissions[56] The fact that I have concluded that Ms Elley's counsel failed to advise her of apotential defence arising from the inadmissibility of the evidence obtained by thesearch, that such evidence was in fact inadmissible, is not the end of the requiredanalysis. It also needs to be demonstrated that there was a genuine prospect ofacquittal. There was additional evidence of her guilt, namely the admission that shemade in the statement given to Detective Sergeant Wasson which she confirmed andsigned. At the evidential hearing I raised the question whether her admissionscontained in that statement would remain admissible, and whether for that reason herconviction following her guilty plea would properly stand.[57] Two matters were raised in the submissions subsequently advanced by counsel.Compliance with Practice Note[58] First, Ms Mobberley contended that the admissions in the statement were alsoinadmissible. In particular she argued that the evidence was unfairly obtained unders 30(5)(b) and (6) of the Evidence Act, including for failure to comply with the ChiefJustice's Practice Note on Police Questioning referred to in s 30(6).28 That PracticeNote materially provides:(5) Any statement made by a person in custody or in respect of whomthere is sufficient evidence to charge should preferably be recorded by videorecording, unless that is impractical or unless the person declines to berecorded by video. Where the statement is not recorded by video, it must berecorded permanently on audio tape or in writing. The person making thestatement must be given an opportunity to review the tape or written statementor to have the written statement read over, and must be given an opportunityto correct any errors or add anything further. Where the statement is recordedin writing, the person must be asked if he or she wishes to confirm the writtenrecord as correct by signing it.[59] It is clear here that there was sufficient evidence to charge Ms Elley before shewas interviewed. There was no suggestion that Detective Sergeant Wasson's interview28 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.of Ms Elley would be recorded by way of video, or that they would later arrange atime at a police station to conduct a formally recorded interview. They were atWhāngaimoana some distance away from the nearest police station. I accept it wouldnot have been practicable to have a recorded interview if the interview was to proceedthere and then. This gives rise to a possible issue as proceeding with the interviewthere and then was more likely to lead to admissions by Ms Elley given thecircumstances she was presented with. She had just returned home to find a very largenumber of police present at her property engaging in a thorough searching exercisethat had discovered a significant cannabis growing operation. Those circumstancesby themselves would create a degree of pressure on her to admit to the offending thatappeared from the circumstances.[60] But the Practice Note does not require a video interview of suspects in thesecircumstances. It is only stated to be a preference. It does not need to occur when itis impractical. What the Practice Note mandates is that any statement be recorded byaudio or in writing, and if recorded in writing that the interviewee be given anopportunity to review the written statement, correct any errors, or add anything further.She must then be given an opportunity to confirm whether the record is correct bysigning it. The fact that the Practice Note contemplates the written statementalternative means that it can properly be implemented if these steps are taken.[61] I accept that it was not practicable to perform a video interview at this time,and that the requirements of the Practice Note for a written statement were met.Detective Sergeant Wasson recorded his questions and Ms Elley's answers in writing,he then gave her an opportunity to read through what he had written and make anyalterations or additions, and she was then asked to confirm the accuracy of the recordby signing it, which she did.[62] I accept Ms Mobberley's submission that the Court responds firmly to anysituations that emerge where the Practice Note is not complied with.29 But I concludethat the Practice Note was complied with, and I reject her argument for this reason.29 Jones v R [2016] NZCA 185; Denney v R [2017] NZCA 80.Admissions consequent on breach[63] There is, however, a further basis upon which the admissions can be excluded.Under s 30(5)(a) evidence is improperly obtained if it is obtained "in consequence ofa breach" of a rule of law. I raised at the hearing whether Ms Elley's admissions aroseas a consequence of the unlawful searching exercise. Ms Elley was presented with alarge number of police officers conducting a comprehensive search of her property,this searching was unlawful, and it might be said that her admissions were aconsequence of the unlawful search. In other jurisdictions such evidence is sometimesreferred to as the "fruit of the poisonous tree".30[64] In Mr Neild's submissions he relied on the Supreme Court's decision in R vChetty which held that there must be a causative connection between a breach and theadmissions sought to be excluded.31 He argued that there was no such causation here.[65] The issue of causation has been addressed in a number of authorities. TheSupreme Court in Chetty referred to R v Williams where the Court of Appeal said:32[79] The issue of the effect of a breach on downstream evidence is a subsetof the vexed question of causation. The test in New Zealand for causation iswhether there is a real and substantial connection between the breach and theobtaining of the evidence – see R v Te Kira [1993] 3 NZLR 257 at 261 (perCooke P), 272 (per Richardson J, Casey J concurring), 277 (per Hardie BoysJ) and 281 (per Thomas J) (CA). It is clear that where the evidence is obtainedin the course of a single transaction which includes an unreasonable search,there will be a sufficient connection between the breach and the evidence forthe evidence to be excluded. For examples of this principle, see Bainbridge,R v Thomas (2001) 19 CRNZ 392 (CA), R v Ratima (1999) 5 HRNZ 495 (CA)and R v Pou [2002] 3 NZLR 637 at [43] (CA).[80] More difficult issues arise when there is a time gap between the breachand the obtaining of the evidence. [66] Here it can be said that the unlawful search and the admissions were part of asingle transaction. There was no time gap. This approach is consistent with the mostrelevant of the cases referred to in the above passage — R v Thomas.33 Here the policehad engaged in an unlawful stopping and searching of a vehicle and found drugs. An30 See R v Shaheed [2002] 2 NZLR 377 at [71] (SC) by reference to Weeks v United States 252 US383 (1914).31 R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26.32 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.33 R v Thomas (2001) 19 CRNZ 392.occupant of the vehicle also made admissions when questioned. The Court of Appealoverturned the Judge's ruling that the admissions were admissible. The Court said:[11] We disagree with the Judge's analysis. Not only was the initialstopping unlawful, it was also, in our view, inextricably linked with thequestioning of the appellant by the constable which immediately followed.Both had the unauthorised purpose of precluding the appellant fromproceeding about his business in order to facilitate inquiry by the constablesinto what at that time was a suspicion, based on no more than a hunch, thatthe appellant might be in possession of controlled drugs. [67] In my view a similar situation arises here. There were a large number of policeofficers at Ms Elley's property conducting an unlawful search over a significant periodof time. They were not lawfully present within Ms Elley's home. Ms Elley wasinterviewed as part of this searching exercise. Faced with that situation Ms Elley madeher admissions. Part of the reason why the police conducted an interview there andthen would have been to increase the likelihood of admissions. Had a later interviewbeen arranged at the police station in accordance with the Practice Note admissionswould have been less likely, and there may also have been a break in the chain ofcausation between the unlawful search and the admissions.[68] The position might be distinguishable from Thomas to the extent that,assuming the aerial surveillance was lawful, a warrant could have been obtained bypolice leading to the same consequential pressures on Ms Elley when she returned toher home to find police searching under warrant. But I see that argument asspeculative, and that the requisite link between the unlawful search and the admissionsremains. For that reason I conclude that the admission is also unlawfully obtainedunder s 30(5)(a) as it was a consequence of the unlawful search.[69] In terms of the analysis of the admissibility of the evidence under s 30(3)(b) Isee the analysis as very similar to that which I have already engaged for the purposesof the unlawful search. The admissions were the product of an unlawful search andseizure operation where there are no significant countervailing circumstances thatsuggest the evidence should still be admitted. The Supreme Court in Chetty, referringto Williams, indicate that the strength of the causative link may be relevant to thebalancing exercise.34 Given the contemporaneous nature of the interview and the34 R v Chetty, above n 31, at [61].unlawful search, and the fact that the police were unlawfully present on Ms Elley'sproperty, I see the causative link as strong.[70] It also seems to me to be relevant that the subject matter of the interview isinherently interlinked with the items discovered through the unlawful search. Indeedit may be difficult to make full sense of the admissions if the underlying evidence towhich they relate cannot be referred to. This seems to me to be another reason forconcluding that the unlawful search and seizure is inherently interlinked with theinterview.[71] For these reasons I conclude that the admissions were unlawfully obtained, andthat they are also inadmissible. The consequence is that there would have been noadmissible evidence of her alleged offending had the point been taken.Conclusion[72] I accept that Ms Elley's guilty plea arose because she did not receiveappropriate advice from her counsel. She should have been advised that the evidenceagainst her could be challenged, and if she had been advised of that I accept that shewould have entered not guilty pleas and challenged the evidence. Had the evidencebeen challenged both the search and seizure at her property and the admissions shemade during that search and seizure would have been held to have been unlawfullyobtained, and also would have been determined to be inadmissible. The consequencewould have been that there would have been no evidence on which the prosecutioncould advance the charges.[73] For the above reasons the appeal will be allowed, the conviction quashed andno retrial directed.Cooke JSolicitors:A Mobberley, Masterton for Ms ElleyLuke Cunningham Clere, Wellington for Crown