PERSTON v NEW ZEALAND POLICE [2018] NZHC 910

PERSTON v NEW ZEALAND POLICE [2018] NZHC 910 [2 May 2018]ORDER PROHIBITING PUBLICATION OF THE REASONS FORJUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHERPUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OFTRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000065[2018] NZHC 910BETWEEN JIMMY PERSTONAppellantAND NEW ZEALAND POLICERespondentHearing: 30 April 2018Appearances: M English and S Giles for AppellantA McConachy for RespondentJudgment: 2 May 2018JUDGMENT OF VENNING JThis judgment was delivered by me on 2 May 2018 at 4.00 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Crown Solicitor, AucklandPublic Defence Service, AucklandIntroduction[1] Mr Perston faces 11 charges which are currently to go to trial before a Judgealone. The charges include possession of methamphetamine for supply, possession ofutensils to consume methamphetamine, possession of cannabis, possession offirearms, possession of ammunition and receiving stolen property.[2] In a judgment delivered on 2 February 2018 Judge N J Sainsbury ruled thatevidence relating to the above charges obtained from a search of Mr Perston's propertywas admissible.1 Mr Perston appeals against that pre-trial ruling.Background[3] On 6 March 2017 Constable Shepherd and another constable went to MrPerston's address of 13 Sunline Avenue, Massey. They went to find Mr Perston andarrest him for breach of bail. As they approached the address a motorbike came outof the address driving at some speed. Constable Shepherd could not see the face ofthe motorcyclist because he was wearing a helmet. The motorcyclist was also wearinga jacket along with shorts and sneakers. Constable Shepherd decided to pursue themotorcyclist. He ceased the pursuit as it became dangerous. During the course of thepursuit Constable Shepherd radioed in a description of the motorcyclist. He identifiedhim as wearing a dark helmet, dark jacket, light blue shorts and white sneakers. Otherpolice became involved in the pursuit which took place around West Auckland. TheEagle helicopter was also employed to locate the motorcyclist and to advise the policeof his whereabouts. Eventually the motorcyclist was tracked back to 13 SunlineAvenue. The police were directed back to that address.[4] Detective English and Constable Campbell were the first to arrive. Theywalked up the drive and found Mr Perston at the point where the driveway entered theyard of the house. Mr Perston was sweating and out of breath. Constable Campbellspoke to Mr Perston about the driving incident. Mr Perston did not admit to being themotorcyclist. He said that his brother had been there but had left before the policearrived. Having made initial inquiries of Mr Perston the original police officers did1 R v Perston [2018] NZDC 1471.not arrest Mr Perston. They decided to wait until other officers arrived to see ifsomeone could identify him as the motorcyclist. More officers arrived. At one pointa couple of officers wandered around the back of the house. At another point one ofthe officers removed a tarpaulin to reveal a motorbike. Up to 11 officers were at theaddress at one stage.[5] Eventually Constable Shepherd returned to the address. By this stage MrPerston was just inside a garage on the ground floor of the house. The garage doorwas open to the yard and Mr Perston was visible to the police officers. ConstableShepherd said that he identified Mr Perston from his clothing. Having identified MrPerston as the motorcyclist the police decided to arrest him. To effect the arrestConstable Campbell went into the garage and placed him under arrest. ConstableHicks and Constable Coleman also went into the garage to put him in handcuffs.While inside the garage area, Constable Hicks smelled cannabis and noted plantmaterial in the garage. That observation led to a warrantless search under the Misuseof Drugs Act 1975. That search led to the discovery of the cannabis,methamphetamine, two firearms and ammunition in the garage. Items consistent withthe supply and use of methamphetamine were also found. When the house wassearched the police located another firearm and the stolen property.The District Court decision[6] While Mr Perston did not expressly revoke the implied licence the Judgeaccepted that by remaining on the property and then subsequently going into thegarage the police exceeded the authority they had under the initial implied licence.While the police were entitled to arrest Mr Perston for dangerous driving, and couldalso have arrested him for breach of bail, as they did not have a warrant they had torely on an implied licence to be on the property to do so. They should have left theproperty rather than remaining on it in increasing numbers. Judge Sainsbury thereforeaccepted the defence submission that the search was unlawful.[7] The Judge noted that s 30 of the Evidence Act 2006 was engaged. He directedhimself to the various considerations under s 30(3). He concluded that, while thebreach of Mr Perston's expectation of privacy was serious, the police actions weredriven by incompetence rather than bad faith. The circumstances of the arrest werenot an egregious breach of Mr Person's rights. The police had good cause to arresthim as a result of the alleged dangerous driving. Mr Perston had remained in thevicinity of the police throughout. Real evidence was found in relation to seriousoffending. Balancing the above factors he did not consider exclusion to beproportionate to the impropriety and ruled the evidence admissible.The grounds of appeal[8] Mr Perston appeals on the grounds:(a) the Judge inappropriately limited the impropriety for the purposes ofthe s 30 analysis;(b) the Judge treated lack of bad faith on the part of the police as reducingthe seriousness of the breach rather than it simply being the absence ofan aggravating factor; and(c) the Judge placed insufficient weight on the level of incompetence andrecklessness by the police.[9] Overall the appellant submits the Judge was wrong to treat the nature of theevidence and the seriousness of the offending as outweighing the other relevantfactors.[10] Before the District Court Mr English had submitted that the following aspectsof the police conduct were unlawful:(a) the use of infra-red imaging from the Eagle helicopter on thedefendant's property prior to entry;(b) the police entry onto the property in large numbers;(c) the police remaining on the property and exceeding the implied licence;(d) the police search of the motorcycle and walk around the property priorto arrest;(e) the police arresting the defendant without good cause; and(f) the police unnecessarily entering the defendant's home for the purposesof arrest.[11] Mr English submitted the Judge made no finding in relation to points (a) and(d). He submitted there was no other effective remedy for the breach other thanexclusion and that it was important that defendants can see the law will protect themfrom unlawful police action. The evidence should be excluded.Crown position[12] The Crown accepts that the police breached the terms of their implied licenceto be on the property by waiting on it for other officers to arrive before effecting MrPerston's arrest. The Crown accept that the evidence was therefore improperlyobtained but submit the Judge was correct to rule the evidence as admissible.Consideration of relevant factorsImportance of the right breached and the seriousness of the intrusion[13] The Judge considered the right breached was important and the intrusionserious. Mr English makes the point that the case for exclusion is always strongerwhere a breach of the Bill of Rights Act has been found.2 In this case there was anunlawful search (and seizure) of Mr Perston's property.[14] The police had good reason to go to the address: first, because Mr Perston wasbailed to the address and he had breached a bail curfew condition. He could have beenarrested without warrant for that breach. The police would have been entitled to relyon the implied licence to go on to his property, and to arrest him for breach of bail. Asit eventuated, before Constable Shepherd could speak to him about that Mr Perston2 New Zealand Bill of Rights Act 1990, s 21; and Hamed v R [2011] NZSC 101, [2012] 2 NZLR305.left the property and then was subsequently tracked back to it having allegedlycommitted the further offence of dangerous driving. Again, the police had good reasonto go to Mr Perston's address. They were effectively drawn to the property havingbeen involved in one way or another with the pursuit. The unlawfulness of theiractions arose because the Judge found they stayed on the address after their impliedlicence had expired.[15] While for present purposes I accept Mr English's argument that the use of theinfra-red imaging, the number of police, the check of the exterior of the property, andthe lifting of the tarpaulin were all in breach of the implied licence to be on theproperty, and thus unlawful, none of those actions had any operative connection withthe discovery of the evidence. The police acted on the identification by ConstableShepherd to arrest Mr Perston. It was in the course of that arrest that Constable Hickssmelled the cannabis and invoked a warrantless search.[16] I consider the appellant also overstates the intrusion in this case. While therewere a number of police on the property they remained outside the dwelling at allrelevant times. They only entered the garage (which was open at all times) to arrestMr Perston.[17] As the Supreme Court accepted in Hamed v R there may be gradations of theexpectation of privacy even within a residential property.3 There will be lessexpectations of privacy in relation to the garden and the garages and outbuildings. MrEnglish noted the garage had a couch and other items, but it was still an open garage.[18] The appellant relies on the case of R v Balsley to submit that where in thecourse of acting in breach the police find evidence that would justify the search thes 30 analysis needs to take into account the subsequent search.4 While I accept thatprinciple, the facts of Balsley are quite different to the present case. The unlawfulsearch in Balsley was particularly intrusive. The police used a crowbar to force apadlock off the door of a garage and then proceeded through a number of rooms withinthe garage before finding the growing room. Acknowledging it was Mr Balsley's3 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207; and Hamed v R, above n 2, at [191].4 R v Balsley [2013] NZCA 258.garage rather than the house that was searched, the Court found it to be a moderatelyserious breach of Mr Balsley's rights.[19] In the present case the cannabis smell was noticeable when the police went intothe open garage. The cannabis and part of the methamphetamine were readily obviousin the garage while Mr Perston was in the course of being arrested. The search of thegarage then disclosed the firearms, other methamphetamine and other items in a boxin the garage. The other firearm and the stolen property were found in the house. Inmy judgment the breach and seriousness of the intrusion in this case was no more thanmoderately serious.The nature of the impropriety[20] The appellant submits that the Judge's finding of a lack of bad faith does notlessen the seriousness but rather it is simply a neutral factor rather than an aggravatingfactor. Section 30(3) provides that the Court may have regard to the nature of theimpropriety, in particular whether it was deliberate, reckless, or done in bad faith. Iaccept that the police actions were not done in bad faith. While they were deliberate,in that they stayed on the property, they did not deliberately decide to act unlawfully.The Judge found they were incompetent.Nature and quality of the evidence[21] The material evidence found is real evidence. It is physical evidence. It issignificant and compelling evidence of criminal activity.Seriousness of the offending[22] The offending is drug offending and drug offending associated with threefirearms. A substantial amount of methamphetamine, in excess of 237 grams in totalwas found. Class A drug offending is serious offending particularly when combinedwith the presence of firearms. The seriousness of the offending supports theadmission.Other investigative techniques[23] There were no investigatory techniques beyond those used that were practicallyavailable to police. They had no lawful alternative means to investigate the seriousoffending which effectively presented itself to them.Alternative remedy[24] There is no effective alternative remedy to the exclusion of the evidence.Urgency/danger[25] The impropriety was not necessary to avoid any apprehended physical dangerto the police or others. There was no particular urgency.General[26] I do not accept Mr English's submission that if the evidence is not excluded inthis case the integrity of the justice system will be affected because defendants willconsider there is no consequence when the police act unlawfully. Each case will bedetermined on its own facts. In an appropriate case the evidence will be excluded.However, this is not a case which requires the evidence to be excluded. The admissionof the evidence will not undermine the credibility of the criminal justice system oraffect public confidence in it.Summary[27] Having reviewed the various considerations and balanced them, like the JudgeI am satisfied that the considerations weighing against admission, the right breachedand the nature of the intrusion are outweighed by the seriousness of the allegedoffending and the value of the evidence in this case. The evidence was properlyadmissible.Result[28] The appeal is dismissed.Suppression[29] For fair trial reasons there will be a general suppression order until finaldisposition of trial.__________________________Venning J