TAIT v NEW ZEALAND POLICE [2022] NZHC 1482

TAIT v NEW ZEALAND POLICE [2022] NZHC 1482 [22 June 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-55[2022] NZHC 1482BETWEEN JORDAN JAMES TAITAppellantAND NEW ZEALAND POLICERespondentHearing: 22 June 2022Appearances: N Wham and M Starling for AppellantC Hallaway for RespondentJudgment: 22 June 2022ORAL JUDGMENT OF OSBORNE JThis judgment was delivered by me on 23 June 2022 at 3 pmRegistrar/Deputy RegistrarDate:Introduction[1] Jordan Tait was convicted of failing without reasonable excuse to assist aconstable exercising a search power when requested to do so1 by Judge Ruth after abrief Judge-alone trial.2 He appeals that conviction.The offence[2] The offence is created by s 178 Search and Surveillance Act 2012.[3] In particular, it is an offence to fail, without reasonable excuse, to assist aperson exercising a search power when requested to do so under s 130(1) of the Act.The issue at trial was whether the police were entitled to search Mr Tait and therebyrequire him to provide the PIN number to his phone. It was incumbent on theprosecution to demonstrate what circumstances empowered police to search Mr Tait.Background[4] Most of the facts were not in dispute. At around 9:30 am police executed asearch warrant at Mr Tait's home address in Bromley, Christchurch (the address). Thewarrant recorded there were reasonable grounds to suspect the offence of supplyingmethamphetamine had been or was being committed and there were reasonablegrounds to believe the search of the property would uncover evidential materialrelating to that offence. An appendix to the warrant indicated that evidential materialwas suspected to be methamphetamine itself; equipment, instruments, correspondenceand cash relating to the offence; cell phones, including SIM cards; and records,documents or correspondence held manually or electronically on any digital storagedevice.[5] The search was carried out by a police search team with assistance from thearmed offenders squad (AOS). AOS attended because of the assessed risk of theproperty and because methamphetamine was the subject of the search. The AOSvehicle was parked nose into the property such that it was partly inside the private1 Search and Surveillance Act 2012, s 178.2 Police v Tait [2022] NZDC 6077.property and partly on the council footpath, occupying the gate area. This was doneto prevent other vehicles entering the property. An armed AOS officer was situatedbeside the vehicle at the entrance to the address to deal with any persons approachingthe property.[6] After about an hour Mr Tait approached the property. He was detained by apolice constable and given his rights. His cell phone was seized under the warrant andhis PIN code required. Mr Tait refused to provide his PIN code. He was subsequentlyarrested. He explained he did not want to give his PIN code as he did not want peopleto think he had co-operated with police.[7] At trial the issue was whether the constable had authority to require Mr Taitprovide his PIN code. The warrant recorded constables were authorised:4.5 to detain any person at the address, for the purpose of determiningwhether there is any connection between that person and the object ofthe search, if that person: is at the place at the commencement of the search; or arrives at the place while the search is being carried out.(cl 4.5) (emphasis added)[8] The warrant also authorised constables:4.6 to search any person found at the place for the specified evidentialmaterial relating to the offence(s) under the Misuse of Drugs Act1975.(cl 4.6) (emphasis added)[9] Clause 4.5 mirrored s 118 of the Act, which states:118 Powers of detention incidental to powers to search places andvehicles(1) If any constable or other person, or a person assisting any constableor other person, exercises a search power in relation to a place orvehicle, that constable or other person may, for the purposes ofdetermining whether there is any connection between a person at theplace or in or on the vehicle and the object of the search, detain anyperson—(a) who is at the place or in or on the vehicle at thecommencement of the search; or(b) who arrives at the place or stops at, or enters, or tries to enter,the vehicle while the search is being carried out.(2) A person may be detained under subsection (1) for any period that isreasonable, but not for longer than the duration of the search.(3) A detention of any person commences under subsection (1) when theconstable or other person exercising the search power directs thatperson to remain at the place or in or on the vehicle and ends whenthat person is told by the constable or other person, or a personassisting the constable or other person, exercising the search powerthat he or she is free to leave the place or vehicle.(emphasis added)[10] The commentary in Adams on Criminal Law in relation to s 118 states:3SS118.03 "arrives at"The power to detain applies to anyone at the place when the searchcommences and to any person who "arrives at" the place during thesearch. Whether a person "arrives at" the place depends on thecircumstances. Proximity to the search scene will be significant anda connection with the place will be relevant. A person who knocks atthe front door of a house or apartment that is being searched could besaid to have arrived at the place. On the other hand, the power is lesslikely to extend to a person who enters the front gate of a property butdoes not approach the front door of the house that is being searched.A person who approaches the front gate of the property, and then turnsaway before entering, is unlikely to have "arrived at" the place.[11] Clause 4.6 is based on s 19 of the Act, which states:19 Search of persons in relation to Misuse of Drugs Act 1975offence search warrantsA constable may search any person found in or on a place or vehicle,in relation to which a search warrant is issued under section 6, if theoffence that was specified in the application for the search warrant isan offence against the Misuse of Drugs Act 1975.(emphasis added)3 Simon France (ed) Adams on Criminal Law: Rights and Powers (online ed, Thomson Reuters) at[SS118.03].[12] Clause 4.6 is not a direct mirroring of the s 19 wording, however, as thestatutory words "in or on a place" have been altered in the warrant to "at the place".[13] In the discussion which follows, the difference in wording between "at theplace" (s 118(1)(a) and in the warrant) and "in or on a place" (s 19) assumessignificance.Principles on appeal[14] Section 232 Criminal Procedure Act 2011 provides that the High Court mayallow an appeal against conviction only if satisfied the trial judge "erred in his or herassessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk the outcome of the trial was affected, or has resultedin an unfair trial.4 In this section, a trial includes a proceeding in which the appellantpleaded guilty.5District Court decision[15] The Judge exhaustively considered the evidence of the constable (the solewitness), including his response to the contention in cross-examination that Mr Taithad not crossed the boundary of the property. The Judge accepted it was not clearwhether he had done so. The Judge considered the focus of the case to be whetherMr Tait was required to have entered the property before he could become subject tothe search warrant. The question was whether it could be said Mr Tait had "arrivedat" the place at which the search was being undertaken.[16] The Judge considered the Adams commentary on s 118 of the Act set out at[10] above. He found the important aspects of that commentary were that whether aperson arrives "at" a place depends on the circumstances, and that proximity andconnection to the place will be relevant. The Judge determined the question was4 Criminal Procedure Act 2011, s 232(4).5 Section 232(5).whether Mr Tait could be said to have arrived at the place by stopping at, entering ortrying to enter that place.[17] The Judge determined the relevant place was the address rather than a specificdwelling on the property such as the house. The Judge found the reality was Mr Tait'sintention was to return to his house regardless of whether he actually set foot on theproperty or not. The Judge took that from the fact the constable said Mr Tait hadsomething of a determination about him and the fact Mr Tait questioned the officerwho stopped him about what was going on at the property. The Judge concluded thathad Mr Tait not been stopped by the armed officer he would have gone further into theproperty. The Judge also considered the fact Mr Tait was known to police as theoccupier of the property. The Judge was satisfied Mr Tait was proximate to theproperty.[18] The Judge accordingly determined Mr Tait was a person who arrived at theplace the search was being carried out and therefore that his refusal to provide his PINamounted to an offence.SubmissionsAppellant's submissions[19] Ms Wham, in submissions for Mr Tait, submitted police already knew Mr Tait'sidentity, his connection to the place being searched under the warrant and what helooked like before he walked to the address. She submitted they did not therefore needto further determine whether there was any connection between him and the object ofthe search nor detain him for such. She therefore maintained s 118 of the searchwarrant did not apply to Mr Tait.[20] Ms Wham submitted Mr Tait was not found in, on or at the address during thesearch. She submitted Mr Tait made himself known to police and was prevented fromentering the property after police had been on the property for nearly two hours.Ms Wham argued, as Mr Tait was not found, neither s 19 of the Act nor cl 4.6 of thewarrant could apply.[21] Ms Wham further argued that Mr Tait, even if he was found by police, was noton or in the address. She submitted real property has ascertained legal boundarieswhich are subject to only infrequent change. She submitted the warrant applied onlyto the space within the boundary of the address. Ms Wham submitted that extendingthe purview of search warrants beyond the boundaries of the places specified in themwould undermine judicial oversight over the search warrant process and the purposeof warrants themselves. She submitted certainty on the limits of a search power isdesirable.Respondent's submissions[22] Ms Hallaway, for the Crown, submitted the Judge's analysis was correct. Sheargued it would be nonsensical for police to have to allow a person full access to aproperty before their powers under the warrant to detain persons could be executed.Therefore, she submitted, the test must be concerned with the proximity of the personto the property as opposed to whether they are physically on the property. Shesubmitted the expression "in or on the place" and "at the place" are not significantlydifferent and on their plain meaning are largely interchangeable, with no materialdifference in meaning or application. Ms Hallaway submitted Mr Tait's connection tothe property was appropriately considered by the Judge. She submitted Mr Tait wassufficiently proximate to the address to be found in or on it.Analysis[23] In the District Court Mr Starling for the defendant took issue with someaspects of the prosecutions' disclosure and the way police had run the prosecution.These issues were considered by the Judge and are not pursued on this appeal.[24] The issue on this appeal is whether the Judge was incorrect to find that theconstable had power to conduct a search of Mr Tait. If they could not there has beena miscarriage of justice and the appeal ought to be allowed.[25] The Judge found the relevant power to have existed under s 118 of the Act.[26] Section 118 of the Act (mirrored in cl 4.5 of the warrant) on a plain readingempowers police to detain an individual for a defined purpose of establishing whetherthey are connected to the object of the search. It does not grant a power to search.The fact s 118 does not itself authorise a search does not appear to have been addressedat trial. Instead, following the Judge's conclusion Mr Tait was, in terms of s 118, aperson who arrived at the place while the search was being carried out, the Judgeconcluded his detention was pursuant to the search warrant. The Judge then stated hewas satisfied the constable explained to Mr Tait what would happen if he refused tocomply with the request for the PIN number and the charge was proved. That did notaddress the requirement for a validly executed power to search (as against a power todetain).[27] Given that, Ms Wham submitted it was instead the search power under s 19 ofthe Act (and cl 4.6 of the search warrant) that required consideration. Section 19 wouldhave empowered the constable to search Mr Tait if Mr Tait was a person found in oron the address. I note the search warrant recorded the constable was permitted tosearch a person found "at" the address, rather than "in or on" the address.[28] I refer also to a third provision — s 103(4)(m)(i) of the Act (relating to the formand content of a search warrant) — that section provides that where a search warrantrelates to offences under the Misuse of Drugs Act, the warrant must contain a statementthat "any person found in the place or vehicle may also be searched".[29] Thus, the statutory prerequisites are:(a) s 118 (power of detention) — that the person is at the place;(b) s 19 (power of search) — that the person is found in or on the place;(c) s 103 (content of warrant) — stating the person may be searched iffound in the place.[30] The constable's evidence was that, when he first spoke to Mr Tait, Mr Tait was"in the entrance of the driveway", "on the footpath but in the driveway" at the address.A police car was parked partly inside the property with the rear on the (council)footpath. Most of the vehicle was parked on the footpath. An armed police officerwas standing beside the car on the property boundary. The constable said, in responseto a question about Mr Tait's movements:A. He was determined. Walked straight up to the officer that was thereand spoke to him. I was reasonably close as you can see by the markings onthe map and I immediately approached him along with letting some otherofficers know that Mr Tait had arrived back at the address. He was only therefor a matter of seconds before I got to him and spoke to him.[31] Under cross-examination, the constable accepted he could not say whetherMr Tait had crossed the boundary into the property and that he could not be sure wherethe boundary to the property was. The following exchange is illustrative:Q. And do you accept that for him to have actually walked onto theproperty would have required him to walk, to get past an armed policeofficer whose only job at that point was to stop people walking ontothe property.A. I'm sorry, I can't answer that, because you're wanting a definitive linewhere the property is and all that sort of thing.Q. Yea.A. And like where is that. I can't answer that, I'm sorry.Q. But do you accept that the person who was standing on the boundaryof the property by the police car with a firearm Q his job at that point was to stop people entering the property. Sofor Mr Tait to have actually got onto the property, that officer wouldhave had to have not be doing his job?A Yeah.Q. But that person would now definitively at what point Mr Tait crossedwouldn't he, because he was right next to him?A. Not my evidence to give.[32] In re-examination the constable said Mr Tait had been within arm's length ofthe armed officer who was standing by the nose of the vehicle. The Constable alsoelaborated what he meant by his evidence that Mr Tait was "determined". He saidpeople can carry themselves in a determined manner or a passive manner and whatthat meant in terms of Mr Tait's demeanour was that he walked straight up to the policeofficer at the boundary.[33] The constable said he then asked Mr Tait to step out of the property and awayfrom the end of the cul-de-sac. When taking the cell phone, the Constable informedMr Tait that it was included in the search warrant.[34] There are two issues. First, was Mr Tait "found"? Ms Wham submits Mr Taitarrived outside the boundary and made himself known to police. It is perhaps arguableMr Tait was not found by police in the sense that they came across him, instead hecould be said to have found them. It appears there may be a distinction in the Actbetween powers that arise when someone is "found" as against when, someone"arrives", evidenced by the different wording in ss 19, 118 and 119. Mr Tait's situationmay most intuitively be viewed as an arrival. However, this is not Ms Wham's bestpoint. Ms Hallaway referred to case law in relation to the offence of being unlawfullyfound in an enclosed yard6 — the cases there focus on whether the offender is "seen,discovered or perceived by someone else to be on the premises".7[35] The second issue is whether Mr Tait was "in or on" the place or vehicle inrespect of which the warrant was issued. This is different wording to that triggeringthe detention power under s 118, which empowers police to detain a person who is "atthe place" or "arrives at the place". The natural meaning of "in or on", in relation toreal property, is within the defined boundaries of the property. "At the place", asreflected in the Adams commentary (at [10] above) covers broader circumstances. Itmay be inferred that the fact the warrant in relation to search stated "at the place"instead of "in the place" (as required by s 103) or "in or on the place" (as in s 19) mayhave misled the constable. In terms of the statute, the search power recorded in thewarrant was too broadly stated.[36] Section 118 is a broader section providing detention powers in relation to allwarrants. Section 19 is limited to suspected Misuse of Drugs Act offending. Apractical justification for the difference between powers to detain and search is that6 Summary Offences Act 1981, s 29(1)(b).7 See e.g. Palmer-Brown v Police [1985] 1 NZLR 365 (CA) at 368.the broader power to detain prevented Mr Tait fleeing the address once he becameaware police were searching it. Similarly, a broader power to detain gives effect to thepracticalities of policing by enabling police to manage occupants at the place orvehicle they are searching. These points address Ms Hallaway's arguments inopposition.[37] A useful comparison may be drawn with s 119(1)–(2) which provide:119 Powers of search by person who has power of arrest(1) If any person who may exercise a power of arrest is searching a placeor vehicle, he or she may search any person found at the place or in oron the vehicle, or who arrives at the place or stops at, or enters, or triesto enter or get onto the vehicle, if the person conducting the searchhas reasonable grounds to believe that evidential material that is theobject of the search is on that person.(2) If any person who may exercise a power of arrest is searching a placeor vehicle, he or she may search any person found at the place or in oron the vehicle, or who arrives at the place or stops at, or enters, or triesto enter or get into or onto the vehicle, if the person conducting thesearch—(a) has reasonable grounds to suspect that the person is inpossession of a dangerous item that poses a threat to safety;and(b) believes that immediate action is needed to address that threat.[38] The fact these powers (under both subsections) which allow police to search aperson who arrives at an address, are restricted by the threshold "reasonable groundsto believe" indicates the police are not intended to be able to rely on s 118 to searchany person they can detain. Similarly, the fact wider wording is used in s 119 ("at" asopposed to "in or on" and "arrives at" in addition to "found") indicates the power tosearch is intended to arise only when the specific prerequisites identified in that section— reasonable grounds for believing that a person possesses evidential material or adangerous item — are established.[39] Powers to search require clear definition. They are traditionally approachedon the principle that such powers should be construed strictly and narrowly as personalprivacy is at stake.8 Such powers operate in balance with the right to be secure againstunreasonable search and seizure and are necessarily a check on personal freedoms. Asidentified in the Adams commentary, s 19 is an otherwise broad power in that there isno requirement the constable has any grounds for suspicion before the power to searcharises.9 The only restriction is that it is a locational power arising after a warrant hasbeen issued.[40] The Judge found the prosecution had failed to prove Mr Tait crossed theboundary of the property. As Mr Tait's presence in or on the property was necessaryto justify a search under s 19, the constable did not have a power of search under s 19.[41] It does not appear the constable purported to exercise any other power ofsearch. There may have been scope for a warrantless search power under s 88 of theAct. That section permits the warrantless search of an arrested or detained person ifthe searcher has reasonable grounds to believe there is anything on or carried by aperson who is arrested or detained that is evidential material relating to the offence inrespect of which they are detained. But the prosecution at the trial did not leadevidence to establish the requirement for a warrantless search.Conclusion[42] The constable was not exercising a lawful search power when Mr Tait wassearched. Therefore Mr Tait could not be convicted of the offence of failing to assist.A miscarriage of justice has occurred. The appeal will be allowed.[43] It would be appropriate that the Police review the drafting of their warrants incases such as this to ensure the wording conforms with the words used in theempowering sections of the Act.8 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at 914 citing Auckland Medical Aid Trust v Taylor [1975] 1 NZLR728 (CA) at 737 and 742; and Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [145].9 Simon France, above n 2, at [SS19.01].Orders[44] I order:(a) the appeal is allowed; and(b) the conviction on the charge under s 178 Search and Surveillance Act2012 is quashed.Osborne JSolicitors:Crown Solicitor, ChristchurchCopy to: M Starling, Barrister, Christchurch