BIRKINSHAW v R [2016] NZCA 220

BIRKINSHAW v R [2016] NZCA 220 [24 May 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: ORDER MADE DURING THE HEARING SUPPRESSINGSUBMISSIONS AND THE UNREDACTED SEARCH WARRANTAPPLICATION REMAINS IN FORCE.NOTE: ORDER MADE DURING THE HEARING THAT THE COURT FILEIS NOT TO BE SEARCHED, COPIED OR INSPECTED WITHOUT THEPRIOR LEAVE OF A JUDGE REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA558/2015[2016] NZCA 220BETWEEN KATHERINE JANE BIRKINSHAWAppellantAND THE QUEENRespondentHearing: 3 May 2016 (further submissions 16 May 2016)Court: Wild, Courtney and Gilbert JJCounsel: C B Wilkinson-Smith for AppellantD J Boldt for RespondentO S Winter as amicusJudgment: 24 May 2016 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application for leave to appeal is granted.C The appeal is dismissed.D The Judge's ruling that the improperly obtained evidence of the 39 g ofmethamphetamine found concealed in the appellant's clothing is admissible in her trial is upheld.E Order prohibiting publication of the judgment and any part of the proceeding (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 law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Introduction[1] Ms Birkinshaw faces five charges: four of receiving stolen property and one of possession of methamphetamine for supply. This appeal concerns the admissibility, on the methamphetamine charge, of evidence that the police found 39 g of methamphetamine concealed in the appellant's bra when they strip-searched her while unlawfully detaining her in her own home.[2] In the Palmerston North District Court Judge Crosbie concluded:1(a) "By a narrow margin", that the search warrant was valid.2(b) The appellant was subjected to an unreasonable search because the police had arbitrarily detained her.31 R v Birkinshaw [2015] NZDC 16825.2 At [6].3 At [8]. Having brought the present appeal, Ms Birkinshaw sought to adduce further evidence in this Court on the detention issue. Wild J issued a minute stating that the matter should be reconsidered by the District Court in the light of this new evidence. Having heard that evidence, which came from the police officers involved in the search, Judge Crosbie issued a supplementary judgment confirming his finding that Ms Birkinshaw was unlawfully detained in terms of s 22 of the New Zealand Bill of Rights Act 1990 at the time she was strip-searched: R v Birkinshaw [2015] NZDC 24425.(c) Having conducted the balancing exercise required by s 30(2) of the Evidence Act 2006, that the improperly obtained evidence of thefinding of the methamphetamine was admissible in the appellant'strial.4[3] The issue Ms B brought on appeal to this Court was whether the Judge had erred in admitting the evidence upon the s 30 balancing exercise.[4] At the hearing of the appeal the Court raised with counsel a fresh concern asto the lawfulness of the search warrant. We say "fresh", because our concern wasone that had not been aired before the Judge.[5] We now have the benefit of submissions on the fresh concern we raised, from Mr Boldt for the Crown and Mr Winter as amicus.[6] Mr Winter was appointed amicus because the application for the search warrant was based largely on information privileged under s 64 of the Evidence Act so counsel for Ms Birkinshaw was not permitted to see it. For that reason, Mr Winter has presented, and very competently, submissions to the effect the search warrant ought not to have been granted, with the result that the search of theappellant's home was unlawful. We are grateful to Mr Winter for his assistance.[7] Ms B filed her application for leave to appeal this pre-trial ruling one day out of time. Given the delay is minimal and the Crown does not oppose an extension of time, we grant one. We also grant Ms Birkinshaw leave to appeal pursuant to s 217(2)(b) of the Criminal Procedure Act 2011.BackgroundA burglary[8] In the early hours of 23 April 2014 a Palmerston North motor vehicle dealership was burgled by three men. After disabling the CCTV cameras, they broke into the show room and office. Amongst approximately $110,000 worth of property4 R v Birkinshaw, above n 1, at [9].stolen, were three Mitsubishi Lancer EVO1 cars, various vehicle parts and accessories and keys to other vehicles displayed on the car yard. By 28 April one of these cars had been found burnt out and another returned.The search warrant[9] On 19 May the police obtained a search warrant to search 27 Worcester St, West End, Palmerston North. A Mr Danklof lived in the house at that address with his partner, the appellant. As we have said, the application for that warrant was based largely on privileged informer information about Mr Danklof and his connection with the burglary. The applicant police officer stated he had reasonable grounds to believe the search would find evidential material in respect of the third car and car parts associated with it.The search[10] A team of seven police officers executed the search warrant shortly after 10 am on 21 May. At home were Mr Danklof, Ms Birkinshaw, and Ms Birkinshaw's19 year old son. The three occupants were directed into the lounge and told they were detained for the purpose of a search warrant and informed of their right to remain silent and to speak to a lawyer. The police then asked the occupants about the four vehicles parked on the property. Ms Birkinshaw said they were all hers.[11] What ensued is conveniently chronicled in tabular form:Time Event10.52 am The police advise Ms Birkinshaw (still detained in the lounge) that they have found property from another commercial burglary, and were invoking their power to search for other stolen property. A significant quantity of stolen property and two bags containing a total of $86,000 in cash were then located.11 am Having been told the police had found stolen property, Ms Birkinshaw telephones her lawyer (she does this from the lounge, using her cellphone).Shortly before 12 noon The occupants advise the police that someone needs totake a school lunch to one of Mr Danklof's children.Although there was a conflict of evidence, it seems thepolice left it to the occupants to decide who would dothis lunch run. Mr Danklof left with the lunch and didnot return. (Mr Boldt advised us that he was locatedsome three weeks later hiding under a bed in a propertyin Turangi with the stolen Mitsubishi Lancer EVO1parked on the lawn outside).Shortly before 12.30 pm Police locate a methamphetamine pipe and a point bagin the master bedroom.12.30 pm Ms Birkinshaw tells the police she needs to use thebathroom. She is informed she can do that, but that thepolice were invoking their power to conduct awarrantless search for drugs and Ms Birkinshaw wouldneed to undergo a strip-search before she could use thebathroom. A female constable was detailed to do this.12.34 pm Constable Robson, having searched the appellant,hands Detective Sergeant Ross a plastic bag with twowhite containers she had taken from Ms Birkinshawbefore allowing her to use the toilet. (The contentswere subsequently analysed as being 39 g ofmethamphetamine.)12.49 pm The police find a set of small electronic scales withtraces of methamphetamine in the appellant's handbag.1.09 pm The appellant is arrested and charged with receiving.She leaves the house in police custody.Approximately 1.24 pm The police complete the search and leave 27 WorcesterSt.Lawfulness of the search warrant[12] As we have said, most of the information in the application for the warrant is privileged. This part of the judgment therefore needs to be expressed in general terms.[13] What concerned the Court is that one passage in Judge Crosbie's judgment(one of the passages redacted from the publicly available decision) is factually incorrect. The concern the Court raised at the hearing stemmed from this, and turned on the adequacy of the privileged information that primarily founded the application for the search warrant.[14] As the Judge pointed out, the police supplemented the privileged information with other information. Such information has obvious relevance when consideringthe adequacy of an application for a search warrant.5 In summary, the supplementary information was:(a) On 6 May the police had stopped a Mitsubishi Libero car outside 27 Worcester St. The driver, a Mr Johnson, had criminal convictions including for stealing a motor vehicle and for receiving a motor vehicle. Mr Johnson claimed the car belonged to a friend whom he refused to name. The registration label on the windscreen differed from the registration plate and the chassis number had been altered. At that point Ms Birkinshaw came out of the house and told the police she had purchased the car for $3,000.(b) When the police drove past 27 Worcester St on 9 May, they noted a garage at the end of the driveway capable of storing a motor vehicle. There was access to the garage past vehicles parked on the property.(c) Details of Mr Danklof's prior convictions and gang associations.[15] We have considered the application for the search warrant (both the privileged informer information and the supplementary information just summarised), the Judge's full (unredacted) decision and the submissionsMessrs Boldt and Winter have made to us, including their further written submissions in response to the concern raised by the Court. We have been mindful of the care and caution with which informer information needs to be treated.6Consistent with the approach this Court took in Warner v R, we have attempted to take a realistic, overall view of the adequacy of the search warrant application. Weare referring to the Court's statement in Warner:7Reasonable grounds are to be looked at in all the circumstances and in a common sense way. The enquiry is a broad and global enquiry.[16] In the result, we are satisfied it was open to the Judge to hold that the search warrant was valid. We agree with the Judge that this case comes close to the margin5 See Warner v R [2011] NZCA 258 at [23]; and R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [218].6 See R v Williams, above n 5, at [216]–[217].7 Warner v R, above n 5, at [23].in terms of the adequacy of the search warrant application. But the application didprovide information sufficient for the Judge to hold there were "reasonable grounds"for the police to suspect Mr Danklof had received the unrecovered Mitsubishi Lancer EVO1 car and/or car parts stolen in the burglary, and to believe that a search of 27 Worcester St will find evidential material in respect of that receiving.The balancing exercise[17] The strip-search of the appellant while she was unlawfully detained was unreasonable. As set out above, Judge Crosbie held the evidence of the finding of the methamphetamine, although improperly obtained, was admissible under s 30 of the Evidence Act. The most convenient way of reviewing the correctness of the balancing exercise undertaken by the Judge is to work through, in turn, each of the matters listed in s 30(3) of the Evidence Act that have relevance here. In respect ofeach we will state the Judge's view, summarise the submissions made to us and then state our own conclusion.The importance of any right breached by the impropriety and the seriousness of the intrusion on it (s 30(3)(a))[18] Judge Crosbie considered the breach of s 21 (unreasonable search and seizure) of the New Zealand Bill of Rights Act 1990 "was of a particularly high level".8 He noted this Court's observation in Williams that "[t]he highest expectationof privacy relates to searches of the person and particularly intimate searches, such as strip-searches".9 The Judge held the strip-search of Ms Birkinshaw combined with the duration of her detention (some two and a half hours) weighed against admission of the evidence gained in the search.[19] The Crown's position in the District Court is unclear. But, before us,Mr Boldt readily accepted Ms Birkinshaw's rights under s 21 and s 22 (liberty of theperson) of the New Zealand Bill of Rights Act had been breached.8 R v Birkinshaw, above n 1, at [45].9 At [47], citing R v Williams, above n 5, at [113].[20] On the other hand, Mr Boldt is right to emphasise what actually happened. Section 118(1) and (2) of the Search and Surveillance Act 2012 empowered the searching police to detain each of the three occupants of 27 Worcester St:(1) for the purposes of determining whether there is any connection between [that person] and the object of the search:(2) for any period that is reasonable, but not for longer than the duration of the search.[21] In the circumstances here, Mr Wilkinson-Smith did not challenge Mr Boldt'ssubmission that s 118 permitted the police to detain the three occupants for, say, 45 minutes. That is, until about 10.45 am. The mistake the police made was that they had not, by the end of that period, informed the three occupants that they were no longer detained, but were free to go. Section 118(3) relevantly provides:A detention of any person commences under subsection (1) when theconstable exercising the search power directs that person to remain at the place and ends when that person is told by the constable exercising the search power that she is free to leave the place. [22] Had the police done that, Mr Wilkinson-Smith accepted they could have properly invoked fresh search powers under the Search and Surveillance Act when they began locating stolen property, and then invoked still further search powers when they located drug paraphernalia. Those further powers would have extended to the strip-search of the appellant before she was permitted to use the bathroom.[23] It was the failure of the police to tell the three occupants by 10.45 am at thelatest that made the appellant's continued detention in the lounge unlawful and tainted her subsequent strip-search with unlawfulness.[24] There are two further points relating to the seriousness of the unlawful detention of the appellant. First, the unchallenged evidence of the police was that Ms Birkinshaw was unwell and spent the whole of the two hours during which she was unlawfully detained lying on the couch in the lounge. In evidence Ms Birkinshaw accepted "I was ill, I was lethargic, I was tired". When askedwhether she would have left had she been told she was free to go, Ms Birkinshaw didnot answer directly. She was similarly evasive when questioned as to why Mr Danklof, rather than she, did the lunch run. Mr Danklof was the suspect in respect of receiving items stolen in the 23 April car dealership burglary, not Ms Birkinshaw, so the fact he was able to leave was significant.[25] That leads in to the second point. As chronicled in [11] above, Mr Danklof left 27 Worcester St shortly before noon to do the lunch run. In evidence police witnesses and Mr Danklof all agreed the police expressed no view as to who should do the lunch run, leaving it to Mr Danklof and Ms Birkinshaw to decide. Mr Danklof asked Ms Birkinshaw if she wanted to go, but she did not. Had she wanted to do the lunch run, we are satisfied she would have been able to. Mr Danklof then left with the school lunch. That demonstrates that, by noon, the police were not in fact detaining the three occupants of 27 Worcester St. Rather, the unlawful detention of Ms Birkinshaw resulted from the failure of the police to understand, or adhere to, the requirements of s 118(3) of the Search and Surveillance Act: the need to give formal advice when a detention under that section comes to an end.[26] None of that cures the unlawfulness of the appellant's detention or of thestrip-search, but we consider it does put both in a less serious perspective.The nature of the impropriety, in particular whether it was deliberate, reckless or done in bad faith (s 30(3)(b))[27] Mr Wilkinson-Smith was right to submit that the Judge limited his consideration of this factor to the adequacy of the search warrant application. This was an error, he submitted, because the Judge had already found the search warrant was adequate so he should have considered the impropriety of the detention and strip-search. Mr Winter conceded before the Judge — and again before us — that the police had not acted recklessly or in bad faith in respect of the search warrant application.[28] Mr Wilkinson-Smith argued the police detention of the appellant for sometwo hours was "either deliberate or at least recklessly deceptive", aggravating theimpropriety. We do not accept that. We consider Mr Boldt was more accurate tocategorise it as a mistake or a misunderstanding on the part of the searching police as to the requirements of s 118 of the Search and Surveillance Act, in particular of s 118(3).The nature and quality of the improperly obtained evidence (s 30(3)(c))[29] The Judge recorded Mr Wilkinson-Smith as accepting the evidence was cogent, probative and reliable. That concession remains: Mr Wilkinson-Smithallowed the evidence "is credible and provides a strong case for the possession for supply charge".The seriousness of the offence with which the defendant is charged (s 30(3)(d))[30] Both before the Judge and before us Mr Wilkinson-Smith accepted that the offence was a serious one, but submitted the Judge had overstated this aspect byreferring to "the extreme seriousness with which drug offending is treated inNew Zealand".10 He submitted 39 g of methamphetamine would be in band two ofR v Fatu,11 he suggested with a sentencing starting point of five years imprisonment. Mr Boldt accepted this was Fatu band two offending. He pointed out 39 g of methamphetamine would have fetched "well over $30,000". Accordingly, we see no real error in the Judge's assessment: the appellant faces a serious charge of dealingin a Class A controlled drug.Any urgency in obtaining the improperly obtained evidence (s 30(3)(h))[31] This was not addressed by the Judge. Mr Wilkinson-Smith did not deal with it. Mr Boldt did. Regardless of what had gone before, he submitted, the police were confronted with an occupant of a bedroom in which drug paraphernalia had been found who wished to make an unsupervised trip to the bathroom. The risks associated with deciding not to search her there and then were obvious. We accept that.10 R v Birkingshaw, above n 1, at [52].11 R v Fatu [2006] 2 NZLR 72 (CA) at [34(b)].The other s 30(3) factors[32] With one exception, counsel agreed the factors listed in s 30(3)(e) (the availability of other investigatory techniques), s 30(3)(f) (alternative remedies to exclusion of the evidence) and s 30(3)(g) (whether the impropriety was necessary to avoid apprehended physical danger) had no application to this case. The exception is that Mr Winter submitted, in terms of s 30(3)(e), that there was no barrier preventing the police approaching the informer again to gather the detail he submitted was lacking from the search warrant application. That is a matter we have taken into consideration in assessing the lawfulness of the search of 27 Worcester St.Conclusion[33] We are unable to fault the Judge's conclusion on the s 30 balancing exercise.On the one hand, the police breached two fundamentally important rights the New Zealand Bill of Rights Act guaranteed to Ms Birkinshaw. However, those breaches occurred in the somewhat mitigating circumstances we have outlined. On the other hand, the improperly obtained evidence is cogent evidence of serious drug offending by Ms Birkinshaw. The Judge was entitled to hold that the balance weighed in favour of admitting the evidence. Or, to put the matter in terms of s 30(2), that exclusion of the evidence would be disproportionate to the impropriety on the part of the police.Result[34] The application for an extension of time to appeal is granted.[35] The application for leave to appeal is granted.[36] The appeal is dismissed.[37] The Judge's ruling that the improperly obtained evidence of the 39 g ofmethamphetamine found concealed in the appellant's clothing is admissible in hertrial is upheld.[38] For fair trial reasons, we make an order prohibiting publication of the judgment and any part of the proceeding (including the result) in news media or on the internet or other publicly available database until final disposition of Ms Birkinshaw's trial. Publication in a law report or law digest is permitted.Solicitors:Crown Law Office, Wellington for RespondentWinter Woods, Palmerston North for amicus