WING v NEW ZEALAND POLICE [2022] NZHC 2126

WING v NEW ZEALAND POLICE [2022] NZHC 2126 [25 August 2022]IN THE HIGH COURT OF NEW ZEALANDMASTERTON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKAORIORI ROHECRI-2022-435-1[2022] NZHC 2126BETWEEN MATTHEW JOHN WINGAppellantAND NEW ZEALAND POLICERespondentHearing (by VMR): 23 August 2022Counsel: A Mobberley for the AppellantA Brosnan for the RespondentJudgment: 25 August 2022JUDGMENT OF GWYN JSummary[1] On 21 May 2020 Mr Matthew Wing was charged with cultivating a prohibitedplant (cannabis)1 and supplying a Class C controlled drug (cannabis).2 The chargeswere laid as a result of warrantless searches of the appellant's property, including anaerial search and a ground search.[2] The appellant sought an order under s 30 of the Criminal Disclosure Act 2008(Act) for disclosure of information relating to those searches, including the costs ofthe aerial search. The District Court denied the applications on the basis that theinformation sought was not relevant.3[3] Mr Wing now appeals that decision.1 Misuse of Drugs Act 1961, s 9 carries a maximum penalty of seven years' imprisonment.2 Section 7 carries a maximum penalty of three months' imprisonment and a fine of $500.3 Police v Wing [2022] NZDC 9316.Facts[4] New Zealand Police runs an annual cannabis and crime operation. For 2020,the operation, entitled "Operation Piano", began in the Wellington District. The firstphase included flying an aeroplane over rural areas to spot cannabis plantations. On11 February 2020, cannabis plants were identified growing on the appellant's propertyin South Wairarapa.[5] As a result, police entered the property to conduct a warrantless search underthe Search and Surveillance Act 2012 and located 14 well-tended and healthy cannabisplants on the property, including four budding ones. The police estimate the potentialyield of the plants would be 14 pounds, equivalent to $56,000. These facts constitutethe basis of the cultivation of cannabis charge.[6] The supply of cannabis charge arises from text messages between the appellantand an associate during the period 17 July to23 July 2019. The police allege that thetext messages show the appellant providing the associate with cannabis.[7] In explanation, the appellant told police that he suffered from tinnitus and hadbeen growing cannabis for personal use for two years to help with the condition.[8] The appellant has elected a Judge-alone trial which will be heard in theMasterton District Court. A trial date has not yet been set.District Court's decision[9] Prior to a pre-trial hearing on the admissibility of the evidence obtainedthrough warrantless searches, Mr Wing sought information under s 30:(a) Aircraft costs: the costs of chartering the fixed wing aircraft, the pilotand all incidental costs incurred by the police for Operation Piano from10-12 February 2020; and(b) Copies of the Warrantless Search Notifications4 in relation to searchescarried out during 10-12 February 2020 as part of Operation Piano.[10] The information was said to be relevant to the s 30 balancing exercise underthe Evidence Act 2006 (Evidence Act) for Mr Wing's challenge of the warrantlesssearches.[11] Judge Large, on 26 May 2022, in the Masterton District Court declinedMr Wing's application for disclosure on the basis that the information was notrelevant.[12] The Judge considered that the question he was required to determine waswhether the information sought was relevant to the lawfulness of the warrantlesssearches conducted on Mr Wing's property.[13] The Judge concluded that the cost of the police operation was not a relevantfactor for assessing the legality of the warrantless searches. The circumstances of thesearch decisions were explained by Detective Sergeant Van Woerkhom and cost wasnot mentioned as being a factor considered.[14] Similarly, the Judge did not consider that the Warrantless Search Notificationsfor searches conducted from 10-12 February 2020 would be relevant to assessing thespecific search conducted at Mr Wing's property. Each search would have been basedon the unique factual circumstances it presented and as perceived by the police officerat the relevant time. Those circumstances were not relevant to the decision to conducta warrantless search of Mr Wing's property.[15] Accordingly, neither set of information was relevant to the lawfulness of thesearches conducted on Mr Wing's property and the Judge declined to order disclosure.4 Warrantless Search Notifications are a mandatory reporting requirement for police officers whenthey invoke a warrantless search power: s 169 Search and Surveillance Act 2012.Grounds of appeal[16] Mr Wing appeals on the ground that Judge Large made an error of fact and lawby considering the relevance of the information sought only in relation to the groundsearch, and not to the aerial search. The relevance of the information sought relatesparticularly to the aerial search, which led to the subsequent ground search.[17] This is an appeal under s 33 of the Act.Leave to appeal out of time[18] First, the appellant seeks leave to appeal out of time. Counsel acknowledgesthat the delay in filing the appeal was counsel's fault. The Police oppose leave beinggranted, noting that the merits of the proposed appeal are a relevant consideration andthe District Court Judge has already held that the information sought lacks relevance.[19] The Police did not point to any prejudice arising from leave being granted.Unless the appeal was plainly devoid of merit – which it is not – the District Courtjudgment is not definitive of the question. I conclude it is in the interests of justice togrant leave to appeal out of time.SubmissionsFor the appellant[20] As to the substantive appeal, Ms Mobberley, for the appellant, submits that theDistrict Court Judge erred as a matter of fact and law by applying the test of relevanceto the wrong issue.[21] Counsel submits that the aircraft costs are directly relevant to whether thepolice knowingly decided to conduct an aerial search of Mr Wing's property, at theplanning stage of Operation Piano and before the aircraft flew over Mr Wing'sproperty. The Judge erred by assessing the relevance of the information solely inrelation to the subsequent ground search.[22] The appellant says that the aerial search was a 'search' for the purposes of theSearch and Surveillance Act and the New Zealand Bill of Rights Act 1990. And theaerial search is separate from the subsequent ground search conducted on Mr Wing'sproperty.[23] Ms Mobberley submits that the aircraft costs information would be relevant incross-examining police witnesses as to their failure to obtain a warrant to searchMr Wing's property when there is evidence to suggest that police suspected prior tothe flyover operation that Mr Wing was a person of interest. Counsel says that thecost of the flyover operation would have been a further consideration for the policewhen setting flight paths to ensure resources were being used efficiently. Counselsubmits that an inference can be drawn that it was not coincidental that the flight pathhappened to cover Mr Wing's remote property and the search was therefore unlawful.The police should have obtained a search warrant to lawfully conduct a search ofMr Wing's property when they suspected him of criminal conduct.[24] In support of the appellant's submissions Ms Mobberley referred to an emaildated 22 January 2020 from Sergeant Matheson to Detective Senior Sergeant Bysouth.The email is headed 'Op Piano – Fly over considerations: prepared by Sergeant TonyMATHESON ' (the POI email). Counsel says Sergeant Matheson is the police officerwho sits next to and directs the pilot where to fly on the flyover operation. DetectiveSenior Sergeant Bysouth was the officer in charge of Operation Piano in 2016 to 2020.The unredacted portion of the email sets out the appellant's details, including hisaddress. It appears from the shape of the redacted portions that they are likely to besimilar details in relation to other individuals.[25] Ms Mobberley says the email clearly indicates that the appellant was onSergeant Matheson's radar as at 22 January 2020, that is, three weeks before theflyover. The factors that went into determining the flightpath (including costs) andwhat was in contemplation for the overall search will plainly be a legitimate – indeednecessary – inquiry and line of cross-examination for the defendant.[26] Similarly, counsel submits that the information sought about the WarrantlessSearch Notifications was wrongly assessed for relevance to the ground search only.Instead, it was sought to establish the ongoing nature of the police practice of assumingwarrantless searches would take place during flyover drug recovery operations whensuch a practice had been ruled unlawful in Elley v Police.5 (While Ms Mobberley saysthe lawfulness of the aerial surveillance is not directly in issue in this pre-trial appeal,it will be at a later stage). Warrantless Search Notifications, which must set out thereason for the warrantless search, would help determine whether the unlawful practiceis continuing and was applied in the present case.[27] Counsel further submits that the information sought is relevant to the gravityof any breach of the Search and Surveillance Act and, therefore to the balancingexercise to be undertaken to determine the admissibility of the evidence under s 30 ofthe Evidence Act.[28] Finally, Ms Mobberley notes that the information sought is confined in scopeand can be readily retrieved by the Police. There are no confidentiality issues andundertakings will be provided.For the respondent[29] Mrs Brosnan, for the respondent, submits that Judge Large was correct infinding that the aircraft costs would not be relevant in assessing the lawfulness of thesearch of Mr Wing's property. Counsel submits that police witnesses can be cross-examined on their failure to obtain a search warrant for Mr Wing's property withoutdisclosure of the information sought.[30] On the issue of Warrantless Search Notifications, the respondent submits thatthe police have already disclosed the number of warrantless searches that took placeduring the operation and the number of warrants issued. Disclosing the informationsought would involve redacting the personal information contained in it. And it wouldbe of no relevance to the specific search that took place at Mr Wing's property.Further, the respondent says that it is not conceded that the aerial search constitutes a'search'.5 Elley v Police [2021] NZHC 2097.[31] The respondent submits that there is no real connection between theinformation sought and whether Operation Piano was a continuation of the practicedeemed unlawful in Elley v Police. The lawfulness of the search of Mr Wing'sproperty depended on the case-specific circumstances and these did not include theinformation being sought.Relevant law[32] The starting point for disclosure by a prosecutor is ss 13(1) and (2) of the Actwhich provide:13 Full disclosure(1) The prosecutor must disclose to the defendant the informationdescribed in subsection (2) as soon as is reasonably practicable aftera defendant has pleaded not guilty.(2) The information referred to in subsection (1) is—(a) any relevant information, including, without limitation, theinformation (standard information) described in subsection(3); and(b) a list of any relevant information that the prosecutor refusesunder section 15, 16, 17, or 18 to disclose to the defendanttogether with—(i) the reason for the refusal; and(ii) if the defendant so requests, the grounds in support ofthat reason, unless the giving of those grounds woulditself prejudice the interests protected by section 16,17, or 18 and (in the case of the interests protected bysection 18) there is no overriding public interest.[33] "Relevant information" is defined in s 8 as:8 Meaning of relevantIn this Act, relevant, in relation to information or an exhibit, meansinformation or an exhibit, as the case may be, that tends to support orrebut, or has a material bearing on, the case against the defendant.[34] The rationale for disclosure is the right to a fair trial so a defendant can fullyunderstand the case to be answered, and have access to information in the possessionof the prosecutor that may assist the defence.6 Full disclosure will help ensure that6 Hutton v R [2018] NZCA 419 at [27].proper procedures are followed by prosecuting bodies by disclosing the detail of theinvestigation to defence scrutiny. In R v Sullivan the High Court observed that theCrown is to approach its disclosure obligations not as an adversary to secure aconviction, but to ensure that justice is done.7[35] However, as the Act provides, there can be limitations to disclosure when othermore powerful matters in the public interest outweigh the disclosure obligation.Where there is such a competing interest a court will endeavour to balance thatcompeting interest fairly, and to remove or minimise any detriment to a defendantarising from limitations on disclosure. The principles of open justice and the right toreceive information in the New Zealand Bill of Rights Act 1990 point to disclosure.8[36] A prosecutor may withhold disclosure for a number of reasons, as set out ins 16, which provides:16 Reasons for withholding information(1) A prosecutor may withhold any information to which the defendantwould otherwise be entitled under this Act if—(a) disclosure of the information is likely to prejudice themaintenance of the law, including the prevention,investigation, and detection of offences; or(b) disclosure of the information is likely to endanger the safetyof any person; or(c) the information is—(i) material that is prepared by or for the prosecutor toassist the conduct of the hearing or trial; or(ii) a communication dealing with matters relating to theconduct of the prosecution and is between—(A) the prosecutor and another person employedby the same person or agency that employsthe prosecutor; or(B) the prosecutor and any adviser to theprosecutor; or(iii) analytical or evaluative material prepared, inconnection with an investigation that led to thedefendant being charged, by a person employed by aperson or agency for another person employed by thatperson or agency or for the prosecutor; or7 R v Sullivan [2014] NZHC 1105 at [34].8 New Zealand Bill of Rights Act 1990, ss 14 and 25(a); and see Attorney-General v OtahuhuDistrict Court [2001] 3 NZLR 740 (CA) at [41], recognising the importance of the rights in thatAct to disclosure.(d) the information is subject to sections 108 and 109 of theEvidence Act 2006 (which relates to information aboutundercover police officers); or(e) the information is subject to a pre-trial witness anonymityorder under section 110 of the Evidence Act 2006 or a witnessanonymity order under section 112 of the Evidence Act 2006;or(f) the information is subject to section 16 of the Victims RightsAct 2002 (which relates to information about witnesses'addresses); or(g) the disclosure of the information would be likely toprejudice—(i) the security or defence of New Zealand or theinternational relations of the Government of NewZealand; or(ii) the entrusting of information to the Government ofNew Zealand on a basis of confidence by thegovernment of any other country or any agency ofsuch a government or any international organisation;or(h) disclosure of the information would be likely to facilitate thecommission of another offence; or(i) disclosure of the information would constitute contempt ofcourt or contempt of the House of Representatives; or(j) the information could be withheld under any privilegeapplicable under the rules of evidence; or(k) disclosure of the information would be contrary to theprovisions of any other enactment; or(l) the information is publicly available and it is reasonablypracticable for the defendant to obtain the information fromanother source; or(m) the information has previously been made available to thedefendant; or(n) the information does not exist or cannot be found; or(o) the information—(i) reflects on the credibility of a witness who is not tobe called by the prosecutor to give evidence but whomay be called by the defendant to give evidence; and(ii) is not for any other reason relevant.(2) If part only of the information may be withheld, the prosecutor mustmake the remainder of the information available if it is possible toprotect the withheld information by deletion, summary, or otherwise.(3) If the prosecutor becomes aware that there has ceased to be anyjustification for withholding all or part of any information that hasbeen withheld under this Act, the prosecutor must, if the criminalproceedings have not yet been completed, disclose that information tothe defendant as soon as reasonably practicable.[37] Section 16 is subject to s 30:30 Court order for disclosure of information(1) The defendant may apply to the court for an order that a particularitem of information or type of information in the possession or controlof the prosecutor be disclosed on the grounds that—(a) the defendant is entitled to the information under section 12,13, or 14, as the case may be, and—(i) the prosecutor failed to disclose the information; or(ii) the prosecutor refused under section 14, 16, 17, or 18to disclose the information, and—(A) none of the reasons described in section 16,17, or 18 for which information could bewithheld applies to the information; or(B) in the case of a refusal under section 17, theinformation ought to have been disclosedunder section 17(3); or(C) in the case of a refusal under section 18, theinformation ought to have been disclosedunder section 18(2); or(b) even though the information may be withheld under this Act,the interests protected by the withholding of that informationare outweighed by other considerations that make it desirable,in the public interest, to disclose the information.(2) If the court is satisfied, on an application made under this section, thatthe defendant is entitled to the disclosure of any particular item ofinformation or type of information, or that any particular item ofinformation or type of information should be disclosed to thedefendant under subsection (1)(b), the court may order that the itemor type of information be disclosed to the defendant.(3) An order made under this section may be made subject to anyconditions that the court considers appropriate.[38] Under s 30(2) the court must be "satisfied" that the applicant is entitled todisclosure before it will make an order that a document be disclosed. In consideringwhether it is "satisfied", the court will take into account the context in which ss 16 and30 arise, including the purpose of the Act to promote fair, effective, and efficientdisclosure of relevant information, as well as the right to receive information. Incarrying out the balancing, the purpose of the proposed disclosure, and its potentialhelpfulness to the defence as best that can be discerned, will be relevant to assessingthe public interest.99 Hutton v R, above n 6, at [35].[39] The court retains a residual discretion to decline to order disclosure even ifnone of the withholding grounds apply. The discretion should, however, be exercisedcautiously.10Analysis[40] The issue is whether the information sought is relevant to the lawfulness of thewarrantless searches conducted of Mr Wing's property. The lawfulness of theparticular searches will be determined in the context of the broader Operation Piano.[41] The POI email indicates that the police considered Mr Wing to be a person ofinterest prior to the flyover and the aerial surveillance of his property. I accept thatinformation about the planning of the overall operation is information that is necessaryfor the conduct of the defence. Information about the costs of the operation may belinked to the determination of the flight path for the flyover.[42] Similarly, the information sought from the Warrantless Search Notificationsmay be relevant to the broader question of how the police determined that warrantlesssearches were appropriate and lawful. Under s 169(3)(a) of the Search andSurveillance Act, the notifications must provide a short summary of the circumstancessurrounding the particular search. Ms Mobberley says the reasons given will berelevant to the broader question of the lawfulness of the overall operation.[43] The prosecution has not provided any compelling reason for refusingdisclosure. No s 16 factors are raised. In contrast, in Hutton v R, the reasons for non-disclosure included compromising an important investigative tool and compromisingongoing and future investigations.11 Here, the only reason police cite in theiropposition to disclosure is that making the information available to Mr Wing wouldinvolve having to redact the personal information of others who were subject towarrantless searches. Ms Mobberley confirmed at the hearing of the appeal that shesought this information only for 11 February 2020. This is not an onerous obligation.10 Tarrant v R [2019] NZHC 2187 at [11]-[13].11 Hutton v R, above n 6, at [52].[44] In conclusion, I am satisfied that the appellant has established a sufficient basisfor the relevance of the information sought. A convincing case is not made out forwithholding the information. I am not satisfied that the interests of withholding theinformation outweigh other considerations that make it desirable, in the public interest,to disclose the information.12 Even if I had concluded that the competingconsiderations weighing for and against disclosure in the public interest were evenlybalanced, I would have upheld the appeal. In that situation the information should bereleased unless there is good reason to withhold it.13Result[45] Leave to appeal is granted.[46] The appeal is allowed and I make an order for disclosure in the followingterms:(a) Aircraft costs: the costs of chartering the fixed wing aircraft, the pilotand all incidental costs incurred by the police for Operation Piano from10-12 February 2020; and(b) Copies of the Warrantless Search Notifications in relation to searchescarried out on 11 February 2020 as part of Operation Piano.Gwyn JSolicitors:Crown Solicitor, WellingtonCopy to:A Mobberley, Masterton12 Criminal Disclosure Act, s 30(1)(b).13 Liev v R [2017] NZHC 1352 at [43], citing Kelsey v Minister of Trade [2015] NZHC 2497.