KHALIFA v NEW ZEALAND POLICE [2021] NZHC 746

KHALIFA v NEW ZEALAND POLICE [2021] NZHC 746 [1 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-554[2021] NZHC 746BETWEEN MOHAMED KHALIFAAppellantAND NEW ZEALAND POLICERespondentHearing: 22 March 2020Counsel: A Kashyap for appellantK Fitzgibbon for respondentJudgment: 1 April 2021JUDGMENT OF KATZ J[Appeal against conviction]This judgment was delivered by me on 1April 2021 at 4:00 pmRegistrar/Deputy RegistrarSolicitors: Meredith Connell, Office of the Crown Solicitor, AucklandCounsel: A Kashyap Law, AucklandIntroduction[1] On the evening of 2 April 2020, police were called to an altercation betweentwo of Mohamed Khalifa's flatmates. While at the address they undertook awarrantless search of Mr Khalifa's bedroom. During that search the police locatedapproximately 200 grams of cannabis plant material (separated into clear plastic bagswhich were found throughout the room), a small set of scales, and numerous emptyclear zip lock bags.[2] Following a Judge-alone trial, Judge D F Clarkson found Mr Khalifa guilty ofpossessing cannabis for the purpose of sale.1 Mr Khalifa appeals his conviction on thebasis that the search of his bedroom was unlawful, and that the evidence found thereshould not have been admitted.[3] The issues raised by Mr Khalifa's appeal are:(a) whether Constable Allsop had reasonable grounds to believe that therewas a controlled drug in Mr Khalifa's bedroom, prior to entering theroom;(b) whether Constable Allsop had reasonable grounds to believe thatMr Khalifa would destroy, conceal, alter or damage evidence if a searchwas not carried out immediately; and(c) whether Constable Allsop had reasonable grounds to believe that it wasnot practicable to obtain a warrant, prior to searching Mr Khalifa'sroom.District Court decision[4] Judge Clarkson found Mr Khalifa guilty of possessing approximately200 grams of cannabis for the purpose of sale.2 The sole issue at the trial was the1 Police v Khalifa [2020] NZDC 26429.2 At [31].legality of the warrantless search of Mr Khalifa's bedroom, and therefore the legalityof the evidence obtained in that search.3[5] The Judge referred to the "warrant preference rule" (as described by Cull J inSmith v Police).4 However, having regard to the warrantless search powers underss 8 and 20 of the Search and Surveillance Act 2012 ("the Act"), the Judge found thatthe search fell within the practical realities exception to the warrant preference rule.[6] In any event, even if she were wrong in that conclusion, the Judge determinedthat the evidence would have been admissible under the balancing test in s 30 of theEvidence Act 2006. If there was any impropriety it was an of "extremely minornature."5 It would therefore be disproportionate to exclude "what is effectively theentire prosecution case" as a consequence.6Relevant legal principles[7] The search of Mr Khalifa's bedroom was conducted pursuant to the warrantlesssearch power prescribed by s 20 of the Act. Section 20 relevantly 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 warrant if he orshe has reasonable grounds—(a) to believe that it is not practicable to obtain a warrant and that in or onthe place or vehicle there is—(iii) a controlled drug specified or described in Part 1 of Schedule3 of the Misuse of Drugs Act 1975; or(b) to suspect that in or on the place or vehicle an offence against theMisuse of Drugs Act 1975 has been committed, or is being committed,or is about to be committed, in respect of that controlled drug orprecursor substance; and3 At [3].4 See Smith v Police [2019] NZHC 2371 at [25]-[31].5 Police v Khalifa [2020] NZDC 26429 at [30].6 At [30].(c) to believe 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.[8] The "warrant preference rule" or "warrant principle" underpins the Act. Thelearned authors of Adams on Criminal Law describe the warrant preference rule asfollows:7The principle underpinning the powers contained in [the Act] is that a searchfor law enforcement purposes of any place, vehicle or thing that wouldotherwise be prohibited by law or impact on a reasonable expectation ofprivacy should, in the absence of exceptional circumstances recognised bystatute, be authorised beforehand by way of a warrant issued by anindependent officer acting judicially.[9] Accordingly, if it is possible to obtain a warrant without prejudicing thepurpose of a search, a warrant is to be preferred even when a warrantless power isavailable.8[10] In SF v R the Court of Appeal described the "warrant preference rule" as bestpractice.9 Subsequently, in Kalekale v R the Court of Appeal (while acknowledgingthe comments in SF v R) emphasised that although the warrant preference rule is bestpractice where it can be followed, a "realistic and practical approach is, however,required."10 The decision whether it is practicable to obtain a search warrant musthave regard to the realities of policing in the circumstances.11[11] The warrant preference principle is reinforced and strengthened by s 117 of theAct, which provides for a scene to be secured while a warrant is being applied for andpending. Special powers are conferred on police officers who have reasonablegrounds to believe that evidential material may be destroyed, concealed, altered,damaged or removed before a search warrant is issued.7 Simon France (ed) Adams on Criminal Law – Rights and Powers (online looseleaf ed, ThomsonReuters) at [SS6.01].8 See Smith v Police [2019] NZHC 2371 at [25]; R v Williams [2007] NZCA 52, [2007] 3 NZLR207, (2007) 23 CRNZ 1 (CA) at [24]; and R v Laugalis (1993) 10 CRNZ 350 (CA) at 355-356.9 SF v R [2014] NZCA 313 at [46].10 Kalekale v R [2016] NZCA 259 at [44]-[45].11 R v Dobson [2008] NZCA 359 at [38]; and McGarrett v R [2017] NZCA 204 at [24].Did Constable Allsop have reasonable grounds to believe that there was acontrolled drug in Mr Khalifa's bedroom?[12] As set out above, s 20 requires a police officer to have reasonable grounds tobelieve that there is a controlled drug in a place prior to undertaking a warrantlesssearch. Constable Allsop's reasonable grounds to believe were based on his evidencethat he saw a cannabis plant in Mr Khalifa's room, while looking into the room froman adjacent courtyard.[13] Mr Kashyap submitted that Constable Allsop's evidence on this issue shouldhave been rejected by the Judge because it was inconsistent with the evidence ofanother police witness, Constable Rowe.[14] Mr Khalifa's bedroom opened directly onto an adjacent outside courtyard, viatwo glass French doors. Constable Allsopp's evidence-in-chief at trial was that:A. I was standing directly in the centre of the door, I could see the wholeview of the whole room from right to left and I could see both walls fromwhere I was standing. Both doors were open and the light was switched on soI could see clearly from where I was.Q. And what did you do next?A. From there, I saw the hydroponic set up which is the set of like ultravioletlights which sat directly over a plant which I believed to be cannabis and fromthere, I informed Mr Khalifa that under the Search and Surveillance Act 2012,I was now intending to search the property for drugs and then from there, readhim his Bill of Rights.[15] Under cross-examination, Constable Allsop said that Mr Khalifa was standingin the middle of the doors, about five metres out from them when he arrived. The lightwas on in the room. He denied that he could only see the right-hand side of the room,not the left-hand side (where the cannabis plant was located). Constable Allsop saidthat from where he was standing, he could see both the right-hand wall and theleft-hand wall. He said that he could see inside the room clearly as he was standingoutside in a dark space and looking into a well-lit room, with the cannabis plant lit upby hydroponic lights.[16] Constable Allsop was shown a photo taken by Constable Rowe from thecourtyard outside Mr Khalifa's bedroom. Constable Allsop confirmed that nodrugs were visible in that photo as it was "taken from a completely different angle"(to the left of the doors) whereas he had been "standing directly in front of the doors".[17] Constable Rowe also gave evidence. He confirmed that he had not seen anydrugs when standing in the courtyard outside Mr Khalifa's bedroom because he wasstanding to the left of the bedroom door.[18] There is no inconsistency between the evidence of Constable Rowe andConstable Allsop on this issue. Rather, the two officers had a view into the room fromentirely different vantage points. Because Constable Rowe was standing to the left ofthe French doors, he was looking across to the right-hand side of the room. Thecannabis plant, however, was on the left-hand side of the room. Constable Allsop, onthe other hand, was standing in a central position directly in front of the doors and hada view to both sides of the room. He was therefore able to see the cannabis plant(illuminated by hydroponic lighting) on the left-hand side of the room.[19] There was accordingly no basis for the Judge to conclude that the evidence ofConstable Allsop and Constable Rowe on this issue was conflicting, and thatConstable Allsop's evidence should be rejected as a result.[20] I further note that the evidence of both Constable Rowe and Constable Pintowas that Constable Allsop told them, while they were standing in the courtyard, thathe had seen cannabis in Mr Khalifa's room and was going to invoke the police'swarrantless search powers. This further corroborates Constable Allsop's evidence thathe had seen the cannabis plant prior to entering Mr Khalifa's room.Did Constable Allsop have reasonable grounds to believe (a) that it was notpracticable to obtain a warrant to search Mr Khalifa's bedroom; and (b) thatMr Khalifa would destroy, conceal, alter or damage evidence if a search was notcarried out immediately?[21] I will deal with these two interrelated appeal grounds together.[22] The warrant preference rule is reflected in the requirement in s 20 of the Actthat before undertaking a warrantless search pursuant to that section, the officer musthave reasonable grounds to believe that it is not practicable to obtain a warrant.Section 20 also requires that the officer must have reasonable grounds to believe thatif the entry and search is not carried out immediately, evidential material relating tothe suspected offence will be destroyed, concealed, altered, or damaged.[23] Mr Kashyap submitted that Constable Allsopp did not have reasonable groundsto believe that it was not practicable to obtain a search warrant. On the contrary, awarrant could have been obtained over the telephone or electronically (despite the factthat Constable Allsop was not aware of this possibility). Mr Kashyap furthersubmitted that the scene could have been secured pending the outcome of anapplication for a search warrant. There were therefore no exigent circumstances thatjustified a warrantless search.[24] As noted above, a realistic and practical approach that has regard to the realitiesof policing in all the circumstances must be taken. Here, those circumstances includedthat the police were lawfully on the property for entirely unrelated reasons. They hadbeen called to a domestic disturbance or altercation between the occupants of theaddress. Mr Khalifa was the first occupant they spoke to, so they had yet to engagewith the other occupants, who were in the main part of the house. Clearly, the policedid not yet know the precise details of the incident they were attending, the extent towhich violence may or may not have been involved, whether any of the occupantswere armed (or had access to arms), whether tensions were still running high, and soon.[25] The situation the officers walked into was therefore unknown, potentially fastmoving, and unpredictable. It was at night (shortly after 10.15 pm) and, as it wasoutside ordinary working hours, the nearest Court would be closed. As a result,obtaining a search warrant would likely not be straightforward. The process wouldlikely involve police staff having to prepare documentation (unless the application wasto be made entirely orally), and then contact court staff at home. The court staff wouldthen need to contact a Judge at his or her home and arrange to send through the relevantdocumentation, or schedule a teleconference, and so on. By this time, it would likelybe 11.00 pm or later. Meanwhile, matters at the scene could have escalated or thepolice staff there could have been called to deal with urgent matters elsewhere.[26] The context also includes that Mr Khalifa knew that there was cannabis andassociated paraphernalia located in his bedroom (as he later admitted). Given theunknown and dynamic situation, there was clearly a risk that the cannabis plant seenby Constable Allsop could be removed or destroyed, particularly if police resourceshad to be rapidly deployed elsewhere, either on the property or elsewhere. There waspresumably internal access to Mr Khalifa's bedroom as well as external access, andMr Khalifa was not the only person at the property who could have taken steps toremove or destroy evidence. Others were also present at the address.[27] Given the circumstances I have outlined, and taking into account the practicalrealities of policing, in my view Constable Allsop had reasonable grounds to believe(a) that it was not practicable to obtain a warrant to search Mr Khalifa's bedroom; and(b) that the evidence would be destroyed, concealed, or damaged if a search was notcarried out immediately.[28] The Judge did not therefore err in finding the warrantless search to be justified.It necessarily follows that the appeal must fail.Result[29] The appeal is dismissed.____________________________Katz J