SWAIN v R CA120/2015 [2015] NZCA 216

SWAIN v R CA120/2015 [2015] NZCA 216 [5 June 2015]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.IN THE COURT OF APPEAL OF NEW ZEALANDCA120/2015[2015] NZCA 216BETWEEN NEIL RAYMOND SWAINAppellantAND THE QUEENRespondentHearing: 29 April 2015 (further submissions received8 May 2015)Court: French, Simon France and Clifford JJCounsel: O S Winter for AppellantP K Feltham for RespondentJudgment: 5 June 2015 at 12.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)Introduction[1] Mr Swain seeks to appeal a decision of Brown J in the High Court atPalmerston North ruling evidence located during the execution of a search warrant asadmissible.1 The warrant was issued, in part, on the basis of information obtainedduring the course of three prior entries onto Mr Swain's property. It is the legality ofthose prior entries that underpins the admissibility challenge.[2] Mr Swain faces charges of murder, possession of explosives and possession ofhazardous substances. A search of the back of a utility located in a shed on the propertyrevealed blood and human tissue from the deceased, a Mr Whetu Hansen. The utilityvehicle belonged to Mr Hansen. A search of Mr Swain's house revealed the otheritems that are the subject of charges.Background to searches2[3] On or about 26 November 2013, Detective Moffat received a call from aninformant advising him that Mr Hansen had been murdered at Mr Swain's address.An unusual feature of this information was that the same informant had givenDetective Moffat essentially the same information about 20 months earlier. On thatoccasion Detective Moffat was suspicious that someone was trying to expose theinformant. Accordingly, contrived inquiries designed to disguise any link to theinformant were made at Mr Swain's address. It seems that on that occasionMr Hansen was indeed at the address, but obviously alive and well.[4] On this occasion Detective Moffat was again suspicious of what was behindthe information. Accordingly, he did not act immediately on that information.However, further information was provided on 1 December and 2 December 2013.The additional information was that the informant had seen Mr Hansen's cell phones1 R v Swain [2015] NZHC 198.2 The following narrative is taken, in part, from R v Swain, above n 1, at [6]–[26].in the possession of Mr Swain, and also some jewellery (two gold rings allegedly takenfrom Mr Hansen), which he had been asked by Mr Swain to help sell.[5] The informant also said Mr Swain had asked him to assist with disposing ofthe body. This information bolstered credibility since the informant had previouslegitimate experience with dismembering bodies. The informant also advised that hehad been told the body was hidden under some carpet on the back of Mr Hansen's ownutility vehicle, which would be found on Mr Swain's property.[6] On 2 December Detective Moffat passed on the information to thePalmerston North police. There was some discussion on how to progress matters,given the false alarm 20 months earlier and the desire to protect the informant'sidentity (since disclosed). What was initiated was a two-prong strategy. A requestwas made of Whanganui police to check Mr Hansen's whereabouts, and officers weredispatched to Mr Swain's address to make disguised inquiries.[7] Concerning Mr Swain's property, four officers attended the scene. Twoinitially went onto the property and two remained nearby on the road in case assistanceproved necessary. The two officers knocked on a door of a flat located at the front ofthe property and spoke to an occupant. Meanwhile, the other two officers climbed agate and went a short distance onto the property before leaving. No buildings wereentered. The visit lasted 10 minutes.3[8] Meanwhile in Whanganui, a visit to Mr Hansen's address, which was a bailaddress, was unsuccessful. Mr Hansen was not there, and the address appeared to beunoccupied. Neighbours confirmed Mr Hansen had not been seen for some time. Theinvestigating officer then visited a different Whanganui address where it was believedMr Hansen might be residing. Again the occupants said they had not seen him. Oneoccupant expressed surprise because he owed Mr Hansen money and would haveexpected contact.3 In the High Court it was conceded that this search was covered by an implied licence. Mr Wintersought to resile from that but we do not consider it is appropriate to open that issue. Because ofthe concession, no findings of fact were made. Further, Mr Winter accepts even if illegal, it isonly of contextual relevance.[9] Mr Hansen was due in court the following day. An application was preparedfor breach of the residential bail condition if he did not appear. (There emerged someissue as to whether attendance on that day had been excused; accordingly, the basisfor the warrant was the breach of residential condition rather than not answering bail).The warrant was issued on 3 December and uplifted on 4 December. Inquiries werealso initiated to check if Mr Hansen had accessed his bank accounts, which he had not.Searches of 4 December and 5 December[10] What followed next were two searches of Mr Swain's property, purportedlydone pursuant to the warrantless search power contained in s 7 of the Search andSurveillance Act 2012 (the Act). The police were still at this point eschewing thepursuit of a warrant due to a degree of uncertainty as to whether Mr Hansen was deadand the desire to protect the informant. It was thought that execution of a searchwarrant would make it plain to Mr Swain what the source of the police informationwas, and the police were unsure as to whether the entire matter was a ruse.[11] Section 7 provides:7 Entry without warrant to arrest person unlawfully at largeA constable may enter a place or vehicle without warrant to search forand arrest a person if the constable has reasonable grounds—(a) to suspect that a person is unlawfully at large; and(b) to believe that the person is there.[12] The officer in charge of the investigation was away for two days. It wasaccordingly left to other officers to organise and conduct the first search on4 December. It seems there was a degree of ambivalence amongst the police as to theextent to which the circumstances authorised the search. So it was agreed the officerswould enter the property, call out for Mr Hansen, but not break into any buildings.[13] By way of explanation for this plan, it will be helpful to describe the property.At the road entrance there is a house. A driveway runs beside the house down to therear of the substantial property. Approximately opposite the house, on the other sideof the driveway, is another building referred to as a flat. Thereafter, on either side ofthe driveway, and at the back of the property, are nine buildings. Two further smallersheds are set back behind these. Some of the buildings are fairly described as sheds,but others are much larger and two of them would sustain the label of a hangar. So alltogether, counting the two residences, there are 12 buildings.[14] Returning to the first search on 4 December, the officers attended the propertyand walked around it calling for Mr Hansen. There was no reply. No buildings wereopened, but if already open, the officer would look inside. The search took 40 minutes.[15] The next day the officer in charge returned. He was dissatisfied with thethoroughness of the first search and instructed it to be undertaken again. There beingno initial answer to an inquiry at the residence, a thorough search of the entire propertywas then undertaken. During the course of the search the police received informationas to the registration number of Mr Hansen's utility. That vehicle was located in aback hangar. There was an overpowering smell of decay. Officers removed a coverto discover blood and other matters consistent with a body having previously beenthere. The search was then stopped and a warrant sought.[16] Concerning the police motivation through all this, it is a fair assessment to saythe police were unsure about whether they might find Mr Hansen there alive or deador not at all. All eventualities were covered in that police officers were strategicallypositioned to prevent anyone fleeing. Those officers involved relied on s 7 asauthorising the entries. Concerning the issue of a search warrant, the police gavethought to this but rejected it because they were unsure about Mr Hansen's status, andwere also concerned that searching in that manner would reveal that the informer wasthe source of their information. It was also believed s 7 was available.Judgment under appeal[17] Brown J concluded that the police had reasonable grounds to believe thatMr Hansen was at the address. His Honour analysed the various inquiries that hadbeen made and the information obtained from the informant, and was satisfied thestandard of reasonable belief was met by a wide margin. He accepted the priorinaccurate informant advice of 2012 told against the Crown case, but noted thatMr Hansen had nevertheless been at the property on that occasion. His Honour'sassessment was that there were reasonable grounds to believe that "Mr Hansen (or hisbody)" would be found there. If wrong on that, Brown J conducted an admissibilityexercise under s 30 of the Evidence Act 2006 and ruled he would have admitted theevidence.Appeal submissions[18] On appeal Mr Winter repeats the submissions made in the High Court.Emphasis is placed on the incorrect informant evidence of 2012, and it is submittedthat the most one could acknowledge is a reasonable suspicion rather than belief.[19] Mr Winter submitted that the other objective factors amounted to little. It wasknown Mr Hansen was itinerant, so not being at a particular address was notparticularly significant, and there was little reason to think he would be (alive) atMr Swain's rather than anywhere else. Further, someone like Mr Hansen notaccessing his bank account for a few days was hardly noteworthy. It was submittedalternative explanations and addresses had been inadequately explored to enable theoption of Mr Swain's address to acquire the status of "reasonable belief".[20] Mr Winter also advanced a general proposition that if not bad faith, there wasan element of recklessness in the police conducting the searches pursuant to s 7 of theAct. They were reluctant to get a search warrant, and so obtained the arrest warrantfor Mr Hansen as a means to allow use of s 7 in circumstances where it was known heeither may be not there or, if there, may be dead. In either scenario, arrest for his bailbreach was not a genuine purpose.[21] On this point, we see no reason to differ from Brown J's assessment that thepolice conduct was genuine and they were unsure if Mr Hansen was the victim of foulplay. Their conduct at the time of the searches was consistent with a belief that thereremained a real chance Mr Hansen was alive and that the informant, while beingtruthful, was being set up.Decision[22] We are in broad agreement with Brown J save in one respect. We agree thatthe evidence pointed to Mr Hansen being at the address one way or the other, but donot consider that s 7 is available where the reasonable belief is that the person's bodywill be found at the address. The requirements of s 7 are that the suspect be unlawfullyat large and be believed to be at the premises. Neither is fulfilled where the belief isthat the person is dead. The purpose of the section is to authorise search for purposesof arresting a person, and "person" in this context must mean a living person.[23] When s 7 is read in this way, we do not agree that the evidence provided areasonable basis to believe Mr Hansen would be found alive at the property.Objectively there were only two matters that suggested it could be so:(a) the last time the police were told he would be found dead at thepremises he was found there alive; and(b) it was known, through this previous occurrence, and through otherinformation, that Mr Swain and Mr Hansen were acquaintances.Following the first visit on 2 December when the occupant of the flatwas spoken to, Mr Swain had rung the police to ask about the visit. Onthat occasion Mr Swain said he had not seen Mr Hansen for three weekswhen he had visited him at Mr Hansen's address.[24] In our assessment these two factors could not found a reasonable belief that aliving Mr Hansen would be found at the address. When one adds to the mix all thecontrary evidence suggesting Mr Hansen would be found there dead, there could onlyat best be a possibility of him being alive. We accept the police were entitled not todiscount it as a possibility, but in terms of s 7 the circumstances fall well below therequirement of reasonable belief.[25] Section 7 not being available, at the hearing of the appeal the Court raised withcounsel the possibility that a different provision of the Act applied on these facts.Section 15 provides:15 Entry without warrant to find and avoid loss of evidentialmaterial relating to certain offencesA constable may enter and search a place without a warrant if he orshe has reasonable grounds—(a) to suspect that an offence punishable by imprisonment for aterm of 14 years or more has been committed, or is beingcommitted, or is about to be committed; and(b) to believe—(i) that evidential material relating to the offence is inthat place; and(ii) that, if entry is delayed in order to obtain a searchwarrant, the evidential material will be destroyed,concealed, altered, or damaged.[26] Because this possibility had only arisen at the hearing, we invited furthersubmissions, albeit only in the context that the unknown availability of s 15 would berelevant to the exercise of the discretion under s 30.[27] In our view s 15 was potentially available on the facts of this case. Theinformation provided by the informant, with whom the police had been associated for20 years, was that:(a) Mr Hansen was dead, and could be found on the back of his utility onthe property;(b) he had seen Mr Hansen's cell phones;(c) he had been asked by Mr Swain to help sell two gold rings belongingto Mr Hansen; and(d) he had been asked by Mr Swain to help dispose of the body.[28] There were then the other inquiries in the Whanganui region that added furtherlegitimate concerns about Mr Hansen's whereabouts. Without detailing them again,we consider the inquiries were more extensive than acknowledged by Mr Winter.They encompassed neighbours, associates, an alternative address and bank accounts.4[29] An important feature of the informant's evidence is not only its compellingdetail, but also that it is first hand. The informant was recounting conversations hehad had with the alleged murderer. Concerning the false alarm in 2012, we have notbeen fully appraised of the circumstances, but the level of detail available in 2013appears greater than then. Generally, we do not see the 2012 incident as particularlydiminishing matters. Mr Hansen was at the site on that occasion. There were groundsto suspect the informant was being tested, and subsequently the police had no basisgenerally to doubt his reliability. In our view the 2012 incident is a feature whichunderstandably influenced the police response, but one which does not reduce thecogency of the 2013 information.[30] The only issue with s 15 is the question of whether the obtaining of a searchwarrant would create sufficient delay to justify the use of the warrantless power.Because s 15 was not in the minds of the police, nor raised in the High Court, therewas no evidence on the point. The fact that inquiries persisted over two to three daysmay tell against the case for urgency, but on the other hand, as the picture emerges andevidence builds up, the need to act becomes more pressing.Admissibility[31] We consider it clear that the search was not authorised by s 7 of the Act. It ispossible that s 15 may have authorised it, but the necessary evidential foundation ofurgency has not been laid. However, it is equally clear that if s 15 did not applybecause there was time to obtain a warrant, a warrant would undoubtedly have beenavailable if sought.[32] Cases have held that the certain availability of alternative powers means thesearch should not be seen as unreasonable in terms of s 21 of the New Zealand Bill ofRights Act 1990.5 On the other hand, the implicit and explicit emphasis in the Act on4 In terms of the recklessness/gross carelessness issue, this level of inquiry can be contrasted withthe much more minimal efforts made in Duncan v R [2010] NZCA 318.5 See for example R v Waghorn (2001) 6 HRNZ 692 (CA) at [12].obtaining a warrant where possible (for example, ss 8, 15 and 20) could be thought toreinforce that a search that is otherwise unreasonable will not become reasonablebecause a warrant would have been issued had it been sought.[33] The facts here are quite unusual in that there was genuine uncertainty as towhether Mr Hansen would be found at the address alive or dead, and different powersapplied to each situation. Assessing it with hindsight we have reached the view thatonly one of these options was supported by evidence establishing reasonable grounds,but we recognise both options were possible. We consider, therefore, that this may bea case where, even though the power being exercised by the police was not available,it was nevertheless not an unreasonable search. The point does not need finaldetermination, however, because if an analysis under s 30 of the Evidence Act isconducted, the case for admitting the evidence is overwhelming.[34] The requirements of s 30 are well known.6 Evidence obtained pursuant to anunreasonable search must be excluded if exclusion would be proportionate to theimpropriety. Section 30(3) then sets out a non-exhaustive list of factors to whichregard may be had when undertaking what the Act terms a balancing process.[35] In the present case Brown J classified the expectation of privacy that wasbreached as low to moderate, noting that the entry was to unoccupied sheds in whichwere stored old vehicles. Mr Winter accepted it was difficult to assert otherwise,although fairly submitting regard needed to be had to the prior entries and the entirecourse of conduct.6 R v Hamed [2011] NZSC 101, [2012] 2 NZLR 305.[36] It is trite to observe that each case needs to be considered on its own facts, andfor reasons already discussed, we consider the present circumstances to be quiteunusual. It is appropriate to step back and look at the matter globally, and when onedoes that there can be no question that exclusion of the evidence would be whollydisproportionate to the impropriety. The police were faced with a quite unusual arrayof possibilities. They included that a man may have been murdered, or he may havebeen fine, that he was definitely in breach of his bail residence condition but that couldrealistically not be seen as unexpected or particularly troubling in terms of his lifestyle,that the source of the information was reliable but this very same information had beenfalsely fed to the informant 18 months earlier, that there was a real possibility thematter was a set up to expose the informant whose personal safety would thereby becomprised, and that if accepted as reliable, the information was pointing to both ahomicide and the imminent disposal of the body and other evidence. Faced with that,the police in our assessment selected the wrong power. It was not an inapt orinappropriate power that was chosen since Mr Hansen being there alive remained apossibility, but on review we consider the evidence pointed more strongly to thegrimmer option concerning Mr Hansen.[37] There is no suggestion of bad faith on the part of the police and we considerBrown J rightly excluded the alternative suggestion of recklessness or grossnegligence. Against that background, in our view the statutory label of impropriety isitself a somewhat harsh label in the circumstances. We agree with Brown J thatexclusion of the evidence obtained pursuant to the subsequent search warrant wouldbe disproportionate.Result[38] The application for leave to appeal is granted.[39] The appeal is accordingly dismissed.[40] For fair trial reasons, an order is made prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent