RENSON v NEW ZEALAND POLICE [2021] NZHC 2342

RENSON v NEW ZEALAND POLICE [2021] NZHC 2342 [8 September 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-000023[2021] NZHC 2342RICHARD RENSONvNEW ZEALAND POLICEHearing: 1 September 2021Appearances: A Greaves and R Che Ismail for the AppellantB Harris for the RespondentJudgment: 8 September 2021JUDGMENT OF WALKER JThis judgment was delivered by me on 8 September 2021 at 3 pmRegistrar/Deputy RegistrarIntroduction[1] Mr Renson was convicted of one charge of cultivation of cannabis following aJudge alone trial in the Taumarunui District Court.1 The only issue in this appeal isthe admissibility of evidence obtained by police during a warrantless search of hisproperty. He argues that the search of his home was unlawful, and the District CourtJudge should not have admitted the evidence. He contends there has been amiscarriage of justice because of this asserted error.Background facts[2] Two police officers were conducting enquiries in Ongarue, a small ruraltownship about 20 kilometres from Taumarunui on 21 April 2020. It was earlyevening. They wished to speak to Mr Renson as part of their enquiry. The officersknew that Mr Renson lived at the address in question. The officers had already beenmaking enquiries at other addresses in the small township. They were traveling in apolice vehicle. Both were in police uniform.[3] Detective Chapman had been a member of the police for about 21 years buthas since retired. He had returned to uniform that day as a result of the COVID-19pandemic response. During his long police career, he spent 18 years working in theCriminal Investigation Branch (CIB). He has considerable experience in majorinvestigations into serious crime, including drug related offending. He was involvedin the cannabis recovery programme targeting the commercial cultivation of cannabis,often on large scale but also seizing identified cannabis growing in the police districtof Ruapehu.[4] The second police officer was Senior Constable Tito. Constable Tito has beenin the police force for over 22 years and has been part of the drug recovery operationfor the past 18 years. He is a rural liaison or response officer for the Taumarunuiregion and so familiar with policing in that area.1 Police v Renson [2021] NZDC 4883.[5] The property in question consisted of an old post office building and anassociated dwelling adjacent to it. There were other sheds and structures on theproperty. The police knocked at the old post office. When there was no answer,Detective Chapman went onto the adjacent property and knocked on the side door.This appeared to be the dwelling entrance. He then moved to the rear of the dwellingand knocked. On returning, he noticed an open door at the back of the old post officewith a light on. He made his way up to that rear door, knocked and called outrepeatedly. It was while he was there that he heard what he described in evidence as"a familiar sound of an extractor fan operating."[6] Senior Constable Tito's evidence is that he could smell the odour of cannabiscoming from the old post office building. He told Detective Chapman. There was nodiscussion between the officers about invoking the Search and Surveillance Act 2012(the Act). Senior Constable Tito made the decision to conduct a search without awarrant. He informed police communications that he was invoking s 20 of the Act tosearch for cannabis.[7] Senior Constable Tito explained in evidence at trial that he invoked the powerbecause of the possibility of destruction of evidence if they had left the property to geta warrant to return later that night or the following day. They had only one vehiclebetween them and by the time they returned to Taumarunui, typed out a warrant andgot to a judicial officer, it would have been two to two and a half hours given limitedstaff. 2 When it was put to the officer that he did not try to get a warrant, his responsewas "No, because under Search and Surveillance, I had the power to go andinvestigate".[8] They entered the old post office through the back open door. There theydiscovered 94 cannabis seedlings growing under lights in a side room. In anotherroom, they found a hydroponics growing operation with an additional 38 seedlingsgrowing under lights. They also found an air extraction system with an extractor fan.They took evidential photographs and set about dismantling the operation andremoving the evidence.2 While Detective Chapman's evidence is that it would take two to two and a half hours, at [17] theJudge records the likely time as "between one and a half hours (sic)".[9] Mr Renson then arrived at the address. He confirmed this was his dwelling andhe was the only occupant.District Court decision[10] The evidence at issue was critical to the prosecution. The sole issue at trial waswhether the warrantless search was unlawful, and the evidence uncovered as a resultwas inadmissible.[11] Judge Northwood identified the stated reasons for invoking a warrantlesssearch under the Act. First that the officers had concluded it was not practical to obtaina search warrant and that a controlled drug was present. He described the issues ofpracticality being the distance from Taumarunui and the late afternoon hour meaningthere would be no judges available. He recognised it was possible that a Justice of thePeace may be available.[12] Second, the officers anticipated a small number of police staff availableovernight and that it would possibly take "between one and a half hours (sic)" toachieve the obtaining of a search warrant.3 I interpolate to observe that there is anobvious typographical error here. I read this as intending to refer to between one andone and a half hours. The Judge accepted that the officers would well know about thestaffing of their own station.[13] Third the police had argued there were reasonable grounds to suspect cannabisoffending, namely the combined effect of the odour detected by one officer and thesound of the extractor fan by the other. As he put it, the combination brought thatpossibility into focus.[14] Next, the Judge referred to the belief of the officers that if the property was notentered and searched immediately, evidential material relating to the suspected offencewould be destroyed, concealed or damaged. There were only two police officers, inuniform and in a marked car. They were at least 20 kilometres away from other policestaff. They anticipated their presence in a small community would be easily reported3 At [17].to others, and possibly the person responsible for any cultivation. It would bereasonable to expect the occupier to take steps to destroy, remove, conceal, or damagethe evidence of cultivation.[15] It is clear that the Judge was influenced by the practical realities of policing inthe locality. The Court of Appeal has repeatedly acknowledged this to be a relevantfactor. Referring to Wilkins v Police4 and Alamoti v R5 as examples of how thepracticalities of police work sit aside the evaluative process in s 20, he said:6Sometimes, the careful analysis of a situation involving other police officersis not practical. Yet, an intuitive assessment of a situation can accuratelyfollow and result in compliance in s 20. In this case, the police officers wereentitled to rely upon their police experience and judgment of situations whendeciding whether to trigger a warrant to search.This matter was uncomplicated, and, in my judgment, not finely balanced. Theconclusions expressed in the evidence were easily understandable and did notrequire careful analysis... There were no difficulties in assessing the situationand, in my conclusion, all three limbs of s 20 of the Act had been made out.Before parting with this topic, I think it is fair to say that this was a clear case.Police however are unable to conclude that just because the s 20 power isavailable it can be used. It may only be used if the three limbs within thesection are satisfied.[16] Having concluded that the search was lawful, the Judge did not examinewhether it was unreasonable. Neither was he required to turn to s 30 of the EvidenceAct 2006.Approach to appeal[17] Mr Renson has a right to appeal his conviction to the High Court. Section 232(2)(b) of the Criminal Procedure Act 2011 provides that an appeal must be allowed ifthe court is satisfied that the trial judge erred in his or her assessment of the evidenceto such an extent that a miscarriage of justice has occurred. A miscarriage of justicemeans any error, irregularity, or occurrence in or in relation to or affecting the trial that4 Wilkins v Police [2016] NZHC 328.5 Alamoti v R [2016] NZCA 402.6 Police v Renson, above n 1, at [36]-[39].has created a real risk that the outcome of the trial was affected or has resulted in anunfair trial or a trial that was a nullity.7 Here it is argued that there was a miscarriageof justice as a result of admitting evidence obtained by an unlawful search.Relevant legal principles[18] The parties agree that the approach to be followed is that set out by the Courtof Appeal in R v Williams.8 There are three steps:(a) Was the search unlawful?9(b) Was the search unreasonable? This is a different concept to lawfulness.A search conducted pursuant to a warrantless power may be lawful butexercised unreasonably. An unlawful search will generally but notalways be unreasonable and in breach of s 21 of the New Zealand Billof Rights Act 1990 (NZBORA) except where the error is minor ortechnical and the error is not noticed before the search or seizure isundertaken.10(c) Is the evidence nonetheless admissible? If the search is unlawful andunreasonable then any evidence obtained by the search has been'tainted by the breach'.11 The third stage of the assessment is to conducta balancing test under s 30 of the Evidence Act 2006. That test requiresthe court to exclude any improperly obtained evidence if, in accordancewith the balancing process, the court determines that its exclusion isproportionate to the impropriety.Was the search unlawful?[19] The search of Mr Renson's property was carried out under the search power ins 20 of the Act.7 Criminal Procedure Act, s 232(4).8 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.9 At [12]-[46], [226] and [231]-233].10 At [12]-[24] and [228] and Hall v R [2018] NZHC 270 at [50].11 At [79] and [241].[20] The Act reformed the law to provide a coherent, consistent and certainapproach in balancing the complementary values of law enforcement and humanrights.12 The grounds on which a search warrant may be issued are set out in s 6 of theAct. Provision is made for warrants to be obtained orally, electronically or by phoneunder s 100 of the Act.[21] Warrantless searches are authorised by the Act in certain circumstances. Oneof those circumstances is s 20 of the Act which 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 warrantif he or she has reasonable grounds—(a) to believe that it is not practicable to obtain a warrant and thatin or on the place or vehicle there is—(i) a controlled drug specified or described in Schedule1 of the Misuse of Drugs Act 1975; or(ii) a controlled drug specified or described in Part 1 ofSchedule 2 of the Misuse of Drugs Act 1975; or(iii) a controlled drug specified or described in Part 1 ofSchedule 3 of the Misuse of Drugs Act 1975; or(iv) a precursor substance specified or described in Part 3of Schedule 4 of the Misuse of Drugs Act 1975; and(b) to suspect that in or on the place or vehicle an offence againstthe Misuse of Drugs Act 1975 has been committed, or is beingcommitted, or is about to be committed, in respect of thatcontrolled drug or precursor substance; and(c) to believe that, if the entry and search is not carried outimmediately, evidential material relating to the suspectedoffence will be destroyed, concealed, altered, or damaged.[22] Although warrantless searches are provided for under the Act, a search shouldbe authorised by a warrant in the absence of exceptional circumstances. This is knownas the 'warrant preference' rule. The commentators in Adams on Criminal Lawdescribe the warrant preference rule in these terms: 1312 Search and Surveillance Bill 2009 (45-1) (explanatory note) at 1.13 Simon France (ed) Adams on Criminal Law – Search and Surveillance (online ed, ThomsonReuters) at [SS6.01].The principle underpinning the powers contained in this Act is that a search for lawenforcement purposes of any place, vehicle or thing that would otherwise beprohibited by law or impact on a reasonable expectation of privacy should, in theabsence of exceptional circumstances recognised by statute, be authorised beforehandby way of a warrant issued by an independent officer acting judicially.[23] In short, if it is possible to obtain a warrant without prejudicing the purpose ofa search, a warrant is to be preferred even when a warrantless power is available.14[24] As Cull J summarised in Lethbridge v Police, the Court of Appeal adopted thewarrant preference rule as best practice in SF v R.15 The subsequent Court of Appealdecision of Kalekale v R acknowledged those comments, reiterating that although thewarrant preference rule is best practice where it can be followed, a "realistic andpractical approach is, however, required."16[25] There are a number of features of the Act which support the warrant preferenceprinciple. Section 117 provides for a scene to be secured while a warrant is beingapplied for and pending. Section 100 provides that a warrant may be obtained orallyand extends the range of judicial officers able to issue warrants. It is apparent bothfrom the statutory framework and the authorities that the warrant preference principlehas not been diluted.Did the police have reasonable grounds to believe that there was a controlled drug inthe dwelling?[26] The appellant concedes that the first requirement of s 20 is satisfied. SeniorConstable Tito had reasonable grounds to believe that cannabis was at the address. Hetherefore had reasonable grounds to suspect that an offence involving cannabis hadbeen or was being committed at the address at the time.Did the police have reasonable grounds to believe (a) that it was not practicable toobtain a warrant to search the dwelling; and (b) that evidence would be destroyed,concealed, altered or damaged if a search was not carried out immediately?14 Smith v Police [2019] NZHC 2371 at [25].15 Lethbridge v Police [2018] NZHC 2240 at [23] citing SF v R [2014] NZCA 313 at [46].16 Kalekale v R [2016] NZCA 259 at [44]-[45].[27] I deal with these interrelated issues together.[28] Mr Greaves advances five related arguments on behalf of the appellant:(a) The police officers did not turn their mind to whether it was practicableor not to obtain a warrant.(b) The practical issues relied on by the trial judge - the relevance of timeof day, limited police resources, physical distance and the lack ofavailability of judges - are inconsistent with the warrant preference rulebecause s 100 of the Act allows for warrants to be applied for orally,electronically or by phone.(c) While there is nothing to suggest that the police acted in bad faith, therewas an opportunity to explore alternative modes of obtaining a warrant.One of the officers could have secured the property while the othercalled a judicial officer to obtain an urgent warrant. Alternatively, asthey had access to radio communications, obtaining a search warrantwould have been even more practicable.(d) The cases relied on by the Judge are distinguishable. The officers herewere not engaged in active policing of a serious nature. Nor were thecircumstances fleeting, dynamic or fluid. There was sufficient time tomake a more rigorous assessment of the situation and consider options.(e) Any reasonable belief in an immediate need to conduct a warrantlesssearch would have evaporated as soon as it was apparent there were nosigns of life at the address. In any event, with one officer being able tostand guard while the other obtained a search warrant by phone, the riskof evidence being destroyed or concealed or damaged was sufficientlymitigated.[29] The respondent supports the reasoning of the court below. Mr Harris submitsthat the police formed a belief that it would not be practicable to obtain a searchwarrant in the circumstances that confronted them. He submits this was reasonablehaving regard to the practicalities of policing and the need to move with hasteconsidering limited police resources, the time of the day and the potential for someoneto return to the address. He refers to the Court of Appeal observation in Hughes vR:17Police investigation work would become impracticable if, whenever a policeofficer acquired sufficient information to justify the issue of a warrant, he orshe was bound to obtain one, or risk losing the power to invoke s 18(2) of theAct.[30] Mr Harris refers to the cross examination of Detective Chapman whichdemonstrates the level of resourcing available and how that informed a belief aboutthe practicalities. He emphasises that the Judge well recognised that the power underthe Act is not unfettered and may only be relied on if the prerequisites of s 20 of theAct are met. It is apparent that the Judge was satisfied by a clear margin.[31] The core issue is whether it was practicable to obtain a search warrant in theparticular circumstances at hand having regard to the realities of policing. One needsto be cautious to exclude hindsight from the assessment. The grounds for belief mustbe those existing at the time when the situation is inevitably more fluid. Some policingsituations will be more dynamic and unpredictable than others but all front linepolicing involves risk. Situations can change in an instant and police officers do notnecessarily have the time to reflect and consider. This is particularly so where forreasons of remoteness back-up support is not available.[32] However, even with that observation, I respectfully depart from the Judge'sconclusion on the lawfulness of the search. There are three reasons.[33] First, I am not satisfied that either officer turned their mind to the practicabilityof obtaining a search warrant from a Justice of the Peace by telephone. Both officersgave candid and honest evidence on the point, as appears from the following passages17 Hughes v R [2011] NZCA 661 at [33].from the evidence. Asked why he made the decision to invoke the Act, SeniorConstable Tito answered:A: Because it's a power that we have.Q: Okay and when you say: "It's a power we have", what power are youtalking about?A: We've smelt the cannabis, so then we have the power to search.Q: Why not get a warrant?A: The power was invoked and because of the possibility of, if we'd left theaddress, if someone had observed us or if someone had been at the addressand was hiding, if we had left the address, because there was only two of uson, if we'd gone and got a warrant and then come back the following day orlater on that night, there's a possibility that everything would have been rippedout and taken away.Q: How long do you think it would have taken to get a warrant?A: If we could have – because like we only had one vehicle there, so we wouldhave left the place, you know to its own device, so I would've thought – it'sactually about 23, 24 ks back to Taumarunui by the time we'd typed out awarrant and if we could've got to a JP, you know, we would've been lookingat two hours before we could have returned, two and a half hours with limitedstaff.[34] Detective Chapman, asked whether he believed they had the right to go intothe property said in evidence:Q: So no thought was really given to whether or not [a] warrant should beobtained at all probably was it?A: We had the power to go in, there was a need for it, given that there waspotential.I believe we needed to act with a degree of haste.Q: Why did you think you needed to act with haste?A: It was 5 o'clock at night, Taumarunui doesn't have judges available, itwould have meant finding a JP. Not that I took these things into consideration.I believe, you know, [as] we had good cause to suspect or believe that therewas an illegal operation within the address, we had the powers of entry to dowhat we did.Q: You agree it would have been possible to get a search warrant at that timeif you had decided to do that?A: It's always possible, whether it be through phone calls to Hamilton orwhatever, yes it's possible.[35] I accept that Senior Constable Tito genuinely believed he had the authority toconduct a warrantless search. But if the warrant preference principle is to be 'bestpractice' in practice rather than academic, then there needs to be a cogent reason whyconsideration of alternatives is unrealistic. None existed here, at least on the evidencepresented.[36] Second, and related to the first point, I am not satisfied that there was not anopportunity in this situation to consider alternatives to a warrantless search when theevidence was that there was no one present at the time they entered the property. Ipause to note that clearly each case of warrantless search is highly fact and contextdependent but the degree of urgency fell well short of the circumstances in Khalifa vPolice.18 There the situation was unpredictable because there were other occupants inthe house and police were attending in response to a domestic disturbance call outunaware of whether or not there were firearms present. The context is also differentfrom Wilkins where there was a legitimate expectation that other occupants of thehouse would be present and able to conceal or destroy evidence when the defendanthad been detained by police. It was held to be reasonable to conclude that animmediate search was necessary.19[37] In Alamoti the Court of Appeal regarded the need to arrange a scene guard inrespect of a vehicle and the impracticability of doing so in a remote location late on aFriday afternoon as a critical matter justifying a belief in the impracticability ofobtaining a warrant.20 In that case the officers were busy dealing with four offenders.They gave evidence about the difficulty in obtaining a warrant in a timely fashion. Asto a belief that evidential material would be destroyed, concealed, altered or damagedin the absence of an immediate entry and search, the Court of Appeal held it was notsatisfied that the officer did turn his mind to this point. In that respect only, the DistrictCourt judge's finding that the searches of the vehicle were lawful was an error.2118 Khalifa v Police [2021] NZHC 746. Leave to appeal dismissed in Khalifa v Police [2021] NZCA409.19 Wilkins v Police, above n 4, at [38].20 Alamoti v R, above n 5, at [38].21 At [51].[38] Third, I accept the proposition that once it was established that there was noone in the dwelling, the prospect of destruction, concealment, alteration of evidencefell away if the officers did not have to leave the premises to obtain a search warrant.It is not sufficient to believe that evidence could be lost or concealed; there must be abelief that it will be in the sense there is a substantial likelihood.22 I note that therewas no evidence about past practical difficulties obtaining search warrants bytelephone or limitations on communication. On the contrary, the evidence was that theofficers were in communication and the possibility of obtaining a warrant by phonewas acknowledged by Detective Chapman.[39] I conclude therefore that the warrantless search did not meet the requirementsof s 20 of the Act.Was the search unreasonable and in breach of s 21 NZBORA?[40] This question is separate from the question of legality. Section 21 of theNZBOR affirms the "right to be secure against unreasonable search or seizure."Mr Greaves relies on the principle in Williams that an unlawful search is unreasonable.[41] Mr Harris submits the search was reasonable having regard to the subject-matter, the circumstances and the police officer's belief that it was not practicable toobtain a search warrant.[42] I accept that, having found this search unlawful, the search breached s 21 ofthe NZBORA.Admission of improperly obtained evidence[43] Section 30 of the Evidence Act 2006 reads:30 Improperly obtained evidence(1) This section applies to a criminal proceeding in which the prosecutionoffers or proposes to offer evidence if—22 R v Young [2015] NZHC 3337 at [43]-[44].(a) the defendant or, if applicable, a co-defendant against whomthe evidence is offered raises, on the basis of an evidentialfoundation, the issue of whether the evidence was improperlyobtained and informs the prosecution of the grounds forraising the issue; or(b) the Judge raises the issue of whether the evidence wasimproperly obtained and informs the prosecution of thegrounds for raising the issue.(2) The Judge must—(a) find, on the balance of probabilities, whether or not theevidence was improperly obtained; and(b) if the Judge finds that the evidence has been improperlyobtained, determine whether or not the exclusion of theevidence is proportionate to the impropriety by means of abalancing process that gives appropriate weight to theimpropriety and takes proper account of the need for aneffective and credible system of justice.(3) For the purposes of subsection (2), the court may, among any othermatters, have regard to the following:(a) the importance of any right breached by the impropriety andthe seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it wasdeliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d) the seriousness of the offence with which the defendant ischarged:(e) whether there were any other investigatory techniques notinvolving any breach of the rights that were known to beavailable but were not used:(f) whether there are alternative remedies to exclusion of theevidence that can adequately provide redress to the defendant:(g) whether the impropriety was necessary to avoid apprehendedphysical danger to the Police or others:(h) whether there was any urgency in obtaining the improperlyobtained evidence.(4) The Judge must exclude any improperly obtained evidence if, inaccordance with subsection (2), the Judge determines that itsexclusion is proportionate to the impropriety.(5) For the purposes of this section, evidence is improperly obtained if itis obtained—(a) in consequence of a breach of any enactment or rule of law bya person to whom section 3 of the New Zealand Bill of RightsAct 1990 applies; or(b) in consequence of a statement made by a defendant that is orwould be inadmissible if it were offered in evidence by theprosecution; or(c) unfairly.(6) Without limiting subsection (5)(c), in deciding whether a statementobtained by a member of the Police has been obtained unfairly for thepurposes of that provision, the Judge must take into accountguidelines set out in practice notes on that subject issued by the ChiefJustice.[44] The key part of the section is that if a judge finds that evidence has beenimproperly obtained, the judge must decide:23Whether or not the exclusion of the evidence is proportionate to theimpropriety by means of a balancing process that gives appropriate weight tothe impropriety but also takes proper account of the need for an effective andcredible system of justice.[45] This is assessed by balancing the matters set out in s 30(3). I set out the mattersrelied on by the appellant.The importance of any right breached by the impropriety and the seriousness of theintrusion on it[46] Mr Che Ismail for the appellant submits that the breach is serious sinceresidential property has the highest expectation of privacy attaching to it and thewarrantless search was based on a flawed analysis in circumstances where there is noevidence of apprehended physical danger to the police. He acknowledges that therewas no bad faith on the part of the officers but suggests that the failure to turn theirmind to alternative options is at least reckless.[47] Mr Harris responsibly acknowledges that a person's home has long beenrecognised as a special place where a person's right to privacy is protected.2423 Evidence Act 2006, s 30(2)(b).24 F v R [2014] NZCA 313 at [23].However, he urges the Court to take into account the reasonable belief that criminaloffending was occurring.[48] I consider the evidence falls short of demonstrating recklessness. At itshighest, the officer's failure to obtain a warrant was inadvertent in that he failed to turnhis mind to the strict requirements of the Act. But the fact that the search was of theappellant's home elevates the significance and consequence of that inadvertence. Theinterference with privacy weighs heavily in favour of excluding the evidence. 25Nature and quality of the evidence[49] The evidence of 139 cannabis plants is central to the conviction. The appellantwould have made an application under s 147 of the Criminal Procedure Act 2011 hadthe evidence been ruled inadmissible. On the other hand it is inherently reliable andprobative evidence as tends to be the case with material obtained pursuant to a search.Seriousness of the offending and any alternative remedies to exclusion which mayadequately provide redress?[50] It is common ground that there is no alternative redress. The maximum penaltyfor cultivating cannabis is 7 year's imprisonment. On its face, this is seriousoffending.26 I am told by counsel however that the sentence imposed on Mr Rensonwas a community based sentence. This suggests that the actual offending for whichMr Renson was convicted was at the low end of the spectrum. The seriousness of theoffending can cut both ways. In this instance, it is relatively neutral but only becausethe offending was at the low end of the spectrum of cannabis offending.Were other investigatory techniques available?[51] Mr Che Ismail points to the option of obtaining an oral search warrant whichhad not been explored. There is no evidence about how long that may have taken orwhether experience showed how difficult that process might be.25 Cf search of a vehicle in a rapidly developing situation such as in Alamoti v R, above n 5.26 Misuse of Drug Act 1975, section 9(1).Was there any urgency in obtaining the improperly obtained evidence?[52] Mr Che Ismail submits there was none. I agree that the evidence presenteddoes not show a high degree of urgency at the time of the decision to invoke s 20 ofthe Act. It was expedient to search in the absence of Mr Renson and reasonable toexpect him to return at any stage, but this does not equate with urgency.Conclusion on the s 30(2) balancing exercise[53] The right breached involved intrusion into a private dwelling. I balance thatagainst my conclusion that there was no deliberate, reckless or bad faith conduct. Icharacterise the conduct as an omission to truly turn one's mind to the alternative ofobtaining a search warrant by telephone. The circumstances described in the evidencewould have permitted that consideration in my assessment even taking into accountthe realities of policing in rural areas. My conclusion on the balancing exercise is thatexclusion of the evidence is proportionate to the impropriety because an effective andcredible system of justice requires that the police comply with the laws relating towarrantless searches. This interest outweighs the interest in the admissibility of theevidence in this particular case, despite the consequences.[54] Having found that the evidence should have been excluded, it must follow thatthere has been a miscarriage of justice. I allow the appeal and quash Mr Renson'sconviction accordingly.............................................................Walker J