SMITH v NEW ZEALAND POLICE [2019] NZHC 2371

SMITH v NEW ZEALAND POLICE [2019] NZHC 2371 [19 September 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-11[2019] NZHC 2371BETWEEN ROSS HENRY SMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 3 June 20192 July 20197 August 2019 – further documents receivedAppearances: M J Phelps for the AppellantM J M Mitchell for the RespondentJudgment: 19 September 2019JUDGMENT OF CULL J[1] The police undertook a warrantless search of Mr Smith's property under ss 18and 20 of the Search and Surveillance Act 2012 (SASA), to seize unlawful firearms incircumstances where the officers believed they could not obtain a warrant under s 6 ofthe Act. The District Court ruled that the police search of Mr Smith's property waslawful and the evidence seized during the search was admissible.1[2] Mr Smith now seeks leave to appeal against the pre-trial ruling in the DistrictCourt. The evidence seized consisted of two military-style semi-automatic firearmsand 39 cannabis plants and dried cannabis material.1 New Zealand Police v Smith [2019] NZDC 2111.[3] Mr Smith submits the search was unlawful and the evidence was improperlyobtained in breach of his rights. He argues the evidence should be excluded unders 30 of the Evidence Act 2006. He faces two charges of being unlawfully in possessionof military-style semi-automatic firearms,2 a charge of cultivation of cannabis,3 and acharge of possession of cannabis.4 He challenges the District Court Judge's factualfinding that the police officer had reasonable grounds to suspect that Mr Smith wasincapable of having proper control of firearms in his possession or under his controldue to his mental condition under s 18(2)(b) of SASA.[4] The Crown opposes the appeal.[5] I adjourned the first hearing of this appeal to allow counsel to file furthersubmissions on the requirements of s 6 of SASA which provides for the issue of searchwarrants, the ambit of ss 18 and 20 of SASA which provide for warrantless searches,and the Court of Appeal decision on the warrant preference rule.5[6] During the second hearing, Mr Phelps for Mr Smith pointed to the similarityof the grounds for obtaining a production order under s 72 of SASA, which the policeobtained in these circumstances, with the grounds under s 6 of SASA. He submitsthere is an inconsistency in the police applying for a production order, but not a warrantin these circumstances. As the application and order for production of Vodafonerecords were not available to the Court, those documents were supplied by the Policefollowing the second hearing.[7] The issues to be determined are:(a) did the Judge err in finding the search of Mr Smith's property waslawful and reasonable in respect of the unlawful firearms under s 18 ofSASA?2 Arms Act 1983, s 50(1)(c); maximum penalty is three years' imprisonment or a fine of $4,000.3 Misuse of Drugs Act 1975, s 9(1); maximum penalty is seven years' imprisonment.4 Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty is three months' imprisonmentor a fine of $500.5 Hall v R [2018] NZCA 279.(b) did the Judge err in ruling the evidence of the unlawful firearms and thecannabis plants was admissible?Factual Background[8] On 17 December 2017, the Te Haroto community held its annual ChristmasParty at Glen Falls beside the Mohaka River in Te Haroto. During the party, anincident occurred between Mr Smith's partner and a local woman. Mr Smith's partnerallegedly hit the woman in the face, who allegedly smacked Mr Smith's partner acrossthe face in return. Mr Smith became aware of the incident, smashed a beer bottle andallegedly threatened to kill the local woman to ward off further attack on his partner.[9] What followed is succinctly summarised in the District Court decision:6[9] After the incident at approximately 2100 hours he [Mr Smith] sent atext to Police Constable John Bruce a local constable saying among otherthings:"I had to leave before I stepped in and broke the law by assaulting herin retaliation."[10] He was not satisfied with the police response which effectively was tosend someone around to take his statement the next day and subsequently senta further text to John Bruce as 22.53 hours saying"Hi John what a joke not police responded to the 111 call. Someconstable coming around once his shift starts afte 2pm tomorrow totake a statement. Rego of assailant [] and the other bitch is []which I believe is Lloyd's daughter. If these guys want war noproblem! What are we supposed to do in NZ? Just let people assaultus" (emphasis added).[11] The same night the Defendant sent the following test messages to hisneighbour [ML] expressing his anger at the lack of back up from him andothers at the party including threats such as:"the whole valley can fucking burn for all I care now". "Zero wateraccess to you mate because of you taking the other side tonight. Youfucking hillbillies. You maggot that drinks with the woman whoassaults my wife let me tell you if I come across your wife and kids ina burning car wreck in the road I would stop."[12] The next day the defendant bulldozed the water pipes on his propertythat provided water to [ML's] property.6 New Zealand Police v Smith, above n 1.[13] The defendant, Mr Smith, was throughout liaising with ultimatelyConstable Catley and Detective Kemsley and at all times.[14] On the 19th December 2018 Detective Kemsley commences aninvestigation which involves talking to members of the local community andtaking statements in relation to the Glen Falls incident. It is fair to say that themembers of the local community had become concerned about the behaviourand actions of the defendant, Mr Smith, over the preceding few days.[15] Concerns were raised by the locals as to the defendant's suitability tohave firearms. The police widened their investigation to include not juststatements from the locals about the incident and what had happened in andaround the 17th of December but also, articles from the internet, text messagedata and information from Australia about Mr Smith's criminal history.[16] They did not this for the purpose of assessing the risk posed to thecommunity by the defendant due to what would appear on the face of it to behis overactive, erratic and antagonistic behaviour in the neighbourhood.Having assessed all the information the police then decided to revoke hisfirearms licence and undertake a warrantless search to seize the firearms.[17] Detective Kemsley then arranged for the defendant and his partner tocome to the Napier Police Station on 22nd of December. At 12.50pm thedefendant was served with a notice of revocation of the firearms licence whichincluded a demand for him to surrender any firearms in his possession. Hewas not actually given the option of doing that because at about 3pm that daySnr Sergeant Fleming (whose decision it was to execute the warrantlesssearch) led a team of nearly 20 officers including members of the AOS (ArmedDefenders Squad) to the defendant's address searched it and seized firearmsand discovered the cannabis.[10] Consequently, Mr Smith was charged with the four above-mentioned charges.Mr Smith pleaded not guilty to the charges and challenges the admissibility of theevidence seized during the warrantless search at his property.District Court decision[11] Mr Smith entered not guilty pleas to the four charges and challenged theadmissibility of the evidence obtained from the warrantless search for firearms andcannabis.[12] The Judge detailed the sequence of events from the 17 December 2017, whenMr Smith bragged at the Christmas barbecue that he had been in the Israeli Army andenjoyed killing people, to his unpredictable behaviour at the barbecue and his actionsover the ensuing four days. The Judge was satisfied that Senior Sergeant Fleming, thepolice officer in charge of the search, had reasonable grounds to suspect that Mr Smithwas in control of firearms at his address, and that Mr Smith had a mental or physicalcondition rendering him incapable of having proper control of firearms.7[13] In making her finding, the Judge accepted that Mr Smith did not have anydiagnosed psychiatric condition and that he was not personally assessed by SeniorSergeant Fleming. However, from the totality of Mr Smith's historical and currentinformation, particularly in relation to his behaviour at the barbecue, his revenge onhis neighbour and his text messages, the Judge found that all of the informationshowed signs of "an elevated, irrational, antagonistic, angry and vengeful state ofmind" which Mr Smith had against his neighbours.8 The Judge found that theprerequisites for a warrantless search under s 18 of SASA was met and the warrantlesssearch for firearms was lawful.[14] The Judge then considered the warrantless search for drugs under s 20 ofSASA. The Judge noted that the defence accepted there were reasonable grounds tobelieve that cannabis was at Mr Smith's address and had reasonable grounds to suspectthat an offence involving cannabis had been permitted at Mr Smith's address, but theissue was whether the police had turned their mind to whether or not it was practicableto obtain a warrant.[15] The Judge found that the police "basically stumbled" into the cannabis duringthe course of their search for firearms, and because it was secondary to the search forfirearms the issue turned largely on whether the s 18 firearms search was conductedlawfully or unlawfully.9 The Judge accepted that time was a factor in this case andthat it was impracticable for the police to obtain a warrant for the cannabis.10 TheJudge was then satisfied that the search for cannabis was also lawful, and the evidencewas admissible.[16] Mr Smith appeals against those pre-trial rulings.7 Search and Surveillance Act 2012, s 18.8 At [43].9 At [48].10 At [49]–[50].Leave to appeal[17] As this is an appeal against a pre-trial ruling from the District Court under s 79of the Criminal Procedure Act 2011, a defendant or prosecutor may, with leave fromthe appellate court, appeal to that court against a decision making or refusing to makea pre-trial order about admissibility of evidence.11[18] The relevant factors for determining a leave application are specified in R vLeonard and affirmed in Hohipa v R.12 In those cases the Court of Appeal held thatleave should be granted if the application involves the admissibility of evidence thatis important to one of the parties. The Court cautioned that leave should not be grantedif the issue will need to be revisited at trial or is best dealt with in the context of thetrial, or where the application involves the admissibility of evidence that would notmake a significant difference to the course of the trial and is unlikely to lead to post-conviction appeal success.13[19] This application involves the admissibility of evidence that is critical to theprosecution case against Mr Smith in relation to all of the charges he faces, being theunlawful possession of the firearms and the cultivation and possession of cannabis.14Therefore, determining this issue will make a significant difference to the course ofthe trial in relation to those charges, and may completely obviate the need for trial.[20] I grant leave to appeal the pre-trial ruling accordingly.Principles applying to warrantless search and seizure[21] Section 18 is the relevant provision of SASA governing the power to searchfor a firearm without a warrant. The section provides:18 Warrantless searches associated with arms11 Criminal Procedure Act 2011, s 215(2)(a).12 R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13]–[14]; and Hohipa v R [2015] NZCA73, [2018] 2 NZLR 1 at [25]-[27].13 Lethbridge v New Zealand Police [2018] NZHC 2240 at [14].14 Mr Smith was also charged with assault with a weapon. This charge has been resolved. Mr Smithhas now pleaded guilty to an amended charge of threatening behaviour pursuant to s 21 of theSummary Offences Act 1981.(1) A constable who has reasonable grounds to suspect that any 1 or moreof the circumstance in subsection (2) exist in relation to a person may,without a warrant, do any or all of the following:(a) search the person:(b) search any thing in the person's possession or under his or hecontrol (including a vehicle):(c) enter a place or vehicle to carry out any activity underparagraph (a) or (b):(d) seize and detain any arms found:(e) seize and detain any licence under the Arms Act 1983 that isfound.(2) The circumstances are that the person is carrying arms, or is inpossession of them, or has them under his or her control, and –(a) he or she is in breach of the Arms Act 1983; or(b) he or she, by reason of his or her physical or mental condition(however caused), –(i) is incapable of having proper control of the arms; or(ii) may kill or cause bodily injury to any person; or(3) A constable may, without a warrant, enter a place or vehicle, search it,seize any arms or any licence under the Arms Act 1983 found there,and detail the arms or licence if he or she has reasonable grounds tosuspect that there are arms in the place or vehicle –(a) in respect of which a category 3 offence, a category 4 offence,or an offence against the Arms Act 1983 has been committed,or is being committed, or is about to be committed; or(b) that may be evidential material in relation to a category 3offence, a category 4 offence, or an offence against the ArmsAct 1983.[22] In the present case, the police exercised the warrantless search power forfirearms under s 18(2)(b)(i) of the Act on 22 December, five days after the originalincident. In the course of their search, the police found cannabis and relied on thewarrantless search power for drugs under s 20 of SASA.[23] The Court of Appeal in R v Williams set out the approach when dealing withthe admissibility of evidence in search and seizure cases.15 This approach was adoptedby the District Court Judge in this case,16 and contains the following steps:(a) Was the search unlawful?(b) Was the search unreasonable? If the search was unlawful it will beunreasonable and in breach of s 21 of the New Zealand Bill of RightsAct 1990 except where:(i) the error is minor or technical; and(ii) the error is not noticed before the search or seizure isundertaken.(c) Is the evidence nonetheless admissible? If the search is unlawful andunreasonable then any evidence obtained therein has been tainted bythe breach. The admissibility of evidence of this kind, which has been"improperly obtained", falls to be assessed under s 30 of the EvidenceAct 2006.[24] Before canvassing the Judge's approach on the lawfulness of the search, Iaddress below the courts' preference for warrants to be obtained where possible,particularly following the legislative enactment of SASA.The "warrant preference rule"[25] The enactment of SASA introduced a number of changes to searches for lawenforcement purposes, including warrantless search provisions. Underpinning SASA,the preferred approach is to obtain a search warrant where possible, even when thewarrantless power is available. This has been termed the "warrant preference rule"and SASA contains provisions to enable warrants to be applied for orally,15 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207. A similar approach was also adopted by theSupreme Court in Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [16] and [174].16 At [6].electronically or by phone. The commentators in Adams on Criminal Law said of thewarrant principle:17The 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. This principle clearly applies to thesearch of private property.If it is possible to obtain a warrant without prejudicing the purpose of a search,a warrant is to be preferred even when a warrantless power is available: Rv Laugalis (1993) 10 CRNZ 350, 1 HRNZ 466 (CA); R v Williams [2007]NZCA 52, [2007] 3 NZLE 207, (2007) 23 CRNZ 1 at [24]. The fact thatwarrants can be applied for electronically or orally in specified circumstances,and that warrants themselves can be transmitted electronically or dictated overthe phone to the applicant, means that it is now more difficult to justify theuse of a warrantless power than it was before the passage of the Act.[Emphasis added][26] The Court of Appeal in R v Collins considered the ambit of warrantless searchpowers under the former s 61 of the Arms Act 1983 which was repealed and replacedwith s 18(2)(a) of SASA.18 The Court restated that the "law places a high value on therelated interests of dignity and privacy" and that, by reference to R v Williams,"residential property will have the highest expectation of privacy attached to it."19[27] Noting that "reason to believe" provides a higher test than "reason to suspect"under s 61(1) of the Arms Act 1983, the Court cautioned that, like any statutory power,s 61 must be used reasonably.20 Although the point was not before it, the Court saidthat an officer who could readily secure a search warrant could well face the sameresult as in R v Laugalis if an attempt were made to resort to s 61.21 In R v Laugalis,the Court of Appeal held that the power of search without warrant conferred by s 18(2)of the Misuse of Drugs Act 1975 was exercisable only if there was justification for not17 Simon France (ed) Adams on Criminal Law – Search and Surveillance (online ed, ThomsonReuters) at [SS6.01]; and Simon France (ed) Adams on Criminal Law: Rights and Powers (onlineed, Thomson Reuters) at [SS3.17.01].18 R v Collins [2009] NZCA 388. The difference between s 18 of SASA and the former s 61 of theArms Act 1983 is that s 61 enabled the search of land or buildings for firearms on the writtenauthorisation of a commissioned police officer.19 At [20].20 At [22].21 At [22].applying to the District Court for a warrant under s 198 of the Summary ProceedingsAct 1981.22[28] Subsequently the Court of Appeal in SF v R, which postdates SASA, adoptedthe "warrant preference rule" as best practice.23 The following Court of Appealdecision of Kalekale v R acknowledged the comments in SF v R, reiterating thatalthough the warrant preference rule is best practice where it can be followed, a"realistic and practical approach is, however, required."24[29] The Court of Appeal has more recently reconsidered the ambit of a warrantlesssearch under s 20 of SASA in Hall v R.25 In that decision, the Court examined thescope of an implied licence that permits anyone, including police officers, to go ontoa property for the purpose of speaking to the occupant. The majority reinforced that:26The principle underpinning the [Act] is that a search for law enforcementpurposes should, in the absence of exceptional circumstances recognised bythe Act, be authorised by way of a warrant issued by a judicial officer.[30] Mallon J, in her separate judgment, further said that the warrant preference ruleis undermined regardless of whether the omission to obtain a warrant is deliberate orunintentional. The fact that it was unintentional in Hall v R was relevant only to thebalancing exercise of admissibility under s 30 of the Evidence Act 2006.27[31] As part of the assessment, the courts have also addressed the practical realitiesof investigation. Whether it is practicable to obtain a search warrant involves anassessment of the realities of policing in the circumstances.28[32] In the context of this appeal then, the conditions for obtaining a warrant unders 6 of SASA are relevant:6 Issuing officer may issue search warrant22 R v Laugalis (1993) 10 CRNZ 350 (CA) at 359; and R v Collins, above n 18, at [21].23 SF v R [2014] NZCA 313 at [46].24 Kalekale v R [2016] NZCA 259 at [44]-[45].25 Hall v R, above n 5.26 At [56].27 At [84].28 R v Dobson [2008] NZCA 359 at [38]; and McGarrett v R [2017] NZCA 204 at [21].An issuing officer may issue a search warrant, in relation to a place,vehicle, or other thing, on application by a constable if the issuingofficer is satisfied that there are reasonable grounds –(a) to suspect that an offence specified in the application andpunishable by imprisonment has been committed, or is beingcommitted, or will be committed; and(b) to believe that the search will find evidential material inrespect of the offence in or on the place, vehicle, or other thingspecified in the application.[33] The term "evidential material" is defined in s 3 as:evidential material, in relation to an offence or a suspected offence, meansevidence of the offence, or any other item, tangible or intangible, of relevanceto the investigation of the offence[34] As defined, the term "evidential material" is broad, and the material does nothave to be admissible; the critical element is its relevance to the investigation of aspecific offence.29 It is not confined to items that are to be presented as evidence incourt.[35] I will deal with this appeal in two parts. First, I will examine the Judge'sapproach to the s 18 search for firearms, then consider the approach to the s 20 searchfor drugs.[36] I now turn to assess the first step in R v Williams, whether the Judge erred infinding the search of Mr Smith's property was lawful under s 18 of SASA.Was the search under s 18 for firearms unlawful?[37] The Judge approached this step by looking at the requirements of s 18, statingthat the Court needed to be satisfied that there were reasonable grounds to suspect thatMr Smith was in control of the firearms, and that his mental condition rendered himincapable of having proper control of them.[38] The Judge helpfully drew from a number of authorities the meaning to beattributed to the term "reasonable ground to suspect", and I adopt the Judge's29 Adams on Criminal Law: Rights and Powers, above n 17, at [SS3.17.01].summation.30 It amounts to a ground of suspicion upon which a reasonable personmay act;31 that something is "possible" or likely or "inherently likely".32 It is anobjective standard.33 Circumstances giving rise to speculation or concern are notenough to constitute reasonable suspicion.34 In considering whether there is areasonable cause to suspect, the Court is entitled to take into account all relevantfactors, which are to be considered cumulatively rather than by way of individualdissection of particular matters.35 Finally, the term imports a lesser standard than"reasonable grounds to believe".36[39] There was no dispute that Mr Smith was a licensed firearms holder and he hadpossession of firearms, so the Judge was satisfied that the first prerequisite for thesearch was met. That is, Senior Sergeant Fleming had reasonable grounds to suspectthat Mr Smith was in possession and control of firearms at his address.[40] The second question the Judge addressed was whether Mr Smith had a mentalcondition rendering him incapable of having proper control of firearms. Mr Phelpssubmitted that to satisfy this ground a separate consideration of whether Mr Smith hasa "mental condition" is required. Mr Phelps pointed to the definition of "mentalcondition" in s 16 of the Evidence Act 2006, submitting that the definition is applicablehere. The High Court in R v Alovili has held that the term "mental condition" can bedefined thus:37[26] There must be a high threshold before it can be said that a person isunavailable as a witness because of a mental condition. Mental condition canembrace a wide range of conditions from somebody who is simply distressedor depressed, to somebody who is in a catatonic stupor. The former would notrender a person unavailable; the latter would clearly do so. Of itself mentalcondition does not suffice to render a person unavailable as a witness.[41] The Judge rejected this submission, holding that the threshold in the EvidenceAct for unavailability as a witness is very high because a defendant's right to a fair30 New Zealand Police v Smith, above n 1, at [24].31 Police v Anderson [1972] NZLR 233 (CA) at 242.32 R v Sanders [1994] 3 NZLR 450 (CA) at 461.33 Police v Anderson, above n 31, at 243.34 Rimine v R [2010] NZCA 462 at [22].35 Steeman v R [2011] NZCA 553 at [9].36 Collins v R [2010] NZSC 3 at [2]; and Britten v R [2012] NZCA 81 at [15].37 R v Alovili HC Auckland CRI-2007-404-162, 27 June 2008.trial must be maintained, and a defendant has a fundamental right to cross-examine awitness.38 The Judge found that this is a much higher threshold than the "reasonablegrounds to suspect" that needs to be met in s 18 warrantless searches.39 I concur withthe District Court Judge's assessment.[42] The decision in R v Alovili above also lends support to the view that "mentalcondition" in s 18 of SASA does not mean that a person needs to have a diagnosablemental illness; rather, their mental condition must be simply of such a state that itrenders them incapable of being properly in control of arms: it "embrace[s] a widerange of conditions". As the Crown submits, the defence submission misreads therelevant terms of the section. Section 18(2)(b) does not require a finding that Mr Smithhad "a mental condition" in the form of some discrete, identifiable syndrome or issue,but rather simply requires an assessment of his mental condition, in the more generalsense of his state of mind.[43] I accept the Crown's submission that the intention of s 18(2)(b) is to allow forthe urgent intervention of the police to prevent those suspected of being incapable ofhaving proper control of firearms from having access to such. It would be contrary tothat purpose to either require a police officer with no medical training to form a beliefas to whether a subject is suffering from a mental illness, or to obtain a medical opinionregarding such, before the police can employ the search powers under this section.[44] Clearly, Senior Sergeant Fleming did not personally make any assessment ofMr Smith's state of mind and, contrary to the defence submission, I do not considerthat was necessary in these circumstances. He relied on the information uncoveredduring the course of the investigation. Much of that information relied on theobservations of neighbours with an "axe to grind" against Mr Smith. It was acceptedMr Smith did not have a diagnosed psychiatric condition or psychological condition:there was no evidence to suggest that Mr Smith was on any anti-depressant or anti-psychotic medication.40 It was also clear on the evidence that Mr Smith had been38 New Zealand Police v Smith, above n 1, at [29].39 At [29].40 At [30].compliant with the police and there was no suggestion that he was mentally unfit toengage in the interview process.41[45] The relevant question is whether Mr Smith's mental condition rendered himincapable of having proper control of the arms. On appeal, Mr Phelps submits that MrSmith had been cooperative in his dealings with the police and that he was mentallyfit for an interview, as the Judge recognised. He submits that despite Mr Smith'santagonistic behaviour, there was no evidence which indicated that Mr Smith wasincapable of having proper control of his firearms. None of the allegations against MrSmith involved the suggested use or misuse of a firearm, and none of the allegedthreats made by Mr Smith involved the use of a firearm. Further, the Australianprevious history involved spent convictions and did not include any convictions forviolence against others, let alone violence which involved the use of a firearm.[46] Mr Smith's history discloses that he was the subject of a restraining order. Astandard condition of a restraining order is that a firearm is not to be used. Mr Phelpssubmits that previous alerts on the police system which relate to Mr Smith's use offirearms had been closed and/or lifted, and they did not bear on Mr Smith's ability tohave proper control of his firearms in December 2017. Mr Phelps therefore submitsthere was no urgency for conducting a warrantless search and the police should haveobtained a search warrant.[47] In the District Court, the Judge rejected Mr Phelps submission and acceptedthe following reasons justified Senior Sergeant Fleming forming a reasonablesuspicion that Mr Smith was incapable of being properly in control of his firearms:42(a) Mr Smith bragging at the barbecue on 17 December about being in theIsraeli army and enjoying killing people.(b) Mr Smith's unpredictable behaviour in getting involved in a relativelyminor altercation and elevating it by overreacting and smashing abottle, threatening to kill the victim with a broken bottle.41 New Zealand Police v Smith, above n 1, at [30].42 At [42].(c) Mr Smith's revenge against a neighbour because he would not backhim up at the barbecue, by bulldozing the waterpipe that provides waterto the neighbour's property. This was described by the Judge as"erratic, vengeful and antagonistic".(d) Mr Smith sending aggressive and antagonistic texts messages toanother neighbour about watching his family burn in a motor vehicle.(e) Mr Smith installed bulletproof glass in his residence and upgraded hissecurity system.(f) Internet articles about Mr Smith's past found by the police. In 2007 hedrove a tractor through the front door of the Colonial Brewing Pub inMargaret River that he co-founded, in a dispute with its new owners.In an article from February 2015, there is a reference to Mr Smithtracking down a person "paying them a visit and my friends are veryvery good at what they do", and a picture of him with a rifle stating,"someone once said that violence doesn't solve problems I think notjust ask the founding fathers of Hiroshima and Nagasaki".(g) Enquiries made of Western Australia police records, which showprevious criminal convictions relating to Mr Smith's cannabis-relatedoffending, and other records show that at times he has had issues withfirearms licences in the past and restraining orders.[48] After traversing all the information available to Senior Sergeant Fleming, theJudge concluded that objectively Senior Sergeant Fleming had reasonable grounds tosuspect under s 18(2)(b), that Mr Smith had a mental condition rendering himincapable of having proper control of his firearms and on that basis, upheld the searchas lawful.43[49] I consider that the Judge's assessment in focussing only on the wording of s 18of SASA, reflecting as it did the way in which the matter was argued before the Judge,43 New Zealand Police v Smith, above n 1, at [43].was too limited. It did not take into account an assessment of urgency if any, includingthe timing of the information received by the police, or the s 6 considerations for asearch warrant and the warrant preference rule. The authorities are less than clear onwhether these circumstances ought to be considered in assessing the lawfulness of theuse of the warrantless power, or the reasonableness of its use.44 I have addressed themin relation to both.[50] I turn, then, to consider the wider factual and legal framework under each ofthe above factors.Were the circumstances here exceptional or urgent?[51] The Law Commission's introductory remarks in its Report on Search andSurveillance Powers on the rationale for warrantless search powers emphasise thatrecourse to such powers is to occur in exceptional and urgent circumstances:455.4 As we noted the importance of the warrant requirement is such thatdepartures from it can be justified in only exceptional circumstances.Nevertheless, whilst the warrant process is the primary means of authorisingand justifying an entry, search and seizure, many Commonwealth jurisdictionsaccept that in urgent circumstances, such a process may be too time-consuming and detrimental to the end result; in such situations the publicinterest may better be served if the police act without a warrant. Thus, incertain circumstances, police officers have statutory authority to enter a placewithout a warrant to make an arrest, to protect life and property, to preserveevidence, or to search for evidence of specific offences, and the common law(and in some jurisdictions, statute) has provided authority to search a placeincidental to arrest.5.5 The exceptional nature of such powers makes it essential to codifytheir existence and their scope. 5.7 Although it is generally accepted that reasonable expectations ofprivacy are lower for some types of property than others, we do not think thatthe nature of the place to be searched should dictate the approach to policewarrantless search powers. That is because exceptions to the warrantrequirement for search powers vested in police officers are justified only incircumstances of urgency or where the obtaining of a warrant would be likelyto jeopardise the objective of a search for which there is an overriding publicinterest.44 R v Laugalis, above n 22, at 355-360; and R v Williams, above n 15, at [24].45 Law Commission Search and Surveillance Power (NZLC R 97, 2007) (footnotes omitted).[52] The Law Commission's discussion as to whether the warrantless power tosearch for firearms ought to be retained is also instructive as to the scope and intendedapplication of the current s 18 warrantless search power.46 The Law Commissionaccepted that there was a need to retain the warrantless search power in respect of bothdrugs and firearms searches. However, in relation to drug-related searches, theCommission noted there should be a specific statutory provision that proscribes theuse of warrantless powers unless the police officer exercising the power believes onreasonable grounds that it is not practicable to obtain a warrant.47[53] The Commission recommended that such a requirement should not extend tothe warrantless powers under the Arms Act, for two reasons. First, the "rapidlyevolving nature of the circumstances means that the basis for exercising the power canchange in a matter of minutes; they do not crystallise in a way that is conducive toaccurate presentation to, or timely judicial assessment by, an issuing officer."48Secondly, the decision often needs to be made in an instant; its timing cannot beanticipated.49 Safety would be compromised if the entry decision were predicated onthe availability of a warrant.50 The Commission concluded:5.67 We accept that, consistent with the public safety rationale for theexistence of the Arms Act powers, it is most unlikely to be practicable for awarrant to be obtained before the power of entry and search can or should beexercised.[54] Mr Phelps submits that the clear intention behind retaining a warrantless searchpower for firearms was that it would be exercised in exceptional and urgent situations,and this was not such a situation.[55] Here, the Crown says there was urgency. It says the decision-making processproceeded until Mr Smith was present in the police station. While the incident at theChristmas function occurred on 17 December, the Crown says the bulk of the relevantinformation, including the witness statements, text data, and material publiclyavailable on the internet, was not received until 21 December. The information from46 Law Commission Report, above n 45, at [5.64]-[5.70].47 At [5.65].48 At [5.66].49 At [5.66].50 At [5.66].Australian police, the information about the fortification of the house, and the textmessage about "deaths in the valley" was not received until 22 December, the day thatthe decision was made to execute the search.[56] The Crown submits that the circumstances, in which the decision to uplift thefirearms was made, were precisely the type of "rapidly evolving" situation anticipatedby the Law Commission, right down to the "effectively snap decision," made whenMr Smith was at the police station, to exercise the warrantless search power under s18 when the circumstances indicated that entry could be effected "with an optimaldegree of safety". It submits the search was undertaken in good faith and withoutanticipating the detection of criminal offences.[57] There were five days from the time of the Glen Falls incident to the search ofMr Smith's house. In a document entitled "Information utilised in decision making,"the police collated the timing of information received about Mr Smith from 9.05 pmon 17 December 2017 to 10.14 am on 22 December, the day of the search. Theinformation received was timed as follows:Date Received Time Received Synopsis17.12.2017 2105 hours Report of assault at Glen Falls19.12.2017 Texts D/Sgt Moorhouse informing him of communityconcerns regarding SmithGun safe installed. H&K UMC .45 rifle. FN 7.62rifle. H&K SL8 .223 rifle. Remington 770 .243 rifle.Remington M887 12 gauge shotgun. Akkar Silah 12gauge shotgunRecords telephone conversations with [H] family,[PW], [ML], & [KH]Photographs of Smith using a bulldozer to destroywater supply on 17.12.17 at 2306 hours20.12.2017 1126 hours Quote from Mr Smith in an email: " he could get acouple of 21 year old militants from Israel that wouldcome over and take the fat Maori bitch out "Quotes from Mr Smith in Sydney Morning Herald:"Missing my FN TAC 7.62mm Sniper Rifle at present.800m practice rounds in target. It makes for a cleanhead shot to create red mist." "Someone once saidonce that violence doesn't solve problems. I think not,just ask the founding fathers of Hiroshima andNagasaki."21.12.2017 Quotes from Mr Smith in the West Australian: " Thegreat thing about living in Israel is I have specialforces bodyguards that love me" "We will bepaying you a visit and my friends are very, very goodat what they do" " In 2007 he drove a tractorthrough the front door of the Colonial Brewing pub in1107 hours1200 hours1207 hours1625 hours1556 hoursMargaret River he co-founded in a dispute with its newowners".Arrested for cultivation of cannabis some years priorQuotes from witness statements: " He said to me"your Grandad is a big cunt". " He smashed thebottom off the bottle of the BBQ" " He said I'mgoing to stab you, no one hits my woman". "asked him if he had a gun. He said yes in my truck"" Ross starts talking about how he was in the IsraeliArmy and how 2014 was the best year of his life beingin the army and killing people". " if you have100 people turn up to your farm to kill you, ring me upand I will come and kill them all. Not a problem."Breaks bottle and threatens to kill [KH]. Smith claimshe has a firearm in his vehicle. States he carries oneall the time."Ross said he was in the Israeli Army and talkedhimself up" [KH] was assaulted by Smith's partner." He held the bottle in his right hand and was staringat me. He was holding the bottle by his side with thejagged edge pointing towards me" "Ross wasstanding there waiting. He said there you are youfucking bitch""He was telling me he knew people in the IsraeliSpecial Forces and how he told them to kill the kidsfirst and then the man." He smashed a bottle and heldit up towards [KH]. He later sent me texts that I gaveto police.Mr Smith's call and text data: "...The wholevalley can fucking burn for all I care now" "Youfucking hillbillies." "There some maori's there spoiledit." "Hate the black cunts."22.12.2017 0721 hours0906 hours1014 hoursMr Smith's text data: "I could negotiate to buy yourdebt from the bank and then forclose on you all!""and in the Mohaka River valley there will be somemore deaths. I will lift a glass to celebrate!"Australian police records and personal file: Warningsentered not to issue firearms in 2007 & 2008. Warrantto Arrest for dangerous driving and failing to stop.Previously convicted for cultivating cannabis andpossession of cannabis for supply. Violence Orderissued in 2000 prohibiting him from being inpossession of firearms or obtaining a firearms licence.Restraining Order issued in 2007 prohibiting him frombeing in possession of firearms or obtaining a firearmslicence.Other government agencies staff report Smith hasfortified his address with bulletproof glass and doorshunt to open outwards to hinder forced entry to theproperty.[58] Senior Sergeant Fleming relied on the cumulative effect of the abovecombination of historic and current information in his decision-making process.Although the decision to search Mr Smith's property was not made until the afternoonof 22 December, it is clear that Senior Sergeant Fleming had days to consider whetherto use a warrantless search power or obtain a warrant for the search. He stated:Oh, we went through every scenario we could think of. We thought of doingnothing, what would that mean for the community, what would that mean forMr Smith, what risks would that bring? Yeah, we tried to canvass everythingwe could of and any option we could think of, but at the end of the day webelieved that the community was at risk from Mr Smith's behavioursYes, so the period between the 17th when the incident at Glenfalls happenedand the execution of the search warrant – execution of the search withoutwarrant was filled with taking statements, gathering intelligence data, seekinginformation from overseas policing agencies, telco as you – production orders,discussions around our tactical planning for the execution of the search shouldwe decide to go ahead with it. There was a lot of time, energy and effort thatwent into that process.Do we do the course you are probably going to suggest we should have used,which was to issue him with a revocation notice and give him some weeks tosurrender his firearms voluntarily under that process? We decided that wasnot an adequate response to the concerns the community had raised. Whichleft us with our position where we decided to execute the searchless – thewarrantless search on his address to seize the firearms. And as I have indicatedin my evidence earlier, that process was ongoing right up until the timedecision made was made on that Friday to go and do it.[59] Mr Phelps directed the Court's attention to the material contained in thejobsheet of Detective Kemsley dated 19 December 2017. Three days before theexecution of the warrantless search power, the police had the following evidence:(a) Information from neighbour SH expressing concerns for the safety ofthe community. This included Mr Smith threatening a couple of hisneighbours which was made worse by the fact he was known to possessfirearms.(b) Information from neighbour LH confirming the fears that thecommunity had regarding Mr Smith's behaviour. In particular, thecommunity was feeling traumatised by Mr Smith who had told them hewas an ex-Israeli army soldier and was in possession of semi-automaticweapons.(c) Information from neighbour PW confirming that recently he had fallenout with Mr Smith and he had received a text message from Mr Smithwhich said "if you're wife and children are in a car accident and itcatches alight I will stand there and watch them burn".(d) Information from neighbour ML that Mr Smith had behavedthreateningly at the Christmas function, that Mr Smith had soughtrevenge on ML for not sticking up for him by cutting off his watersupply and texting him a photo to gloat about it. Mr Smith had sentML a message saying "2014 was the best year for killing people". MLbelieved Mr Smith was a psychopath and would not hesitate to harmsomeone who got on the wrong side of him. ML also knew about MrSmith's firearms.(e) Information from the victim about the nature of the assault.[60] After the incident on 17 December, the police communicated with theCommander of the Armed Offenders Squad. Senior Sergeant Fleming said in cross-examination in the District Court that the Commander "had been involved in theprocess from the beginning" and was involved in several discussions over the ensuingdays with Senior Sergeant Fleming leading up to the search of Mr Smith's property,where 18 officers, including Armed Offenders Squad members, undertook the search.[61] On 21 December, the police applied under ss 71 of SASA for a productionorder from Vodafone New Zealand for all phone data from Mr Smith's phone from 17to 21 December 2017. In making the application, the police relied on the informationthey had obtained from 17 December to 21 December.51 The order was granted by acommissioned police officer and is dated 21 December at 1.22 pm.[62] Relevantly, the conditions for making a production order mirror the conditionsin s 6 of SASA for obtaining a search warrant.52 In the production order application,the police stated there were reasonable grounds to suspect that four offences had beencommitted and that the phone data and documents sought constituted evidential51 See [57] of this judgment.52 Search and Surveillance Act 2012, s 6(a) and (b) and s 72(a) and (b).material in respect of those offences. Those offences were all punishable byimprisonment and were set out in the application as follows:(a) Wilful damage under section 11 of the Summary Offences Act 1981 inrespect of which section 6 of the Search and Surveillance Act 2012authorises an application for a search warrant has been committed.(b) Unlawful possession of firearm under section 45 of the Arms Act 1983in respect of which section 6 of the Search and Surveillance Act 2012authorises an application for a search warrant has been committed.(c) Common assault under section 9 of the Summary Offences Act 1981 inrespect of which section 6 of the Search and Surveillance Act 2012authorises an application for a search warrant has been committed.(d) Threats under section 307 of the Crimes Act 1981 in respect of whichsection 6 of the Search and Surveillance Act 2012 authorises anapplication for a search warrant has been committed.[63] Over the five days therefore between the barbecue on 17 December and thesearch on 22 December, the police clearly had reasonable grounds to suspect the aboveoffences had been committed. On the fourth day, the police obtained a productionorder on the strength of those suspicions. I draw the inevitable inference that therewas more than adequate time for the police to have obtained a search warrant.[64] Instead, the police commenced the Arms Act process of revoking Mr Smith'sfirearm licence by serving him with a notice of revocation when he came to the policestation as requested, and carried out the warrantless search while he was beinginterviewed. It appears Mr Smith was entirely cooperative with the police over thistime.[65] I consider that it is plain from the Law Commission's report, to which bothcounsel referred, that in recommending the warrantless search power for firearms theCommission intended that it would be exercised sparingly, in circumstances requiringan urgent response in the interests of public safety. I am satisfied that thecircumstances in this case did not require an urgent response.[66] Over the period of four days, the police had conducted a thorough investigationand obtained sufficient information on 21 December to apply for and obtain aproduction warrant, on the very grounds that are required under s 6 of SASA.Ironically, in setting out the reasonable grounds to suspect offences had beencommitted in the application for the production warrant, the police specificallyreferenced s 6 of SASA.[67] I am satisfied that this was not a situation where immediate action was neededto stop Mr Smith from unlawfully using firearms on an urgent basis. The police hadobtained information which met the threshold of s 18 of SASA on its face, namely,that Mr Smith had a mental condition which rendered him incapable of having propercontrol of the firearms. However, the resort to a warrantless search power of MrSmith's home did not end there. There had to be an assessment of whether thesituation was exceptional or urgent, such that 18 officers should undertake a search ofMr Smith's home without a warrant.[68] I do not accept that these circumstances were urgent or exceptional. In thesame way that the police applied for a production order under ss 71 and 72 of SASA,there was more than adequate time for an application for a search warrant under s 6 ofSASA, and there were no exceptional or urgent circumstances overriding such anapplication being made.[69] I now turn to the s 6 considerations, and whether evidential material related toa specific offence would be found at the search location.53Section 6 considerations[70] Despite the information about Mr Smith showing signs of "an elevated,irrational, antagonistic, angry and vengeful state of mind against his neighbours",54with a history of making extreme statements and threats involving violence and53 Search and Surveillance Act 2012, s 6(b).54 New Zealand Police v Smith, above n 1, at [43].firearms, of posting a photograph on his Facebook page holding an automatic rifle"with a scope and night vision", of damaging property in a dramatic and vengefulmanner, and who, as of only days prior, saw himself as being "at war" with hisneighbours and the wider community, the police did not consider there was a sufficientbasis to obtain a search warrant under s 6 of SASA.[71] The Crown submits that there was no proper basis on which a search warrantcould have been obtained, either before or on 22 December, because s 6 requires anidentification of a specific offence punishable by imprisonment, and a belief thatevidential material related to that specific offence will be found at the location theywish to search. The item which constitutes that anticipated evidence must, so far aspossible, be specified.55 Further, they say that while a number of offences could haveformed a basis for a search warrant application, it is not clear what specific evidentialmaterial relating to those offences the police could have had any genuine grounds tobelieve would be located at the address. Rather, evidence of the suggested offenceswould be found, if anywhere, on the cell phone records of the respondent, for whichthe police did properly apply for a production order. In these circumstances, if a searchwarrant had been sought here, the Crown says, it would have been artificial or a "mereruse."[72] The Crown says Parliament intended that where firearms are in the hands ofpeople not capable of having proper control of such, barriers to uplift those gunsshould be minimised. They say this interpretation is reinforced by the LawCommission report that informed the final scope of the Act,56 the key passages ofwhich are set out above at [52]–[53].[73] I am unable to uphold the Crown's submission that there was no legitimatebasis for the police to obtain a search warrant in these circumstances for two reasons.The first is that the police had already made an application, explicitly stating that therewere reasonable grounds to suspect that offences had been committed. One of thoseoffences was the offence of unlawful possession of a firearm under s 45 of the ArmsAct 1983. In setting out the detail in the production application, the police specifically55 R v Williams, above n 15, at [212].56 Law Commission Report, above n 45, at [5.64]-[5.67].refer to s 6 of SASA, which "authorises an application for a search warrant". If thepolice could make such an application for one purpose, it follows that they could alsomake such an application under s 6.[74] Second, the second limb of s 6, which required the belief that evidentialmaterial related to a specific offence would be found, would have been easily satisfiedhere. To prove an unlawful possession of a firearm, the obvious evidential requirementis proof of the firearm. Here, the police believed unlawfully possessed firearms wereat Mr Smith's residence, as evidenced by the grounds of suspicion in the productionorder, and they wanted to seize them. As Senior Sergeant Fleming stated, the primefocus of undertaking the search was to seize Mr Smith's firearms. I consider therewould have been no impediment to the police obtaining a search warrant under s 6,just as they obtained a production order under ss 71 and 72 of SASA.[75] A further concern for the police, and underlying the police process andinvestigation, was the public safety concern that Mr Smith may carry out his threatsby unlawfully using his licensed firearms. The police were satisfied, as the Judgeupheld, that Mr Smith had a mental condition in that he was not in proper control ofthe firearms. The purpose in the police contacting the Armed Offenders SquadCommander and focusing their attention on seizing Mr Smith's firearms was drivenby their public safety concern, giving them grounds to suspect that Mr Smith woulduse firearms unlawfully, namely, to use his licensed firearms to commit offences ofviolence or to intentionally threaten others. In my view, the grounds under s 6 wouldhave been met more than adequately in this case.[76] The real nub of this case is that the police believed that they did not need awarrant if s 18 was satisfied. I accept Mr Phelps' submission that the policeinterpretation of the s 18 powers and the Law Commission's report overlooks thereference to the requirement of urgency or the need for a prompt response. TheCommission's wording is that "there is a strong public interest in the police being ableto respond to the threat promptly".57 On this basis, and because of the "rapidlyevolving" nature of the circumstances which means that the basis for exercising the57 Law Commission Report, above n 45, at [5.64].power can change in a matter of minutes, the Commission considered that there arejustifiable exceptions to the warrant requirement in respect of firearms.58 The verywording used by the Commission reinforces that warrantless powers should only beexercised when there are exceptional, rapidly evolving circumstances, and where thereis a need for urgent response. As I have found, that was not the situation here.[77] The courts have emphasised the need for urgency in the use of warrantlesspowers and that the warrant preference rule must be considered. Where there is noquestion of urgency, as the Court found in R v Laugalis and in R v Collins,59 a warrantis to be preferred even when a warrantless power is available.[78] I find that the police could have, and so should have, obtained a search warrantunder s 6 of SASA. The question then is, does this make the exercise of the warrantlesssearch powers under s 18 in these circumstances unlawful?[79] In R v Laugalis, the Court of Appeal found the detective's belief about thereporting requirement for a warrantless search was "quite wrong".60 However, as itwas more of an administrative matter, the Court left open the question of whether thesearch was unlawful, and went on to find it was unreasonable.61 Counsel referred meto Lethbridge v New Zealand Police, where I held the search was unlawful, becausethe police did not turn their minds to obtaining a search warrant before entering MrLethbridge's home in circumstances which were not urgent.62[80] Here, the police did turn their minds to obtaining a warrant, but concluded theyhad met the requirements of s 18 even though there was no urgency on 22 December.In addition, they mistakenly believed they could not have obtained a warrant unders 6. They interpreted the s 18 warrantless search power on its legislative wording only,without regard to the common law authorities. This is also the way it was arguedbefore the Judge and initially before me.58 Law Commission Report, above n 45, at [5.67].59 R v Laugalis, above n 22, at 359; and R v Collins, above n 18, at [22].60 At 357.61 Compare R v Jefferies [1994] 1 NZLR 290 (CA).62 Lethbridge v New Zealand Police, above n 13, at [33]–[62].[81] In the circumstances, I am drawn to the same conclusion as the Court of Appealin R v Laugalis and the Court's analysis in R v Williams.63 Where a warrant was readilyobtainable, which I have found, and there was no question of urgency, such asthreatened loss of evidence or here, an imminent act of violence by an unlawful use offirearms, "a search conducted pursuant to a warrantless power may be lawful, butunreasonable".64 It is therefore arguable that the search was lawful because therequirements of s 18 of SASA were met, despite the fact that it did not comply withthe pre-condition of urgency or comply with the warrant preference rule. As in R vLaugalis, it is unnecessary to decide the point, because even if the search were lawful,the next question is whether it was reasonable.Was the search unreasonable?[82] Because the Judge found the search to be lawful, there was no finding onwhether the search was reasonable. However, a search, even if lawful, can beexercised unreasonably.65 The Court of Appeal in R v Williams has recognised thatlegality and reasonableness, while related, are distinct concepts.66[83] Section 21 of the New Zealand Bill of Rights Act provides:21 Unreasonable search and seizureEveryone has the right to be secure against unreasonable search and seizure,whether of the person, property, or correspondence or otherwise.[84] As the Court in R v Laugalis emphasised:67A prime purpose of s 21 is to ensure that lawful power is not exercisedunreasonably. Any search is an intrusion on freedom or privacy. Whether itis unreasonable involves weighing all consideration of public and privateinterest relevant to the particular circumstances.[85] In addition to the urgency/exceptional circumstances and s 6 considerationswhich I have canvassed above, I find that the search is unreasonable for the followingreasons:63 R v Williams, above n 15.64 At [24].65 R v Williams, above n 15, at [24].66 At [12].67 R v Laugalis, above n 22, at 358.(a) Mr Smith was liaising with the police by text message during the five-day period and was cooperative when they requested him to attend atthe police station.(b) The exercise of the warrantless search powers was undertaken when MrSmith was present at the police station for an interview about therevocation of his firearms licence.(c) The police had already commenced the process of the Arms Actrevocation by serving him a notice of revocation.(d) The police had applied for a production order on 21 December,referencing s 6 of SASA and stating that they had reasonable groundsto suspect that four offences had been committed, one of which was theunlawful possession of a firearm.(e) There was no exigency or need to respond promptly to any threat posedby Mr Smith on Friday 22 December 2017.(f) There were more than adequate grounds to apply for a warrant unders 6 of SASA.[86] I find for all the reasons above and the considerations I have already canvassedunder urgency and s 6 considerations, that the s 18 warrantless search for firearms inthese circumstances was unreasonable.Should the evidence be excluded under s 30 of the Evidence Act?[87] I have found the s 18 search to be unreasonable in breach of s 21 of the NewZealand Bill of Rights Act. The evidence, therefore, has been "improperly obtained"under s 30 of the Evidence Act 2006.[88] I now turn to consider whether or not the exclusion of the evidence isproportionate to the impropriety, by means of a balancing process that givesappropriate weight to the impropriety and takes proper account of the need for aneffective and credible system of justice.68[89] I weigh the following factors in the balancing exercise under s 30(3) as follows:(a) The breach was serious: searches of residential property attract a highexpectation of privacy. In this instance, there was forced entry of MrSmith's home by 18 police officers including the Armed OffendersSquad.(b) The nature of the impropriety: Senior Sergeant Fleming's decision waspremised on a flawed legal basis that there was no legitimate basis forobtaining a search warrant under s 6 of SASA. It was not made in badfaith, or deliberate or reckless. Because he considered the elements ofs 18(2)(b) had been met, that was sufficient to execute the warrantlesssearch. The search, however, was undertaken after a thoroughinvestigation to obtain a significant quantity of information from anumber of sources regarding Mr Smith's state of mind and background.(c) The nature and quality of the evidence: the evidence is highly probativeof the firearms offending. It forms the basis of the charges Mr Smithpresently faces.(d) The seriousness of the offences: the offences are punishable byimprisonment, and serious in that the two military-style semi-automaticweapons were unlawfully possessed, were obtained contrary to MrSmith's gun licence and pose a potential risk to public safety.(e) Availability of other investigatory techniques: the police could haveobtained a warrant or, having served the notice of revocation on MrSmith, they could have given him the opportunity to surrender hisfirearms. Thus far, he had been cooperative with the police. Whetherthat would have resulted in the unlawful firearms being found is another68 Evidence Act 2006, s 30(2)(b).question. I accept the Crown's submission that the latter course ofaction posed a safety risk. There was a clear risk that a request tosurrender his firearms may have enhanced Mr Smith's threateningbehaviour and provoked him further.(f) Alternative remedies to exclusion of evidence: there are none.(g) Apprehended physical danger to the police or others: I reject thedefence submission that there was none. I consider that there was somerisk for the police but more particularly to the neighbours involved,particularly ML given the type of threats he received and the actionstaken by Mr Smith to implement his threats, such as bulldozing ML'swater supply.(h) Urgency in obtaining the improperly obtained evidence: I have foundthat there was no urgency. Mr Smith was continuing to behaveerratically and was sending irate text messages up to 21 December, theday prior to the search, but no search was undertaken until 22December, when Mr Smith agreed to come to the police station.[90] The evidence was improperly obtained as the result of a serious breach of MrSmith's right to privacy in his home. The nature of the impropriety was deliberate butmisguided and therefore was low in terms of seriousness. The arms offences areserious, however, and that factor must be balanced against whether the improprietywas necessary in the interests of public safety, to avoid potential physical danger toMr Smith's neighbouring community.[91] Weighing the above factors, I consider the seizure of the firearms in thecircumstances was necessary in the interests of public safety. The police acted on theinformation from neighbours that Mr Smith, acting as he did and in possession offirearms, may be a danger to others. As a result of the search, the police found thatMr Smith possessed two military style semi-automatic weapons in breach of hislicence. This latter fact exacerbates the safety concerns, particularly in light of MrSmith's threats to his neighbours and the concern that he may resort to the use ofunlawfully possessed firearms.[92] In the circumstances, I am satisfied that exclusion of the firearms evidencewould be a disproportionate response to Mr Smith's breach of his firearms licence andthe firearms offences he now faces. As events in New Zealand have subsequentlyshown, the police ought to be concerned about the possession of unlawful, and nowprohibited, military-style weapons.[93] I find the evidence in relation to the firearms is admissible as it is in theinterests of public safety that evidence of unlawfully possessed firearms, in breach ofthe Arms Act 1983 and Mr Smith's firearms licence, is admissible.Was the search under s 20 for drugs unlawful or unreasonable?[94] I now turn to consider the warrantless search for drugs. While approaching MrSmith's property to search for firearms, the police officers came across cannabis plantsgrowing outside the house that were not hidden and were in plain view. The policedid not seek a warrant but invoked the s 20 SASA warrantless search power and seizedthe cannabis plants. Additional loose cannabis was subsequently located inside thehouse.[95] The relevant provision of SASA governing the power to search for drugoffences without a warrant is s 20, which provides that a warrantless search may belawful in certain limited circumstances. The section provides:20 Warrantless search of places and vehicles in relation to someMisuse of Drugs Act 1975 offences(1) A 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.[96] Before the power of search can be exercised, the police officer must havereasonable grounds:(a) to believe that is it is not practicable to obtain a warrant under s 6;(b) to believe that in or on the place there is a controlled drug or precursorsubstance specified or described in the Misuse of Drugs Act 1975;(c) to suspect that in or on the place an offence against the Misuse of DrugsAct 1975 has been committed or is being committed (or about to becommitted) in respect of that controlled drug or precursor substance;and(d) to believe that if the entry and search is not carried out immediatelyevidential material relating to the suspected offence will be destroyed,concealed, altered, or damaged.[97] Mr Phelps for Mr Smith accepts that Senior Sergeant Fleming had reasonablegrounds to believe that cannabis was at the address, given that police located thecannabis early in the course of the warrantless search for firearms, and so hadreasonable grounds to suspect that an offence involving cannabis had been permittedat the address. Mr Phelps submits, however, that the remaining two prerequisites werenot met, and therefore the warrant could not be lawful under s 20. I deal with eachbelow.Reasonable grounds to believe the evidence would be compromised (s 20(c)).[98] First, Mr Phelps submits that the Judge made no finding as to whether therewere reasonable grounds to believe that the evidence would be compromised if thesearch was not conducted immediately. He submits that in any event, the Judge couldnot have been so satisfied as Senior Sergeant Fleming accepted in cross examinationin the District Court that once police got to the address there was no reason to thinkany evidence to be found would be compromised:Mr Phelps: And once you actually got to the address, there was no reason tothink that any of the evidence that you would find would be compromised,correct?Snr Sergeant Fleming: Yes.[99] Mr Phelps submits that because of this acknowledgment, a fundamental pre-requisite for the execution of the s 20 search power was non-existent, and thereforethe Court cannot find that the s 20 search was lawful, and the Judge erred in so finding.[100] The authorities have held that it is necessary for the officer to turn his or hermind to the likelihood of disposal or destruction of the evidence for which thewarrantless search is conducted; in the absence of such consideration, the search willbe unlawful.69 It is not sufficient to believe that evidence could be lost or concealed;there must be a belief that it will be (i.e. that there is substantial likelihood).70[101] On the evidence, there is nothing to suggest that Senior Sergeant Flemingturned his mind to whether the cannabis evidence would be likely to have beencompromised had the search not taken place immediately. As there is no evidence tosuggest that the officers turned their minds to the concealing of the evidence, Itherefore find s 20(c) of SASA was not satisfied.Reasonable grounds to believe it was not practicable to obtain a warrant (s 20(1)(a)).[102] Second, Mr Phelps submits that Senior Sergeant Fleming did not turn his mindto whether it was practicable or not to obtain a warrant, as required under s 20(1)(a).69 Alamoti v R [2016] NZCA 402 at [51].70 R v Young [2015] NZHC 3337 at [43]-[44].He points to the tenor of Senior Sergeant Fleming's evidence that he did not turn hismind to the possibility of obtaining a search warrant, let alone whether it waspracticable to obtain one. Although Mr Phelps refers to police policy that police donot normally apply for a search warrant for a small cannabis plot, I do not make anyfinding on that issue, because those matters are not properly before me.[103] I do accept, however, that Senior Sergeant Fleming did not turn his mind toobtaining a search warrant and I disagree with the Judge's finding that he hadreasonable grounds to believe it was not practical to obtain a warrant. Mr Smith wasnot at his address at the time, having been asked to attend the police station. The policewere fully aware of this, having designed his absence as part of their strategy, as theCrown submits is open to the police in undertaking such an operation. There was noimpediment to the police obtaining a warrant by phone under s 100(3) of SASA, ifnecessary, once they had located the cannabis plants and material. Applications forsearch warrants should be the rule of thumb for frontline police officers when there isno pressing urgency and issuing officers are readily available within the community,as SASA provides. Doing so maintains the warrant preference rule under SASA andensures an effective and credible system of justice.[104] I find the search under s 20 was unlawful and, in the circumstances, consistentwith the authorities,71 it is also unreasonable.Should the evidence be excluded under s 30 of the Evidence Act?[105] In the event the Judge was wrong in finding the s 20 search was lawful, sheundertook a brief s 30 Evidence Act analysis. She considered five out of the eightfactors in s 30(3). Mr Phelps submits, therefore, that her analysis of the balancingexercise was in error and considered only a handful of the matters necessary. It willbe noted that s 30(3) provides that for the purposes of determining whether or not theexclusion of the evidence is proportionate to the impropriety, the Court may, amongother matters, have regard to the s 30(3) factors. I consider the Judge did not err inher approach simply by not addressing all the factors; it was a discretion open to her.71 R v Williams, above n 15, at [12] and [16]–[18].[106] However, I depart from her analysis in weighing the s 30(3) factors to beconsidered in the balancing exercise. I consider the balance weighs against admittingthe evidence:(a) Seriousness of the breach: This involves entry into an area that theCourts have determined will have a high expectation of privacy incircumstances where a warrant could have been obtained. I havealready found the unwarranted initial search to be unlawful. I considerthis taints the subsequent s 20 search.(b) Nature of impropriety: Although there was no deliberate, reckless orbad faith on the part of the police officer in conducting the warrantlesssearch, he failed to have regard to the practicality of obtaining a warrantand did not apply for a search warrant.(c) The nature and quality of the improperly-obtained evidence is probativeof the cannabis offending.(d) Although cannabis cultivation is a relatively serious offence(punishable by maximum penalty of seven years' imprisonment), thiswas not a commercial situation and there is no suggestion the firearmswere possessed as a means of protecting the plot. I assess it as low tomoderate offending.(e) Other investigatory techniques were available. It was open to the policeto obtain a warrant as I have addressed.(f) There were alternative remedies available to redress the impropriety,namely, obtaining a warrant.(g) There was no apprehended physical danger to the police: Mr Smith andhis partner were not at home. They were at the police station.(h) There was no urgency in obtaining the evidence: It was unlikely tohave been compromised had it not been seized.[107] I find on balance that the evidence of cannabis should be excluded under s 30of the Evidence Act 2006.Result[108] Mr Smith's appeal succeeds in part.[109] The search of Mr Smith's property under s 18 of the Search and SurveillanceAct 2012 was unreasonable.[110] Under s 30 of the Evidence Act 2006, I rule the evidence of unlawful firearmsseized in Mr Smith's property is admissible.[111] The search of Mr Smith's property under s 20 of the Misuse of Drugs Act 1975was unlawful and unreasonable.[112] Under s 30, I rule the evidence of cannabis to be inadmissible.Cull JSolicitors:Elvidge & Partners, Napier for the Respondent