The Bill of Rights in action

Jeremy Sutton and Anna Ting consider recent District Court case law on pre-trial applications challenging evidence admissibility and transfers to the High Court

Section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) states that “Everyone has the right to be secure against unreasonable search and seizure, whether of the person, property, or correspondence or otherwise”.

The recent District Court decision of Judge B A Morris in New Zealand Customs Service v Pearson (5 June 2009, District Court, North Shore CRI 2008-044-000341) demonstrates protection of the right to be secure against unreasonable search and seizure in the criminal context, using section 30 of the Evidence Act 2006. 

The Court did not deal directly with section 21 of the NZBORA, instead using the balancing test under subsections 30(2), (3), and (4) of the Evidence Act to exclude evidence which was improperly obtained due to an illegal search warrant.

R v Rock
The Pearson case applied a principle set out in the Court of Appeal decision R v Rock [2008] NZCA 81. 

In that case, Customs in New Zealand received information from an investigator from the United States Bureau of Immigration and Customs about New Zealanders using child pornography sites. A Customs officer applied for a search warrant pursuant to section 167 of the Customs and Excise Act 1996 for the appellant’s address based on this information. 

The investigator had no personal knowledge of the information he gave to the Customs officer. The Court held that the search warrant should be set aside and that the evidence obtained in the search conducted pursuant to the warrant was inadmissible under section 30 of the Evidence Act.

The warrant was set aside for two reasons:

• There was no proof of the reliability of the information relied upon by the applicant for the warrant. The Court stated at [15]: “When the information provided in a search warrant application is not personally known by the applicant, the issuing officer needs to be satisfied the information is reliable.”
• The affidavit sworn in the application for the warrant was misleading on the facts.

New Zealand Customs Service v Pearson
Mr Pearson was charged with offences under the Customs and Excise Act and the Films, Videos, and Publications Classification Act 1983. Customs officers located the objectionable material downloaded onto Pearson’s computer in the house that he was staying in at the time. The material was located by chance as a search warrant had been obtained in relation to the address and the owner of the house.

The search warrant was obtained from information which Customs obtained from German authorities, who in turn had received the information from an Internet platform provider.

Counsel for Pearson argued:

• The information used in the application for the search warrant was unreliable (pursuant to Rock);
• The information in the warrant was misleading (pursuant to Rock); and
• The warrant did not apply to Pearson.

Judge Morris dismissed the second and third arguments, stating that there was nothing misleading in the information provided, and there was no suggestion the Customs officers went beyond the scope of the warrant in respect of the search and seizure.

However, the Judge held that the evidence was still improperly obtained as the information on which the search warrant was obtained was not established as reliable. The warrant was invalid and the search illegal.

Section 30 balancing test
Once the evidence is found to be improperly obtained, the balancing test under subsections 30(2), (3), (4) of the Evidence Act is triggered.

Judge Morris weighed the factors, taking into consideration the incursion into Pearson’s privacy, community concerns about child pornography, the nature of the offending, and the fact that the offences were punishable by fine only, and the need for an effective and credible system of justice.

On balance, the Judge held that the evidence should be excluded. As there was no other evidence against Pearson, the charges were dismissed.

Executing search warrants
Police and Customs officers have powers under various Acts to apply for and execute search warrants. These powers are not to be used lightly and are kept in check by the statutory regimes which govern search warrants. 

A person’s right to be secure against unreasonable search and seizure is protected not only by section 21 of the NZBORA in the civil context but by section 30 of the Evidence Act in the criminal context.

Courts have the power to ensure evidence obtained from illegal searches is not admitted and the Pearson case demonstrates that, where appropriate under the section 30 factors, the Court is not afraid to use this power. It seems police and Customs need to ensure they ‘get it right’ when engaging processes which affect a person’s right to privacy and not to be subject to unreasonable search and seizure. 

Opposing transfer to the High Court
Clients are increasingly asking us for civil remedies for breaches against their rights. The NZBORA remains untested in many areas.

In Koia v Attorney General (10 June 2009, District Court, Manukau CIV 2008-092-001401, Judge C S Blackie), the plaintiff is suing the Attorney-General, as first defendant, for the acts of Constable Alexander Grant, the second defendant, in respect of certain actions taken by him in the capacity of a police officer, in July 2003. The plaintiff in its causes of action, pleads a mix of common law and breaches of the NZBORA, namely breaches of sections 9, 22 and 23(5).

The Crown made an application to transfer the matter to the High Court pursuant to section 43(2) of the District Courts Act 1947, which was opposed by counsel for the plaintiff. This section allows the proceedings to be transferred to the High Court if an application is made within a prescribed time frame or if the Judge considers that some important question of law or fact is likely to arise, other than incidentally.

Facts alleged
The key facts alleged included that the plaintiff was pepper sprayed, handcuffed, and placed in the back of a patrol vehicle on arrest. While he was being transported to the Papakura Police Station, the constable seriously assaulted him. He suffered a bleeding nose and was spitting blood. He was knocked unconscious and, at one point, one of the other constables feared he might be dead. As a result of his lack of consciousness, the plaintiff does not remember being processed at the Police Station. He was, however, released the next day. 

Following internal disclosures within the Police, the conduct of Constable Grant was investigated. He was subsequently charged and convicted by a jury of injuring the plaintiff with intent to injure in October 2006. He was sentenced to 16 months’ imprisonment, with leave to apply for home detention.

For his part, Constable Grant admits the majority of the facts outlined, although he claims he was justified in deploying the pepper spray and denies the plaintiff was knocked unconscious. By way of a substantive defence, he pleads that as he was convicted on a criminal charge and sentenced to 16 months’ imprisonment, no additional penalty by way of exemplary damages should be awarded. 

Vicarious liability
There is no clear binding authority on this Court as to whether the Attorney-General can be vicariously liable for an award of exemplary damages when sued in respect of the actions of a police officer. 

Novel issue – a type of double jeopardy?
Section 26(2) of the NZBORA states “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.”

The Judge held there is no relevant case law guiding the determination of the issue as to where a person responsible for infringing the right has been prosecuted and sentenced to imprisonment and what further vindication of that right is necessary or appropriate. 

The facts in this case give rise to a novel situation, as the police officer was convicted and sentenced to imprisonment for infringing the rights of the plaintiff. This, in itself, raises an important question of law or fact which the Judge felt the High Court would be best suited to hear in the first instance. 

Recognition of complexity
While the Judge accepted that the quantum of the relief claimed was well within the District Court’s jurisdiction and that the District Court should be cautious before transferring proceedings to the High Court on account of additional cost, the Judge nevertheless found in favour of the Crown’s contention that the case law was unsettled in respect of the issues in this case. The Judge held there was a need for an authoritative decision from the High Court and, if need be, from the Court of Appeal.

The Judge ordered that these proceedings be transferred to the High Court for hearing, subject to conditions, including that all interlocutory procedures be completed in the District Court.

It is unusual for either party, especially the Crown, to seek to have cases transferred to the High Court. This decision illustrates that the Courts are recognising the complex nature of NZBORA claims and resulting damages, and their importance.

Jeremy Sutton is a barrister, and Anna Ting a junior barrister, based in Manukau, Auckland.

NZLawyer, issue 118, 7 August 2009