Hamed v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Blanchard J,Tipping J,McGrath J,Gault J
Judgment Date02 September 2011
Neutral Citation[2011] NZSC 101
Docket NumberSC 125/2010 SC 128/2010 SC 129/2010 SC 130/2010 SC 131/2010 SC 132/2010 SC 133/2010 SC 135/2010 SC 138/2010 SC 139/2010 SC 2/2011
Date02 September 2011
Omar Hamed
Tame Wairere ITI
Phillip Purewa
Maraki Teepa
Emily Felicity Bailey
Trudi Paraha
Te Rangiwhiria Kemara
Rawiri Kiyomi ITI
Urs Peter Signer
Ruanatiri Hunt
Valerie Morse
The Queen

[2011] NZSC 101


Elias CJ, Blanchard, Tipping, McGrath and Gault JJ

SC 125/2010 SC 128/2010 SC 129/2010 SC 130/2010 SC 131/2010 SC 132/2010 SC 133/2010 SC 135/2010 SC 138/2010 SC 139/2010 SC 2/2011


Appeal from a decision of the Court of Appeal which ruled covert surveillance recordings and other evidence admissible under s30 Evidence Act 2006 (improperly obtained evidence) — appellants allegedly conducting military-style exercises in Urewera Ranges on privately owned land — whether search warrants obtained under s198 Summary Proceedings Act 1957 authorised covert filming — whether Police trespassed or had implied licence to enter — whether evidence unlawful and obtained in breach of s21 New Zealand Bill of Rights Act 1990 (unreasonable search and seizure).


A T I Sykes and T M Wara for Appellant Teepa

R E Harrison QC, T B Afeaki and G M Fairbrother for all other Appellants

J C Pike and R J Collins for Crown

  • A The appeals of Mr Tame Iti, Mr Te Rangiwhiria Kemara, Mr Urs Signer and Ms Emily Bailey are dismissed.

  • B The appeals of the other appellants are allowed in part. The video surveillance evidence (other than footage of vehicles on Reid Road) is inadmissible against those appellants. All the other disputed evidence is admissible against them.


Para No

Elias CJ


Blanchard J


Tipping J


McGrath J


Gault J


Elias CJ

The appeal concerns the powers of search of the police, raising points of constitutional principle and Bill of Rights protections. It can readily be accepted that the police need legal powers to investigate apparently serious criminal offending and that such powers may include powers of surveillance. Parliament has not however provided legislative authority for covert filmed surveillance, despite recommendations that it should do so. The courts cannot remedy the deficiency through approval of police action taken in the absence of lawful authority without destruction of important values in the legal system, to the detriment of the freedoms guaranteed to all.

The appeal

In bush, on Tuhoe-owned lands in the Urewera Ranges, it is alleged that the appellants participated between November 2006 and October 2007 in military-style exercises using firearms, live ammunition, and Molotov cocktails. The appellants have connections with the privately-owned lands (those who are of Tuhoe descent either as beneficiaries of the owner incorporations or through whakapapa, and the other appellants as their invitees). All appellants are charged with offences contrary to the Arms Act 1983 arising out of the possession and use of the firearms and Molotov cocktails. 1 For such offences the maximum penalty is imprisonment for four years. 2 Four of the appellants (Te Rangiwhiria Kemara, Tame Iti, Urs Signer and Emily Bailey) are also charged under s 98A of the Crimes Act 1961 with participation in an organised criminal group. The indictment simply recites the terms of s 98A(1) in describing those participating as “knowing that their participation contributed to the occurrence of criminal activity, or [being] reckless as to whether their participation may have contributed to the occurrence of criminal activity”. Although the objective of the criminal group (a necessary element of the definition of an “organised criminal group” under s 98A(2)) is not specified in the indictment, it has been treated in the lower Courts as being the objective of seizing by force an area of land, believed to be within the tribal lands of Tuhoe, through serious acts of violence. 3 Section 98A is an offence which, at the relevant time, carried a maximum penalty of imprisonment for five years. 4


The appeal concerns pre-trial rulings to admit prosecution evidence challenged as having been improperly obtained both through trespass and in breach

of the protection against unreasonable search and seizure contained in s 21 of the New Zealand Bill of Rights Act 1990. The evidence includes physical items left on the land after the exercises and photographs of such items on site. It also includes film obtained from motion-activated hidden cameras placed by the police over a number of months on the Tuhoe-owned land in the areas where the exercises were expected to be held. The prosecution relies on these films for identification of the accused and as a record of what they were doing

The facts are fully covered in the reasons given by Blanchard J and need not be repeated. Much of the investigation carried out by the police between November 2006 and October 2007 did not yield anything of evidential value (principally because exercises occurred in different locations than had been anticipated by the police or because expected exercises were cancelled). 5 The admissibility of evidence obtained from police investigations on the land in November 2006 was not in dispute on the appeal. In the result, the evidence in issue concerned police investigations undertaken in January 2007 on Paekoa Track, in June 2007 at Rangitihi, in August 2007 near Whetu Road and of vehicle movements along Reid Road, and in September and October 2007 near Whetu Road.


In the High Court, most of the disputed evidence (including all the filmed surveillance) was found by Winkelmann J to have been improperly obtained 6 but was admitted under s 30 of the Evidence Act 2006 on the basis that its exclusion would be disproportionate to the impropriety. 7 On appeal, the Court of Appeal, disagreeing with the High Court, held that the police entries, physical searches and surveillance filming on the lands was authorised by warrants issued under s 198 of the Summary Proceedings Act 1957. 8 While no s 198 warrant had been obtained for the August entry on to private land at Whetu Road, the Court of Appeal held that the entry was lawful pursuant to an implied licence, since the area was used for recreation by the public without apparent objection from the owners. 9 With respect

to the film of vehicle movements along Reid Road, the Court accepted that the placement of the camera had entailed trespass but held that there was no breach of s 21 of the New Zealand Bill of Rights Act and that the evidence should be admitted under s 30 of the Evidence Act. 10 The Court of Appeal indicated that, even if it had been of the view that the evidence obtained pursuant to the s 198 warrants had been improperly obtained (contrary to its view that the warrants were valid), it would have admitted the evidence under s 30 for reasons similar to those given by Winkelmann J. 11

On further appeal to this Court, I agree with the reasons given by Blanchard J for holding, contrary to the view taken in the Court of Appeal, that the warrants under s 198 of the Summary Proceedings Act (with the exception of the warrant of June 2007 and possibly that of September 2007) 12 did not authorise the police entry on to the Tuhoe lands either for the purposes of the physical searches undertaken or for the purpose of setting up the hidden cameras and later retrieving the film taken by them. Section 198 authorises a warrant to be issued for search for “things” believed, on reasonable grounds, to be on the land at the time the warrant is issued. That follows from the language employed in the section and is also the interpretation to be preferred in application of s 6 of the New Zealand Bill of Rights Act. (I do not share the doubts expressed by Tipping J as to the application of s 6 because the powers conferred by s 198 are limits on fundamental rights and freedoms.) The authorisation of search under s 198 for physical things believed to be on the land includes observation and recording which is incidental to the search and any seizure but could not authorise the surveillance of people undertaken through the covert filming. No statutory authority other than s 198 of the Summary Proceedings Act was suggested to authorise entry. And, as the Law Commission report on Search and Surveillance Powers concluded, no statutory authority has been provided for surveillance of the kind undertaken through the hidden cameras. 13 That was also the conclusion of the Court of Appeal in R v Gardiner. 14


I agree also with the reasons given by Blanchard J for rejecting the suggestion that the police had implied licence to enter for investigative purposes. 15 The limited licence accepted by this Court in Tararo v R 16 (which excuses from trespass someone who approaches a dwelling house to speak to the occupier) has no application to the present case. Nor does any licence to enter arise out of the circumstance that part of the land (particularly that adjacent to Whetu Road) was accessible and used by members of the public for recreational purposes. In the absence of lawful authority, the police trespass in entering the land meant that all evidence resulting from such entry (derived both from the physical scene examination and the covert filming) was “improperly obtained”, requiring consideration of its exclusion under s 30 of the Evidence Act.


I agree also that the evidence was improperly obtained not only by reason of the trespass but because it constituted unreasonable search and seizure, contrary to s 21 of the New Zealand Bill of Rights Act. To his...

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