Jason John Warren v Attorney-General

• Jurisdiction: New Zealand
• Judge: Thomas J
• Judgment Date: 18 July 2019
• Neutral Citation: [2019] NZHC 1690
• Court: High Court
• Docket Number: CIV-2019-485-32
• Date: 18 July 2019

Between

Jason John Warren

Appellant

and

Attorney-General

Respondent

[2019] NZHC 1690

CIV-2019-485-32

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

Bill of Rights — appellant subject to bail checks while on electronically monitored bail — claimed they were an unreasonable search and breached his rights under the New Zealand Bill of Rights Act 1990 — Bail Act 2000

Counsel:

D A Ewen and S J Fraser for Appellant

M J McKillop for Respondent

JUDGMENT OF Thomas J

Table of contents

Introduction	[1]
Background	[7]
Notices of bail	[22]
Wrong defendant	[27]
Judgment under appeal	[31]
The appeal	[34]
The evidence	[36]
Mr Warren	[36]
Sergeant McCormick	[41]
Senior Sergeant Chapman	[49]
Legal framework	[54]
The Bail Act 2000	[55]
What constitutes a search?	[64]
Implied licence to enter private property	[74]
What is the legal basis for police bail checks?	[79]
Did the bail checks constitute a search?	[85]
What was the nature of the police activity?	[86]
Was there a reasonable expectation of privacy?	[95]
Reasonableness	[103]
Remedy	[107]
Result	[108]

Introduction

1 While on electronically monitored bail (EM bail) for around seven months in 2017, John Warren was subject to 75 bail checks by the police. These involved police officers knocking on the door of his EM bail address, requiring Mr Warren to present himself in accordance with his bail conditions. The bail checks occurred mainly late at night and in the early hours of the morning. Mr Warren claims these put a strain on his relationship with his partner, forcing him to relocate to his mother's address. Mr Warren's mother then lost the tenancy of her home following the bail checks.

2 Mr Warren claims the bail checks constituted a search and were unreasonable in the context of his being on EM bail. Mr Warren brought proceedings in the District Court claiming, first, his right to be secure against unreasonable search pursuant to s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) had been breached. Secondly, he claimed his right to be treated with humanity and respect pursuant to s 23(5) of NZBORA had been breached. Thirdly, he claimed the bail checks occurred as a result of an administrative error and continued even after the error had been admitted, thereby interfering with the comfort and enjoyment of the property he was lawfully occupying, and constituting a nuisance.

3 Mr Warren sought declarations in respect of the three causes of action, public law compensation of $10,000, a further $10,000 in compensation “to affirm the importance of the rights violated” and costs.

4 Judge Tompkins, in the District Court, dismissed all three causes of action. 1 Mr Warren now appeals in respect of the first cause of action only, breach of s 21 of NZBORA.

5 The appeal is opposed on the basis that the bail checks were lawful and anticipated by Mr Warren's conditions of bail. The checks did not amount to searches because they were permitted by implied licence, Mr Warren had no reasonable expectation of privacy and there was no allegation or evidence suggesting any particular check was unreasonable. Furthermore, it was submitted that the claim was

an abuse of process because restrictive conditions of EM bail are a mandatory consideration in sentencing, providing a remedy should there have been any breach of s 21

6 The issues on appeal are:

• (a) Did the bail checks constitute a search?

• (b) If so, were the searches reasonable in the context of EM bail?

• (c) If so, what remedy ought to be granted?

Background

7 On 10 August 2016, Mr Warren was charged with receiving a stolen trailer and possession of methamphetamine. He was remanded on bail with an overnight curfew. Mr Warren was subject to three bail checks at the Wellington address to which he was bailed.

8 On 13 August 2016, Mr Warren was further charged with receiving stolen power tools and attempted burglary. He was bailed on 15 August 2016 to a Porirua address, with a 24-hour curfew and a condition to present at the door when called upon by police.

9 Mr Warren was regularly subject to bail checks at the Porirua address. Between 15 August 2016 and 3 January 2017 (a period of 142 days), police conducted 83 bail checks on Mr Warren.

10 Mr Warren was checked at approximately 2.08 am on 15 October 2016 but could not be located at the address. He was subsequently arrested for breach of bail and readmitted to bail on 17 October 2016. On 13 December 2016, Mr Warren could not be located at the Porirua address.

11 Mr Warren moved to a Wellington Central address in mid-December 2016. He breached bail three times at this address. The first breach, on 23 December 2016, arose from the need for Mr Warren to seek emergency medical treatment. Two subsequent breaches were recorded on 25 December 2016 and 26 December 2016 when Mr Warren could not be located at the Wellington address. On 3 January 2017, the police were informed that Mr Warren had returned to the Porirua address. Mr Warren was subsequently arrested and remanded in custody.

12 Mr Warren was released on EM bail to the Porirua address on 7 February 2017. A police employee verified the curfew condition in the Police Bail Management Application (BMA), which meant Mr Warren was added to the list of offenders requiring bail checks.

13 Between 7 February 2017 and 12 September 2017 (a period of 218 days), police conducted 88 bail checks.

14 Mr Warren was arrested again on 24 February 2017 after he had posted three TradeMe listings of bicycles stolen between November and December 2016. A search warrant was obtained and executed at the Porirua address on 24 February 2017, and the three stolen bicycles recovered. This resulted in two charges of receiving stolen property.

15 Mr Warren was granted EM bail to the Porirua address again on 27 February 2017, with a 24-hour curfew and a requirement to present at the door if called upon by police.

16 A third receiving charge was laid on 19 April 2017, in respect of a bicycle frame found in Mr Warren's garage.

17 On 12 July 2017, Mr Warren was relocated from the Porirua address to his mother's address in Kapiti. On 26 July 2017, Mr Warren's bail conditions were varied to change his address to the Kapiti address and to implement EM bail at that address. Between 12 July 2017 and 26 July 2017, he was subject to six bail checks.

18 When Mr Warren's mother was given notice to vacate the Kapiti address by 1 September 2017, Mr Warren sought a variation to bail to permit him to live at his mother's new Raumati address but be bailed to the Porirua address on a 24-hour curfew in the meantime. Between 1 September 2017 and 15 September 2017, Mr Warren was not subject to EM bail and was subject to seven bail checks.

19 Mr Warren was granted EM bail to the Porirua address on 15 September 2017. His last bail check in relation to these charges was carried out on 12 September 2017. However, Mr Warren remained on a curfew until sentencing and, between October 2017 and April 2018, attended an addiction treatment service.

20 The three receiving charges relating to the bicycles were consolidated into one representative charge. On 19 April 2018, Mr Warren pleaded guilty to all five charges and was ordered to come up for sentencing if called upon within nine months. The time he had spent on EM bail was taken into account by the sentencing Judge. 2

21 On 14 September 2018, Mr Warren was arrested and charged with burglary and careless driving. On 28 November 2018, Mr Warren was sentenced on those charges and re-sentenced on the earlier charges to six months' community detention and 12 months' supervision. 3

Notices of bail

22 Mr Warren was first admitted to EM bail on 7 February 2017 to his partner's property at the Porirua address on the terms and conditions in the EM bail suitability report. That report described both Mr Warren's partner and the address as suitable and confirmed that she was made aware of the conditions of bail. The assessment of Mr Warren's suitability for EM bail included the following comments:

Suitability of Defendant

Mr Warrant has been made aware of and understands his obligations should he be granted EM Bail and has agreed to comply with the requirements of EM Bail. He was subject to an electronically monitored sentence in 2011 while on Home Detention and breached his conditions on two occasions which resulted in Mr Warren receiving Community work which he completed. Mr Warren has 60 convictions from 2003 to the present day consisting mainly of dishonesty and Methamphetamine convictions. Since Mr Warren was released from prison in February 2015 he has complied with his sentence and

special conditions, completing Alcohol and Drug counselling and a maintenance programme receiving positive feedback from the providers and Probation.

…

Mr Warren is assessed as being at a medium risk of reoffending taking in to account his extensive criminal history. This is also evidenced by him reoffending while on bail 32 times most of which are historic. EM Bail with special conditions is considered sufficient to mitigate the risk of Mr Warren reoffending taking into consideration his compliance and changes to his personal situation since his release from prison in February 2015. Mr Warren is therefore assessed as a suitable candidate for EM Bail.

23 The possible EM related bail conditions included a condition:

Present self at door if called upon by Police or Security Guard.

24 Mr Warren's Notice of Bail dated 27 February 2017 contained a 24-hour curfew with the requirement “to present self at door if called upon by Police”. It included conditions not to consume or possess alcohol or non-prescription drugs and not to associate...