Karl Leslie Raymond Marwood v Commissioner of Police

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,William Young,Glazebrook,Arnold,O'Regan JJ
Judgment Date26 October 2016
Neutral Citation[2016] NZSC 139
Docket NumberSC 11/2016
Date26 October 2016
BETWEEN
Karl Leslie Raymond Marwood
Appellant
and
Commissioner Of Police
First Respondent

and

Erana King
Second Respondent

and

Karl Leslie Raymond Marwood And Margaret Isabel Marwood As The Trustees Of The Perrin Trust
Third Respondents

and

Anz Bank
Fourth Respondent

[2016] NZSC 139

Court:

Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 11/2016

INTHE SUPREME COURT OF NEW ZEALAND

Appeal against a Court of Appeal decision which concluded that there was no jurisdiction in civil proceedings to exclude evidence on the grounds that it was unlawfully obtained and that if such a jurisdiction existed, it should not be exercised — police officers had executed a search warrant on the appellant's house — as a result of what they found, he was prosecuted for drug offences — the appellant successfully challenged the search warrant which resulted in the exclusion of the evidence derived as a result of the search — the appellant was accordingly discharged under s347 Crimes Act 1961 (power to discharge accused) — the first respondent had commenced proceedings under the Criminal Proceeds (Recovery) Act 2009 (“CPRA”) seeking profit forfeiture orders against the appellant — whether there was jurisdiction to exclude the evidence in the CPRA proceedings — whether the exclusion of evidence was the appropriate relief.

Counsel:

R E Harrison QC and M W Ryan for Appellant

M D Downs and P D Marshall for First Respondent A G Speed for Second Respondent

M W Ryan for Third Respondents

No appearance for Fourth Respondent

  • A The disputed evidence is admissible in these proceedings.

  • B The appeal is dismissed.

  • CThere is no order as to costs.

JUDGMENT OF THE COURT

REASONS

William Young, Glazebrook, Arnold and O'Regan JJ

[1]

Elias CJ

[55]

WILLIAM YOUNG, GLAZEBROOK, ARNOLD AND O'REGAN JJ

(Given by William Young J)

Table of Contents

Para No

The appeal

[1]

The criminal proceedings

[5]

The CPRA proceedings

[11]

The legal context — evolution of the rules as to the admissibility of, and power to exclude, improperly obtained evidence

[20]

The common law position as to unlawfully obtained evidence prior to the enactment of the New Zealand Bill of Rights Act 1990

[20]

The jurisprudence as to unlawfully obtained evidence after the New Zealand Bill of Rights Act but before the Evidence Act 2006

[23]

The relevant provisions of the Evidence Act 2006

[28]

A residual jurisdiction to exclude, otherwise than under's 30, admissible but unfairly or improperly obtained evidence

[32]

The jurisdiction issue

[33]

The High Court judgment

[33]

The Court of Appeal approach

[34]

Our approach

[35]

Is exclusion an appropriate remedy?

[39]

The approach of Cooper J

[39]

The approach of the Court of Appeal

[41]

Our approach

[46]

Disposition

[53]

The appeal
1

On 6 July 2010, police officers searched Karl Marwood's house at 12A Laughton Street, Taupo. As a result of what they found, he was prosecuted for cultivating and possessing cannabis for the purpose of sale, selling cannabis and stealing electricity. In the course of those proceedings, Mr Marwood successfully challenged the search warrant on which the police officers had relied when searching his house. This resulted in the exclusion of the evidence derived as a result of the search. 1 The prosecution was left without an evidential basis for the prosecution and Mr Marwood was accordingly discharged under's 347 of the Crimes Act 1961. 2

2

The Commissioner of Police (the Commissioner) has commenced proceedings under the Criminal Proceeds (Recovery) Act 2009 (CPRA) seeking profit forfeiture orders against Mr Marwood, his partner Erana King and a trust associated with them: the Perrin Trust. 3 The claim is addressed to benefits which are said to have accrued to Mr Marwood and Ms King as a result of significant criminal activity and is largely based on the evidence which was excluded in the criminal proceedings. In issue is whether the Commissioner may rely on the results of the search in the CPRA proceedings.

3

In a pre—trial determination, Cooper J held that the Court had jurisdiction to exclude the evidence in the CPRA proceedings and that, in the exercise of his discretion, exclusion of the evidence obtained as a consequence of the search was appropriate. 4 The Commissioner's appeal against this judgment was successful in the Court of Appeal, with that Court concluding that there was no jurisdiction in civil proceedings to exclude evidence on the grounds that it was unlawfully obtained. 5 The Court also said that if such a jurisdiction existed, it should not be exercised. 6

4

The critical issues in the case are whether there is jurisdiction to exclude the evidence 7 in the CPRA proceedings and, if so, whether it should be exercised. To set the scene for our discussion of these questions, it is appropriate for us to review briefly the criminal proceedings, the CPRA proceedings and the legal context provided by the evolution of the rules as to the admissibility of, and power to exclude, improperly obtained evidence.

The criminal proceedings
5

On 23 June 2010, a member of the public, Rex Kirby, received a telephone call. The caller inquired whether he was speaking with “the police”. Mr Kirby replied in the affirmative as he thought the caller was from the police. The caller said: “For your information I can't tell you who I am, at 12A Laughton Street, Karl has marijuana plants growing in the back of his property.” Mr Kirby reported the call to the police. Relying in large measure on this tip—off, the police sought and obtained a search warrant on 30 June 2010.

6

The warrant was executed on 6 July 2010. In the course of it, the police found a reasonably substantial cannabis growing operation underway along with a significant amount of dry cannabis and scales. At interview Mr Marwood and Ms King both made admissions. Mr Marwood was charged with cultivation of cannabis, possessing cannabis for the purpose of sale, selling cannabis and theft of electricity. No charges were laid against Ms King.

7

Under's 198 of the Summary Proceedings Act 1957 (as applicable to this case, but now repealed):

  • (1) Any District Court Judge or Justice or Community Magistrate, or any Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place–

  • (a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

  • (b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

  • (c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence–

    may issue a search warrant in the prescribed form.

The warrant was thus invalid unless there were reasonable grounds to believe that a cannabis growing operation was underway at Mr Marwood's house.

8

The material set out in the application was particular to the 12A Laughton Street house and to an offender known as “Karl”. It also showed that Mr Marwood, whose first name is Karl, was associated with that address. This association provided some support for the tip—off as did Mr Marwood's prior convictions for similar offending, albeit that this offending had occurred 13 years previously. 8 The inquiries made by the police as to the reliability of the tip—off were, however, far from extensive. In the result the lawfulness of the search fell to be determined by reference to the limited material relied on in the search warrant application.

9

Mr Marwood's challenge to the search warrant succeeded as Judge Bouchier concluded that the application established merely a suspicion of offending. 9 She also placed weight on the lack of any police inquiries about the reliability of the information. 10 She was of the view that the search warrant was invalid and that the search was unlawful and in breach of s 21 of the New Zealand Bill of Rights Act 1990. In exercising her discretion to exclude the evidence, the Judge recorded that while the police were not guilty of acting in bad faith, their actions had been “sloppy”. 11

10

Judge Bouchier's ruling meant that there was no admissible evidence against Mr Marwood and he was discharged under's 347 of the Crimes Act 1961.

The CPRA proceedings
11

In the CPRA proceedings, the Commissioner contends that Mr Marwood, Ms King and the Perrin Trust have received benefits totalling $334,130.10 from the cultivation and sale of cannabis, obtaining by deception and theft of electricity. The Commissioner seeks orders forfeiting the house at 12A Laughton Street, bank accounts in Mr Marwood's name and two motor vehicles.

12

Section 3 of the CPRA is in these terms: 12

3 Purpose

  • (1) The primary purpose of this Act is to establish a regime for the forfeiture of property–

    • (a) that has been derived directly or indirectly from significant criminal activity; or

    • (b) that represents the value of a person's unlawfully derived income.

  • (2) The criminal proceeds and instruments forfeiture regime established under this Act proposes to—

    • (a) eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and

    • (b)deter significant criminal activity; and

    • (c)reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and

      (emphasis added)

The aspirational language of s 3(2)(a) gives a clear and emphatic signal as to the legislative purpose.

13

Section 4 relevantly provides:

4 Overview

  • (1) In general terms,...

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