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

[2016] NZSC 139

INTHE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 11/2016

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
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

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.

The issues were: whether there was jurisdiction to exclude the evidence in the CPRA proceedings; and whether the exclusion of evidence was the appropriate relief.

Held: Section 94 CPRA (effect of final decision that exercise of powers unlawful) contemplated exclusion of evidence obtained unlawfully in the purported exercise of powers under that Act. Such material may not be used, either by way of evidence in proceedings or otherwise in connection with the exercise of powers under the CPRA, unless the HC was satisfied that the there was no unfairness in the obtaining of the evidence. Section 6(2) CPRA (meaning of significant criminal activity) made it clear that remedies under the CPRA were not dependent upon conviction.

Prior to the enactment of the CPRA, in proceedings akin to the present it would have been open to a judge to exclude evidence which had been obtained in breach of the NZBORA. Such exclusion would have been by way of remedy for the breach. For that reason, it seemed that exclusion of evidence as a remedy in the current case would not be in breach of s7(1) Evidence Act 2006 (“EA”) (fundamental principle that relevant evidence admissible). Section 11 EA (inherent and implied powers not affected) provided that the powers of a court to provide remedies for both abuse of process and breach of the NZBORA within the “inherent and implied powers of a court”. Accordingly, there was jurisdiction to exclude the evidence.

Simpson v Attorney—General (“Baigent's case”) established that monetary relief could be awarded for breaches of the NZBORA. Although Baigent's case was concerned with monetary relief, the reasoning of the judges made it clear that the exclusion of evidence in criminal cases was to be viewed as a remedy. R v Shaheed overruled the earlier prima facie exclusionary rule in favour of a balancing exercise to determine whether exclusion of the evidence was necessary to vindicate the right which was breached. Despite the dismissal of the charges against him, it would have been open to M to have sought compensation for the unlawful search.

The CPRA proceedings only involved a claim for money and, in particular, to the proceeds of criminal conduct. M was not at risk of imprisonment. The conduct of the police was not a serious breach, there was information that warranted inquiry. Forfeiture was not dependent upon conviction. It followed that considerations which precluded conviction (such as as the unlawfulness of the search) did not necessarily exclude forfeiture. It would not always be the case that evidence which had been excluded in criminal proceedings would always be admissible under the CPRA.

Relief in the form of exclusion of evidence would not be proportionate to the breach of rights involved. The appeal was dismissed. The disputed evidence was admissible.

  • 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...

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  • Rodriguez v Commissioner of Police
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