Sunday, September 18, 2011

Search, surveillance and the Urewera case

A newspaper report today has a commentator suggesting that confidence in the police will be reduced because of their handling of the investigation of what has come to be known as the Urewera terrorist case.

Until the Supreme Court decided the issue in a judgment not yet available on the usual web sites, R v Hamed [2011] NZSC 101, and which I have not yet seen, the law on whether search warrants could authorise surveillance was unclear. Differences among judges in this case reflected that lack of clarity.

As the New Zealand law Commission noted in its report "Search and Surveillance Powers" NZLC R97 2007, there are few references to surveillance powers in the statutes (see para 11.19 of the report). None of those are relevant to the Urewera case. The NZLC recommended that legislation should be formulated to clarify surveillance powers.

In the absence of a statutory or regulatory framework the courts have had to consider whether surveillance is a kind of search, and this has turned on the circumstances of each case. It was held to be not a search in a case which may still be subject to name suppression so I just give its neutral citation: [2010] NZCA 294, and also in another such case: [2010] NZCA 287. Sometimes surveillance from a neighbouring property by consent of the neighbour has been held to be lawful: R v Beri (2003) 20 CRNZ 170 (CA), and R v Robertson [2009] NZCA 154. And sometimes surveillance has been held to be a search: R v Gardiner (1997) 15 CRNZ 131 (CA). In other cases the courts have held that it was unnecessary to decide whether surveillance is a search because the issue of the admissibility of the evidence turned on the balancing exercise used at common law and which is now enacted in s 30 of the Evidence Act 2006: R v Fraser [1997] 2 NZLR 442, R v Peita (1999) 17 CRNZ 407.

The actions of an undercover officer approaching the defendant's door and secretly making a video recording of the ensuing events has not been held to be a search: R v Smith (Malcolm) [2000] 3 NZLR 656 (CA), although in the possibly suppressed case mentioned above, [2010] NZCA 287 the Court of Appeal noted that opinions may differ over whether this was a search, so it determined the admissibility of the evidence on reasonableness and balancing grounds.

Where the police obtained a search warrant and installed video surveillance equipment, the Crown conceded that that was illegal, however the Court of Appeal doubted whether that concession was correct: (another possible name suppression case) [2010] NZCA 457.

So even right up to the Supreme Court's decision in the Urewera case the law was unclear as to whether surveillance was necessarily a search. The point was if surveillance was a search, it could be authorised by a search warrant. If it was not a search and could not be legitimised in that way, and if it involved a trespass the admissibility of evidence obtained by such surveillance was governed by the balancing exercise in s 30. In the Urewera case, the High Court held that surveillance could not be authorised by a search warrant, but the Court of Appeal overruled that decision. The Supreme Court overruled the Court of Appeal on this point. It also overruled the Court of Appeal and the High Court on the admissibility of some of the evidence where it related to less serious charges.

[Update: as it turned out, the Supreme Court's analysis of search was more subtle than this. It differentiated between a narrow form of search that could be authorised by a warrant - search for things that existed at the time the warrant was executed, where "things" did not include captured images - and the wider form of search that was addressed in s 21 of the Bill of Rights. Covert surveillance is a search when it infringes reasonable expectations of privacy, but it cannot be authorised by a search warrant. There could be an unreasonable search without a trespass: Blanchard J at 57, 63, 64 of [2011] NZSC 101, another aspect of which is discussed here tomorrow.] 
My impression from media reports as the case has made its rather slow way through the courts is that the police acted in good faith in their approach to collecting the evidence. I don't see any reason for the public to lose confidence in the police over this aspect of the case.