Category Archives: Expert Witness

New Search & Surveillance Powers Bill

YOUR GUIDE TO PROPOSED NEW POLICE POWERS

BY CHRIS FOWLIE

NOTE: this was written in November 2008 before the Bill was passed, so may no longer be accurate. The Bill became the Search and Surveillance Act 2012. This article should not be relied upon and is not legal advice. Consult your solicitor for any questions.

In the biggest shake -up for police search powers since the civil rights movement, the Government has tabled a new Search and Surveillance Powers Bill in Parliament. It draws together existing powers, creates several new police powers and retains the draconian warrantless search provisions of the Misuse of Drugs Act.

Five years ago, the Government asked the Law Commission to review the various search powers of law enforcement officials. It described the situation as “a mess”1. Significant changes proposed in the bill2 include a consistent approach to obtaining all search and surveillance warrants; expanded use of surveillance devices; more powers to search computers and seize electronic data; and new orders allowing law enforcement officials to compel people or companies to answer questions and turn over records.

Obtaining a warrant

Currently the threshold for obtaining a warrant varies between different search powers. The new  law will set out a single standard for all search powers. This will require law enforcement officers to satisfy the issuing officer of reasonable grounds to suspect an offence has been or is about to be committed, as well as reasonable grounds to believe that the evidence sought is in the place
to be searched.

At present a search warrant can be issued by Judges and by any Registrar, Deputy Registrar or Justice of the Peace – regardless of their training or experience. Under the new legislation a search warrant will only be issued by Judges or “issuing officers”, who will be specially trained and appointed Registrars, Justices of the Peace and other “appropriately qualified and experienced” people. Some may be available 24/7. The bill also proposes allowing written applications for warrants to be able to be transmitted electronically, and oral applications will be possible
in certain “urgent” circumstances. Oral applications are particularly problematic, as that could mean
defendants will lose the ability to challenge the reasons for seeking them, as there would be no sworn affidavit to provide a record.

Warantless searches

The “emergency” warrantless search powers of the Misuse of Drugs Act will be retained. Section 18(2) of the Misuse of Drugs Act applies to all class A drugs, and some class B and class C drugs and precursor substances. This power is routinely abused by the police to get around the Bill of Rights and search anyone they want3. They simply say they can smell cannabis. Most people don’t
object to the search, or don’t fight it in court. But during the 2001-3 Cannabis Inquiry hearings so many people complained about the abuse of their rights that the Health Select Committee felt the need to remind police the “emergency” powers were “intended by Parliament to be used primarily for serious trafficking and supply offences, not for personal possession charges … Today these
powers are used as part of routine activities or street patrols.”4

The Law Commission noted that warrantless search powers are rare: they are found only in the Arms Act 1983 and the Misuse of Drugs Act. The absurdity of putting weekend tokers in the same league as gun runners and meth labs – and needing the same emergency search powers – seems to have been lost on the commissioners. They recommended both powers be retained as  “justifiable exceptions of long-standing to the warrant requirement”. There are no changes proposed. As usual, accepted norms of justice, such as the Bill of Rights protection against unreasonable search – are conveniently forgotten when it comes to drugs. For example, the new law says internal body cavity searches are “generally prohibited” – except if they are looking for drugs.

When Police and Customs officers need the consent of a person to conduct a search, it may be worded like a threat, or a question that it is difficult to say no to. There is currently no clear definition as to what constitutes consent, and silence is taken to mean consent. The new law makes it clear that law enforcement officers should first have a valid reason for asking someone’s consent to perform a search, and that they should advise them of that reason, and of the fact that they may refuse consent. NORML reminds you at this point – never consent to a search!

Surveillance powers

Current law covers only audio surveillance, so video surveillance does not need a warrant. The new law says all electronic surveillance devices will generally require a warrant, which will only be issued by a District or High Court Judge. A warrant won’t be needed when visual surveillance devices are used in public or in public parts of buildings, or for unaided visual observation or
overhearing.

Protections applying to physical searches should apply to cyberspace, but the bill proposes allowing remote searches without the person even being aware it had been done. If surveillance powers are exercised, the enforcement officer must report to a Judge who will have powers to deal with material obtained, and report to the Chief Executive of the relevant law enforcement agency, and in some circumstances they will have to tell the subject of the surveillance they are being
spied on.

Self -incrimination

The bill overrides the right to remain silent by allowing law enforcement officials to obtain “production orders” to force people to produce specified information or documents in their control. An “examination power” will also allow enforcement officers to require a person to answer questions. The bill contains another power to question people with relevant knowledge obtained in a business context, such as in the course of providing professional services or advice, and a power to examine people with relevant knowledge obtained socially.

These sort of powers are not usually available to law enforcement officers as they go against the commonly accepted norms of justice. People have a right to remain silent and should not be forced to answer questions or make a statement. The token safeguard is that applications to use this power will need to be approved personally by the Commissioner of Police and the Secretary for Justice as well as being authorised by a District or High Court Judge. Officers will only be able to ask questions that are relevant to the investigation. The privilege against self-incrimination will still be available to any person (but not company) questioned under an examination order.

Safeguards

Officers carrying out a search of premises when the occupier is absent will have to let them know they were searched. Surprisingly, there is currently no obligation to do so with most search powers. If items are seized, the new law says a list of what has been taken should be promptly provided. The bill also contains a procedure to deal with privileged or confidential material or communications, such as lawyer-client privilege, to ensure it is appropriately protected from disclosure. While the bill contains a few protections, they are not enough.

Michael Bott of the NZ Council for Civil Liberties described the more intrusive police powers contained in the bill as a “jackbooted jump back to the past where the citizen has minimal protection against the might of the state.” The impact will depend, to a large extent, on the integrity of individual police officers, and there is little reason we should simply trust them and hope for the best. More comprehensive safeguards are needed, so make sure you have
your say.

Email your MP: www.norml.org.nz/EmailMP
Have your say: www.parliament.nz/en-NZ/HvYrSay/

Links to references:
1. tinyurl.com/49n9ee
2. tinyurl.com/48podv
3. tinyurl.com/46xtnb
4. www.norml.org.nz/category5.html or tinyurl.com/4tzwtp

Property Seizure 2.0 – The Criminal Proceeds (Recovery) Bill

BY CHRIS FOWLIE

The Criminal Proceeds (Recovery) Bill is a significant erosion of civil liberties and will almost certainly see the innocent punished

The bill has not yet come back from the Law and Order Committee and so could still be significantly amended. It proposes to seize people’s assets even though they have not been convicted of any crime. It violates fundamental norms of justice, such as the presumption of innocence and the prohibition on double jeopardy, and could also breach the New Zealand Bill of Rights Act.

If passed, the bill would allow both conviction-based forfeiture and confiscation which requires no conviction for property that is said to be the proceeds of crime or unlawfully derived income. The same person may be the subject of criminal prosecution and confiscation action under the civil process. Those who are acquitted can still have their assets seized for unproved and unspecified
crimes. They would not even have to be prosecuted to have their assets seized. Furthermore, if they are prosecuted they could not use their disputed assets to fund their defence.

In a departure from the accepted norms of natural justice, people who are targeted must prove themselves innocent. The bill allows the government to use an absurdly low standard of proof – “reasonable cause to believe” – to seize assets. With insufficient evidence for a conviction, police may approach a High Court judge with a lower standard of proof to seize assets. Suspects may not even know they face action and may have no opportunity to defend themselves.

The bill specifies that “the court may not allow legal expenses to be paid out of the restrained property”, denying suspects the fundamental right to legal representation. The retrospective provisions in the Bill made it even more contemptible.

The Proceeds of Crime Act 1991

Under the existing Proceeds of Crime Act 1991, which the new bill would replace, almost the entire total amount confiscated has been from cannabis growers.

To seize property the police need only show that the property has been “tainted” – they don’t need to prove it was paid for using drug incomes. Furthermore, they only need show a civil burden of proof, i.e. a “balance of probabilities” rather than the usual proof of “beyond all reasonable
doubt”. Not only is the new bill repugnant, the Proceeds of Crime Act 1991 should also be repealed.

Maori

Maori are at particular risk of having their ancestral lands taken by the Crown – for a second time. Many Iwi and Hapu have only marginal lands left. Faced with little prospect of farming this land, little hope of legitimate employment and ongoing land rates to pay, some have chosen to use the opportunity cannabis prohibition has presented them with. Money may not grow on trees, but it does grow on cannabis plants that are almost worth their weight in gold. If they are caught Maori face not only a harsher average sentence but may have their ancestral lands confiscated under the Proceeds of Crimes Act, despite the obvious fact that the land could not have been paid
for using illicit drug money.

Police corruption

Asset forfeiture laws encourage corruption. There have been several reports of police impropriety in attempting to seize property including planting evidence and lying under oath. In one of the biggest sums awarded against police, in August 1999 Judge Michael Lance awarded Great Barrier Island man Colin Moore $54,000 towards the $100,000 he spent defending charges of cultivating cannabis and fighting to keep the family farm. Police did not photograph the evidence or give Moore the chance to look at the plants. They also left out evidence during the trial. The Police helicopter was allegedly spotted delivering a load of cannabis to Mr Moore’s farm. The farm had
been in the family for generations and could not have been paid for with drug money.

The Judge was scathing of the Proceeds of Crime Act. “It’s an invasion of personal privacy,” said Lance. “The legislation needs some careful attention.” Even the rather conservative New Zealand
Herald opposed the new bill (27/11/04):

“It’s classically opinion-poll driven legislation that seeks to wipe out the rights of people who legitimately own property by seizing that property on what’s often no more than a suspicion. The onus is then on the owner of that property to prove otherwise. It can be very hard to prove income was legally derived without documented evidence.”

The government believes other countries have been more successful in seizing assets. However, in seeking to ‘get tough’ on drugs, they are trampling on all our rights and the principles of natural justice.

(NORML News Summer 2008. Next issue: in Pt.3 of this series Auckland lawyer Rob Weir reports on the progress of the bill and any changes made by the Law and Order Select Committee.)

Supreme Court to rule on supply presumption amounts for cannabis

The Supreme Court is reviewing the “presumption of supply” in the Misuse of Drugs Act, which presumes that anyone caught with more than 28 grams – or 10 plants or 100 cigarettes – is guilty of having it for supply unless they can prove otherwise.

Paul Rodney Hansen, 50, and another man were found at Hansen’s Glenorchy home in May 2003 manicuring a freshly harvested crop of outdoor cannabis. The cannabis weighed 1.8kg and Hansen admitted half was his, saying it was his annual supply. He was convicted in Invercargill District Court last March of possessing cannabis for supply and sentenced to three years’ jail, which was reduced to 2 1/2 years on appeal.

Hansen’s lawyer, Sonia Vidal, told the Supreme Court there was no evidence her client had been selling cannabis. She told the court laws prescribing personal use as one month’s supply were unrealistic, as a cultivator growing outdoor plants could harvest cannabis only once a year. Under the Bill of Rights Act, people accused of crimes were presumed innocent until proven guilty, she said.

The five-judge bench reserved its decision. When the decision is released, it will be made available online at the Ministry of Justice’s Judicial Decisions Online

(NORML News Autumn 2006)

UPDATE: the Supreme Court ruled in dismissing Hansen that “Even though s 6(6) of the Misuse of Drugs Act is inconsistent with the right to be presumed innocent until proved guilty according to law, and is not redeemed by s 5 of the Bill of Rights Act, s 4 of that Act requires that the appeal be dismissed.”