Ashby v Police HC Auckland CRI-2011-404-369

[2011] NZHC 1895

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-369

BETWEEN  STUART REECE ASHBY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         21 November 2011

Counsel:         S Magnussen for Appellant

R Savage for Respondent

Judgment:      23 November 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 23 November 2011 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

Sacha Magnussen (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

ASHBY V POLICE HC AK CRI-2011-404-369 23 November 2011

Introduction

[1]      By  notice  of  appeal  dated  5 August  2011,  the  appellant  appeals  against convictions entered by Judge ME Perkins in the District Court at Auckland on the same day.  At the conclusion of a defended hearing, the District Court Judge convicted the appellant on one charge of possession of methamphetamine and one charge of possessing digital scales for the purpose of the commission of an offence against  the  Misuse  of  Drugs Act.    A third  charge,  breach  of  Police  bail,  was dismissed.

The facts

[2]      The facts can be taken from the summary provided by Judge Perkins in the record of his oral judgment:[1]

[1] Police v Ashby DC Auckland CRI-2010-004-19154, 5 August 2011.

[3]       On  22  October  2010  the  constable  was  working  with  another constable on the night shift, they were both in uniform and in a marked patrol vehicle. At 1.25 am, during the early hours of the morning, they went into Dundonald Street in Eden Terrace.  This is a street which runs parallel with Symonds Street. It is relatively unlit and off the beaten track.  They saw a white Mazda motor vehicle parked on the side with three occupants in it. They decided to investigate.

[4]       The constable went to the vehicle and spoke to the driver through the window.  It was a male driver.  A female was seated in the front passenger seat and the defendant, whose identity is not in dispute, was seated in the rear.  It was a two door hatchback vehicle and on the hatch shelf at the back behind the back seat, by use of his torch being shined through the window, the constable noticed that there was a set of small scales, scales which are well-known and consistent with either possession of or dealing in drugs. More often the latter, it is not often that a mere user will have a set of scales.

[5]       The officer then claimed in his evidence that seeing the scales, he had reasonable ground for believing that there was a controlled drug in the vehicle.  He and his fellow officer then asked the occupants to get out of the vehicle, and Constable Albury carried out a search personally of the defendant.   While he was doing so, he says that the defendant initially became aggressive towards him and he asked him to place his hands on a wall.   While he was carrying out the search, the defendant  repeated his aggressiveness, and eventually the constable decided that in order to be able to complete the bodily search, and for his own safety, he should handcuff the defendant, which he did.

[6]       While he was searching the defendant personally, he located inside the defendant’s underclothing a yellow container, which on later inspection, was shown to contain zip-lock bags which we now know contained methamphetamine.

[3]      Having been arrested for possession of methamphetamine, the appellant was placed in the Police car and taken to the Police Station.  The undisputed evidence was that in a conversation in the Police car, when asked what was in the yellow container, the appellant replied “some meth bro”.   He admitted that it was his, he said he was going to snort it and that he had paid $1,200 for it.  The weight of the methamphetamine totalled 1.64 grams.

Defence grounds of appeal

[4]      Ms Magnussen for the appellant puts the key issue as whether the police officer was entitled to search the appellant pursuant to s 18(2) of the Misuse of Drugs Act 1975.  It was that search which found the incriminating evidence.

[5]      Ms Magnussen submits that:

(a)      The  District  Court  Judge  erred  in  finding  that  there  was  no impropriety in the search of the car and in particular he erred in his finding that the presence of a set of scales was enough for the officer to have formed a reasonable belief as compared to simple suspicion;

(b)The District Court Judge erred in finding that even if there had been an impropriety, the evidence would still be admissible upon the application of s 30 Evidence Act 2006.

[6]      The essence of the Defence case on appeal is that the circumstances of the evening in question gave the constable cause to suspect that the occupants of the car might be involved with illegal drugs but did not go beyond suspicion.  Objectively, the circumstances did not give the constable reasonable grounds for believing that there were illegal drugs in the car.

[7]      On  the  second  ground  of  appeal,  namely  that  evidence  obtained  by  an improper search could not be saved by the application of s 30 of the Evidence Act

2006, the essential submission is that the extent of the illegality was not high, the right which was breached was fundamental, and the extent of the breach (the drugs were located inside the appellant’s underwear) means exclusion of the evidence is the only appropriate remedy.

Crown submissions

[8]      The  Crown  submits  that  putting  all  of  the  circumstances  together  the constable, objectively, had reasonable grounds for forming a belief that there were drugs in the car.

[9]      Even if that were found not to be the case, the illegality involved was minor given that the circumstances at least promoted suspicion almost to grounds for reasonable belief.  It is acknowledged that the right to be free of unlawful search is a fundamental one, but in the circumstances of this case it would tip the balance in the wrong direction to exclude the evidence obtained by the search.

The law

[10]     Section 18(2) of the Misuse of Drugs Act 1975 provides:

Where any constable has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in Schedule 1 or in Part 1 of Schedule 2 or in Part 1 of Schedule 3 to this Act or any precursor substance specified or described in Part 3 of Schedule 4 and that an offence against this Act has been or is suspected of having been committed in respect of that drug or precursor substance, he, and any assistants who accompany him, may  enter  and  search  the  building,  aircraft,  ship,  hovercraft,  carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.

[11]     In R v Laugalis, the Court of Appeal discussed s 18(2) as follows:[2]

Although the power to search without warrant is not circumscribed by the statute, its reasonable exercise requires that it be resorted to only where that is reasonably necessary.  Clearly the power is conferred under the Misuse of Drugs Act to enable the interception of drugs before they can be removed or disposed of.  It is of particular importance where the drugs are believed to be in a motor vehicle.   It would be absurd to require the Police to obtain a warrant if in the meantime the vehicle could simply be driven away.   But where there is no risk of that, no urgency, resort to the power is unnecessary and can in our opinion be unreasonable.

[2] R v Laugalis (1993) 10 CRNZ 350 (CA) at 355-356.

[12]     Ms Magnussen for the appellant has been unable to find any case which is directly comparable to this one.  The Crown referred me to R v Anderson.[3]  That case involved  officers,  who  had  lawfully  stopped  a  motor  vehicle,  observing  the passengers acting in a suspicious manner inside the vehicle.  It appeared as though they were trying to conceal items.  On approaching the vehicle, one of the officers saw a red straw with one end fashioned into a spoon.   In the officer’s experience,

straws modified like that are often used to scoop methamphetamine from point bags. On that basis the officer conducted a search under s 18(2) of the Misuse of Drugs Act and found drugs and other incriminating materials.

[3] R v Anderson HC Hamilton CRI-2007-019-9703, 20 October 2008, Keane J.

[13]     On appeal, Keane J concluded that the presence of the modified spoon made it reasonable for the officer to suppose that a wider search would reveal methamphetamine and evidence of related offending.   His Honour also noted the evidence that the accused were acting suspiciously.

[14]     I was able to refer counsel to the case of R v Yeh.[4]    In that case, in the early hours of the morning, police officers conducting licensing checks saw a vehicle double  parked  on  a  street  in  central Auckland.   Appellants  associated  with  the vehicle acted suspiciously.  One of them was recognised by a police officer as the subject of intelligence information suggesting that he was involved with methamphetamine dealing.  The officers considered that two of the people present were exhibiting behaviour and of an appearance consistent with methamphetamine use.  As a consequence, the Police invoked search powers under s 18(2) and (3) of

the Misuse of Drugs Act 1975:[5]

... He believed he had reasonable grounds to do so based on the time, the location,  Mr  Zhan’s  actions,  the  information  suggesting  Mr Cheng  was involved with a gang dealing in methamphetamine, and Mr Zhan’s physical features suggestive of long-term methamphetamine use.   We note that Sergeant O’Neill previously had extensive experience with the Drug Squad.

[4] R v Yeh [2007] NZCA 580.

[5] Ibid, at [3].

[15]     The   search   revealed   drugs   and   other   materials   associated   with   the consumption of drugs.

[16]     The Court of Appeal held:[6]

[6] Ibid, at [37].

In our view this case required a standing back by the Judge and consideration of all of the factors in combination to determine whether or not there were objective grounds for believing there were drugs in the vehicle. The Judge mentioned the Crown relied on the relevant factors cumulatively at [34]. We are quite satisfied, looking at those factors in combination, that there were reasonable grounds to believe. Such a combination of factors was sufficient to give the police “confidence or faith in” the presence of drugs.

Discussion

[17]     The facts of the current case differ from those in Anderson and Yeh in that:

(a)      There was no observed suspicious activity on the part of the occupants of the car; and

(b)The digital scales, while commonly used to weigh methamphetamine, were not unambiguously present in that context (unlike the modified straw in Anderson).

[18]     The circumstances that caused the constable to form the belief that drugs were likely to be in the car were:

(a)      The  vehicle  was  parked  at  the  side  of  the  road  at  approximately

1:25 am;

(b)      The vehicle had its headlights off;

(c)       The area in which the vehicle was parked was dimly lit; (d)    There were three occupants sitting in the vehicle;

(e)       The scales were on the back parcel tray of the vehicle; and

(f)       The scales were the only object on the back parcel tray and appeared

to the constable to be “out of place”.

[19]     It is pertinent to note that the constable had significant experience in the policing of unlawful drugs and was fully aware of the uses to which such scales might be put.

[20]     In my view, neither the factors relating to the time, location and occupation of the vehicle, nor the presence of the scales, by themselves, should objectively have aroused more than suspicion.  But this is a situation where, as with Yeh, I must step back and consider all of the factors in combination.  When I do so, the picture that emerges is of a car parked in the small hours of the morning in a dimly lit street.  Its headlights are off and there are three adults in it.  When the Police look inside, there is nothing remarkable about the interior of the vehicle except for the anomalous presence of the small digital scales.  Those scales were instantly recognised by the experienced police officer as an example of a type frequently used to weigh methamphetamine.   Putting those factors together as a whole, I conclude that the police officer objectively had reasonable grounds for forming a belief that drugs would likely be found in the car.

[21]     If I were wrong on that I would hold that the evidence, although “improperly obtained”, would nevertheless be admissible.

[22]     Section  30  of  the  Evidence Act  provides  the  Court  with  a  discretion  to exclude any evidence that it concludes on the balance of probabilities has been in some way “improperly obtained”.  Section 30(2)(b) requires the Court to undertake a balancing exercise to determine how that discretion should be exercised.   Section

30(3) provides guidance on the factors which may be considered in the balancing process:

For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a)       the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b)      the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c)       the nature and quality of the improperly obtained evidence:

(d)      the seriousness of the offence with which the defendant is charged: (e)      whether there were any other investigatory techniques not involving

any breach of the rights that were known to be available but were not used:

(f)       whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g)       whether  the  impropriety  was  necessary  to  avoid  apprehended physical danger to the police or others:

(h)      whether there was any urgency in obtaining the improperly obtained evidence.

[23]     Considering those factors (where relevant):

(a)      The  importance  of  any  right  breached  and  the  seriousness  of  the intrusion upon it: the right to be free from unreasonable search and seizure  under  s 21  of  the  New Zealand  Bill  of  Rights  Act  is  a fundamental right.

(b)The nature of the impropriety, in particular whether it was deliberate, reckless  or  done  in  bad  faith:  if  I am  wrong  in  holding  that  the constable objectively had reasonable grounds for the formation of his belief, at the least the circumstances confronting the constable were so suspicious it is not surprising that he formed the belief that he did. There was no bad faith and I would not hold that the constable acted recklessly.

(c)      The  nature  and  quality  of  the  improperly  obtained  evidence:  the evidence obtained is conclusive of offending and is exactly the sort of evidence which the constable believed he would find.

(d)The seriousness of the offence with which the accused is charged: the charge is only moderately serious.

[24]     The other factors set out in the subsection are not applicable.

[25]     In these circumstances, I would find the evidence to be admissible.

Conclusion

[26]     The appeal is dismissed.

Brewer J