C v Police HC Auckland CRI 2006-404-152

[2006] NZHC 1377

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000152

BETWEEN  C

Appellant

ANDPOLICE Respondent

Hearing:         27 October 2006

Appearances: GJ Newell for Appellant

E McGill for Respondent

Judgment:      8 November 2006

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

8 November 2006 at 4.30 p.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy:

GJ Newell, PO Box 105444, Auckland

C V POLICE HC AK CRI 2006-404-000152  8 November 2006

[1]     C   appeals against his conviction in the Auckland District Court on two charges of possessing Class A drugs (respectively methamphetamine and cocaine) contrary to s 7(1)(a) of the Misuse of Drugs Act 1975.

[2]      The prosecutions arose from a search of a vehicle that the appellant had been driving along High Street in Auckland at about 3.40 a.m. on Sunday 13 February

2006.  Amongst items found in the vehicle were a self-sealing plastic bag containing

192 milligrams of cocaine, and 754 milligrams of methamphetamine.   It was contended in the District Court that  the  police  had  not  had  proper  grounds  for conducting the search under s 18(2) of the Misuse of Drugs Act 1975.

[3]      The police had also invoked their powers under s 18(3) to search Mr C   personally.  However, nothing was found on him.

[4]      The  main  prosecution  witnesses  were  Sergeant  O’Neill  and  Constable Arapai.  On the basis of their evidence, District Court Judge Lockhart QC, held that the requirements of s 18(2) of the Act had been met, so that a member of the police had reasonable ground for believing that there were controlled drugs of the kind specified in that subsection in the vehicle driven by the appellant.   The primary question on the appeal is whether or not the Judge was correct in that conclusion.

[5]      If incorrect, then the subsidiary questions arise as to whether or not the search was nevertheless reasonable and as to whether the evidence should have been admitted having regard to the approach required by R v Shaheed [2002] 2 NZLR

377.

The facts

[6]      The facts were given in the evidence of the two police officers.  They were in High Street on foot, pursuing other enquiries when they noticed a silver Mercedes Benz travelling along High Street at approximately 10 to 15 kilometres per hour. Sergeant O’Neill said that he could observe the driver, who was the appellant.  The

appellant had looked at the police officers directly as he drove past and, according to Sergeant O’Neill, he “appeared to be startled, he had a wide type gaze as he drove past”.

[7]      Constable Arapai also spoke of observing the appellant drive slowly past, and of noticing the “driver’s eyes to be wide open, he was also very nervous as he drove past”. The constable also noted that the registration of the vehicle had expired.

[8]      The  appellant  turned  into  a  cul-de-sac  known  as  Little  High  Street  and parked.   The police approached.   Constable Arapai was intending to question him about the expired registration and as he approached, he also saw that the warrant of fitness on the vehicle had expired.  The constable introduced himself and asked the appellant for his name and date of birth.   These were given and recorded in the constable’s notebook.  Referring to notes that he made at the time, Constable Arapai continued:

I introduced myself, I said, my name is Constable Arapai, Downtown Police. I said, may I please speak to you?  He said, yeah, what do you want?  I said, is this your vehicle you’re driving, registration YU 6640?  He said, yeah, it is, why?  I said, I noticed as you drove past that your registration has expired and now I observe that your warrant of fitness to be expired as well [sic]. Can you please explain to me why they’re expired?  He said, I don’t know, just forgot, that’s all, I’ve been busy.  I said, may I please see your driver’s licence?  He said, yeah, okay, here it is but it’s only a restricted licence.  I said, do you understand the conditions of your restricted licence?  He said, yes, not allowed to drive after 10pm, not allowed to carry passengers.  While I was speaking to him I observed his physical appearance and demeanour to be consistent with a person who had recently consumed methamphetamine, his eyes were extremely glazed and wide open, he was constantly licking his lips, he was constantly rubbing his tongue over his teeth and he was constantly dry swallowing.

[9]      At this point he was asked what he had meant by saying that the appellant had been rubbing his tongue over his lips.  The record shows that the witness then demonstrated  what  had  been  done  and,  being  prompted  to  do  so,  he  also demonstrated the dry swallowing to which he had referred.   He was then asked, “from those actions what opinion did you form?” and he answered:

I’ve seen the signs many times before and they are consistent with a person who has recently consumed class A drug methamphetamine.

[10]     He continued:

He was extremely nervous, extremely fidgety and shaking, his hands were shaking and he was extremely nervous and anxious.  At that time Sergeant O’Neill was also present and I confirmed with Sergeant O’Neill that his physical appearance and demeanour was consistent with a person who had consumed  drugs  and  he  had  authorised  me  to  invoke  a  search  of  the defendant pursuant to sections 18(2) and 18(3) of the Misuse of Drugs Act

1975.

[11]     The searches had then followed.

[12]     Constable Arapai was cross-examined by Mr Newell on the basis of a note that the constable had made that immediately prior to searching the appellant, he had said “I believe that you may have taken drugs tonight”.   Mr Newell put it to the constable that that form of words was consistent with him having simply a suspicion that drugs had been taken, as opposed to the requirement of the statute that there be a reasonable belief of the presence of drugs.  The constable said that he may have used the wrong form of words, but adhered strongly to the evidence that he had given in chief that the appellant’s physical demeanour and appearance had led him to the firm belief that there were grounds for the searches that were carried out.

[13]     Constable Arapai’s account was very similar to that of Sergeant O’Neill.  The latter has a work history of some 28 years in the police, including 12 years “in the front line position in Auckland city”, with experience of having seen many people under the influence of a range of drugs.   He had, in addition, been for two years based in the Downtown police station where his duties included patrolling the CBD and had a focus on drug offending.  The critical part of his evidence-in-chief dealing with the grounds for the search was as follows:

Myself and Constable Arapai approached and spoke to the defendant, whilst speaking to him I noticed that his eyes were wide and glazed, I noticed he appeared to be extremely nervous and fidgety, he was have[sic] difficulty standing still.   He was reluctant to maintain eye contact and kept looking away.   He appeared to me to be very slim build, he had a gaunt greyish complexion to his face, I believe these are quite common signs for a person who has recently used methamphetamine.  Constable Arapai continued his conversation with the defendant and after speaking to him I authorised Constable Arapai to conduct a search pursuant to 18(2) and (3) of the Misuse of Drugs Act.

[14]     In cross-examination Sergeant O’Neill adhered to the evidence that he had previously  given  about  the  appellant’s  appearance  and  demeanour  whilst  being

spoken to.  Amongst the items that had been found in the car were orange coloured pills.  In cross-examination, the sergeant confirmed that these were legally marketed party pills, and that sometimes party pills can have the effect of making people look nervous and fidgety.  Cross-examined about his reference to the appellant’s “wide- eyed” appearance as he drove past, the sergeant said:

My impression is the wide-eyed look is very, very, common with people who have used methamphetamine, it’s a very startled look and people are generally very conscious  of that  particular  look and  certainly avoid  eye contact to disguise that fact.

[15]     The sergeant also clarified that by referring to the eyes being wide, he was referring to the eyelids.  He had not observed the pupils.

Judge Lockhart’s decision

[16]     Having noted that the critical issue was whether Constable Arapai had had the required belief before invoking the provisions of s 18(2) and (3) of the Misuse of Drugs Act, the learned District Court Judge referred to Sergeant O’Neill’s evidence about observing the appellant as he drove past, with the description of the “wide- eyed look in his eyes”, the appellant’s eyes being glazed when he spoke to him, his nervous appearance, his reluctance to make eye contact and the signs of recent consumption of methamphetamine.   The Judge emphasised Sergeant O’Neill’s lengthy and relevant experience in observing people under the influence of drugs.

[17]     He then referred to Constable Arapai’s evidence in the following way:

[6]       Evidence was also given by Constable Arapai that his attention was first drawn to the vehicle because he noticed that the registration of the vehicle had expired, and indeed his first conversation and questions to the defendant were in relation to the fact that the vehicle that was being driven had an expired registration.  According to Constable Arapai he reached the conclusion that the driver had recently consumed methamphetamine and he based that on the fact because [sic] the defendant was dry swallowing and continually rubbed his tongue over his lip or mouth.   The defendant also appeared very nervous and anxious and Constable Arapai stated that he formed the belief that the defendant had recently consumed drugs.  It was he that informed the defendant that s 18(2)(3) [sic] of the Misuse of Drugs Act

1975 were being invoked and searched the defendant and also searched the vehicle.      The   evidence   reveals   that   there   were   samples   of   both

methamphetamine and cocaine and it is accepted in the evidence that the

ESR certified that both those narcotics were present.

[18]     He then set out his conclusion in the following terms:

[9]       Both  police  officers  were  of  the  opinion  that  prior  to  the  [sic] invoking s 18 the defendant was exhibiting signs of being affected by drugs having been consumed recently and consequently they both had a reasonable cause to believe that the defendant occupying the car had possession in that vehicle of a controlled drug and therefore [sic] entitled them to invoke s 18 of the Misuse of Drugs Act 1975.

[19]     The  defence  elected  not  to  call  any  evidence.    Because  of  the  Judge’s conclusion  that  the  search  had  been  legitimately  conducted,  the  convictions inevitably followed.

The arguments on appeal

[20]     Mr Newell argued for the appellant that the police had insufficient grounds to support a belief that controlled drugs would be located within the appellant’s vehicle so as to enable them to exercise their powers under s 18(2) of the Act.  He contended that the search had been conducted on the basis only of the appellant’s personal demeanour, in particular his “wide-eyed” look.   This might have been enough to cause suspicion, but not belief as to the presence of drugs in the motor vehicle.

[21]     He  submitted  further  that  the  search  was  unreasonable  on  public  policy grounds because the appellant had been subjected to a personal search in a public place and because, if a search could be authorised in the circumstances of the present case, then the police could in future seek to rely upon subjective non-expert assessments of a person’s physical demeanour in order to justify the search of the person or vehicle.  This would be a dangerous precedent, one that should not be set.

[22]     Finally he argued that applying the approach required by R v Shaheed the evidence about the drugs should be excluded having regard to the nature of the right and its breach, compared with the comparatively low level of the offending.   He pointed out that upon conviction the appellant had simply been fined ($250 for possession    of    cocaine,    and    $500    for    possession    of    methamphetamine).

Notwithstanding the concrete nature of the evidence and its importance to the prosecution case, he submitted that in the circumstances the proper application of R v Shaheed ought to result in exclusion of the evidence.

[23]     For the respondent, Ms McGill pointed to the police officers’ evidence as to their belief, and argued that it was reasonable in the circumstances. She suggested that Sergeant O’Neill had prior knowledge of the appellant and that that had strengthened his view that the  appellant had  consumed  methamphetamine.    She referred to Rodney Hansen J’s decision in R v Carroll (HC AK CRI 2003-004-

041192, 21 May 2004), contending that the demeanour of the defendant in that case, where evidence obtained by a search was held to be admissible, was almost identical to that of the appellant in this case.

[24]     She pointed out further, that even if the police had conducted an unlawful search, the appellant had not been arbitrarily detained.   He had stopped the car himself, and had not been pulled over and motioned to stop.  At the time of search the appellant had made no protest, nor did it appear that the search had taken a long time or caused any particular embarrassment.   In the circumstances, Ms McGill maintained that the search had been not only lawful but also reasonable.  If it was necessary to consider the factors to be balanced in terms of R v Shaheed, Ms McGill argued that any breach of the appellant’s rights was not a serious one.  It would not have been practical for the police to have obtained a search warrant, the evidence was very important for the prosecution case.  Although at the lower of offending for its kind, the offending had involved Class A controlled drugs, and the evidence obtained had been inherently reliable.

[25]     She submitted in addition that the police officers had acted in good faith throughout and there were no compelling reasons that would justify exclusion by the Court.  On the contrary, she argued that to exclude the evidence would be a wholly disproportionate response to what could only be described as a “technical breach”.

Lawfulness of the search

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

(2)       Where  any  member  of  the  Police  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 the 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.

[27]     Pursuant to the subsection, if a search is to be lawful it must be preceded by formation by the police of a “reasonable ground for believing” that there are drugs of the kind described in the vehicle.   Plainly, it is not enough for a police officer to assert his or her belief.  The belief must be based on reasonable grounds.  As it was put by the Court of Appeal in R v Laugalis (1993) 10 CRNZ 350 at 354:

The  qualifier  “on  reasonable  grounds”  introduces  an  objective  element which somewhat confines the relevant dictionary meaning of “believe”, namely “to have confidence or faith in, and consequently to rely upon … to give credence to” (Shorter Oxford English Dictionary).

[28]     Further,  in  Hill  v  Attorney-General  (1990)  6  CRNZ  219  (CA)  it  was emphasised that the belief for the purposes of s 18(2) must be as to the presence in the vehicle (or other thing to be searched) of drugs within the carefully prescribed categories set out in the section.  As Richardson J put it at 221:

It is not every controlled drug to which the subsection may apply.  It is only those falling within the First Schedule, Part I of the Second Schedule, and Part I of the Third Schedule.   To put it more directly, Parliament has deliberately excluded any application of s 18(2) to the wide range of class B drugs in Parts II and III of the Second Schedule and of class C drugs in Parts II to VI of the Third Schedule.

[29]     Again, in a slightly different context to the present (the case involved the lawfulness of a search warrant) the Court of Appeal, in R v Karalus (2005) 21 CRNZ

728 emphasised at [27] that a statutory provision requiring reasonable grounds for

belief involved “a much higher test” than having a basis for suspicion.  So too, in

R v Anderson [2005] 21 CRNZ 393, at [33] it was said, on the facts of that case, that:

If the Court were to characterise this search as lawful it would almost be a licence for the police to carry out an unwarranted search whenever they stopped  a  vehicle  with  suspicious  looking  individuals  in  it  including someone known to them.  The concept of a search being lawful because of suspicion alone is not part of our law.

[30]     In the present case, as has been seen, the reasonable grounds for belief relied on are a combination of observations made by the police officers, beginning with the wide-eyed expression on the appellant’s face as he drove past, continuing with his glazed eyes, the licking of his lips, rubbing of his tongue over his teeth, dry swallowing and nervousness.  The latter was evidenced by him being fidgety and by his shaking hands.   He was, in addition, reluctant to maintain eye contact, while Sergeant O’Neill evidently saw significance in his slim build, gaunt figure, and greyish complexion.  All this was, in the view of both police officers, consistent with the appellant having “consumed drugs”.

[31]     Judge Lockhart placed some emphasis on Sergeant O’Neill’s considerable experience in observing people under the influence of drugs.   However,  it  was Constable Arapai who initially formed the belief that the appellant had recently consumed methamphetamine.  It was after he confirmed with Sergeant O’Neill that the appellant’s appearance and demeanour were consistent with a person who had consumed  drugs  that  the Sergeant  (as  the  senior  officer  present)  authorised  the searches under s 18(2) and (3) of the Act.

[32]     The  prosecution’s  case  was  evidently  advanced  on  the  basis  that  both policemen  had  the  belief  necessary  to  embark  upon  the  searches.    It  is  plain, however, that the Court’s enquiry must be not into what the police in fact believed, but whether there were reasonable grounds for that belief.

[33]     In R v Carroll the defendant was observed by two police officers as they were in discussion with three young men in Customs Street in downtown Auckland. Both officers (one of them was the same Sergeant O’Neill who features in the present case) said that they observed that the defendant had a glazed and unfocused

look in his eyes, suggesting to both of them that he might be under the influence of methamphetamine.  Having approached him within some three or four metres, the defendant suddenly stopped in mid-stride, turned on his heel and walked back along Commerce Street in the direction from which he had come. The officers inferred that, at that stage, the defendant had realised that he was approaching police officers. They decided to follow him.  He appeared to quicken his pace but they eventually caught up with him about 30 metres along Commerce Street.

[34]     The  Constable  who  was  with  Sergeant  O’Neill  gave  evidence  that  on speaking to the defendant, his initial impression had been confirmed.  His eyes were wide open and glazed, he appeared to be having difficulty focusing on him, and he appeared to be nervous and jittery.  There was mention of the greyish colour, and sweating.   The Constable said that in his experience, all of these were symptoms consistent with the appellant having recently consumed methamphetamine.

[35]   A question was then put to the defendant as to whether he was using methamphetamine and there was a response described as “non-verbal”.   The defendant  exhibited a  stunned  expression.    The  Constable  then  noticed  that  the defendant was holding a flax bag under his right arm, with his left hand behind his back.   He appeared to be endeavouring to conceal something from view.   As the Constable attempted to see what he was holding behind his back, the defendant would move so as to keep his left hand hidden from view. On being asked whether he was holding anything, the defendant said that he was not.   The Constable then gave evidence that he had heard the sound of crushing, similar to that of cellophane on a cigarette packet and, after making an abrupt movement, he was able to see that there was indeed a cigarette packet, held by the defendant in his left hand, which he was endeavouring to crush.  Again, in the Constable’s experience, methamphetamine is often kept in point bags, which conveniently fit into a cigarette packet.  It was at this point that the police invoked their powers of search under s 18(3) of the Misuse of Drugs Act.

[36]     At [15]-[16] of his judgment, Rodney Hansen J said:

[15]     I have no reason not to accept the evidence of both officers that, based on their experience, the accused was exhibiting some of the classic

symptoms  exhibited  by  those  who  have  recently  consumed methamphetamine.     That,  as  Constable  Dean  accepted,  initially  only provided grounds for a suspicion.  The action of the accused in turning on his heel and walking away from the police officers added to their apprehension that he had something to hide.  I consider that both officers at this early stage entertained a genuine and well-grounded suspicion that the accused may be engaged in unlawful drug-related activities.   The fact that Sergeant O’Neill quickly left the group that he was with, after making arrangements for others to stand in for him, and to follow Constable Dean confirms to me that he, as well as Constable Dean immediately had his suspicions raised by the appearance and actions of the accused.

[16]     Their  observations  of  the  accused  when  they  came  into  close proximity to him were sufficient to elevate those suspicions, particularly the sight of the accused endeavouring to conceal the cigarette packet.  Given the experience of Constable Dean that they are commonly used for the storage of methamphetamine, I consider the information then available to him provided reasonable grounds for him to believe that the accused was in the possession of methamphetamine and that an offence against the Misuse of Drugs Act had been or may have been committed in respect of that drug.

[37]     In the present case, as Mr Newell pointed out, the grounds for belief relied on are limited to the demeanour and appearance of the appellant.  There was not here conduct such as that exhibited by Mr Carroll in turning on his heels and walking away, nor trying to hide something behind his back.  On the contrary, having seen the police officers, the present appellant turned into Little High Street and parked his car.  There was nothing beyond his exhibiting physical symptoms recognised by the police as those of someone who had recently consumed methamphetamine.

[38]     The difficulty with holding lawful a search conducted in those circumstances is that some of the symptoms upon which the police  relied are  also  symptoms exhibited by persons who have consumed drugs lawfully obtainable.   That was confirmed in the evidence of Sergeant O’Neill as already mentioned above. Descriptions of a person being nervous or fidgety are also inherently weak indicators of the necessary reasonable grounds because of the stress that innocent people can experience when being interviewed by the police in public.

[39]     I note also that although there was evidence of the appellant being previously known to Sergeant O’Neill, as Ms McGill mentioned, there was no evidence as to the circumstances or nature of any prior dealings that they had had.  In any event, there is force in Mr Newell’s caution that formation of a reasonable belief, for the purposes of s 18(2) ought to be based on the events pertaining to the occasion of the

exercise of the power of search.   There would be a risk, otherwise, of applying a lower standard on account of a suspected person’s past conduct.

[40]     Looking at the position overall I have come to the conclusion that while the police may have had strong grounds for suspicion, and may indeed themselves have believed that the appellant had consumed methamphetamine, they did not have the requisite reasonable grounds for belief under s 18(2) of the Act.  It follows that the search of the vehicle was unlawful.

Reasonableness

[41]     Section  21  of  the  New  Zealand  Bill  of  Rights  Act  1990  provides  that everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.   A lawful search may be unreasonable, and an unlawful search may be reasonable.   Further, if there is a breach of s 21, the question of whether the evidence derived from the unreasonable search should be admitted falls to be considered in terms of the balancing exercise required by R v Shaheed.

[42]     As stated in R v Maihi (2002) 19 CRNZ 453 the fact that a search was unlawful is relevant to the issue of whether it is unreasonable, although not determinative.  At [31] it was said that:

…the unlawfulness of a search, while not per se making it unreasonable, invites that conclusion unless there is some countervailing factor or combination of factors which allows the Court to say that, although the search was unlawful, it is not appropriate to characterise it as unreasonable. Unless the Crown is able to advance sufficient countervailing material, the Court is likely to find an unlawful search to be unreasonable.

[43]     The Court went on to state that the more serious the unlawfulness, the greater the countervailing weight must be.  It also held that it would be relevant to inquire whether there had been a substantive or only a technical breach.  In the present case, Ms McGill  relied  on  the  circumstances  that  the  appellant  had  stopped  the  car himself, that the search had not been of long duration, and that it could almost be argued that the appellant had consented to the search.  In that respect, she referred to

evidence that Constable Arapai had advised him that he was searching him and his vehicle under the Act, the appellant had said, “Yeah, I know, go ahead, it’s cool” and, unlike the defendant in R v Maihi, he had offered no protest to the search.  She maintained that the police officers had thought that they had sufficient grounds to search and also pointed out that the impugned search was not that of a person, but of a vehicle.

[44]     Mr Newell argued that the search should be characterised as unreasonable on public policy grounds because the appellant had been subject to a personal search in a public place and because of the adverse precedent that would otherwise be set, entitling the police to conduct a search in reliance upon subjective non-expert assessments of a persons’ physical demeanour in order to justify a search.  At stake here was not, of course, the personal search, but rather, the search of the vehicle.

[45]     I agree that it would be wrong to hold that because the police had grounds for suspicion, that made the search reasonable.  As I understand what was said at [31] of the decision in R v Maihi, the factors that Ms McGill has pointed to should be seen as tending to minimise the gravity of the unlawfulness, and hence the unreasonableness, of the search.   That would mean that any countervailing factor would need to be less substantial than would be the case where there had been a more unreasonable search.  Yet there must still be identified countervailing factors, especially where the unlawfulness of the search was substantive, as it was here, and unable to be characterised as technical in nature.

[46]     In  the  end,  I  do  not  think  that  any  of  the  considerations  mentioned  by Ms McGill under this head should result in a finding that the unlawful search was nevertheless a reasonable one.  To conclude otherwise would, I think, unacceptably lower the bar, with the result that it might be thought sufficient if such searches could be carried out on the basis of suspicion rather than reasonable belief.

Balancing

[47]     Having reached this point, it then becomes necessary to carry out the Shaheed

balancing exercise.  That approach is now well known, and I need not set out all of

the relevant considerations.  Ms McGill contended that the breach of the appellant’s rights was not a serious one, and submitted that the evidence obtained was essential to the prosecution case, and inherently reliable.   While the offending was at the lower level for its kind, it was nevertheless serious offending because it involved Class A controlled drugs.

[48]    She addressed also the availability of other investigative techniques and submitted that none were available for practical reasons and referred also to the fact that the police officers had acted in good faith and arguably with the appellant’s consent.  She submitted in the circumstance that to exclude the evidence would be a wholly disproportionate response.

[49]     I do not consider that the search here was consensual and, essentially for two reasons, I have decided that the balance lies in favour of exclusion of the evidence. Although involving Class A drugs, the offending was clearly not regarded by the District Court Judge as serious.   He dealt with the matter by imposing two insubstantial fines.  No doubt that reflected the small amount of the drugs that were located in the appellant’s vehicle.   Second, I do not accept that the breach of the appellant’s rights was not a serious one.   Although the search in question is the search of a motor vehicle, it was emphasised in R v Maihi that although people will have less expectation of privacy when driving a motor vehicle on a public road than when they are inside their homes, the mere fact that the legislature requires the presence of reasonable grounds for belief before conducting such a search is an indication  that  the  right  not  to  be  searched  other  than  in  the  circumstances authorised, is regarded as an important one.   Also, as was said by the Court of Appeal in R v Anderson at paragraph [38]:

The value of the right to protection from prosecution in reliance  on an unlawful and unreasonable search is obviously significant.   The right to protection from unreasonable search would not have been the subject matter of a specific provision in the Bill of Rights Act if it were otherwise.

[50]     The importance of the right breached, and the low level of the offending have persuaded me that the proportionate response here would have been to exclude the evidence.

Result

[51]     In the result, the appeal is allowed.  Without the evidence obtained as a result of the unlawful and unreasonable search, the appellant would plainly not have been convicted.

[52]     Accordingly, in consequence of the appeal being allowed, the convictions entered in the District Court are quashed.