Grigg v Police

[2021] NZHC 3611

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-085-613

[2021] NZHC 3611

BETWEEN

MATTHEW PHILIP GRIGG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

16 December 2021 (via VMR)

Appearances:

B Dawson for Appellant

A McCluskey for Respondent

Judgment:

22 December 2021

JUDGMENT OF ISAC J

Introduction

[1]    One evening Mr Grigg was driving his motor vehicle on Kent Terrace, Wellington. There is no doubt he was lawfully pulled over by two police officers pursuant to s 114 of the Land Transport Act 1998 (LTA), and subjected to a breath alcohol screening process.

[2]    Due in part to Mr Grigg’s behaviour, information about him on the Police National Intelligence Application, and Mr Grigg’s answers to questions, the officers formed the view Mr Grigg may be under the influence of methamphetamine and that they had reasonable grounds to suspect Mr Grigg had illicit substances in his vehicle.

[3]    Police then instituted a warrantless search pursuant to s 20 of the Search and Surveillance Act 2012. They located a small amount of methamphetamine and a glass pipe for smoking it.

GRIGG v NEW ZEALAND POLICE [2021] NZHC 3611 [22 December 2021]

[4]As a result, Mr Grigg has been charged with:

(a)possession of methamphetamine;

(b)possession of utensils for the consumption of methamphetamine.1

[5]    The issue for determination is whether the search of Mr Grigg’s motor vehicle was unlawful and, if it was, whether the evidence uncovered by that search ought to be excluded.

The background in further detail

[6]    At 11.25 pm on 9 March 2020, Mr Grigg was driving a Ford motor vehicle south on Kent Terrace in Wellington.

[7]    He was observed by two police officers in a patrol car, Police Constable Sarah Wing, and Sergeant Dean Burger. The officers had noticed Mr Grigg stop quite short of a red traffic light, some distance back from the intersection. Constable Wing checked the vehicle’s number plate through the Police Identification System, which identified two alerts in relation to Mr Grigg:

(a)An alert for a drug supplier; and

(b)A firearms alert.

[8]    Sergeant Burger was also able to determine that Mr Grigg’s most recent drugs related conviction related to methamphetamine in 2015.

[9]    As a result of all this, a decision was made by Sergeant Burger to pull the vehicle over pursuant to s 114 of the Land Transport Act. That provision confers a power on enforcement officers to require a driver to stop and provide particulars such as the driver’s full name, address, date of birth and occupation. Subsection 114(5) further provides that while an enforcement office may require a driver to remain

1      Mr Grigg is also charged with resisting police, but that additional charge is not subject to the current appeal.

stopped for as long as is reasonably necessary to establish the identity of the driver, the period of detention must not exceed 15 minutes.

[10]   Sergeant Burger spoke to Mr Grigg and asked for his particulars. Mr Grigg identified himself as required by law.

[11]   The officers then required the appellant to undertake a passive breath test, which he also passed.

[12]   Sergeant Burger observed Mr Grigg’s behaviour and appearance. He noted what the Sergeant described as signs of recent methamphetamine use, including having restricted pupils. Mr Grigg was pale and sweaty, and fidgeting a lot, unable to keep still in the car. He was also described by the Sergeant as being wide-eyed and having a dry mouth. He was licking his lips while the police officer was speaking to him.

[13]   All of this led Sergeant Burger to begin considering “whether additional drug offences had been committed”. The Sergeant had not been trained to undertake a compulsory impairment test and at the time was unaware that Constable Wing was qualified to do so.

[14]   At this point during the Police stop it seems to be a common point between the appellant and the respondent that the Police power to detain Mr Grigg under the Land Transport Act, or any other enactment, had come to an end.

[15]   Concerned, however, by the signs of recent  methamphetamine  use,  Sergeant Burger continued to speak to the appellant. He asked Mr Grigg if he had any illegal drugs in the car. Mr Grigg’s response was: “fuck off, mate. You are pissing me off”.

[16]   Mr Grigg was then asked to step out of the car. Sergeant Burger’s explanation for this request was “the safety risk” Mr Grigg presented if he remained in the car, and the alerts on the appellant’s name.

[17]   While Mr Grigg complied with the request, the way he did so sparked further suspicion for the Sergeant. Mr Grigg got out of the vehicle quickly blocking the Sergeant’s view into the driver’s map pocket of the vehicle door. In short, Mr Grigg got out of the vehicle in a way designed to prevent the Police officers from seeing inside the vehicle.

[18]   The conversation outside the vehicle then continued. The following exchange occurred:

Sergeant Burger         Have you had any alcohol or prescription meds today? Mr Grigg  No.

Sergeant Burger         Any illegal drugs? Mr Grigg  Not today.

Sergeant Burger         When was the last time? Mr Grigg  Saturday.

Sergeant Burger         What drug?

Mr Grigg  None of your fucking business.

[19]   During this exchange Mr Grigg was observed by the Sergeant to become progressively more agitated. He placed his hands in his pockets despite the Sergeant asking him repeatedly not to do so.

[20]   Sergeant Burger’s cumulative assessment of the appellant’s driving, his observations of Mr Grigg’s “physical symptoms”, his admissions of recent drug use, and the behaviour he exhibited on exiting the vehicle was that there would be controlled drugs in the vehicle or on the defendant. Accordingly, the Sergeant decided to invoke a warrantless search power under s 20 of the Search and Surveillance Act for drugs.

[21]   Sergeant Burger advised the appellant that he was being detained for the purpose of a search. Mr Grigg’s behaviour appears to have deteriorated rapidly at this point. He tried to walk away from the Police officer and put his hands in his pockets. Sergeant Burger grabbed hold of Mr Grigg’s wrist to stop him walking away,  but  Mr Grigg pushed the officer. A scuffle then ensued involving both men on the ground and the intervention of Constable Wing in order to apply handcuffs to Mr Grigg.

[22]   The defendant was then given his rights and a search of both the appellant and his vehicle followed. The search uncovered a small quantity (0.2 of a gram) of methamphetamine, as well as a methamphetamine pipe.

[23]   Mr Grigg was arrested and subsequently charged with possession of methamphetamine and utensils.

Judgment under appeal

[24]   Mr Grigg challenged the admissibility of the evidence from the search on the basis it had been unlawfully obtained. The matter came before Judge Phillips in   July 2021. The court heard evidence from Sergeant Burger and Constable Wing, and subsequently appears to have received written submissions on behalf of the appellant and the respondent.

[25]   In a written decision of 22 September 2021,2 the Judge dismissed Mr Grigg’s challenge. Having outlined the relevant facts,3 the Judge rejected the appellant’s submission that he had been unlawfully detained after he had passed the passive breath screening test and provided his particulars, such that the questioning of the appellant necessary for the invocation of the search power had not occurred in breach of the appellant’s right to be free from arbitrary arrest or detention. The Judge concluded:4

… there was no arbitrary detention of the defendant at any time, and that any detention only arose once the warrantless search provisions had been invoked and ‘was thus entirely lawful’.

2      New Zealand Police v Grigg [2021] NZDC 18857.

3      At [6]–[19].

4 At [53].

[26]   Finally, the Judge concluded that even if he was wrong on the first issue, he would have held that the evidence should not be excluded under s 30 of the Evidence Act 2006.5

The issue

[27]On behalf of Mr Grigg, Mr Dawson submits that:

Mr Grigg was arbitrarily detained as soon as he passed the passive breath test and no further action under the Land Transport Act was to be undertaken. Sergeant Burger had no lawful power to require Mr Grigg to exit his vehicle.

[28]   This must amount to a detention, and Mr Grigg should have been advised of his right under s 23 of the NZBORA, including the right to remain silent, before being subjected to further questioning which, in turn, was crucial to triggering the warrantless power of search under s 20 of the Search and Surveillance Act.

[29]   Moreover, Mr Dawson submits the District Court was wrong to conclude that Sergeant Burger had formed the required belief  under  s 20  of  that  Act  prior  to Mr Grigg exiting his vehicle.6 That factual conclusion was not supported by the evidence; Sergeant Burger testified that it was only after he observed the manner in which Mr Grigg got out of the vehicle, and asked further questions, that he formed the requisite belief:

Q. So withall the stuff you’ve  just outlined, what conclusion did  you  come to about the defendant?

A. My cumulative assessment of all the factors, his driving,  my  observations of his physical symptoms, his admissions to the recent drug use and his behaviour in exiting the vehicle and trying to prevent me from looking inside of it led [sic] me to believe that there would be controlled drugs in the vehicle or on the defendant.

[30]   Mr Grigg places particular emphasis on the recent decision of Tahapehi v Police,7 where a vehicle was stopped for a genuine LTA purpose — in that case, the service of a demerit point suspension notice. Having served the notice, and therefore exhausted any lawful justification to keep the appellant’s vehicle stopped under s 114,

5      At [55]–[58].

6 At [46].

7      Tahapehi v Police [2018] NZHC 2666.

the Court was required to determine whether the car and occupants were detained after the legitimate purpose was spent, and whether that gave rise to any impropriety.

[31]   As Mr Dawson noted, the Court concluded that once the details relevant to the demerit points notice had been obtained, the appellant and her associate were, as a matter of law, free to leave.8

[32]   Justice Davidson concluded that continued detention beyond that point would have been unlawful. And that was the conclusion the Court reached:9

[44]      There is no evidence of what (if anything) the constable said to the occupants of the car as he returned to the patrol car to check their details. This makes it harder to determine whether there was a continued detention, but there is no evidence that a direction was given to stay where they were. The fact that the appellant and her associate stayed parked up suggests they believed they were still being detained. The legal position in this country (contra some jurisdictions) is that someone is not detained simply because they think they are being detained. The question is whether, objectively, the belief that they are being detained is a reasonable one.

[45]      The Police did not disabuse the occupants of the car of their belief that they were still being detained and my conclusion is that it was reasonable for them to believe they were still under detention. The detention between the details of the driver being ascertained and the subsequent discovery of the knife on the back seat was, in my view, unlawful.

[33]   In relation to whether exclusion of the evidence is a proportionate response in s 30(3) of the Act, Mr Dawson submits:

(a)The breach involved the unlawful search of both a motor vehicle and Mr Grigg personally. The rights breached were “the most fundamental protections in a criminal process.” Those rights assume greater importance — and thus need for protection — when incriminating questions immediately follow questioning under s 114, to which no right to silence attaches. The breaches were therefore serious.

(b)The impropriety was deliberate.

(c)The evidence obtained was vital to establishing the charges.

8 At [43].

9      At [44]–[45].

(d)The charges are, however, relatively minor.

(e)There were no other investigatory techniques available.

(f)There were no alternative remedies to exclusion of the evidence that could adequately vindicate Mr Grigg’s right.

(g)The impropriety was in no way necessary to avoid apprehended physical danger to police or others.

(h)There was no urgency that attached in obtaining the improperly obtained evidence.

[34]   Ms McCluskey for the respondent argued, first, that the Judge was right to find that Mr Grigg was not detained after completion of the breath test and before the commencement of the warrantless search. It is lawful for an investigating officer to ask questions from any person, if they do not suggest it is compulsory for the person questioned to answer.10 Mr Grigg did not give evidence so there is little information about Mr Grigg’s perception of the questioning.

[35]   Further, even if there had been an arbitrary detention it was of the most fleeting nature and lasted only between completion of the s 114 LTA procedure, and the commencement of the warrantless search, at which time Mr Grigg was clearly lawfully detained once again. It followed that exclusion of the evidence would not be proportionate to the illegality. Ms McCluskey also relied on Tahapehi, where Nicholas Davidson J also concluded that exclusion of the evidence following such a brief arbitrary detention would be disproportionate.

Approach on appeal

[36]   Leave is required to appeal against pre-trial rulings.11 Leave was not opposed and, in any event, would have been granted given the centrality of the evidence to the prosecution case.

10     Practice Note – Police Questioning [2007] 3 NZLR 297, cl 1.

11     Criminal Procedure Act 2011, s 215(2)(a).

[37]   First appeals against pre-trial decisions are general appeals.12 This Court is entitled to arrive at its own assessment of the merits of the case,13 but may give weight to the reasoning of the lower court where appropriate.14

Consideration

[38]There are two issues I need to determine:

(a)First, whether Mr Grigg was arbitrarily detained in breach of s 23 of the New Zealand Bill of Rights Act 1990?

(b)And two, if so, should the evidence of the warrantless search be excluded?

[39]   I have found that Mr Grigg was arbitrarily detained but that the evidence should not be excluded under s 30 of the Evidence Act.

Detention

[40]   There can be no issue taken with the officers’ power to initially stop Mr Grigg’s vehicle, and nor is there. However, the power under s 114 of the LTA to stop someone is not absolute; it only extends as long as is necessary to obtain the particulars outlined in s 114(3)(b) or “to complete the exercise of any other power conferred on an enforcement officer” by the LTA. There is established authority that the s 114 power cannot be used for purposes beyond road policing.15 The effect of this is that once  Mr Grigg passed the passive breath test — and no action under LTA was taken — Sergeant Burger had no lawful authority to require Mr Grigg to exit his vehicle. Indeed, Mr Grigg was free to leave upon passing the breath test.

[41]As was held in Roper v Police:16

12     R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49]–[53].

13     Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [5].

14 At [16].

15     See R v Jeffries [1994] 1 NZLR 290 (CA) (relating to s 114’s predecessor) and McGarrett v R

[2017] NZCA 204 at [18].

16     Roper v Police [1984] 1 NZLR 48, (1983) 1 CRNZ 91 at 94.

Once the driver has stopped and has supplied the information thereafter sought, that obligation to stop (and remain stopped) has been exhausted and there is no authority under that section for the constable or traffic officer to make any further demands on the driver at that time.

[42]   At issue in this case is therefore the period between the breath test and the warrantless search, and whether Mr Grigg was detained.

[43]   As noted, the Crown submits Mr Grigg was not detained. It says Mr Grigg was not ‘required’ to step out of the car, but that Sergeant Burger asked him to step out and he did. And in any event Sergeant Burger asking Mr Grigg to get out of the car was no more than a “temporary constraint” on his liberty. I do not accept the Crown’s submission.

[44]   The real question here is whether Mr Grigg had a reasonably held belief that he was not free to leave.17  That will  often depend on the police’s actions. Here,     Mr Grigg was pulled over under a compulsory procedure. There is no doubt at the commencement of his dealings with the officers that he was, in fact, detained. He then undertook a breath test and was then asked to exit his vehicle. In essence, the Crown is saying Mr Grigg ought to have appreciated that he was not required to leave his vehicle, and that he was free to go once he had completed the breath screening process.

[45]   Given Mr Grigg had been detained at the start of his engagement with the officers, I consider any reasonable person would have stepped out of the vehicle after completing a breath test and still understood they were detained. While it is not always necessary to do so, it is relevant in this case — bearing in mind the proximity between the breath test and asking Mr Grigg to exit his car — that at no point did the officers suggest to Mr Grigg he was free to leave. And his actions in staying with the officers, despite being obviously upset at having to do so, rather suggests he also believed he was not free to leave.

[46]   I therefore find there was an unlawful detention of Mr Grigg after the breath test and before the warrantless search. Without a lawful basis to detain Mr Grigg, that detention was also arbitrary. The questioning that followed the unlawful detention

17     See R v Goodwin (No 2) [1993] 2 NZLR 390, (1993) 9 CRNZ 394 (CA); Everitt v Attorney- General [2002] 1 NZLR 82 (CA) at 7, approving R v M [1995] 1 NZLR 242, at 245.

elicited answers to questions that were necessary to meet the requirements for the warrantless search that followed.

Exclusion

[47]   The key question in this case is whether, as Mr Dawson submits, the evidence of the search ought to be excluded following the balancing exercise required by s 30(3) of the Evidence Act.

[48]   I have concluded that it should not be. Exclusion of the evidence would be disproportionate to the impropriety, taking into account the need for an effective and credible system of justice.18

[49]   While the right to be free of unlawful detention is fundamental, the intrusion here was minor. Mr Grigg appears to have drawn himself to the attention of Police as a result of his driving. Once pulled over, he was observed to behave in a manner assessed by a senior police officer as consistent with the recent use of methamphetamine, for which he had previously been convicted. It seems highly likely that had officers wished to detain Mr Grigg for the purpose of an impairment test, they could have done so, and I did not take Mr Dawson to suggest that would have been impermissible.

[50]   The period of detention was the short span of time between completion of the LTA procedures, and the commencement of the warrantless search. And in assessing the significance of that period I have regard to the fact that detention for an impairment test is the relevant counterfactual.

[51]   There was no bad faith on the part of Police, and nor were their actions reckless. As Sergeant Burger’s evidence indicates, their request for Mr Grigg to leave the car

— marking the start of the unlawful detention — was due to safety concerns given the indications Mr Grigg was in charge of a vehicle while under the influence of drugs.

18     Evidence Act, s 30(2)(b).

[52]   The evidence obtained is fundamental to the prosecution, and while the charges are relatively minor, that can cut both ways. Overall, the balance of factors in my view weighs in favour of admission of the evidence.

Conclusion and result

[53]   For these reasons, while I consider the Judge was wrong to conclude that there was no arbitrary detention, I agree with his assessment that exclusion of the evidence would be disproportionate.

[54]The appeal is therefore dismissed.

Isac J

Solicitors:

Saint Ivo Chambers, Wellington for Appellant

Luke Cunningham Clere, Wellington for Respondent