Hole v Police

[2017] NZHC 808

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000154 [2017] NZHC 808

BETWEEN

MARTIN CLIFFORD HOLE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 April 2017
Appearances:	K H Cook for the Appellant C J Bernhardt for the Respondent
Judgment:	27 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

(APPEAL AGAINST PRE-TRIAL RULING - EVIDENCE OBTAINED BY WARRANTLESS SEARCH WITHOUT WARRANT)

Background

[1]      The appellant/defendant, Mr Hole, is charged with procuring the controlled drug heroin on 12 April 2016.  That day, a surveillance operation was underway at a property at  264 Wilsons  Road,  Christchurch  (“the property”)  where  the police believed the occupants were involved in drug dealing. A warrant had been issued for the search of the property, but had not been executed.

[2]      A red Ford Mondeo driven by the defendant was seen by the Police to stop outside the Wilsons Road address, and there was a brief engagement between an occupant  of  the  house  and  the  defendant,  through  the  driver’s  window.    The defendant  then  drove  away.    Detective  Sergeant  Fisher  directed  the  vehicle  be

stopped and searched under the provisions of the Search and Surveillance Act 2012

HOLE v NEW ZEALAND POLICE [2017] NZHC 808

(“the Act”). As a result of that search the defendant was charged with procuring and possessing heroin under ss 7(1)(a) and 7(2) of the Misuse of Drugs Act 1975.

[3]      The appellant admitted ownership of a syringe full of brown liquid, being

heroin and said he had purchased “morphine” for $100.

District Court

[4]      By a reserved decision of 2 December 2016, His Honour Judge Saunders recorded  that  the  police  had  proper  grounds  to  obtain  a  warrant  to  search  the property, and that some occupants had been arrested on drug charges.  The police did not have evidence of transactions conducted on and before 12 April 2016, but it was a reasonable inference for the police to conclude that the occupants were supplying something to persons in vehicles who pulled up outside the address.  The police did not know who might call on 12 April 2016, or at what time.   It would have been futile to apply for a search warrant for vehicles that might arrive on that day.

[5]      When the defendant’s vehicle stopped outside 264 Wilsons Road, and a drug related transaction of some kind seemed to him to have occurred, the decision was taken by Detective Sergeant Fisher to instruct that the defendant’s car be stopped and searched. His Honour concluded he was the decision maker for the purpose of the evidential challenge.

[6]      The question turned on whether Detective Sergeant Fisher had reasonable grounds to believe that drugs were on the person of (Mr Hole), or otherwise in the vehicle.  His Honour concluded that he did have reasonable grounds to believe that there were drugs in the vehicle, and in Mr Hole’s possession.  His Honour rejected the submission that Mr Hole or the vehicle should have somehow been detained, while the police obtained a search warrant.   He concluded that the ability of the police to investigate may have been compromised by delay while a search warrant was obtained, and there was no lawful basis to secure the vehicle and Mr Hole.  He found that the police established there were reasonable grounds to believe they would find drugs in the vehicle whether or not on Mr Hole, and in those circumstances the search without warrant was justified.

Leave to appeal and principles on appeal

[7]      As an appeal against a pre-trial ruling concerning admissibility of evidence in a Judge-alone trial, leave must be granted under s 215 of the Criminal Procedure Act 2011.  The Crown does not oppose the application for leave to appeal, and it is granted.

[8]      The appal proceedings by way of an oral hearing, and pursuant to s 221 of the Criminal Procedure Act the Court has broad powers to confirm, vary, or set aside the decision appealed against.

Submissions on appeal

Appellant

[9]      Counsel  Mr  Cook  referred  to  the  evidence  given  by  Sergeant  Persico, Detective Tinkler, Detective Sergeant Fisher and Constable Barton.

[10]     Mr Cook’s first submission is that the Court failed to take into account that the officer who observed Mr Hole in the vehicle outside 264 Wilsons Road did not see anything changing hands, despite his having a good view.  Sergeant Persico in response to a question in cross-examination agreed his view was “reasonably good [and he] could see these details that [he told the Court] about”.   Sergeant Persico accepted  he  did  not  see  anything  pass  between  Mr Hole  and  Ms  Halliday,  the occupant of the house.  Constable Barton agreed that he did not say at the time that anything had exchanged between Ms Halliday and Mr Hole.   Detective Sergeant Fisher accepted that he was possibly told that Sergeant Persico did not see anything exchanged.  He was told that Ms Halliday went to the car window and spoke through the window to the occupant.   Mr Cook therefore submits there cannot have been reasonable  grounds  to  believe  that  drugs  would  be  found  in  the  vehicle  or  on Mr Hole’s person.

[11]     The second ground of appeal is that the Judge was wrong to find that it was impractical for the vehicle and occupant to have been detained while the police obtained a search warrant.

Exclusion

[12]     Mr Cook submits that if the evidence is found to have been improperly obtained, then the balancing act required by s 30 of the Evidence Act 2006 should result in exclusion of the evidence, as that is proportionate to the impropriety.

The evidence of reasonable belief

[13]   Mr Cook developed his submission that the Judge’s conclusion that “a transaction  of some  kind  appeared  to  have occurred” did  not  take into  account important aspects of the evidence.

[14]     As the clothes Ms Halliday wore and the registration number of Mr Hole’s vehicle were observed, Mr Cook said that indicated that any exchange or transaction that took place would have been observed but none was seen.

[15]     Section 20 of the Search and Surveillance Act 2002 provides:

20       Warrantless search of places and vehicles in relation to some

Misuse of Drugs Act 1975 offences

A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—

(a)       to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—

(i)       a controlled drug specified or described in Schedule 1 of the

Misuse of Drugs Act 1975; or

(ii)      a  controlled  drug  specified  or  described  in  Part  1  of

Schedule 2 of the Misuse of Drugs Act 1975; or

(iii)     a  controlled  drug  specified  or  described  in  Part  1  of

Schedule 3 of the Misuse of Drugs Act 1975; or

(iv)     a precursor substance specified or described in Part 3 of

Schedule 4 of the Misuse of Drugs Act 1975; and

(b)       to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and

(c)       to believe that, if the entry and search is not carried out immediately, evidential   material   relating  to   the   suspected   offence   will   be destroyed, concealed, altered, or damaged.

[16]     For there to be reasonable grounds to suspect an offence under the Misuse of Drugs Act, something must be “inherently likely”.1   Speculation and mere suspicion falls short of that standard, and the law requires that “reasonable grounds to believe” is a test to a higher standard than “reasonable grounds to suspect”.  Suspicion is not the same as belief.2    Mr Cook says that there must be an objective and credible basis for reasonably thinking that a search will turn up an item named in a warrant, while suspicion means thinking it is likely or possible that a situation exists.

[17]     Mr Cook refers to the Court of Appeal in R v Williams that for there to be “reasonable grounds to believe” then “the issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists”3  (my emphasis).

This was clarified in Warner v R, where the Court of Appeal said that this:4

… does not mean that what is required is proof of the commission of the alleged offence.  What it was intended to emphasise was that the issuer of the warrant must themselves, independently of the applicant, be satisfied there is an objective and credible basis for thinking a search will turn up the items identified in the warrant.

[18]     The fundamental submission by Mr Cook is that the police observers did not see anything changing hands and would have done so if there had been an exchange, and there could have been other reasons for Mr Hole stopping outside the address, perhaps paying some money, dropping some things off, “talking about a movie or anything”.  Mr Cook recognises that what had been going on at the house, namely drug dealing, might have led to suspicion about what occurred at the car, but he says the threshold in law was not met, and at the highest the police could only have held a

suspicion. That word was used by Detective Sergeant Fisher in his formal statement.

1      R v Sanders [1994] 3 NZLR 450 at 461.

2      R v Karalus (2005) 21 CRNZ 728 (CA) at [27].

3      R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [213].

4      Warner v R [2011] NZCA 258 at [21].

[19]     Mr  Cook  puts  the  matter  squarely,  as  the  Court  expects  from  such experienced counsel, that Detective Sergeant Fisher wanted to search anyone who came  to  the address  for a short  time, as  Mr  Hole did,  regardless  of  what  was observed.  He says that police practice is to search someone to find drugs, so when the search warrant is executed on the main target, they know, as in this case, that drugs are likely to be found in the house.  However the police did not need to bolster the case for a warrant to search the property in this way, and this is not a persuasive submission.

[20]     Mr Cook says His Honour did not explain why he thought Detective Sergeant Fisher’s knowledge crossed the threshold from suspicion to belief, and objectively assessed there were no reasonable grounds for believing that a controlled drug was in the vehicle, so the search was illegal.

An overarching consideration

[21]     Mr Cook submits that the Act is founded on the principle that searches should be authorised by warrant, and that should be upheld except in exceptional circumstances.5  Those circumstances are broadly urgency, risk, and type of target.

[22]    Warrant applications are not procedurally burdened. They may be made electronically under s 100 of the Act, and can be decided on the papers.  The warrant can then be executed with a copy, or a printout of an electronically generated copy, if it is not possible or practicable to get a paper warrant from the Court.

[23]     Mr Cook says that the Judge stopped him exploring in cross-examination why Detective Sergeant Fisher could not have obtained a warrant.  The Judge ruled that questions along those lines were not relevant.  Mr Cook says they are relevant, because the police could have held Mr Hole, and obtained a warrant.   He submits that a judicial officer would have held that the grounds advanced for obtaining a warrant  fell  short,  for  the  reason  advanced  on  appeal,  that  there  could  be  no

reasonable belief established that drugs would be found by a search of the vehicle.

5      Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [5,.4].

[24]     Mr Cook says the police action constitutes a serious impropriety.  The search of Mr Hole’s vehicle without the requisite knowledge and therefore state of mind, and the decision not to obtain a warrant, should be seen by this Court as a serious deficiency.  The offence is relatively minor, and there are no countervailing factors favouring inclusion of the evidence derived from the search, so he submits that the balancing exercise under s 30 of the Evidence Act would come down in favour of the exclusion of the evidence.

Crown submission

[25]     The Crown, through counsel Mr Bernhardt, submits that the police conducted surveillance on five separate occasions outside 264 Wilsons Road in the two weeks prior to 12 April 2016 and believed, based on “human source information” that Ms Halliday who lived there was selling a Class B drug, namely morphine.

[26]     The police had seen vehicles making short stops outside the address.  People from the vehicles entered the property and left a short time later, or Ms Halliday came out to engage with the occupants of the vehicles.

[27]     On  Tuesday  29  March  2016,  Mr  Hole  parked  outside  the  address  and Ms Halliday came to the car window, and engaged in a short conversation with him, then went inside.  On Tuesday 5 April 2016, Mr Hole made two further visits to the address in the same vehicle, and Ms Halliday again came out, and in Mr Bernhardt’s words there was a “short interaction”, then Ms Halliday went inside.  A warrant was obtained  to  search  the  property  and  the  search  was  to  be  carried  out  on

12 April 2016, the day Mr Hole’s car was stopped and searched.

[28]     Mr Hole was observed parking outside the address on the wrong side of the road and once again, Ms Halliday came out from the property and engaged with him at his driver’s door window for about 60 seconds.  Detective Tinkler reported that Ms Halliday leant into the vehicle via the open window.    Sergeant Persico said he witnessed a very short meeting, which he thought invoked some sort of transaction consistent  with  a  drug  deal,  with  which  he  had  experience  having  witnessed numerous drug deals before.

[29]     The police witnesses formed the belief that drugs were likely to be present in the appellant’s car and that it was not practicable to obtain a search warrant before searching the vehicle as it was mobile and if not stopped then illegal drugs might be consumed or destroyed, or of course concealed or abandoned.  That belief whether sufficient in law or not, proved correct, as stopping and searching of the vehicle revealed the liquid heroin.

[30]     Detective Sergeant Fisher took the decision to search the vehicle and he did so based on information from Sergeant Persico, not just on the appellant meeting with Ms Halliday that day, but in the context of the sequence of events leading up to the grant of the search warrant at that address.

[31]    Mr Bernhardt addresses Mr Cook’s argument that because there was no observation of any drugs being exchanged between Ms Halliday and Mr Hole on

12 April 2016, then no reasonable belief could be held that drugs were present in the vehicle.  Mr Cook submitted that Sergeant Persico had a good view of the interaction and as there was no transaction observed, nothing seen passing from Ms Halliday into  the  car,  means  there  could  be  no  reasonable  belief  that  anything  had. Mr Bernhardt says that no police witness said an exchange was witnessed, as such, but that did not exclude the reasonable possibility of an exchange.

[32]     Mr Bernhardt draws the distinction between an observation of something not happening, and not observing whether or not something did happen.  He emphasised that not every aspect of a transaction must be observed to form a reasonable belief about what is taking place. The context is important, with the appellant here having been at the address on several occasions, and in similar circumstances, which were on  the  observations  of  an  experienced  police  officer  highly  suggestive  of  drug dealing.   Human intelligence information indicated drug operations were being conducted at the house, and the house owner had a history of drug offending.

Discussion

[33]     The formation of a reasonable belief must be based on the assembly of, and objective consideration of all the evidence available to the decision maker.   By narrowing the focus to what was “not seen” in this way Mr Cook submitted that was

as reported to Detective Sergeant Fisher, and to that extent Mr Cook is correct. However, the observation made, as reported, was that Ms Halliday came to the car window and leaned in, and clearly there was engagement of some sort with Mr Hole.

[34]     That knowledge, based on observations then has to be put in context.  A drug exchange between Ms Halliday and Mr Hole in the street was not likely to have been conducted in full view of anyone, let alone an observing police officer.  It is implicit in the observations of the police that heroin was passed to Mr Hole inside the car, not outside the car.  The broader context includes the property, what was known to the police regarding drug related activities there, the way in which vehicles came to the property,  short  exchanges  taking  place  with  the  occupants  at  the  house  or  at the vehicles, and Mr Hole having done so on prior occasions.

[35]     If the evidence had been of no exchange taking place, as if it had it would have been seen, that would be entirely different.  But that was not the evidence.  The police evidence did not observe Ms Halliday standing back from the car, so that any exchange would have been seen.   The evidence was of her leaning in at the car window.

[36]     Putting these  elements  together,  in  my view  means  that  the police  were justified in having more than a suspicion, and it was very likely a drug transaction had taken place. That they were proved correct is not of course determinative.  I find that the police through Detective Sergeant Fisher did have reasonable grounds to believe, and did reasonably believe, that a drug transaction had taken place, so that the vehicle warranted search.

Should a warrant have been sought?

[37]    I reject the proposition that a warrant should have been obtained.   The reasonable  belief  was  of  a  drug  related  transaction  in  a  highly  mobile  setting. The appellant’s vehicle came to the house, the exchange took place, and then he left. The police could not have held the appellant, although Mr Cook says they could have held the vehicle while a warrant was obtained.  They would not be effective, as Mr Hole would likely be on his way.

[38]     I do not consider this ground of appeal is made out.

Overall exercise of discretion

[39]     The  evidence  was  not  improperly  obtained  and  it  is  not  necessary  to undertake the balancing exercise in s 30 of the Evidence Act.

Disposition

[40]     The application for leave to appeal is granted. The appeal is dismissed.

………………………………………….

Nicholas Davidson J

Solicitors:
Raymond Donnell, Christchurch
K H Cook, Barrister, Christchurch