K v Police HC Wanganui Cri-2008-483-22

[2009] NZHC 430

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2008-483-000022

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 April 2009

Counsel:         S J Burlace for appellant

H C Mallalieu for respondent

Judgment:      8 April 2009

RESERVED JUDGMENT OF DOBSON J

[1]      This  is  an  appeal  from  a  conviction  on  one  charge  of  possession  of  an offensive  weapon  under  s 202A(4)(a)  of  the  Crimes  Act  1961  (the  Act).    The conviction was entered by District Court Judge Kendall after a defended hearing in the District Court at Marton on 8 August 2008.

[2]      At about 10.30am on a Monday in April 2008, a number of Police officers were directed to attend an incident of disorder in Kensington Road, Marton.  One of the officers, Detective Mansell, observed a blue van as she drove up Kensington Road towards the address she had been directed to.    She  noticed  the  appellant

(Mr K  ) and his partner standing near the van, and then getting into it.   She was

K V NEW ZEALAND POLICE HC WANG CRI-2008-483-000022  8 April 2009

previously familiar with them.   She stopped and advised Mr K   that he and his vehicle would be searched for offensive weapons in accordance with s 202B of the Act.   Having specified to Mr K   his rights in respect of what she was intending, Detective  Mansell  searched  the  van  and  located  a  metal  rod,  a  hammer,  an ornamental double-edged sword, a crow bar and a metal fencing stake, either visible or to some extent concealed within the vehicle.  As a result of finding these items, Mr K   was arrested.

[3]      At the hearing before the District Court, Detective Mansell’s evidence was tendered in the form of a written brief, by consent, and there was no cross- examination.

[4]      The sole ground of challenge to the prosecution, and on appeal, is that the Police had not established on the evidence reasonable grounds for the conduct of the search leading to the discovery of the offensive weapons, with the consequence that evidence of their discovery was not admissible.   The relevant power of search is specified in s 202B(1) of the Act.  That empowers any constable who has reasonable grounds for believing that any person is committing an offence against s 202A(4)(a) of the Act to, inter alia, stop and search any vehicle in which that person is travelling or from which he has alighted, if the constable has reasonable grounds for believing that the vehicle contains any offensive weapons.

[5]      The only parts of the brief of Detective Mansell’s evidence that could have been relevant in any way to the reasonableness of her grounds for believing an offence was being committed were an initial reference that Mr K   and his partner were “two people I am familiar with”, and the following statement:

As a result of the initial information I had received I advised the defendant that he and the vehicle would be searched for offensive weapons in accordance with s 202B of the Crimes Act 1961.

[6]      After the close of the case for the Police, Ms Burlace argued that these references in the Detective’s evidence were inadequate to make out the necessary reasonable grounds for belief that Mr K   was in possession of an offensive weapon. It was argued that absence of reasonable grounds for belief that an offence was occurring rendered the search illegal.  Once that was accepted, the balancing of the

fact of the evidence being improperly obtained was disproportionate to the need for an effective and credible system of justice.   As a consequence, that evidence was improperly obtained and should have been excluded.

[7]      The District Court Judge rejected these arguments, and they have now been repeated on the appeal.

[8]      The short point on the appeal is whether counsel for an accused can remain silent  about  a  challenge  to  the  adequacy of  a  reasonable  belief  that  the  person stopped is committing a relevant offence, so that in all such cases the prosecution must assume the lawfulness of a search is in issue, and include whatever matters were known to the officer at the time that were material to the reasonableness of the requisite belief.  For the Police, Mr Mallalieu argued that the reasonableness of the grounds  for  requisite  belief  does  not  constitute  an  element  of  the  offence  that requires to be proven.  Instead, the circumstances in which a search occurred are a matter antecedent to the elements of the offence.   If issue is to be taken on the lawfulness of a search, the challenge is to be raised either before the hearing, or at least be put in issue by a challenge to the relevant evidence at the time it is given. Mr Mallalieu submitted that the terms of s 30 of the Evidence Act 2006 support this. Subsection (1) provides as follows:

30       Improperly obtained evidence

(1)This   section  applies   to   a   criminal   proceeding   in   which   the prosecution offers or proposes to offer evidence if—

(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation,   the   issue   of   whether   the   evidence   was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

[9]      Mr Mallalieu argued that the section is only workable if the existence of the challenge and some evidential foundation for it is conveyed to the prosecution before the prosecution case is presented.  The section is to be applied in a wide variety of circumstances, but certainly in the generality of cases Mr Mallalieu’s point is a valid

one.   In the absence of a foreshadowed challenge, criminal proceedings will be prepared on the assumption that otherwise admissible evidence will be adduced. Unless the circumstances in which the evidence was obtained also constitute an element of the offence, it is unwieldy to impose an obligation in all cases to expand the prosecution evidence by requiring a justification for the circumstances in which a search was undertaken.  There is a consistent analogy in the case of search warrants.

[10]     Mr Mallalieu argued that if the matter is not raised in advance of the relevant prosecution witness giving his or her evidence in Court, then at least the challenge to the lawfulness of the basis for admitting the evidence would need to be put as one of the duties in cross-examination under s 92 of the Evidence Act.

[11]     I accept that the adequacy of grounds for a search under s 202B of the Crimes Act is not a matter that the defendant can allow to go unchallenged until the close of the prosecution case, and then argue for a ruling that the evidence-in-chief did not go far  enough  to  establish  those  reasonable  grounds  for  belief.    As  Mr Mallalieu suggested, an expectation that evidence of this type would uniformly be included would lead to a necessary prolonging of proceedings, and difficult and potentially prejudicial evidentiary issues.  The grounds of a Police officer’s belief would quite often involve reliance on statements that would be hearsay from the officer, might well involve disclosing the identity of informants, and is likely to refer to accumulated knowledge on the part of the Police about the accused, including previous convictions.  A challenge of the type that is now argued, but which was not put in issue on the evidence, would ordinarily be the subject of a voir dire in the absence of a jury, if they were the finders of fact.

[12]     Ms Burlace relied on the Court of Appeal decision in R v Maihi (2002)

19 CRNZ 453, as to the adequacy of evidence adduced at trial in support of the reasonableness of grounds for belief leading to a search under s 202B.   However, there, the adequacy of those grounds had been put in issue and were tested in cross- examination.  Prosecution witnesses were able to explain the basis for their belief, having been put on notice in respect of the challenge to the admissibility of the evidence obtained as a result of the search.

[13]     In contrast here, the reasonableness of grounds for belief was allowed to go by default.  Mr Mallalieu characterised the somewhat cryptic references to grounds for belief in the brief of evidence as being a standard form shorthand conveniently used by prosecution witnesses as adequate, in the absence of notice that the reasonableness of the search is under challenge.   I accept that that is a reasonable approach to adopt in circumstances such as the present.  Mr Mallalieu referred to the earlier Court of  Appeal decision in R v Tupara CA132/96  6  June  1996.    That decision rather anticipates the way in which Mr Mallalieu submits s 30(1) of the Evidence Act is intended to operate.  There, the Court of Appeal was in no doubt that it was open to the Judge to construe the absence of any call for cross-examination of the  Police  witnesses  as  acceptance  of  the  evidence  in  their  statements.     In observations that are reasonably seen as foreshadowing the structure of s 30 of the Evidence Act, the Court of Appeal observed:

In the absence of any specific directions the Crown should have presented the evidence in support of the application for the order that the evidence be admitted followed by any evidence by or for the accused as respondent.  As a matter of efficient practice, to enable the Judge properly to consider the evidence as it is given and appropriately confine cross-examination, it is important  on  applications  such  as  this  to  have  specified  the  competing grounds for and against admissibility before any evidence is given.

[14]     Accordingly,  I  am  satisfied  that  Mr K    could  not  assert  grounds  for challenging the reasonableness of Detective Mansell’s belief that a relevant offence was being committed by Mr K  , merely by remaining silent until the close of the Police case.  There appears to have been a material misapprehension about the way in which such challenge should be raised.   That does lead to an issue of whether there  has  been  a  miscarriage  of  justice  by  counsel’s  election  not  to  raise  the challenge in the course of the prosecution evidence.

[15]     Mr Mallalieu advised that when the point was raised after the close of the prosecution case, the prosecuting sergeant suggested that Detective Mansell be recalled so that the reasonableness of her grounds for belief could be tested.   The District Court Judge apparently rejected that suggestion.  I do note that Mr Mallalieu provided me with a copy of the Police disclosure provided to Ms Burlace the week before the hearing.   In very cryptic terms, the timeline of Police internal communications does suggest a degree of background about Mr K  ’s connection

with the incident.  It seems also that Detective Mansell’s “familiarity” with him was in part by virtue of prior offending of a relevant type.   However, I am not in a position to evaluate the prospects of Mr K   successfully challenging the requisite extent of grounds for belief leading to the search.  Nor could I undertake in abstract the assessment of whether any improperly obtained evidence ought nonetheless to have been admissible on the balancing exercise the Court is directed to undertake by decisions such as R v Shaheed [2002] 2 NZLR 377.

[16]     In the circumstances as they played out, it seems the defence was genuinely planned on a basis that has proven to be inadequate.   It leads to the prospect that Mr K   may have had sufficient grounds for challenge to warrant a re-hearing.  This cannot be a precedent for granting re-hearings in any wider circumstances, but here I will allow the appeal on the basis that a re-hearing is necessary to avoid the prospect of a miscarriage of justice.  I direct that such re-hearing is to occur in the District Court at Marton.

Dobson J

Solicitors:

Treadwell Gordon, Wanganui for appellant

Crown Solicitor, Wanganui for respondent