Linn v Police

[2013] NZHC 759

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-60 [2013] NZHC 759

BETWEEN  SHANE NORTON RYAN LINN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 April 2013

Counsel:         G E Minchin for Appellant

A Longdill for Respondent

Judgment:      15 April 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

G E Minchin, PO Box 121464, Henderson

LINN V NEW ZEALAND POLICE HC AK CRI 2013-404-60 [15 April 2013]

[1]      Mr Linn appeals against conviction on a charge of possessing a pipe for the purpose of consuming methamphetamine and one of possessing a knife in a public place without lawful excuse.  The substantive issue on appeal is whether a search of a bag that was in the possession of Mr Linn was unlawful and, therefore, rendered the evidence of what was found inadmissible.

[2]      The charges were heard by Judge Mather in the District Court at Waitakere on 25 January 2013.[1]    They arose out of an incident that had occurred in the early hours of 27 April 2012.   Mr Linn had been observed pushing a motorcycle along Glen Road in Ranui.  That came to the notice of a Police patrol car in which two police officers were travelling, Constable Kowalewicz and Constable Lawn.  They initially saw Mr Linn pushing the motorcycle at about 3.40am.

[1] Police v Linn DC Waitakere CRI 2012-090-002855, 25 January 2013.

[3]      The first issue concerned the circumstances in which a bag was searched. Constable Kowalewicz’s evidence was that Mr Linn was observed to have a side bag hanging from his shoulder.  Because of safety concerns, she removed the bag from him and asked to look into it.  Constable Kowalewicz’s evidence was that Mr Linn agreed to do that.  When she searched the bag she located a black sock inside which there was a methamphetamine pipe.  Powers to conduct an unwarranted search were then exercised under s 18 of the Misuse of Drugs Act 1975.  A knife was also found in the bag.

[4]      Judge Mather rejected a challenge to the lawfulness of the search of the bag. He did so on the basis that he accepted evidence of consent given by Constable Kowalewicz.  The Judge considered that Constable Kowalewicz’s evidence had been confirmed in important respects by Constable Lawn.  He did not consider there was any adequate evidential foundation for a finding that the search had been undertaken unlawfully.   The charge of possessing the methamphetamine pipe was therefore proved.

[5]      In relation to the knife, the Judge was alert to the need to establish whether there was any reasonable excuse for the knife to be carried.   The Judge rejected

implausible evidence from Mr Linn as to the circumstances in which it was carried, finding that in a bag containing drug paraphernalia, snaplock bags and a straw, there was an obvious inference of potential illegal use.  Mr Linn was found guilty on that charge also.

[6]      Initially on appeal Mr Minchin, for Mr Linn, challenged whether the Judge was entitled to hold there was no reasonable excuse.  In addressing that issue, it is important to bear in mind that there was an onus on Mr Linn to establish that aspect in response to the alleged offence.  Section 67(8) of the Summary Proceedings Act

1957 puts the onus of establishing that exception on a defendant.  It is clear that the evidence did not go far enough to satisfy the defence.  That leaves only the question of search.

[7]      Mr Minchin has raised two issues of significance.   One concerns alleged contradictions between notes taken by the police constable and the evidence actually given in Court.  The other identifies that in respect of the original location of the bag whether on Mr Linn’s shoulders or on the motorcycle, there was no corroboration of Constable Kowalewicz’s evidence by Constable Lawn.

[8]      Reading the notes of evidence it is clear that Mr Linn did not assert in unequivocal terms that no consent was given to the search of the bag.   Constable Kowalewicz continued to assert that consent had been given.  The best that can be said about Mr Linn’s evidence was that it was equivocal on the topic.  On any view, it was  not  sufficient  to establish  an  evidential  foundation  for an  allegation  that evidence gathered from a search had been obtained improperly for the purposes of s 30 of the Evidence Act 2006.

[9]      I agree with Ms Longdill’s submissions, for the Police, that there is nothing inherently inconsistent between Constable Kowalewicz’s evidence of her concern for safety and her request to search the bag.   Nor is there anything of material effect related to the writing of the notebook.   In circumstances such as this, it is understandable that the notebook may contain entries that are not necessarily strictly in terms of the timeline, particularly when events are occurring quickly.   In any event, it may not matter whether Constable Kowalewicz’s evidence about the bag

being over Mr Linn’s shoulder was accepted.  It is clear that Constable Kowalewicz was dealing with Mr Linn and Constable Lawn with the motorcycle.  In respect of neither of those officers does Mr Linn equivocally state that he did not give consent for them to search.  It would have been open to the Judge to find from Mr Linn’s conduct that such consent had been given even if he had not accepted Constable Kowalewicz’s evidence himself.

[10]     Certainly, this is not a case in which I would be prepared to second guess findings of credibility made by the Judge who had the advantage of hearing and seeing witnesses give evidence.  In addition, even on a review of the transcript, there was sufficient evidence for the charges to be found proved and for the search not to be considered to have acquired improperly obtained evidence.

[11]     Ms Longdill did raise a separate issue about whether there had been proper compliance with the obligation in s 30(1) of the Evidence Act to signal any issues relating to that provision.  Mr Minchin has indicated that issues such as this are often addressed at a status hearing.   Given that conflicting situation, I do not intend to make any adverse comments in this decision in relation to that point.  However, I do emphasise that some prior warning of such challenges is required for the reasons that

were given by Clifford J in Singleton v Police.[2]

[2] Singleton v Police [2012] NZHC 1220.

[12]     For the reasons I have given, the appeal is dismissed.

P R Heath J