Maihi v The Queen - [2015] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

CA551/2014
[2015] NZCA 438

BETWEEN	TYRONE RICHARD MAIHI Appellant
AND	THE QUEEN Respondent

Hearing:	20 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	R J Laybourn and R M Laybourn for Appellant J E L Carruthers for Respondent
Judgment:	24 September 2015 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

Following a jury trial in the Hamilton District Court in July 2014 the appellant, Tyrone Maihi, was found guilty of possessing methamphetamine for the purpose of supply and possessing utensils for the purpose of consuming methamphetamine. Mr Maihi was subsequently sentenced to three years and nine months’ imprisonment.[1]
[1]R v Maihi DC Hamilton CRI-2012-019-6233, 10 September 2014.
Mr Maihi now appeals his convictions, but not his sentence.
The charges Mr Maihi faced arose out of police searches of the car he was driving after he was arrested for driving while disqualified. During these searches police found methamphetamine and methamphetamine pipes. Mr Maihi, prior to trial, unsuccessfully challenged before Judge Clark the admissibility of that evidence on the grounds that his arrest and the subsequent searches were unlawful, and that exclusion was the proportionate remedy.[2]
[2]R v Maihi DC Hamilton CRI-2012-019-6233, 15 October 2013.
Mr Maihi appeals on the grounds that his arrest was unlawful, and that Constable Archbold’s action in opening the driver’s door to put the paperwork on the driver’s seat was an unlawful search. The evidence obtained pursuant to the subsequent warrantless searches was therefore improperly obtained. Given the importance of the rights involved, exclusion of that evidence was the proportionate response.

Facts

At approximately 11 pm on 23 September 2012 Mr Maihi was driving a motor vehicle belonging to his nephew. Constable Cairns, on patrol alone in a marked police vehicle, noticed the car and thought he recognised it as being associated with members of the Black Power gang. He did a vehicle check and was advised by Police Communications that the car was registered to Blane Maihi, that it had been noted as frequenting the address of a gang associate and that it had been “green stickered”, indicating that it was not safe to be on the road.
Constable Cairns pulled in behind the car, which Mr Maihi had parked outside some local shops. Constable Cairns spoke with Mr Maihi, and obtained his details. Mr Maihi gave his name as Tyrone Maihi. Constable Cairns asked Mr Maihi for his driver’s licence, but Mr Maihi did not have it with him. Constable Cairns then conducted a “query person” check. Police communications advised Constable Cairns that Mr Maihi was a disqualified driver. Constable Cairns arrested Mr Maihi. Mr Maihi protested, saying that he did have a licence. The Constable checked again with communications. Communications confirmed that Mr Maihi was disqualified and, moreover, that there was an alert stating he would deny being disqualified. Constable Cairns then advised Mr Maihi a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maihi v The Queen

Details

AGLC: Maihi v The Queen [2015] NZCA 438
Case: [2015] NZCA 438
Decision Date: 24 September 2015 at 2.30 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Tyrone Richard Maihi appealed against his conviction and sentence for possessing methamphetamine for supply and possessing utensils for consuming methamphetamine. The appeal was against his conviction only. Maihi was arrested for driving while disqualified and, during the course of impounding his vehicle, police discovered the methamphetamine and paraphernalia. Maihi argued that his arrest was unlawful and that the subsequent searches of his vehicle were unlawful, and thus the evidence obtained should be excluded. The court had to determine whether the arrest was lawful and whether the search of the vehicle was lawful or a reasonable exercise of power incidental to the impoundment of the vehicle.

The court found that the police had good cause to suspect Maihi of driving while disqualified and, therefore, his arrest was lawful. The court also found that Constable Archbold's action in opening the driver's door to place the impoundment paperwork on the driver's seat was a reasonable exercise of power incidental to the impoundment of the vehicle, and therefore not a search. Even if the action was considered a search, the court found that exclusion of the evidence would be disproportionate given the minor nature of the impropriety, the importance of the evidence in prosecuting serious criminal activity, and the good faith of the police in completing their duties. The appeal against conviction was dismissed.

The court did not make any orders regarding the sentence.

Orders