Maranui v The Queen

[2004] NZCA 133

IN THE COURT OF APPEAL OF NEW ZEALAND

CA449/03

THE QUEEN

v

GRANT HAMARAMA MARANUI

Hearing:21 June 2004

Coram:Anderson P
Paterson J
Doogue J

Appearances:  M B Ryan and A S P Tobeck for Applicant

M F Laracy for Crown

Judgment:5 July 2004 

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1]       Mr Maranui appeals against his conviction in the District Court at Palmerston North on 5 August 2003 on a charge of possessing cannabis oil for supply.  As he was sentenced on 27 August 2003, and his notice of appeal was not filed in this Court until 8 December 2003, 75 days after the time allowed for appeal had expired, he requires leave to appeal. 

[2]       There was a pre-trial application to determine the admissibility of evidence obtained by the police after invoking the provisions of s18(2) Misuse of Drugs Act 1975 (the Act).  In a judgment given on 3 June 2003, Judge Connell ruled that the evidence as a result of the search was admissible.  Mr Maranui did not appeal against the Judge’s ruling under s344A of the Crimes Act 1961, but now appeals against the conviction on the grounds that there was a miscarriage of justice.  The alleged miscarriage of justice arose because of the admission of evidence obtained from the search of the premises.

Background

[3]       On 14 December 2002, a bailiff accompanied by police, went to the property that Mr Maranui leased for the purposes of executing a fines warrant against one of Mr Maranui’s flatmates.  While inside the house, the bailiff pointed out to a policeman  a pot plant containing a cannabis tinnie. 

[4]       The policeman invoked the provisions of s18(2) of the Act and a search was conducted of the house without a search warrant.  Mr Maranui indicated that he wished the police to leave the property, but the police, believing they had lawfully entered the property, conducted the search under the provisions of s18(2).

[5]       The police located a container holding approximately 53 grams of cannabis oil in a dresser in Mr Maranui’s bedroom.  It is the evidence of the finding of this cannabis oil which is the subject of the appeal.

Grounds of appeal

[6]       The ground of appeal was that the evidence of items found during the search, except for the cannabis tinnie, should have been excluded because the search and seizure was unlawful and in breach of s21 New Zealand Bill of Rights Act 1990 (the Bill of Rights).  It was submitted that the policeman did not have reasonable grounds for his belief that there were, apart from the tinnie, any other controlled drugs specified in the relevant schedules to the Act in the dwelling, or that an offence had been or was suspected of having been committed in respect of any other such controlled drug.  The search and seizure were therefore carried out beyond the limits prescribed by s18(2) of the Act.

Applicant’s submissions

[7]       Mr Ryan, for Mr Maranui, submitted that in this case the pre-requisites of a valid search under s18(2) of the Act were:

a)Reasonable grounds for believing that there is in a building any controlled drug specified in the relevant schedules of the Act;  and

b)Reasonable ground for believing that an offence against the Act had been or is suspected of having been committed in respect of that drug;  and

c)By virtue of the provisions of s198 Summary Proceedings Act 1957 and s18(1) of the Act the restriction of the search to evidence related to the cannabis tinnie.

[8]       On behalf of Mr Maranui, it was submitted that while the policeman had reasonable grounds for believing that there was a cannabis tinnie in the premises, he could not have had reasonable ground for a belief that there was any other specified controlled drug in the premises.  His immediate decision to search, after seeing the tinnie, suggested that he had given little consideration to the issue of whether or not there were grounds for believing that there were other specified controlled drugs.  It was further suggested that he should have consulted with other police officers present before determining that there should be a search.  A similar submission was made in respect of the requirement of having reasonable grounds for believing that an offence had been committed.

[9]       The final submission was that because s18(2) of the Act permits a search “as if authorised to do by a search warrant issued under s198 Summary Proceedings Act 1957 and by subsection (1) of this section”, the police were limited to searching for evidence in respect of an offence which they had reasonable grounds for believing had been committed, which in this case was the offence relating to the cannabis tinnie.  This is because the prescribed form of a search warrant authorises a search for evidence of a specified suspected offence.  As the police did not have reasonable grounds for believing that any offence other than that of possessing cannabis in the form of a tinnie had been committed, their unlimited search of the dwelling was unlawful. 

Crown submissions

[10]     Ms Laracy, for the Crown, submitted that the applicant’s contentions took a too narrow view of the police rights to search in the circumstances, and was not in accordance with authority.  In her submissions the police were entitled to search the premises for other evidence in relation to cannabis.  Having found cannabis on the premises, the police had reasonable grounds for believing that there had been other offences relating to cannabis and for searching the property.  An unrestricted search for cannabis was therefore authorised by s18(2) of the Act. 

Discussion

[11]     The relevant statutory provision is s18(2) of the Act, which states:

(2)     Where any member of the Police has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in the Schedule 1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.

[12]     The police are entitled to search without a warrant under the provisions of s18(2) if they have reasonable grounds for believing that there is in the building a specified controlled drug and that an offence against the Act has been, or is suspected of having been committed, in respect of that drug.  The tests for determining whether the police had the necessary reasonable grounds for believing is a two part one.  First, the police must hold the reasonable beliefs required by s18(2).  Secondly, those beliefs must be based on reasonable grounds. 

[13]     The policeman who made the decision to search under s18(2) gave evidence at the pre-trial hearing.  He was not cross-examined by Mr Maranui’s counsel as to the basis of his belief for searching.  There was no direct evidence on this point.  However, we are of the view that the police’s action in searching indicates that the policeman had a belief, after finding the cannabis tinnie, a specified controlled drug in the premises, that an offence or offences against the Act had been or were suspected of having been committed.  The suspected offences in the circumstances would obviously include possession of cannabis for supply and other cannabis offences.  This inference can be drawn from the evidence and the actions taken.  If Mr Maranui wished to challenge this belief, it was for his counsel to cross-examine the detective:  see R v Latta (1992) 8 CRNZ 520. 

[14]     In our view, the belief was based on reasonable grounds.  When looked at objectively, the discovery of the cannabis in tinnie form, which is a form in which it is often sold, was a reasonable ground for suspecting that other cannabis would be in the building and that cannabis related offences had been committed.  The submission that the police did not have reasonable grounds for belief under s18(2) is untenable. 

[15]     It therefore follows that the police were entitled to search the premises.  The other issue is whether they were restricted in the evidence they seized by the provisions of s198 Summary Proceedings Act.  Because their belief was based on the discovery of a cannabis tinnie, they were, in our view, entitled to search for other evidence of cannabis activity.  In these circumstances, the discovery of cannabis oil was in accordance with what they would have been entitled to search for if the necessary search warrant had been issued under s198 Summary Proceedings Act. 

[16]     Mr Ryan also criticised the police for what he described as an unlimited search.  We would not so characterise it.  Although it was very thorough, it was not unreasonable. 

[17]     In view of our findings, it is not necessary to address whether the police were authorised by s18(2) to seize controlled drugs other than cannabis products.  This Court in R v Burns [2002] 1 NZLR 204 in paragraph 31, concluded that the power to seize is not confined to the lettered paragraphs or paragraphs invoked for the purposes of the application for the warrant, and thus appearing in the warrant itself. But in cases where evidence is sought to be excluded by reference to the characteristics of a search or seizure, the fundamental issue is not illegality but unreasonableness. As we have indicated, we find none here.

[18]     For the reasons given, the applicant’s arguments have no merit.

Result

[19]     Leave to appeal is declined. 

Solicitors:
M B Ryan, Palmerston North for Applicant
Crown Law Office, Wellington