McRae v Police
[2017] NZHC 2255
•18 September 2017
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI 2017-442-16 [2017] NZHC 2255
BETWEEN ROBERT WILLIAM MCRAE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 12 September 2017 Counsel:
D E Holloway for Appellant
K B Bell for RespondentJudgment:
18 September 2017
JUDGMENT OF ELLIS J
[1] On the afternoon of 22 February 2017, Constables Wallbank and Walker were in a marked Police car, on duty in Nelson. They saw a black Honda Accord being driven by Mr McRae, with a woman in the passenger seat. There was a QVR flag on the vehicle in the police database. They followed the Honda in the Police car to a public carpark 20 metres away, where both cars parked. Constable Wallbank spoke to Mr McRae who said that the Honda belonged to his de facto partner who was in the passenger seat. The officers then put a non-operational order on his vehicle, otherwise known as a green sticker.
[2] As he was speaking to Mr McRae, Constable Wallbank saw a number of car parts on the back seat which Mr McRae said were for the Honda. Constable Wallbank also saw a large machete laid down behind the driver’s seat. This caused him to advise Mr McRae that he was going to search the car under the
Search and Surveillance Act 2012 (the SSA) for weapons. He also told Mr McRae
MCRAE v POLICE [2017] NZHC 2255 [18 September 2017]
and his partner that they would be personally searched. Because they would be detained for that purpose he gave them their rights, which they said they understood.
[3] The car was duly searched. The Constable also took photographs of the contents of the car. No other weapons or items of interest were found but Constable Wallbank seized the machete. It was approximately 70 centimetres in length with a blade of approximately 50 centimetres. At that point Mr McRae told Constable Wallbank that it was “for camping”. Constable Wallbank saw a packed up tent in the boot of the vehicle, but there was no other camping equipment present. Mr McRae declined to comment further on when or where he had been camping, and declined to make an official statement.
[4] Mr McRae was then charged with possessing an offensive weapon in a public place without lawful authority or reasonable excuse under s 202A(4)(a) of the Crimes Act 1961 (the CA).1
[5] On the recent authority of Kearns v R Mr McRae contended in the District Court that the search of the car was unlawful and objected to the admission in evidence of its fruits.2 On 12 July 2017, Judge Zohrab held that the evidence was improperly obtained, but was nevertheless admissible pursuant to s 30(4) of the Evidence Act 2006 (the EA).3 Mr McRae now appeals that s 30(4) finding.
[6] In opposing the appeal the Crown submits that the evidence was not improperly obtained, but in any event the Judge was right to rule it admissible under s 30.
Approach on appeal
[7] This is an appeal against a pre-trial ruling pursuant to s 215 of the Criminal
Procedure Act 2011 (the CPA), so leave is required. The Crown does not oppose leave in this case.
1 Section 202A(4)(a) provides that everyone is liable to imprisonment for a term not exceeding three years who, without lawful authority or reasonable excuse, has with him or her in any public place any knife or offensive weapon or disabling substance.
2 Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835.
3 Police v McRae [2017] NZDC 15406.
[8] Section 221 of the CPA provides that the Court must determine an appeal under s 215 by confirming, varying or setting aside the decision appealed against. An appeal under s 221 is a general appeal and admissibility decisions involve questions of law, not discretion. The Court must therefore form its own assessment regarding the admissibility of the evidence concerned.4
[9] Because I am required to come to my own view on admissibility I do not propose to summarise the Judge’s analysis in this judgment, although I refer to aspects of it as necessary. I merely record at the outset that his decision was a thorough, careful and fair one, and that I agree with the result, namely that the evidence is admissible.
The contested evidence
[10] It is necessary to be clear at the start about the exact nature of the evidence at issue. I cannot be certain whether there was clarity around this in the District Court.5
But as I understand it, the contested evidence now is: (a) the machete itself;
(b)the photographs of the interior of the car (in which the machete can be seen); and
(c) Mr McRae’s statement to Police that the machete was “for camping”.
[11] In terms of the importance of that evidence to the Crown case, Ms Bell’s position was that the prosecution could and would proceed even if the machete and photographs were excluded. The Crown would rely simply on Constable Wallbank’s statement that he saw the machete in the back of the car. But Ms Bell said that Mr McRae’s statement was vital to the prosecution because it was the only proof that the machete was his. In other words, she said that if that statement is not admissible
the prosecution could not proceed.
4 R v Gwaze [2010] NZSC 52, [2010] 3 NZCR 734 at [49]–[53]; Hodgkinson v R [2010] NZCA 457 at [47].
5 It seems from parts of the judgment under appeal that the focus may just have been on the machete itself.
[12] But I am not sure that this assessment of the evidentiary importance of the statement is correct. Even though the car belonged to Mr McRae’s partner, he was driving it and it could (arguably) be inferred both from that fact and from his relationship with the owner that he would have had effective control over the machete and (accordingly) that he had it “with” him for the purposes of s 202A.6
This necessarily has some bearing on the s 30 analysis.
Was the evidence improperly obtained?
[13] Section 30(5) of the EA provides that:
For the purposes of this section, evidence is improperly obtained if it is obtained—
(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act
1990 applies[.]
[14] In the present case, it was said by Mr McRae that the contested evidence was obtained “in consequence” of a breach of s 28 of the SSA, under which the search of the car was conducted.
Was there a breach of s 28?
[15] Section 28 provides:
28Stopping and searching vehicles without warrant if offence against section 202A of Crimes Act 1961 suspected
(1) A constable who has reasonable grounds to suspect that the circumstances in subsection (2) exist in relation to a vehicle may search the vehicle.
(2) The circumstances are that—
(a) a person travelling in the vehicle or who has alighted from it is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances); and
(b) the vehicle contains a knife, offensive weapon, or disabling substance.
6 See Ellmers v Police (1998) 3 CRNZ 259 (HC) at 260-261.
[16] The Court of Appeal in Kearns v R held that a vehicle can be searched under s 28 if there are reasonable grounds to suspect that:7
(a) a person who is in the vehicle has a knife [or offensive weapon]
“with him or her”;
(b) the vehicle contains a knife [or offensive weapon]; and
(c) the person does not have lawful authority or reasonable excuse for possessing the knife [or offensive weapon].
[17] In that case, Mr Kearns was in a car in a private thoroughfare in central Auckland on a Saturday night with four others. When approached by Police he opened the car door and the Police saw a craft knife in the side pocket of the door. This caused them to search the car, where they found 1.5 grams of cocaine. These events were preceded by an initial interaction between the Police and an associate of Mr Kearns’, in which the Police asked the associate what he was doing and he ignored them and hurried back to the car. It was alleged that this initial contact was
motivated by unconscious racial basis and accordingly discriminatory and improper.8
[18] The Court of Appeal held that the search was unlawful because the Police could not have had reasonable grounds to suspect that Mr Kearns had no reasonable excuse for possessing the knife. Because craft knives are so easily obtainable and have so many common uses it could not reasonably be inferred that there was no such excuse simply from its presence. The Court said that further inquiry as to the reasons for having the knife in the car should have been made. And as it happened, Mr Kearns later explained that he carried it in the car because of his job as a quantity
surveyor.9
7 Kearns, above n 2, at [63]. The search in that case was invoked on the basis of suspicion of a knife, but s 202A(4)(a) also applies to offensive weapons (which the offence in this case is charged as) and disabling substances.
8 This aspect of the case was sent back to the District Court to hear further evidence. The District Court found that there was no good, objective, reason for this initial interaction, and that it did not matter whether it was motivated by overzealousness or unconscious racism. The evidence was found to be improperly obtained, and was excluded: R v Kearns [2017] NZDC 7933.
9 No charge under s 202A was laid.
[19] In the present case, Judge Zohrab recorded that the prosecution did not attempt to contend that Kearns was distinguishable or (accordingly) that the evidence in Mr McRae’s case had not been improperly obtained.10 While the Judge did go on to consider the issue in more detail he concluded that he was bound by Kearns and that, because the officers did not give Mr McRae the opportunity to explain why the machete was in the car prior to the search, the search was unlawful.
[20] As noted earlier, the Crown on appeal sought to depart from its previous position of acquiescence on the s 28 issue. Ms Bell submitted that Kearns could be distinguished because, by comparison with a craft knife, there are fewer and less obvious reasons that someone might be driving around with a large machete in their car. She correctly pointed out that the Court did not say in Kearns that prior inquiries had to be made in all cases. Rather, it was the ubiquity of craft knives that meant that a question was warranted.
[21] There is, I think, some force in that submission, and not only for the reasons just summarised. It seems plain that even if Mr McRae had been given the opportunity to give his “camping” explanation prior to the search that would not have been accepted by Police as a reasonable excuse. That is apparent from the fact that he was charged under s 202A notwithstanding that explanation. Of course, a prosecution under s 202A requires rebuttal of the existence of a “reasonable excuse” beyond reasonable doubt once an evidential foundation for such an excuse is laid. But that is a higher standard than the reasonable belief in lack of reasonable excuse which must be present for the search to be lawful.
[22] So for myself, I would be inclined to find that the search here was not unlawful. But in case I am wrong in that, however, I go on to consider whether the evidence obtained was in consequence of any breach, and then the weighing
exercise.
10 McRae, above n 3, at [5].
Was the evidence obtained “in consequence” of a breach?
[23] The s 30(5) words “in consequence” have recently been discussed in Nicol v R, where the majority in the Court of Appeal held that a real and substantial connection is required between the breach and the evidence obtained.11
[24] Assuming that there was a breach of s 28 here, I record my doubt at the outset that the statement made by Mr McRae was evidence obtained “in consequence” of that breach. While on a strictly chronological view the statement was made immediately after the Police “seized” the machete, that does not necessarily mean there was some real and causative connection between that act and the statement. The timing may simply be a matter of coincidence. Given that Mr McRae already knew that the Police had seen the machete in the car it is difficult to see why the physical removal of it prompted the statement. Indeed it is necessarily Mr Holloway’s position that Mr McRae would have made just such a statement had he been asked for an explanation before the search took place.
[25] I would be inclined to accept, however, that there was a real and causative connection between the search and the other evidence obtained, namely the machete itself, and the photographs.
Balancing exercise
[26] In the event that a court finds, the balance of probabilities, that the relevant evidence was improperly obtained then s 30(2) requires it to determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice. And subs (3) states that, for the purposes of that exercise, the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
11 Nicol v R [2017] NZCA 140 at [25].
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged: (e) whether there were any other investigatory techniques not involving
any breach of the rights that were known to be available but were
not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
[27] And subs (4) provides that:
The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
[28] Applying those consideration to the evidence of the machete and the photographs (assuming them to have been improperly obtained) I consider that:
(a) while the right to free from unlawful search and seizure is an important right, the privacy interests held by occupants of a car are less than those who are in their own home. Moreover the car’s unroadworthiness had given the Police a legitimate interest in looking
at and into it and the machete was in relatively plain sight.12 This
factor favours admission;
(b)even if I am wrong in my conclusion that there was no impropriety at all, the nature of any impropriety must, at best, be slight. This factor favours admission;
(c) no bad faith is alleged. I agree with Mr Holloway that this factor is neutral;13
12 This is in plain contrast to Kearns, where it was ultimately found that the initial stop by Police of
Mr Kearns’ associate (that prompted the Police to then approach Mr Kearns) was improper.
13 R v Maihi (2002) 19 CRNZ 453 (CA) at [35].
(d)the evidence obtained is good (and indeed incontestable) evidence of the key element of the s 202A offence. Mr McRae will nonetheless be able to argue that he had a reasonable excuse for having the machete, which the Crown will have to disprove beyond reasonable doubt. His position in that respect is no worse than it would have been had the Police simply gone to trial on the basis of the evidence of what Constable Wallbank saw. I would be inclined to the view that this factor favours admission here;
(e) although punishable by imprisonment the offence with which the Mr McRae has been charged is relatively low level. That (perhaps) favours exclusion although the opposite view also seems arguable;
(f) in terms of other available investigatory techniques:
(i)the Police could have asked Mr McRae why the machete was in the car prior to the search. As noted earlier it seems highly unlikely that the answer he would almost certainly have given would have stopped them then searching the car; or
(ii)given that the Police had already seen the machete in the car, it would have been open to them to arrest Mr McRae and then search the car without a warrant, under s 84 of the SSA.
Although in most cases the availability of other lawful means of obtaining the evidence would point towards exclusion, I regard it as a neutral factor here. I say that because of the minimal differences between the alternative means and what actually occurred.
(g)there are no realistic alternative remedies which can adequately provide redress to the defendant, although that is largely due to the very minor nature of the impropriety. This is a neutral factor;
(h)the impropriety was not necessary to avoid apprehended physical danger to the Police or others. This favours exclusion;
(i) there was no urgency in obtaining the improperly obtained evidence.
This favours exclusion;
[29] Again, assuming that the evidence was improperly obtained I am unable to conclude that a balancing of the factors listed above leads to the conclusion that the exclusion of it would be proportionate to the impropriety. In short, I consider that any impropriety is so minor that it must yield to those other matters favouring admissibility. In my view (and putting to one side the obviously contestable “reasonable excuse” defence) there were grounds for charging Mr McRae with or without the disputed evidence. His defence was always going to centre on the existence or not of a reasonable excuse; his ability to do so is unaffected by admitting the evidence. So taking all the subs (3) matters into account I am unable to see how the need for an effective and credible system of justice is undermined by the conclusion that both I and Judge Zohrab have reached.
Conclusion
[30] In my view Judge Zohrab was right to rule the evidence admissible. Due in part to the change of position by the Crown I differ from his conclusion that the evidence was improperly obtained. In my view the present case is distinguishable from Kearns and there was no breach of s 28. But if I am wrong in that, I agree with the outcome of his s 30 analysis.
[31] The appeal is dismissed accordingly.
Rebecca Ellis J
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