R v Avenell
[2007] NZCA 532
•22 November 2007
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA488/07 [2007] NZCA 532
THE QUEEN
v
MATTHEW JOHN AVENELL
Hearing: 15 November 2007
Court: Wilson, Chisholm and Potter JJ Counsel: D G Young for Appellant
S B Edwards for Respondent
Judgment: 22 November 2007 at 10.30am
JUDGMENT OF THE COURT
A Leave to appeal is granted. B The appeal is dismissed.
CNot to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law
report or law digest permitted.
R V MATTHEW JOHN AVENELL CA CA488/07 22 November 2007
REASONS OF THE COURT
(Given by Chisholm J)
[1] Mr Avenell faces four charges laid in the District Court at Auckland: possession of MDMA for supply; possession of methamphetamine; and possession of a pipe (two). The Crown case relies on evidence arising from a search of Mr Avenell’s motor vehicle. In the District Court he unsuccessfully challenged the admissibility of this evidence.
[2] Leave is sought to appeal against Judge Hubble’s ruling that the evidence is admissible. While the appellant does not dispute that he consented to the vehicle being searched, he claims that his consent was not freely given because he was not told of his right to refuse consent and that in all the circumstances his consent should be considered ineffective. If the Court determines that his evidence was properly obtained, he argues that the balancing process under s 30 of the Evidence Act 2006 should render the evidence inadmissible.
Background
[3] At about 1am on 10 July 2006 a police constable went to a residential address at Hatfields Beach which shared a long driveway with several other properties. He was looking for a Mr Brough. As the constable was leaving the address, having failed to locate Mr Brough, he noticed a vehicle drive down the driveway, stop, and then quickly reverse out again.
[4] In the belief that Mr Brough was in the vehicle, the constable gave chase. As it happened, Mr Brough was a passenger in the vehicle which was driven by the appellant. However, while the appellant’s vehicle was out of sight of the pursuing police officer, Mr Brough left the appellant’s car and made good his escape.
[5] Eventually the police officer stopped the appellant’s car and spoke to the appellant. It was the constable’s evidence that when he asked the appellant if he had his driver’s licence on him the appellant “kept going into a bag” on the front passenger’s seat of the car and appeared to be “extremely agitated and nervous”.
The police officer then asked the appellant whether he had anything that he should not have and the appellant replied “No”.
[6] It is not disputed that the constable then asked the appellant if he would consent to his vehicle being searched, to which the appellant replied “Yes”. According to the constable he then informed the appellant that he did not have to let the police look inside the vehicle and the appellant replied that “It was fine”. The appellant denied that this exchange took place.
[7] The constable then looked in the bag on the front passenger’s seat and located a glass pipe and small bags of crystal powder (later analysed to be methamphetamine). After the appellant had acknowledged that the bag and pipe were his and that the white powder was “P”, the constable informed the appellant that he would be searching the vehicle under s 18(2) of the Misuse of Drugs Act
1975 and gave him his Bill of Rights.
[8] Thereafter the vehicle was searched by the constable and also by a sergeant who had arrived at the scene. A total of 150 Ecstasy tablets, cash of $14,425, a set of digital scales and a small piece of paper with names and numbers recorded on it were located.
District Court Ruling
[9] Both the constable and the appellant gave evidence and were cross-examined. Although we have been provided with a brief of the constable’s evidence, we do not have a copy of transcript.
[10] It was not disputed that the stopping of the vehicle was lawful, and Judge Hubble so found. But he reminded himself that a lawful stopping and gathering of particulars about the driver does not carry a right to search the vehicle. The Judge then turned his attention to that issue. He found that the appellant had agreed to the search of the vehicle and that thereafter he had been “very co-operative” with the police. Judge Hubble concluded that on that basis alone he would be justified in admitting the evidence.
[11] Notwithstanding that conclusion the Judge took the precaution of considering whether it was necessary for the constable to warn the appellant that he could refuse consent. Judge Hubble concluded that R v Hjelmstrom (2003) 20 CRNZ 208 (CA) was authority for the proposition that there was no such general requirement. But he considered that the presence or absence of such a warning could be relevant to the question of whether the search had been reasonable. After considering the conflicting evidence relating to this aspect the Judge accepted the constable’s evidence and found that the appellant had been warned that he could refuse consent.
[12] In the end result the Judge concluded that the appellant had freely given his consent to the search of the vehicle. He also recorded that if he had needed to go to s 30(3) of the Evidence Act he would still have reached the conclusion that the evidence should be admitted.
Appellant’s argument
[13] Mr Young submitted that Judge Hubble erred when he found that consent had been freely given by Mr Avenell. In fact, submitted Mr Young, the evidence pointed to the opposite conclusion because:
• the appellant had given evidence on oath that he was not told he could decline consent;
• this is corroborated by the absence of any record in the constable’s notebook that such a warning had been given;
• the appellant had previously indicated a reluctance to come clean when he was first asked by the police whether there was anything in the car that should not have been there;
• under those circumstances it would seem to be contrary to reason that he would have freely consented;
• given that he had no previous convictions, it could not be presumed that the appellant was familiar with his rights; and
• at some point during the appellant’s discussions with the constable a more senior police officer arrived on the scene which would have added to the pressure on the appellant.
Counsel argued that these points need to be contrasted with the recollections of the constable over 12 months after the event.
[14] It was also submitted by Mr Young that the appellant had only consented to the search because he felt he had no choice when faced with what he believed was a lawful request. Mr Young claimed that this is a case where the constable had simply acted on a hunch which had resulted in a transgression of the appellant’s rights under s 21 of the New Zealand Bill of Rights Act 1990. Particular reliance was placed on R v Anderson (1997) 4 HRNZ 165 (CA).
[15] Finally, Mr Young conducted an analysis of the matters referred to in s 30(3) of the Evidence Act to support his submission that exclusion in this case would be proportionate to the impropriety. He argued that an important right protected by the New Zealand Bill of Rights Act had been breached, that the breach was arguably deliberate or at least reckless, and that a number of techniques (including advising the appellant that he did not have to consent to a search and recording that advice in writing) would have been available.
Crown’s response
[16] Ms Edwards submitted that this Court should not interfere with Judge Hubble’s finding that the constable had warned the appellant that he did not have to consent. But in any event, she submitted, there is no general requirement for police to formally advise suspects of their right to refuse a request for consent to search (Hjelmstrom, R v Gebremichael CA19/06 6 July 2006 and R v Machirus [2007] NZCA 120), and there was nothing in the circumstances of this particular case to require such a warning to be given on this occasion.
[17] With reference to s 30 of the Evidence Act, Ms Edwards submitted that even if the Court reached the conclusion that the evidence had been improperly obtained, the only impropriety would be a failure to specifically inform the appellant that he could refuse consent. She submitted that under those circumstances exclusion of the evidence would amount to a disproportionate response, especially taking into account that the constable was not acting in bad faith, that the bag containing the drugs was in full view, and that the evidence was central to the prosecution case.
Discussion
[18] To the extent that the appellant is challenging the Judge’s finding that the constable had warned the appellant that he did not have to consent, we are being invited to overturn factual findings. It is, of course, well established that appellate Courts are reluctant to overturn such findings, especially where the lower Court has had the benefit of seeing and hearing the witnesses.
[19] In this case it was necessary for the Judge to resolve a direct conflict of evidence between the constable and the appellant. The Judge had the advantage of seeing and hearing those witnesses, including their performance under cross-examination. He accepted the constable’s evidence and found that the appellant had been warned that he did not have to consent to the search. Obviously that conclusion was available to him.
[20] Moreover, on our analysis of the Judge’s ruling he turned his mind to each of the matters raised by Mr Young that were capable of influencing his decision. The fact that the appellant had given evidence on oath was self-evident. So had the constable. As to the absence of any record in the constable’s notebook, the Judge observed (correctly in our view) that it cannot be expected that everything that occurs will be noted in a police officer’s notebook. The initial reluctance of the appellant to come clean was recorded in the Judge’s narrative (paragraph [9]) and, given that the appellant accepts that he agreed to the search of the vehicle, we are not at all surprised the Judge reached the conclusion that he did. As to the point that the appellant had no previous convictions and it could not be presumed that he was familiar with his rights, the finding of the Judge that a warning had been given meant
that the appellant had been properly informed about his rights. Finally, as to the arrival of the more senior police officer, as the Judge said (paragraph [17]), there was only one officer dealing with the appellant at the critical time.
[21] Under those circumstances we are not prepared to overturn Judge Hubble’s findings of fact. This means that for the purposes of s 21 of the Bill of Rights Act the reasonableness of the search has to be assessed in the context of a lawful stopping of the vehicle and the appellant’s consent to, and co-operation with, the search after having been informed that he had the right to refuse consent.
[22] In R v Fletcher (2002) 19 CRNZ 399 (CA) the District Court Judge had made a finding that Mr Fletcher had freely consented to the constable searching the vehicle. Notwithstanding that, this Court found that the stopping of the appellant’s vehicle was unlawful. It observed at [13]:
There are obvious difficulties in submitting that a search of a vehicle was unreasonable when the person in possession of the vehicle freely consented to the search.
In that case counsel for Mr Fletcher had advanced arguments similar to those advanced to us by Mr Young, including the argument that the appellant had only consented because he felt he had no choice when faced with what he believed was a lawful request. Given that Mr Fletcher had freely consented to the search in circumstances where he knew that he did not have to consent, the Court concluded that the search was not unreasonable and the evidence obtained from the search was held to be admissible.
[23] On Judge Hubble’s findings this case involves a similar situation, except that in this case the stopping was not unlawful. Having unequivocally consented to the search and having been told that he could refuse to give consent the appellant actively co-operated with the police. Plainly the Judge was right when he concluded that the search was in all the circumstances a reasonable search and that the evidence was admissible.
[24] Anderson is distinguishable. In that case the police stopped a motor vehicle in the belief that the occupants were connected to an assault. Having talked to the
driver and looked inside the vehicle the police officer asked to look into the boot. The appellant told the policeman that he did not want to open the boot. A second “more emphatic” request, which was seen by the appellant as a demand, was made and the appellant then opened the boot.
[25] Overturning the pre-trial ruling of the District Court this Court concluded that this “speculative search” conducted without lawful authority was unreasonable. The appellant’s compliance in opening the boot when faced with what he believed to be a lawful requirement did not make the search reasonable simply because the appellant had acquiesced. The pivotal point in that case, which does not exist in this case, was that the appellant was ignorant of his right to refuse and the Court was satisfied that if he had been aware of that right he would have refused.
[26] Even if Judge Hubble had not made the finding of fact that the appellant had been told he could refuse consent, the facts in this case differ from those in Anderson because there was nothing about the constable’s request to search that could be interpreted as a demand. In this respect we adopt the observation of this Court in Gebremichael (at [27]):
… the fact that permission is asked in itself implies that there is a choice whether or not to consent, absent an indication by the police that consent is mandatory.
[27] Given the conclusion that we have reached it is unnecessary for us to consider the other authorities cited by counsel or to consider the arguments relating to s 30 of the Evidence Act.
Result
[28] Leave to appeal is granted. The appeal is dismissed.
Solicitors:
Crown Law, Wellington for Respondent
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