R v Boon HC Auckland CRI 2006-004-21763

[2007] NZHC 1990

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-21763

QUEEN

v

HOW CHUAN BOON

Hearing:         12 and 17 July 2007

Appearances: AM Wharepouri for Applicant

WM Ryan for Respondent

Judgment:      13 August 2007 at 5:00 pm

JUDGMENT OF ASHER J

This judgment was delivered by me on 13 August 2007 at 5:00 pm pursuant to Rule 540(4) of the High Court Rules

………………………………………..

Registrar/Deputy Registrar

………………………………………..

Date

Solicitors:

Meredith Connell, PO Box 2213 Auckland

Haigh Lyon, PO Box 119 Auckland

R V BOON HC AK CRI 2006-004-21763  13 August 2007

Table of Contents

Paragraph Number

Introduction  [1] Outline of facts  [3] The issues     [11] Power to search on arrest  [14] Lawfulness of the initial search of Mr Boon  [24] Subjective reasons of the police  [24]

The objective reasonableness of the search  [29]

Lawfulness of the search of the car under s 18(2)  [32]

Lawfulness of the further search of Mr Boon at the police station

[38]

Lawfulness of the search of the car at the police station  [40] The position under s 30 of the Evidence Act 2006  [47] The Shaheed balancing test (s 30 of the Evidence Act 2006)  [49] The seriousness of the breach  [52] Extent of the illegality  [53]

Nature of the privacy interest  [55]

Factors reducing or increasing the seriousness of the breach

[56]

Mitigating factor - inevitability of discovery  [57]

Conclusion on the seriousness of the breach  [60] Public interest factors  [61] Seriousness of the offence  [62]

Nature and quality of the evidence  [64] Proportionality conclusion  [65] Proportionality conclusion under s 30 of Evidence Act 2006               [67] Result  [80]

Introduction

[1]      The Crown has filed an application under s 344A of the Crimes Act 1961 seeking a ruling that evidence obtained by the Police relating to the accused, How Chuan Boon, following searches of Mr Boon’s person and car, is admissible.   The respondent,  Mr Boon,  opposes  the  application,  claiming  that  the  searches  were unlawful.

[2]      Mr Boon faces the following charges:

a)        Possession of Class A controlled drug methamphetamine for supply pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975;

b)       Possession of Class B controlled drug ecstasy for supply pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975;

c)        Possession of Class C controlled drug cannabis for sale pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975;

d)       Unlawful  possession  of  firearms  pursuant  to   s 45(1)(b)  of  the

Arms Act 1983;

e)        Unlawful  possession  of  explosives  pursuant  to  s 45(1)(b)  of  the

Arms Act 1983; and

f)        Receiving  stolen property pursuant  to  ss 246(1)  and  247(a) of the

Crimes Act 1961.

Outline of facts

[3]      During the course of the s 344A hearing I heard evidence from both Mr Boon and the four police officers involved in the search.  I now proceed to set out the facts, which I draw from the evidence of the police officers.  For reasons that I will set out

later,  I  accept  the  evidence  of the  police  officers  where  it  varies  from  that  of

Mr Boon.

[4]      On 19 October 2006 two  police officers, Constable Woods and Constable

Phipps, were driving in a patrol car on Gavin Street in Ellerslie at approximately

12:40 pm.   Their attention was drawn to a vehicle which turned right into Gavin Street without indicating and drove very slowly.   The police officers stopped the vehicle,  which was a  Toyota Hatchback  being  driven  by Mr Boon.   The  driver identified himself as Mr Boon.  There was a lot of property in the vehicle.  Constable Woods questioned Mr Boon about this and was advised that some of the property, which was largely electrical equipment, belonged to him and that the car and the rest of the equipment belonged to his son’s partner.  He asked Mr Boon whether he could search the car.  Mr Boon initially gave his consent but then when told that he did not have to agree to the search withdrew his consent.

[5]      Constable Phipps ran a computer search which revealed that Mr Boon was facing charges and had bail conditions requiring him to reside at a certain address. This address was different from the address which Mr Boon had given when he was initially asked where he resided by Constable Woods.   Constable Phipps had also ascertained  that  Mr Boon  was  noted  in  the  police  records  as  a  gang  member. Constable Woods asked Mr Boon about this, and Mr Boon stated that  he had a family member in the Black Power gang.  He confirmed that he was residing at an address different from that to which he had been bailed.

[6]      Constable Woods then arrested Mr Boon for breaching his bail conditions. He informed him of his rights under the New Zealand Bill of Rights Act 1990 and cautioned him against making a statement.   He explained to Mr Boon that he was going to be searched following arrest and gave him the opportunity to disclose what was in his pockets.  Constable Woods said that when he told Mr Boon that he wished to search his pockets he explained to Mr Boon that this was to ensure that he had no weapons or other items on his person with which he might injure himself or the police.  Constable  Woods  stated  that  was  the  reason  for  the  search.    Mr Boon appeared to be reluctant to take anything out of his pockets, so Constable Woods took some items out of his left  pocket.   Mr Boon, when he saw that  Constable

Woods was going for his right pocket, produced a bundle of tissue papers which were secured with a rubber band.  When asked by Constable Woods what was in the bundle, the Constables say that he responded “ecstasy”.

[7]      It turns out that the bundle contained 46 pills of the Class B controlled drug ecstasy, with an estimated street value of $4,140.

[8]      In the  meantime,  Constables  Woods and Phipps  had  called  to  the  scene Detective Bissett and Constable Jamieson, two other police officers who were in a nearby patrol car.  They arrived at about the time that Constable Woods effected the arrest.  The most senior officer on the scene was now Detective Bissett.   She was aware that Mr Boon was on bail and was  facing what  she described as  “active charges” that were “drug related”.  The charges included threatening to kill, but there is no evidence that the Constables knew this at the time.  She said in evidence that on hearing Mr Boon advise Constable Woods that the package contained ecstasy, she invoked the emergency search power pursuant to s 18(2) of the Misuse of Drugs Act 1975.  Constable Jamieson began searching the motor vehicle.  It was so packed with material that it became apparent after the search began that it was not possible to  search the  vehicle  in  a  satisfactory way  on  the  street,  and  Detective  Bissett decided to have the car taken back to the Mt Wellington Police Station where the search could continue.  She was aware that they were close to the local headquarters of the Head Hunters gang and she was concerned about security should the search continue where they were.   She drove Mr Boon’s car back to the Mt Wellington Police Station.

[9]      Mr Boon was taken by the police to the police station where he was searched further.   A black case was found attached to his belt, which contained 20 plastic point bags.   Each point bag contained methamphetamine.   The total weight was

17.9 grams, with an estimated street value of $26,850.

[10]     Constable Jamieson then continued the search of the vehicle back at  the police station.   Inside the vehicle there was found a shoulder bag containing approximately 44.8 grams of methamphetamine in clear snaplock bags, which had an estimated  street  value  of  $67,200.    Also  located  was  a  carry  bag  containing

approximately 25 grams of cannabis, a Karatey Magnum shotgun with 21 rounds of ammunition, four stolen laptop computers and one stolen data projector.

The issues

[11]     The grounds of challenge set out in counsel for the accused’s memorandum of submissions are as follows:

(i)      the search of the respondent by the roadside was unlawful and unreasonable;

(ii)      the  police  officer  who  invoked  s 18(2)  of  the  Misuse  of  Drugs Act 1975 did not have the requisite reasonable grounds to believe that there were controlled drugs within the vehicle;

(iii)      the search of the respondent was for a collateral purpose and carried out in bad faith;

(iv)      repeated searches of the vehicle over a period of two or three days in the absence of a search warrant were unlawful and unreasonable.

[12]     Grounds (i) and (iii) in submissions were confined to the roadside search, and did not extend to there being any inherent illegality of the search of Mr Boon back at the police station (although the challenge to the first search, if it is successful, also impugns the later search).

[13]     Section 30  of  the  Evidence  Act 2006  was  not  referred  to  by  counsel  in making  their  submissions  during  the  hearing.     That  Act  came  into  force  on

1 August 2007 and will apply at the time of trial.   It is arguable that pursuant to s 5(3) the new Act applies to the present situation.  In response to a Minute, counsel have advised that they accept that the same approach will apply at common law and under the new Act.   I will consider the position on the basis of the submissions presented to me but I will in the alternative consider the position if the new Act applies.

Power to search on arrest

[14]     In oral submissions it was Mr Ryan’s essential submission that the initial search of Mr Boon’s pockets was not made because of legitimate arrest and safety concerns relating to Mr Boon.  Rather, he submitted that the search was carried out only because the officers were suspicious of Mr Boon, in particular because he had a large quantity of electronic equipment in his car, which might have been stolen. Mr Ryan stated in his submissions that it was not alleged that the police were lying about their actions, but it is difficult to reconcile this statement with his submissions that they did not, as they claimed, stop Mr Boon for bad driving and search him because of safety concerns.

[15] The police have a statutory power to search an arrested person who is to be detained in custody pursuant to s 57A of the Police Act 1958. However, sub- section (4) provides that the search must be conducted in a police station, or any premises or vehicle being used for the time being for police purposes. Section 57A does not therefore apply to the initial search on the roadside.

[16]     Section 202B of the Crimes Act 1961 gives a police officer the   power to search a person or vehicle where the officer has reasonable grounds for believing that the person is in possession of an offensive weapon pursuant to s 202A.  It is not suggested here that the police officers had reasonable grounds for believing that Mr Boon was in possession of an offensive weapon.

[17]     The Police have no general power to search an arrested person at common law.  However, at common law the police have limited search powers incidental to an arrest.  The balance to be struck was commented on by Williams J 150 years ago in Leigh v Cole (1853) 6 Cox CC 329:

On the one hand, it is clear that the police ought to be fully protected in the discharge of an onerous, arduous, and difficulty duty – a duty necessary for the comfort and security of the community.  On the other hand, it is equally incumbent on every one engaged in the administration of justice, to take care that the powers necessarily entrusted the police are not made an instrument of oppression or of tyranny towards even the meanest, most depraved, and basest subjects of the realm.

[18]     In R v Noble [2006] 3 NZLR 551 after a detailed consideration of search powers at common law, Winkelmann J defined the scope of the search powers as follows: at [35]:

(1) The police have a common law power of search on arrest of the accused which is not coterminous with the power contained in s 57A of the Police Act. The power is to search the accused and the accused’s immediate physical surroundings (which may include the accused’s car) if satisfied that that is necessary for a reason incidental to the arrest.

(2)       What constitutes a reason incidental to the arrest will depend upon the circumstances of the case, but may include safety considerations for the accused or others, protecting evidence or discovering evidence related to the offending for which the accused has been arrested. The mere fact of arrest alone will not be sufficient.

(3)       Whether or not a search is justified at common law will depend upon both the subjective reasons of the police for conducting the search and the objective reasonableness of those reasons.

[19]     This approach can be seen in other New Zealand cases.  In Craig v Attorney

General (1986) 2 CRNZ 551 Tompkins J observed at 562:

The possibility that the arrested person may have a weapon or some other means of injuring himself or others, something that may facilitate his escape or something that may be evidence relevant to the commission of an offence, are all obvious reasons justifying a search.

[Emphasis added]

[20]     In  Everitt  v  Attorney-General  [2002] 1 NZLR 82 (CA) at [71] to [73], Thomas J approved of the dicta of Holland J in Rudling v Police Supreme Court AK M 1498/78 18 December 1978.  Thomas J said at [72]:

Consequently, Holland J correctly concluded in Rudling v Police that there was no general right of common law to search on arrest. The test, he held (at p 9), must be whether the arrested person gives reason to suspect that he might have on him either evidence relating to the crime in respect of which he has been arrested, or other crimes, or something which could cause injury to himself or the persons or property of others while under arrest.

[Emphasis added]

[21]     In R v Torvald HC AK CRI 2005-092-014606 25 August 2006, Venning J observed that police were justified in conducting a pat-down search of the accused following his arrest.  The accused had been arrested by the same officer less than two

months earlier, and had on that occasion been found in possession of a number of offensive weapons.

[22]     In R v Hollingsworth HC AK 2006-005-000310 16 February 2007, Rodney Hansen J held that police were justified in searching the accused’s satchel.   The accused was acting in a nervous and agitated way, provoking cause for police suspicion, and his attempt to dispose of the satchel gave rise to the obvious inference that he did not want the police to become aware of its contents.  The Judge observed that it was reasonable for the police officer to think that there were articles in the satchel which might pose a danger to the police or to others, or might otherwise be evidence of the commission of a crime.

[23]     General suspicion of the offender and the hope that the search may reveal evidence will therefore not be enough, and will mean that the search is unlawful.  A subjective/objective  analysis  of  the  reasons  is  required  akin  to  that  applied  in deciding whether a suspect is detained for the purposes of a Bill of Rights caution.  It is necessary to consider whether the subjective reasons put forward by the police for conducting the search or Mr Boon are true, and whether on an objective test there was a good reason, such as safety concerns, for the police to carry out that search.

Lawfulness of the initial search of Mr Boon

Subjective reasons of the police

[24]     Constable Woods stated that the reason for the search was to ensure that the accused had no weapons or items on him with which he might injure himself or the police.  His statement is corroborated by Mr Boon himself.  Mr Boon stated that he was told by the police that he was going to be searched for weapons, and that the police asked him about being a gang member.  It is also corroborated by Constable Phipps who was present and who said that the reason for the search was safety.

[25]     Mr Ryan’s  cross-examination  of  Constable  Woods  turned  more  on  his motivation for the arrest of Mr Boon than the reason for the search, but he did put to Constable  Woods  that  he  was  looking  for  an  excuse  to  be  able  to  look  into

Mr Boon’s pockets.  This was denied by the Constable.  Mr Ryan submitted that the Constable’s account of events was inherently unlikely.  He pointed to the fact that the attention of the Constables was undoubtedly aroused by the large quantity of electronic equipment in the car.   He submitted that Mr Boon’s modest height and slight build meant the Police could not have realistically thought they were in any danger, and that the search of him was no more than a speculative attempt to find evidence of a crime.

[26]     There is corroboration as to the genuineness of the police concern about Mr Boon in the fact that the Constables sought the back up of two other police officers after they had done a computer check on Mr Boon.  Detective Bissett, who was the more senior of those two police officers, confirmed that this was because Mr Boon was a gang member.  I do not accept Mr Ryan’s submission that the reason that the two Constables were called up was because Constable Woods wanted back up for a search based on the suspicious appearance of the car.   This is entirely contrary  to  the  evidence  of  Constable  Woods,  Constable  Phipps  and  Detective Bissett. I found Detective Bissett’s indignant reaction to the allegation convincing.

[27]     I also consider that the veracity of Constable Woods’ evidence is supported by the fact that having arrested Mr Boon it was perfectly open to the Constables to take Mr Boon back to the police station and carry out a lawful search there.  There was no motivation for him to breach what was described by Detective Bissett as the “rules and regulations” of searches.

[28]     I  find  the  evidence  of Constable  Woods to  be  consistent  and  inherently credible.  It was generally supported by the evidence of the other police officers and, as I have already noted, in some respects by Mr Boon.   Further, there were sound objective reasons for him to have safety concerns, which I now set out.

The objective reasonableness of the search

[29]     Constable Woods had the following information before him:

a)        He had stopped Mr Boon who was driving erratically.

b)       Mr Boon was driving a motor vehicle which he said was not his own and which appeared to be full of electronic equipment.

c)       Mr Boon was shown on police records to be a gang member, and had provided some corroboration of this himself by saying that he had a family member who belonged to the Black Power.  I consider that the Constables were entitled to assume that Mr Boon was a member of the Black Power or a similar gang.

d)       Mr Boon was on bail and facing active charges. e)     Mr Boon was in breach of bail.

[30]     I consider that the combination of all these features made it reasonable for Constable Woods to have a safety concern.  It is understandable that a police officer would not want to accompany a gang member to the police station when that gang member was facing serious charges and in breach of bail and had shown some signs of erratic behaviour, without first checking that he had nothing on his person with which he could injure the Constable or himself.   While searches cannot be carried out without proper cause when a person is arrested, there were particular features here  which  made  the  search  on  the  grounds  of  safety  concerns  objectively reasonable.

[31]     I conclude that it was objectively reasonable for the police to conclude that a search was necessary to ensure the safety of the police officers present and Mr Boon. The evidence obtained from that first search is therefore admissible.

Lawfulness of the search of the car under s 18(2)

[32]     Under s 18(2) of the Misuse of Drugs Act 1975 a police officer may, without warrant, exercise certain powers of search including the search of a vehicle when that officer has reasonable grounds for believing that there are controlled substances in such a vehicle, and that an offence against the Misuse of Drugs Act 1975 has been

committed or is suspected of having been committed in respect of those substances. The section reads as follows:

18     Search and seizure

…

(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 [or any precursor substance specified or described in Part 3 of Schedule 4] and that an offence against this Act has been or is suspected of having been committed in respect  of that  drug [or  precursor  substance],  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.

[33]     In R v Maihi CA181/02 22 August 2002 the Court of Appeal held that it was not permissible for the Police to use s 18(2) when the initial search of the accused’s car, which had disclosed the presence of drugs, was unlawful.  However, R v Maihi does not apply here, as I have found that the initial search of the accused was lawful.

[34]     Mr Boon in his evidence denied saying that the package that he removed from his pocket was ecstasy.  He said in evidence that his words were “take it easy”, and that this was in response to Constable Woods putting his hands in his pants pockets and in the process touching his private parts.

[35]     I  reject  this  evidence  as  untrue.  Constable  Woods,  Detective  Bissett, Constable Phipps and Constable Jamieson confirmed that Mr Boon used the word “ecstasy”.  It was not put to them by Mr Ryan in his competent cross-examination that Mr Boon had said “take it easy” or that Constable Woods had placed his hands on Mr Boon’s private parts.  I have no doubt that this was because Mr Boon made this statement  for the  first  time while  he  was  giving  his  evidence.    Mr Boon’s description of what happened was inherently unlikely.  His description of Constable Woods both having his hands in his pockets and grabbing his private parts, while it seems the same officer also snatched the packet out of his hand as he was pulling it out of his right  shirt  pocket, was neither coherent  or credible.    Indeed,  I reject

Mr Boon’s evidence generally where it varies from that of the police officers.   I

found it to be contradictory and, in parts, unlikely.

[36]     Thus I find that the situation was that the police had found a package that appeared to contain pills, and that Mr Boon had behaved suspiciously in relation to those pills, being reluctant to give them up, and had said that they were ecstasy.  In the  circumstances,  the  Police  had  every  reason  to  believe  that  Mr Boon  had controlled drugs on his person and that, as a matter of logical inference, there might well also be controlled drugs in the car that he had been driving.  It is relevant that Mr Boon had previously refused them permission to search the car.

[37]     Thus I find that the search on the roadside was lawful.  That search did not, as it transpired, reveal any drugs.

Lawfulness of the further search of Mr Boon at the police station

[38]     The search of Mr Boon at the police station revealed the methamphetamine in the black case attached to Mr Boon’s belt.

[39] It was reasonable for the police to take Mr Boon back to the police station to carry out a more detailed search of his person. Once there, the police had a power to search Mr Boon under s 57A of the Police Act 1958. In terms of s 18(3) of the Misuse of Drugs Act 1975 the Police had reasonable grounds for believing that he had in his possession controlled drugs. They had, after all, already found on his person the package of what was said to be ecstasy pills. It would not have been sensible to have delayed searching his person further when he was back at the police station, because of the continuing security risk and the difficulty in monitoring his person on a constant basis. I find that this further search of his person was lawful, and the evidence obtained admissible.

Lawfulness of the search of the car at the police station

[40]     This  search  of  the  car  at  the  police  station  revealed  the  44.8 grams  of methamphetamine and the 25 grams of cannabis, as well as the shotgun and the

stolen property.  The search which revealed these items took approximately two-and- a-half hours.

[41]     The police witnesses conceded that the car, once it was at the police station, was in a secure environment and that there was no prospect of interference with it.  It remained in police custody for a number of days.  It was perfectly open then for the police to at their leisure have obtained a search warrant to continue the search of the vehicle.   However, rather than do that they continued to rely on the authority of s 18(2) to search the vehicle.

[42]     It is clear that the power to search without a warrant can only be resorted where this is “reasonably necessary”: R v Laugalis (1993) 10 CRNZ 350 at 355-356. Where there is no risk and no urgency, resort to s 18(2) is unnecessary and can be unreasonable.  For these reasons a search carried out in circumstances of no urgency where a warrant could have been obtained was held to be unlawful in R v Laugalis at

356.  A qualification, therefore, has been placed on the words of s 18(2).

[43]     Once the car was at the police station, a search warrant could have been obtained, but was not.  I have no doubt, therefore, that the search at the police station was unlawful.

Was the search of the car at the police station unreasonable?

[44]     Section 21 of the New Zealand Bill of Rights Act 1990 (“the Bill of Rights”)

provides:

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

The concepts of lawfulness and reasonableness are distinct, and a lawful search may nonetheless be an unreasonable search, and an unlawful search can nevertheless be reasonable, but in the latter case only where the illegality arose as a result of a technical or inconsequential procedural breach: R v Williams at [12] and [21].  This breach cannot be described as minor or technical.   There was a serious failing to obtain a warrant and the mistake was not caused by urgency or pressure.

[45]     It has also been stated that the unlawfulness of a search invites the conclusion that the search was also unreasonable, unless there was some countervailing factor or combination of factors allowing the Court to  say that,  although  the  search  was unlawful, it was not appropriate to characterise it as unreasonable: R v McMahon CA291/06 16 March 2007 at [29] and [30]. There are no such factors in this case.

[46]     I therefore conclude that this search was unreasonable.

The position under s 30 of the Evidence Act 2006

[47]     It is my conclusion that in terms of s 30 of the Evidence Act 2006, for the reasons I have set out, the evidence from the two searches of Mr Boon’s person was properly obtained.   The evidence from the search of the car is not  in the same category.  Section 30(4) and (5) read:

(4)       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.

(5)       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; or

(b)       in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c)      unfairly.

[48]     The search of the vehicle was a police breach of Mr Boon’s right not to be subject to unreasonable search and seizure pursuant to s 21 of the New Zealand Bill of Rights Act 1990.  The evidence was therefore “improperly obtained” in terms of s 30(5)(a).

The Shaheed balancing test (s 30 of the Evidence Act 2006)

[49]     It is now necessary to assess whether the evidence obtained as a consequence of the unlawful and unreasonable search should be excluded.

[50]     Prior to the coming into force of the Evidence Act 2006, this exercise was governed by  R v Shaheed [2002] 2 NZLR 377, which required the Court to reach a balanced and proportionate response to the circumstances of the breach of s 21. The framework for carrying out the balancing exercise is that recently set out in R v Williams CA 372/05 7 March 2007.

[51]     Section 30(2) of the Evidence Act 2006 now also requires a R v Shaheed type of balancing in relation to “improperly obtained” evidence.  It provides:

30    Improperly obtained evidence

…

(2)    The Judge must—

(a)      find,  on  the balance  of  probabilities,  whether  or  not  the evidence was improperly obtained; and

(b)      if the Judge finds  that  the evidence has  been  improperly obtained, 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  but  also  takes proper account of the need for an effective and credible system of justice.

[…]

I will carry out a balancing process first  under R v Shaheed, and then consider whether any different approach is required by s 30.

The seriousness of the breach

[52]     The starting point is the seriousness of the breach of s 21 of the New Zealand Bill of Rights Act 1990.   Following R v Williams I will consider this issue under three headings as was done in R v McMahon CA291/06 16 March 2007, namely the extent of the illegality of the search, the nature of the privacy interest, and the factors reducing or increasing the seriousness of the breach.

Extent of the illegality

[53]     I found that the search at the police station was not lawful under s 18(2)

because of a lack of urgency and the ability to obtain a search warrant.   An initial

search would have been lawful under s 18(2) at the roadside, but it became unlawful once the urgency had gone and there was a ready opportunity to seek a warrant.  The unlawfulness was clear and not borderline, given the decision of R v Laugalis.  There was, however, an alternative lawful power of search available that was overlooked by the police.  (explain further, eg This was not a case where police did something that they would never have been able to get authority to do.)

[54]     The recent New Zealand Law Commission report Search and Surveillance Powers (NZLC R97 2007) pointed out at 270-272 the uncertainty of police search and seizure powers in this area.  It is recommended at 274-275 that a police officer should be able to  search a vehicle without  warrant  if he or  she has reasonable grounds to believe that the vehicle contains evidential material relating to an offence punishable by 14 years’ imprisonment or more.  It is also recommended at 278 that a police officer should be able to search a vehicle without warrant incidental to arrest. These recommendations are an indication of at least an ambivalence in responsible community attitudes to the seriousness of a search of a vehicle without warrant following arrest.

Nature of the privacy interest

[55]     Here the privacy interest involved a car that did not belong to Mr Boon but which he had been driving.  There is obviously an expectation of privacy in relation to a car being driven by a person, but it is not as high as that of a citizen’s person, or a citizen’s home: R v Williams at [13].  Further, in this case, it is not as high as it would be  if the  person  in  possession  of the  car  actually owned  the  car.    It  is Mr Boon’s privacy right and not the owner’s that is in issue.  Despite the fact that Mr Boon had earlier refused permission to search the car, I consider the privacy interest here to be at a relatively low level.

Factors reducing or increasing the seriousness of the breach

[56]     I did not gain the impression from the police officers that there was anything cynical or deliberate about the failure to get a warrant.  This was not put to them in cross-examination, and it should have been if such a submission was to be pursued.

Mr Ryan has not made such a submission.   I conclude that the police decision to continue the search they had already begun at the roadside was careless.  It was not a deliberate decision to flout what the police knew to be good practice, but it was, nevertheless, a serious error.

[57]     Inevitability of discovery can be a mitigating factor in the Shaheed balancing process (R v Williams at [126]).  It should be used with caution and in R v Williams it was noted that the adoption of such a mitigating factor could encourage the police to take shortcuts (at [129]).  It is not a factor specifically mentioned in s 30(3) of the Evidence Act 2006.

[58]     Here I regard it as inevitable that the evidence in the car would eventually have been found by the police.   There was a proper basis for obtaining a search warrant.   It could be expected that  if the  police had  not  continued their  search immediately  that  they  would  have  sought  and  obtained  such  a  warrant,  and discovered the methamphetamine.

[59]     The inevitability of discovery would not be a mitigating factor if there had been a deliberate reckless or grossly careless decision not to employ the proper process.   This was not the situation here, and I consider that this was just sloppy practice,  and  a  failure  to  think  through the  legal position.    I  conclude  that  the inevitability of discovery is a mitigating factor in relation to the breach.

Conclusion on the seriousness of the breach

[60]     I conclude that the breach of the Bill of Rights Act was not of the most serious order, because of the relatively low level of intrusion on Mr Boon’s privacy, the particular circumstances of the search where drugs had already been found on Mr Boon’s person, the fact that it was a continuation of a search that had already commenced at the roadside, and the inevitability of discovery.

[61]     I now turn to the public interest factors which point towards the admission of the evidence.  These are the seriousness of the offence and the nature and quality of the evidence.

Seriousness of the offence

[62]     Mr Boon is charged with offences that are serious in terms of the discussion of that word in R v Williams.  It was held there that a charge was serious where the starting point for sentence would be four years’ imprisonment or more, or where the offence involved the public safety such as the carrying of a loaded weapon in public: at [135].  The more serious the offence, the more weight against exclusion, bearing in mind always the right in the Bill of Rights to freedom from unlawful search and seizure.

[63]   Here the alleged offences are undoubtedly serious.   The quantities of methamphetamine are substantial, and the presence of the ecstasy, the cannabis and the loaded shotgun will all be factors that will increase the sentence on any consideration of the totality of the offending.  There are also the receiving charges. These are unlikely to fall into the serious category but add to the overall seriousness of the offending.

Nature and quality of the evidence

[64]     The admissibility of the evidence of the  methamphetamine  in  the  motor vehicle and the ability to sentence Mr Boon in relation to that methamphetamine is dependent on the admissibility of the evidence of what was found.  Without this, the prosecution would  only  be able to  proceed on the  basis  of the  drugs  found  on Mr Boon’s person.  It is evidence of good quality and of significant probative value, and that is a matter in favour of admission.

[65]     It is  necessary to determine whether  the remedy of the exclusion of the evidence is proportionate to the breach.  I note Mr Ryan’s submission that there is a danger of the development of bad police practices if officers think that a failure to obtain a search warrant will be readily condoned by a Shaheed balancing process. The Courts will be vigilant to ensure that the police do not start wilfully infringing the Bill of Rights in the belief that such breaches will be regularly excused.   As I have already stated, I do not consider that there was a wilful breach, and it is my conclusion  in  the  circumstances  that  this  policy  reason  should  not  lead  to  the evidence being excluded  in this case.   As already  noted,  I regard as mitigating circumstances the fact that a search warrant could have been easily obtained and the inevitability about the contents of the car being discovered by the Police in any event.

[66]     This is a case concerning  large quantities of methamphetamine,  weighed against a low level breach of the accused’s privacy interest, and the inevitability that the drugs would have been found in any event.   On balance, the result is that the evidence should be admitted.

Proportionality conclusion under s 30 of Evidence Act 2006

[67]     I have already noted that s 30(2) requires a Shaheed type balancing process to the admissibility of improperly obtained evidence.  Such an approach will determine whether or not the exclusion of the evidence is proportionate to the impropriety, giving appropriate weight to the impropriety but also taking proper account of the need for an effective and credible system of justice.  Sections 30(3) sets out matters to be considered as follows:

(3)      For the purposes of subsection (2), 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:

(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.

[68]     The subsection is explicit that the matters listed are not exclusive, and that other matters may be considered.  The purpose of the subsection, therefore, appears to be to list only some of the matters which the Legislature regards as being of particular importance in carrying out the balancing process.  There is no indication as to  whether  the  factors  listed  are to  be treated  as  mitigating  or  aggravating  the seriousness of the breach.   There is no indication whether they are to be factors considered to be in favour of, or against, the admission of the evidence.   Rather, s 30(3) simply sets out particular matters that should be considered where applicable.

[69]     Some matters listed in the subsection such as the presence of physical danger or urgency can, if they do not arise, just be put to one side.   Others such as the importance of any right that has been breached, the seriousness of the intrusion, and the seriousness of the offence, are fundamental and likely to be weighed in every balancing process.

[70]     In R v Williams the Court of Appeal considered the likely impact of s 30 of the Evidence Act 2006, although it was not then in force.    The Court observed at [149]  that  while  matters  such  as  attenuation  of  causation  and  inevitability  of discovery were not expressly mentioned in s 30(3), that omission must be considered in the context that the list of relevant factors was not exhaustive.

[71]     Inevitability of discovery, which I considered in the R v Shaheed balancing process earlier, is not listed in s 30(3).  R v Williams at [129] warns that particular caution should be adopted in relation to the factor of inevitability of discovery as it involves an element of speculation, and can lead to  the police taking  shortcuts. Nevertheless, I consider that it can still be taken into account  under s 30 in the general balancing process given that the list of factors is not exhaustive.   Further, an aspect of inevitability of discovery is incorporated in s 30(3)(e), which refers to whether there are other investigatory techniques not involving any breach of the rights that were known to be available but were not used.  Here other investigatory techniques, namely obtaining a search warrant, were available and not used.   This can be either a mitigating or aggravating factor.  I have decided that the failure to use them was not deliberate and in bad faith, and treat this as part of the mitigating factor of the inevitability of discovery.

[72]     Section 30(3)(c) in the original Bill read:

(c)       The  nature  and  quality  of  the  improperly  obtained  evidence,  in particular whether it is central to the case of the prosecution.

[Emphasis added]

At select committee stage the reference to the centrality of the evidence was deleted. The committee stated at 4 of its report:

We recommend that clause 26(3)(c) be amended to remove the rule directing the Court to have regard to the centrality to the case of the prosecution when deciding whether improperly obtained evidence is admissible.  We consider that this should be deleted as an express provision as we find it difficult to envisage a circumstance where it would be relevant, given the seriousness test in paragraph (d).

[73]     The committee’s explanation for the deletion has been described as “hardly convincing”: Richard Mahoney “Evidence” [2006] NZ Law Rev 717  at  733.   I respectfully  agree  with  the  author’s  criticism.    It  is  difficult  to  see  how  the seriousness or lack of seriousness of an offence has anything to do with the probative value of the evidence in question, although both matters are relevant to the balancing process.

[74]     It was stated further in the article:

Nonetheless, in the face of this legislative history, it now appears all but impossible for a judge who is trying to decide whether to admit improperly obtained  evidence to  ever  (openly) take into account  how important  the evidence is to the case for the prosecution.

[75]     However, the centrality clause removed  in the drafting  process was only providing  a  particular  of  the  “nature  and  quality  of  the  improperly  obtained evidence”.   The centrality of the evidence was not a stand-alone individual consideration, and it therefore cannot be taken from the deletion, or from the reason expressed by the committee, that it was intended that the centrality of the evidence should be put entirely to one side.  This appears to be the conclusion of the Court of Appeal in R v Williams where it stated at [141], having referred to the deletion of the centrality of evidence in the new Act:

… the centrality of the evidence to the prosecution may still be of some relevance when assessing the nature and quality of the evidence

[76]     I interpret the deletion of the clause as reflecting a concern that the centrality of the evidence to the case of the prosecution ought not to have particular emphasis in the balancing process.  This is understandable, as the Courts have not hesitated in applying R v Shaheed to exclude evidence of central importance where to do so is a proportionate response to the breach.   However, the centrality of the evidence can still be considered as an aspect of the nature and quality of the improperly obtained evidence.  Therefore, the observation in R v Williams at [140] that the more cogent the evidence, the more likely it is that the accused committed the crime and the stronger the public interest in conviction, must remain a factor.   I will, with appropriate caution, take into account the centrality of the evidence for the purpose of a balancing process under s 30.

[77]     In R v Williams it was stated at [150]:

We do not consider that anything we have said with regard to the balancing exercise conflicts with the new Act.

I consider that the approach of the Court of Appeal in R v Williams, stated with the

Evidence Act 2006 in its present form in mind, applies to the balancing exercise

required by s 30.  Nevertheless, due regard must be paid by a Court to the particular words of the section, which are the starting point.

[78]     I reach the same conclusion under s 30 as I did under the R v Shaheed approach.   The exclusion of the evidence would not be proportionate to the impropriety, giving appropriate weight to that impropriety and taking proper account of the need for an effective and credible system of justice.  Indeed, the result of the balancing exercise is a very clear conclusion in favour of admission because of the low level of the privacy right breached and the seriousness of the offence with which Mr Boon is charged.

[79]     I reach this conclusion while acknowledging that there are no alternative remedies to the exclusion of the evidence which can adequately provide redress to the defendant.

Result

[80]     The Crown’s application is successful.  The evidence of what was found on

Mr Boon’s person, and what was found in the Toyota motor vehicle, is admissible.

…………………….

Asher J