R v Iwihora
[2007] NZCA 2
•5 February 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA463/06 [2007] NZCA 2
THE QUEEN
v
MALCOLM ERNEST IWIHORA
Hearing: 1 February 2007
Court: O’Regan, Robertson and Arnold JJ Counsel: H E Juran for Appellant
J C Pike for Crown
Judgment: 5 February 2007 at 2.00pmat 2 pm
JUDGMENT OF THE COURT
The application for leave to appeal is granted but the appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
R V MALCOLM ERNEST IWIHORA CA CA463/06 5 February 2007
[1] The appellant faces trial in the High Court on five charges, possession of methamphetamine for supply, possession of equipment capable of being used in the manufacture of a controlled drug, possession of material capable of being used in the manufacture of a controlled drug, unlawful possession of a pistol and unlawful possession of ammunition. The prosecution relies on evidence obtained as a result of a search of a car which had been driven by the appellant. This search took place after the car had been involved in a collision. The appellant was a disqualified driver at the time, and had driven away from the scene of the collision, but had been later stopped by the actions of the driver of the other vehicle who alerted the police.
[2] The appellant was arrested for driving while disqualified and his vehicle was seized. The police officer who remained with the vehicle, waiting for the arrival of the tow truck, noticed in the pocket of the driver’s door (which had been left open) two plastic point bags with what appeared to be crystallised powder inside of them. He then invoked the search power under s 18(2) of the Misuse of Drugs Act, and the resulting search yielded methamphetamine, phosphorous acid (used in manufacturing methamphetamine), digital scales, equipment commonly used in manufacturing methamphetamine, mobile phones (on which were text messages said to indicate methamphetamine dealing), tick lists and a loaded firearm.
[3] Counsel for the appellant, Mr Juran, challenged the admissibility of the evidence obtained as a result of this search, and the Crown applied for an order under s 344A of the Crimes Act 1961 that the evidence was admissible at the appellant’s trial. That application was heard by Harrison J, and he ruled the evidence admissible: R v Iwihora HC AK CRI-2006-055-403 29 November 2006. The appellant seeks leave to appeal against that decision. The appellant’s High Court trial is due to start on Wednesday 7 February 2007, and in order to avoid any delay to the trial, the application was heard on 1 February 2007.
[4] The appellant’s case is that the search was both unlawful and unreasonable, and that, in applying the balancing test mandated by the decision of this Court in R v Shaheed [2002] 2 NZLR 277, the evidence ought to have been excluded. The main focus of the argument in this Court was the application of Shaheed to the present case, but we will deal briefly with the lawfulness and reasonableness of the search before dealing with Shaheed.
Unlawfulness
[5] The appellant contended that the search was unlawful for the following two reasons:
(a)The police officer who invoked the power to search without warrant under s 18(2) did not have reasonable grounds to believe there were drugs in the vehicle;
(b)Even if the officer did have reasonable grounds to believe there were drugs in the vehicle, he did not identify whether the reasonable belief related to drugs falling within the First Schedule to the Misuse of Drugs Act 1975, or Part 1 of the Second Schedule to that Act or Part
1 of the Third Schedule. This argument relied on the decision of this
Court in Hill v Attorney-General (1990) 6 CRNZ 219.
Reasonable cause to believe
[6] In giving evidence, the officer who conducted the search repeatedly referred to having had good cause to suspect that there were drugs in the vehicle, rather than reasonable grounds for believing that such drugs were present in the vehicle, as required by s 18(2) of the Misuse of Drugs Act. Mr Juran argued that this indicated the officer did not hold a reasonable belief as s 18(2) requires.
[7] Harrison J rejected this argument. He commented that while the officer’s repeated use of the word “suspicion” was unfortunate, it was no more than an erroneous description of the statutory provision. He said it did not obscure the real grounds for the officer’s decision. He said he was satisfied that the Crown had demonstrated that the officer had a genuine belief that controlled drugs would be inside the vehicle and that reasonable grounds existed for that belief. He based this on two factors:
(a)The officer’s observation of plastic point bags in the pocket in the driver’s door, which appeared to contain a white crystalline powder;
(b)The advice given to the officer by the occupants of the other vehicle involved in the collision that the appellant had volunteered to them that he was a drug dealer and there were firearms in his car.
[8] In this Court, Mr Juran challenged the latter finding. He accepted that the occupants of the other vehicle had told another police officer that the appellant had referred to there being drugs and arms in his car, but he said there was no evidence that that information had been communicated to the officer conducting the search. We accept Mr Juran’s submission in that regard. But we are satisfied that, nevertheless, Harrison J was justified in concluding that the officer had a belief that controlled drugs were in the vehicle and that that belief was based on reasonable grounds. In our view the observation of a police officer of point bags containing a crystallised substance was sufficient in itself to found a reasonable belief that there were drugs in the vehicle.
Hill v Attorney-General
[9] In the High Court, it was argued that the officer who conducted the search had simply identified good cause to suspect the presence of drugs in the vehicle, but had not identified the particular drug or whether the drug was a Class A, Class B or Class C drug. Mr Juran argued that this failure was fatal, relying on Hill. He argued that this case was similar to Hill, in that the officer’s belief related to drugs, but not to an identified drug. In Hill, this Court said the power under s 18(2) could be
exercised only if the officer invoking it had reasonable grounds to believe a specified class of drug was present.
[10] This argument was rejected in the High Court. Harrison J noted the officer’s evidence that he had observed bags containing “crystallised powder” and said that this plainly indicated his belief related to a Class A drug. He said this was confirmed in Mr Juran’s cross-examination of the officer. Mr Juran said that in fact the question and answer in cross-examination to which the Judge referred was ambiguous as to whether the officer claimed a suspicion that there was methamphetamine in the car or simply that there were drugs in the car. We are not disposed to interfere with the Judge’s finding in this regard. We note that the police recruit who was present at the time of the search and assisted with it said in his deposition that the officer had stated prior to invoking the power of search under s 18(2) that he suspected the drug in the bags located in the car door was methamphetamine.
[11] In R v Taylor CA384/05 3 May 2006, this Court noted at [24] that the approach in Hill “involves a very strict and narrow view of the power conferred by s 18(2)”. That observation was made by a divisional court, and in that case the court noted that any reconsideration of Hill would not be appropriate for a divisional court. Although the present case is before the permanent court, the finding we have made on the facts makes it unnecessary for us to embark on that reconsideration in this case.
[12] We uphold the High Court Judge’s finding that the search was lawful in this case.
Unreasonable
[13] Mr Juran argued that the search was unreasonable because it was unnecessary for the police officers to search the vehicle while it was parked at the roadside: there was no urgency, and it would have been quite possible for the police to secure the vehicle and obtain a search warrant. He relied on the decision of this Court in R v
Laugalis (1993) 10 CRNZ 350 at 355-356. The High Court Judge upheld that argument.
[14] In this Court Mr Pike said the Crown did not accept that a search lawfully made under s 18(2) was unreasonable if the officers concerned could have obtained a warrant. But he was content to focus his argument on the Shaheed analysis (to which we will now turn) and did not pursue the argument with vigour. We will therefore proceed on the basis that the search was unreasonable (but without actually deciding the point).
Shaheed analysis
[15] Harrison J determined that the evidence was admissible after applying the Shaheed balancing test. He considered that the search did not involve a substantial intrusion into the appellant’s privacy, there was no gross carelessness on the part of the police, the obtaining of a search warrant would have inevitably led to the same result, the offending was serious but not of the worst kind and the evidence was crucial to the Crown case. He determined that those factors overwhelmingly favoured admission of the evidence.
[16] Mr Juran argued that Shaheed analysis should yield the opposite result because:
(a)There was a breach of privacy, which the Courts have been vigilant to protect, and this should not be seen as any less because it related to a motor vehicle;
(b)The breach was “grossly careless”: R v Harder (2004) 21 CRNZ 255 at [43];
(c)The offending, while serious, is nowhere near the most serious of this type of offending.
[17] The starting point for the Shaheed analysis is, as noted by this Court in Harder, the breach of a right guaranteed by the New Zealand Bill of Rights Act, which is not to be underestimated. While we are cognisant of that fact, we note that as this Court said in R v Maihi (2002) 19 CRNZ 453 at [34], citizens have less expectation of privacy when driving a motor vehicle on a public road than when they are inside their homes. In the present case that factor is important because, not only was the motor vehicle on a public road, it was in the process of being impounded by the police because its driver was a disqualified driver who had fled the scene of an accident, and had been subject to arrest. It may well have been lawful for the police to search the car in order to make an inventory of the property in it which was to be impounded: R v Ngan CA220/06 1 December 2006. Overall, therefore, there was an intrusion into the right of privacy of the appellant, but it was very low down on the scale of seriousness.
[18] We now turn to the other factors mentioned in Shaheed.
Seriousness of the breach
[19] In Shaheed, this Court said that where a serious breach has been committed deliberately or in reckless disregard of the accused rights, or where the police conduct in relation to the breach has been grossly careless, exclusion of evidence will often be the only appropriate response: Shaheed at [148]. We are satisfied that in this case the police behaviour did not fall into any of those categories. We agree with Harrison J in that regard.
Good faith
[20] We agree with Harrison J that here was no evidence of bad faith here. As noted in Shaheed at [149], the fact that an officer acted in good faith is a neutral factor in the analysis.
[21] We have considered whether there were other investigatory techniques available to the police: Shaheed at [150]. It would have been possible for the police to have delayed the search until after they had obtained a warrant, but we are equally clear that, if a warrant had been applied for it would have been obtained. Thus the evidence would inevitably have become available to the police if they had sought a warrant first. No other alternative means of investigation applied in this case.
Nature of the offending
[22] We agree with Harrison J that the offending in this case was serious, but not of the worst kind. Nevertheless the appellant is accused of drug dealing of a commercial scale, and possession of firearms. Both are significant factors.
Nature and quality of the disputed evidence
[23] The evidence in this case is obviously reliable, and on its face strongly indicative of guilt. This factor favours admissibility: Shaheed at [151]. It is clear that the Crown case depends on the admissibility of the evidence.
Balance
[24] Balancing all of these factors we find ourselves in agreement with Harrison J that the evidence ought to be admitted in this case, even if the search is classified as unreasonable. No public interest would be served by the exclusion of the evidence here. The police conduct was not cavalier, the evidence would inevitably have come to light if a warrant had been obtained and the privacy interest of the appellant was, at best, at the lowest end of the scale.
[25] We grant leave to appeal but dismiss the appeal.
Solicitors:
Crown Law Office, Wellington