R v Koroheke Ca193/00
[2000] NZCA 412
•7 September 2000
| NOT TO BE PUBLISHIED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA193/00 CA194/00 |
THE QUEEN
V
SHANE GREGORY KOROHEKE
AND MARK ANTHONY REDDY
| Hearing: | 30 August 2000 (at Auckland) |
| Coram: | Blanchard J McGrath J Young J |
| Appearances: | K B F Hastie for Crown |
| S J Lance for Respondents | |
| Judgment: | 7 September 2000 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
Introduction
This is an application by the Crown for leave to appeal under s379A(1)(aa) of the Crimes Act 1961 against a pre-trial ruling of the District Court at Rotorua holding inadmissible evidence of the discovery of cannabis oil and a weapon, found during a search of the defendants’ vehicle. The issue on appeal is whether the Judge was correct in finding that the search was both unlawful and unreasonable.
The facts
The defendants each face on indictment one count of possession of an illegal drug (cannabis oil) for supply and one count of possession of an offensive weapon (brass knuckles).
At about 4.45pm on 12 October 1999 in Rotorua, Detective Constable Colby and Constable Willis received information from Detective Sergeant McLeod that a blue rental vehicle containing two Mongrel Mob members would be in the area of Kuirau Park for a short period of time, and that one of the occupants of the vehicle had about 80 capsules of cannabis oil down his trousers. (This information had been received by Detective Sergeant McLeod from an informant.) Having received that information, which did not include any registration number, the two Constables positioned themselves near Kuirau Park to wait for a blue vehicle. About 15 minutes later a blue vehicle appeared driven by the defendants (both Mongrel Mob members). Detective Constable Colby and Constable Willis followed the vehicle, activating the patrol car’s red and blue flashing lights and siren. They stopped it in Pukuatua Street. The defendant, Mr Reddy, was driving the vehicle, and Mr Koroheke was the front seat passenger. The evidence does not record whether the vehicle was a rental car, only that it had a quite recent registration number.
The Judge recorded that after the vehicle had been stopped, Constable Colby noticed the passenger, Mr Koroheke, reach behind the passenger seat and put his hand into the pocket behind that seat. Constable Colby noticed a Myadec vitamin capsule container in that seat pocket and told Constable Willis of this. Constable Willis also noted a similar shape in the seat pocket behind the driver’s seat. He asked Mr Reddy if he would consent to a search of the car, but Mr Reddy declined. Constable Willis asked Mr Reddy what was in the back pockets of the car seats. Mr Reddy declined to answer. At this point Constable Willis invoked the power under s18 of the Misuse of Drugs Act 1975 to search the vehicle.
Two Myadec containers were found, one in the seat pocket behind the driver’s seat and the other in the seat pocket behind the passenger seat. The two containers contained a total of 87 capsules of cannabis oil. Brass knuckles were also found in the vehicle.
The decision below
The District Court Judge found that the constables stopped the vehicle with the intention of searching it for controlled drugs. Therefore, the Judge held, Constable Willis’s first step in initiating the s18(2) search was not the actual searching of the car, but the stopping of the car with the intention of searching it. It was at this point that the constables were required to have reasonable grounds to believe (within the meaning of s18(2)) that drugs were present.
At that point, the only information the constables had was the assertions of the informant. The Judge held that this was not enough, as the constables had no idea as to the reliability of the informant or the credibility of the information, and nothing with which to assess the credibility. It was no answer to say that in hindsight the informant’s information proved to be correct.
The Judge concluded that there was no basis at the time of stopping the car for the constables to have reasonable grounds to believe that there were controlled drugs in the car, and that therefore the search of the car was unlawful. His Honour was of the view that even the observation of the Myadec container in the seat pocket was not sufficient to elevate the situation to one where it could be said that the constables had reasonable grounds for belief.
The Judge then went on to consider whether the search was nevertheless reasonable in terms of s21 New Zealand Bill of Rights Act 1990. He noted that the search was unlawful, that the defendants did not consent to the vehicle being searched, that the observation of the Myadec container could not elevate the situation to one where the constables had reasonable grounds for belief (the container itself being relatively innocuous). He also noted the absence of any evidence that Detective Sergeant McLeod passed any information on to the constables regarding the reliability and credibility of the informant. Taking all these considerations into account, the Judge concluded that the search was unreasonable as well as being unlawful.
Crown Submissions
Counsel for the Crown submitted that the search was both lawful and reasonable for two reasons:
[a]At the time of the stopping, and certainly by the time the search power was invoked, the constables possessed reasonable grounds to believe that there was cannabis oil in the vehicle; and
[b]The Police could have relied on s317A Crimes Act to stop the vehicle. This section allows a member of Police who has reasonable grounds to suspect that in a vehicle there is a person who has committed an offence punishable by imprisonment to stop the vehicle for the purpose of arresting that person.
The Crown submitted that the constables were entitled as a matter of practice to assume that the detailed information provided to them by their senior, Detective Sergeant McLeod, would be reliable. This was especially so when, before the constables made the decision to stop the defendants’ car, several components of that information had been proved correct (that there were two men, both Mongrel Mob members, driving a blue rental or late model car, at a particular time in a particular place). It was submitted that this assumption, coupled with the constables’ own observations as to the truth of most of the information at an early stage, was sufficient to establish reasonable grounds to believe that the rest of the information – which was equally specific – would also prove to be true.
Ms Hastie argued that the Judge had erred in focussing solely on the constables’ lack of information as to the reliability of the source, rather than considering the detail and specificity of the information provided to them and verified by their own observation.
Counsel further said that, at the very least, the search was reasonable in the circumstances, given the collective body of information known to the constables at the time they commenced the search, the need to preserve the evidence, the serious nature of the offending, and the fact that the searches were properly carried out in terms of s18 and resulted in real evidence being found.
Counsel for the Crown also pointed out that s317A Crimes Act incorporates a lower standard of belief than s18 of the Misuse of Drugs Act. It simply requires reasonable grounds to suspect that an imprisonable offence has been committed. The constables did have reasonable grounds to suspect that there were drugs in the car by the time they made the decision to stop it. The Crown also pointed to similarities between this case and R v Loh (1997) 14 CRNZ 649, where the searching constable possessed information which was of a similar nature to that of the constables in the present case, and had his suspicions confirmed as soon as he looked at the stopped vehicle. In that case, this Court held that the search was unauthorised but went on to find that it was reasonable.
Submissions for respondents
Mr Lance said that this is an appeal from an exercise of discretion, and that it needed to be shown by the Crown that the Judge was plainly wrong. The Police had been relying on information from an informant. There needed to be some basis for assessing that it was more than mere speculation, conjecture or assertion. The constables had not apparently been told that reliable information had been provided by this source in the past, if indeed that was the case. It was suggested by counsel that the information was not particularly specific or detailed: no names or descriptions had been provided for the occupants of the blue vehicle, and no other detail about the vehicle, its route or timing. Nothing had been said about the Myadec container. Mr Lance submitted that the constables could not properly assume that information so lacking in detail would necessarily be reliable. As well, the reasonable grounds for belief required by s18(2) had to be that of the officer conducting the search, not that of another member of police (see R v Taylor (1993) 10 CRNZ 393).
The constables had not relied on s317A. They had not complied with its requirement that the driver must be told that power was being exercised under that section (subs3(b)). The District Court Judge had distinguished Loh because in that case the police, having stopped a vehicle on suspicion that it contained weapons, actually saw a weapon in it before commencing their search.
Counsel also supported the District Court Judge’s conclusion that the search was unreasonable. He said there were no reasonable grounds for conducting it.
Conclusions
When the constables stopped the defendants’ vehicle in Pukuatua Street they did so because it was in the expected place (the vicinity of Kuirau Park) and they apparently believed that it fitted the description given to Constable Willis (“a blue rental vehicle”) by Detective Sergeant McLeod. It also appears that the defendants must have fitted the description of Mongrel Mob members.
However, the Judge, rightly in our view, rejected the notion that this was a stopping under s114 of the Land Transport Act 1998. That section does not confer any power to stop a vehicle for any purpose other than enforcement or administration of that Act (Po v Ministry of Transport [1987] 2 NZLR 756, 758; R v Jefferies [1994] 1 NZLR 290, 295 and R v Bainbridge (CA258/99, 9 September 1999)). Constable Willis frankly conceded that the purpose of the stopping was in order to search the vehicle for drugs.
Neither can the Crown rely upon s317A of the Crimes Act. The constables did not stop the vehicle in order to make an arrest. They did not effect an arrest until drugs had been found – their purpose was to search first to see if drugs were present - and they did not announce themselves as acting under that section, as it requires.
That leaves only s18(2) of the Misuse of Drugs Act 1975 coupled with s314B of the Crimes Act which appears to be a legislative response to the problem noted by this Court in R v Pearce and Fagan (CA219/96 and CA270/96, 31 July 1996). The relevant provisions read:
18 Search and seizure-
(1) Where a search warrant is issued under section 198 of the Summary Proceedings Act 1957 in respect of an offence which has been or is suspected to have been committed against this Act or which is believed to be intended to be so committed, any constable executing the warrant or any of his assistants may search any person found in or on the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place which may be entered and searched under the authority of the warrant.
(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 First Schedule or in Part I of the Second Schedule or in Part I of the Third Schedule to this Act and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.
(3) Where any member of the Police has reasonable ground for believing that any person is in possession of any controlled drug specified or described in the First Schedule or in Part I of the Second Schedule or in Part I of the Third Schedule to this Act and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he may search and detain that person for the purpose of search and may take possession of any controlled drug found. Nothing in this subsection shall limit the provisions of subsections (1) and (2) of this section or authorise any member of the Police to enter and search any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place otherwise than in accordance with the provisions of those subsections.
(3A) If it is necessary for a member of the Police to stop a vehicle for the purpose of exercising the power conferred by subsection (3) to search a person who is in the vehicle, sections 314B to 314D of the Crimes Act 1961 apply with any necessary modifications as if references in those sections to a statutory search power are references to subsection (3).
(4) Every member of the Police exercising the power of entry and search conferred by subsection (2) of this section or the power conferred by subsection (3) of this section shall identify himself to every person searched, and also to any person in or on the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place who questions his right to enter and search the same, and shall also tell those persons that the search is being made pursuant to the authority of that subsection. He shall also, if not in uniform and if so required, produce evidence that he is a member of the Police.
…
314A Statutory search power-
(1) For the purposes of sections 314B and 314C, a "statutory search power" means any power conferred by statute that expressly authorises any member of the Police to search a vehicle, but does not include a power that itself authorises any member of the Police to stop a vehicle.
(2) A power conferred by statute described in subsection (1) is a statutory search power for the purposes of sections 314B and 314C whether or not the power conferred by statute-
(a) Involves the issue of a warrant:
(b) Authorises any other person to exercise that power.
(3) For the purposes of this section and sections 314B and 314C, the term "vehicle" does not include any aircraft, hovercraft, ship or ferry or other vessel, train, or carriage.
314B General power to stop vehicles-
(1) Any member of the Police may stop a vehicle for the purpose of conducting a search under a statutory search power if the member of the Police is satisfied that,-
(a) In respect of a statutory search power to search without a warrant, the ground or grounds, as the case may be, for exercising that statutory search power, as set out in the applicable statute, exist; or
(b) In respect of a statutory search power to search with a warrant, the warrant has been issued and is in force.
(2) Any member of the Police who stops a vehicle under subsection (1) must-
(a) Be wearing a uniform or distinctive cap, hat, or helmet with a badge of authority affixed to that cap, hat, or helmet; or
(b) Be following immediately behind the vehicle in a motor vehicle displaying flashing blue lights, or flashing blue and red lights, and sounding a siren.
(3) A person driving a vehicle must stop the vehicle as soon as is practicable on being required to do so by a member of the Police exercising the stopping power conferred by subsection (1).
(4) Every member of the Police exercising the stopping power conferred by subsection (1) must, immediately after the vehicle has stopped,-
(a) Identify himself or herself to the driver of the vehicle; and
(b) Tell the driver that the stopping power is being exercised under this section for the purpose of exercising a statutory search power; and
(c) Tell the driver the statutory search power in respect of which the stopping power is being exercised; and
(d) If not in uniform and if so required, produce evidence that he or she is a member of the Police.
(5) Subsection (4) does not limit any other duties that a member of the Police must carry out when exercising the applicable statutory search power.
(6) Despite subsection (5), a member of the Police need not carry out any duty that is contained in the applicable statutory search power if that duty is exactly the same as a duty contained in subsection (4).
(7) This section does not limit or affect the powers of any person other than a member of the Police under any power of search conferred by statute.
There was compliance with subs(2) and (4) of s314B. However, before stopping the vehicle under s314B and invoking s18(2) the police officers needed to have had reasonable grounds for believing, as required by s18(2), that there was in it a controlled drug as specified or described in the relevant portions of the schedules to the 1975 Act. When enacting s314B Parliament did not make any change in that pre-condition and indeed chose to require it to be satisfied before there could be any stopping of a vehicle.
The problem for the prosecution is that it has failed to call evidence that Constable Willis had an adequate basis for believing that the tip-off received by Detective Sergeant McLeod was reliable at the time the constable stopped the vehicle. This could have been evidence that there were circumstances indicating to Detective Sergeant McLeod that the information was reliable when he received it, that the Detective Sergeant believed it was reliable, and that this view was conveyed to Constable Willis so that the latter could say that he personally formed the belief required under s18(2) before the stopping of the vehicle. However, Detective Sergeant McLeod did not give evidence. Constable Willis seems to have assumed that information coming to him from his superior would be reliable but did not say, as was necessary, that he had been told about the reliability of the source. Neither constable directly stated that before stopping the vehicle he had the requisite belief. When asked about his belief Constable Willis referred to the information and his observations before the stopping but also said that his “reasonable grounds” for the search stemmed from what occurred after the vehicle had been stopped.
The Court has been given no means of knowing whether the informer’s tip contained sufficient detail to ensure it was based on more than mere rumour or gossip; whether the informer disclosed his or her source or means of knowledge and whether there were any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance (R v DeBot (1986) 30 CCC (3d) 207). The information passed on to Constable Willis gave only a very general description of the vehicle. It was specific about the nature and quantity of drugs and where they would be concealed (perhaps not accurate as to the latter, although the observed movements of the defendants suggest the drugs may have been transferred from trousers to seat pocket at about the time the car was being stopped). But, in the absence of evidence as to the reliability of the information and the constables’ awareness of that reliability, we agree with the Judge’s view that the requisite belief on reasonable grounds was not present when the vehicle was stopped. The stopping was therefore unauthorised by law. The search having been made possible by that unauthorised action, it follows that it could not be regarded as lawful notwithstanding that the constables’ state of knowledge progressed somewhat before the process of searching began.
A search can, however, be unlawful but still not unreasonable in terms of s21 of the Bill of Rights. After the stopping of the vehicle the constables then noticed the suspicious actions of one of the occupants (putting something in the seat pocket) and observed the Myadec container (and a corresponding lump in the pocket of the other seat). The Judge commented that the Myadec container was in itself “a relatively innocuous object”. He thought this distinguished the case from Loh where the Police saw a stick in the car. But both officers gave unchallenged evidence that it is a common practice to use Myadec containers to carry capsules containing cannabis oil. Detective Constable Colby said that the practice is to remove the Myadec from the capsules and fill them with oil. “For these reasons”, he said, “my sighting of the Myadec containers was to me highly significant and that it fitted in with and corroborated the information [which had been received]”.
Although the observation of the Myadec container was of greater significance than the Judge thought, we consider that he was correct to conclude that the search was unreasonable in the circumstances. If the sighting of the Myadec container had occurred in isolation – say, by a police officer on a routine patrol of the street glancing in the window of a parked car – it would have given rise to no more than mere curiosity. In this case it had greater significance for the two constables when seen in the possession of Mongrel Mob members, but that was to an extent because the constables already had certain information (but of unknown pedigree) and what the informant predicted appeared to be occurring. But, again, the police case is undermined by the failure to verify the reliability of the information on which the constables proceeded to form their view of events. On the basis of the sparse evidence actually presented to the Court, we think they could have suspected, and no doubt did suspect, the presence of drugs, but that they could not reasonably have formed a belief as to their presence in the motor vehicle.
The position as proved in Court therefore falls short of that in Loh where the search of the car proceeded only after the requirements of s202B of the Crimes Act (“reasonable belief that any person is committing an offence under s202A [Possession of offensive weapons or disabling substances]”) had been met, albeit following an unauthorised stopping. Importantly also, there was here no immediate danger to the public posed by the suspects, as was the case in Loh where matters were serious enough that the police were armed. In the present circumstances we hold, in agreement with the Judge, that the police search must be held to be unreasonable in terms of the guarantee contained in s21 of the Bill of Rights.
Leave to appeal is granted, but the appeal is dismissed.
Solicitors
Crown Law Office, Wellington
Lance Lawson, Rotorua for respondents
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