R v Mataroa

[2006] NZCA 231

IN THE COURT OF APPEAL OF NEW ZEALAND

CA69/06

THE QUEEN

v

DANIEL MATAROA

Hearing:22 August 2006

Court:Robertson, Wild and Harrison JJ

Counsel:J J Maddox for Applicant

M D Downs for Crown

Judgment:29 August 2006 at 11am

JUDGMENT OF THE COURT

LEAVE TO APPEAL THE RULING IN THE DISTRICT COURT IS ALLOWED BUT THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       The applicant, Mr Daniel Mataroa, awaits trial in the District Court at Manukau on charges of possession of cannabis for supply, possession of a pipe for drug use, and possession of utensils for drug use: ss 6(1)(d) and (e) and (7) of the Misuse of Drugs Act 1975.

[2]       All charges are based primarily upon evidence obtained from a police officer’s search of Mr Mataroa’s motor vehicle.  His challenge to the legality of the search and thus the admissibility of the evidence was dismissed in a pre-trial ruling by Judge Epati.  He now applies for leave to appeal that decision.

District Court

[3]       Judge Epati heard evidence from Constable Malaki Tohi who conducted the search, another police officer and Mr Mataroa.  He recorded that three issues were raised: first, whether Mr Mataroa was detained unlawfully or unreasonably at a property in Otara on 5 December 2004; second, whether the search of his car was unlawful or unreasonable; and, third, whether a particular admission made by Mr Mataroa to Constable Tohi was admissible.

[4]       In his ruling delivered on 8 December 2005, the Judge made these relevant factual findings:

[5]       The evidence as I find is that the police officer suspected that the accused was about to turn into an address of a known tinnie house.  According to his evidence he suspected that the accused was about to turn into that address when he saw the police car.  The accused then decided to bypass the address and turn instead into the driveway of the next address [44 Blampied Road, Otara].  The officer did a u-turn and parked his car on the road behind the accused.  He walked in to the address and talked to the accused.  He asked the accused general questions, what he was doing there, and the accused said he was there to visit a mate.  The police officer became suspicious when he realised that the house was unoccupied and no sign of any occupation.  He then asked for identification. The accused handed over his Builders ID but said he did not have a licence.  The officer then decided to make a check of the ID so he asked the accused to reverse his car back onto the road while he does the checking.  He took generally about 10 minutes or so to check.  The check revealed that there are warrants outstanding in the name of the accused.  On that information he asked the accused about the warrants and because he was not satisfied with the answers, he decided to arrest the accused.

[6]       I find that the initial engagement of the accused by the officer was on the suspicion relating to drugs.  I also find that the officer became more suspicious when he realised that the house was unoccupied.  He suspected the accused was not there lawfully.  He then requested the accused to park his car on the road.  He did not say anything about detaining him or indicated that the accused is not free to go.  Neither do I find that the accused made any verbal or physical signs that he did not want to be present. The accused had said in evidence that he felt he had to stay there.  I find that there is nothing in the circumstances to make that belief a reasonable one.

[5]       The Judge concluded on the first two issues as follows:

[10]     I hold that on the present facts there was no detention.  I hold that it was lawful in the circumstances for the officer to check the accused’s identity which is a normal aspect of police work.  Therefore I find there was no unlawful detention and the challenge is dismissed.  I rule the evidence is admissible.

[11]     Insofar as the search is concerned, the officer opened the car door and there was a strong smell of cannabis.  He then invoked s 18(2) of the Misuse of Drugs Act as he is quite entitled to do and searched the vehicle.  I find that is lawful and this challenge is also dismissed.  The evidence of the search is admissible. 

[6]       On the third issue the Judge noted that the parties had reached an accommodation because Mr James Maddox, Mr Mataroa’s counsel, conceded that certain evidence was admissible. 

Decision

[7]       In this Court Mr Mataroa has maintained his challenge on the first two issues.  He has raised an additional challenge to the admissibility of a statement made at the Papakura Police Station and recorded by video.  This issue was the subject of an exchange between the Judge and Mr Maddox during evidence but not of a ruling.

[8]       We shall now deal with each of the three issues.

(a)      Unlawful Detention

[9]       First, Mr Maddox submitted that Mr Mataroa was entitled to drive into the driveway of 44 Blampied Road, Otara and remain there until such time as the occupier revoked his implied licence; that Constable Tohi had no grounds for concluding that Mr Mataroa was unlawfully on the property and requiring him to move on to the road: s 29 Summary Offences Act 1981; and that the officer had no statutory powers to detain Mr Mataroa for the purposes of obtaining his name and address, date of birth, occupation, place of birth, and his telephone numbers.  Accordingly, what Mr Maddox called Mr Mataroa’s detention and removal from 44 Blampied Road was unreasonable and unlawful.

[10]     Mr Maddox’s argument proceeds from the conclusory premise that Mr Mataroa was unlawfully detained.  However, he was unable to point to any evidence that Mr Mataroa was held against his will at or about 44 Blampied Road before his arrest for obstruction.  The Judge found that Constable Tohi asked Mr Mataroa some questions about his reasons for visiting the address before requesting him to reverse his vehicle on to the road.  The Judge found further that the officer did not say anything about detaining Mr Mataroa, who did not protest that he was being detained, or indicate that he was not free to leave. 

[11]     The Judge considered the relevant authorities: Everitt v Attorney-General [2002] 1 NZLR 82 (CA); Police v Smith and Herewini [1994] 2 NZLR 306 (CA); R v Edwards (1991) 7 CRNZ 528 (CA).  We are satisfied that he correctly concluded that Constable Tohi did not unlawfully detain Mr Mataroa.  Even if we had reached a different conclusion, the result would have no bearing upon the lawfulness of the officer’s later search of the vehicle.  Any intrusion on Mr Mataroa’s liberty at that stage was causally unrelated to subsequent events. 

(b)      Unlawful Search

[12]     Second, Mr Maddox submits that the constable used his Land Transport Act powers to prevent Mr Mataroa from proceeding about his business for the purpose of facilitating an inquiry into a suspicious of drug involvement based on a hunch; that the officer acted for a purpose extraneous to road safety and thus outside of his powers: R v Thomas (2001) 19 CRNZ 392 (CA); and that the search was therefore unlawful and unreasonable. 

[13]     Before dealing with this argument, it is appropriate to provide supplementary background which is not available from Judge Epati’s decision.  On 5 December 2004 there was a warrant outstanding for Mr Mataroa’s arrest.  But he had good grounds for denying that it applied to him when Constable Tohi raised the issue on the roadway outside 44 Blampied Road.  After he had arrested Mr Mataroa, the officer learned that his brother had used his name when charged with the offence which was the subject of the warrant. 

[14]     In recognition of the force of Mr Mataroa’s denial, Constable Tohi asked him to travel to the Papakura Police Station for the purpose of resolving the dispute.  Mr Mataroa refused.  Constable Tohi then decided to take him to the station.  He opened the driver’s door of Mr Mataroa’s vehicle to remove the keys from the ignition, to secure the car and prevent Mr Mataroa from driving it away. 

[15]     Mr Maddox did not suggest that Constable Tohi acted unlawfully in these respects.  Indeed he volunteered that Constable Tohi could and should have arrested Mr Mataroa once he learned there was a warrant outstanding.  He pointed out that the warrant directed the officer to take that step.  He accepted that, following such an arrest, the officer would have been lawfully entitled to enter the vehicle to remove the keys from the ignition and secure it. 

[16]     Constable Tohi smelled cannabis when he opened the car door.  He then invoked his powers of search under s 18(2) of the Misuse of Drugs Act.  Contrary to the Judge’s finding, the officer did not arrest Mr Mataroa on the ground of dissatisfaction with his answers about the warrant but for obstructing his search of the vehicle.  The officer found 3.5 kilograms of cannabis and the pipe and utensils for drug use.

[17]     Against this background, Mr Maddox’s sole argument of unlawfulness was that the officer had acted in bad faith by abusing his Land Transport Act powers when he earlier asked Mr Mataroa to remove his vehicle from the driveway to the road.  But there is no evidence of any misuse of those powers.  Mr Maddox accepted that the constable’s request was made for the purpose of ensuring that Mr Mataroa had a current licence.  It was during this exercise that Constable Tohi learned of the existence of the warrant to arrest. 

[18]     The decision of this Court in Thomas does not assist Mr Maddox’s argument.  Its facts are far removed from these.  In Thomas the Judge at first instance found that police officers had stopped a vehicle for a purpose which was extraneous to road safety.  The real reason for exercising this power was receipt of information that the driver had convictions for cannabis. While questioning him they smelled cannabis and searched the vehicle.  This Court found that in view of the Judge’s factual finding the officers’ unlawful conduct tainted and was inseparable from the smelling of cannabis in the vehicle.  Thus the search was unlawful and unreasonable.

[19]     By contrast, Mr Maddox never suggested to Constable Tohi, in a lengthy cross-examination, that he was acting deliberately for an unlawful purpose, and the Judge made no finding to that effect.  There is no evidential basis for this Court to impose its own finding that the officer acted unlawfully.  This ground of appeal must fail also.

(c)       Statement

[20]     In the District Court Mr Maddox did not challenge the admissibility of Mr Mataroa’s statement to the police officer at the Papakura Police Station.  His only objection to admissions made by his client was resolved during the hearing.  Mr Maddox accepted that he could not ask this Court to make a primary finding on admissibility and withdrew this ground of appeal. 

Result

[21]     Leave to appeal the ruling in the District Court is allowed but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington