For a Court ready (fee required) version please follow this link
IN THE SUPREME COURT OF NEW ZEALAND
SC 5/2007 [2007] NZSC 105
KEVIN JACK NGAN
v
THE QUEEN
Hearing:14 August 2007
Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:A Shaw and C W J Stevenson for Appellant
J C Pike and M D Downs for Crown
Judgment:13 December 2007
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
PARA NO
Elias CJ, Blanchard and Anderson JJ [1] Tipping J [39] McGrath J [70]
ELIAS CJ, BLANCHARD AND ANDERSON JJ
(Given by Blanchard J)
Introduction
[1] The issue on this appeal is whether any breach of s 21 of the New Zealand Bill of Rights Act 1990 occurred when the police opened a zipped pouch found in a crashed car belonging to and driven by the appellant, Mr Ngan. A quantity of methamphetamine was discovered in the pouch. Mr Ngan has been convicted of possession of that drug for supply but contends that as a consequence of a breach of s 21 by the police in searching the pouch, the evidence of the discovery of the drugs should not have been admitted against him. The appeal raises questions concerning the lawfulness and reasonableness of so-called inventory searches of property which has come into the possession or control of the police.
Facts
[2] Mr Ngan crashed his car near Marton on State Highway 1 on the evening of Sunday 6 February 2005. He had to be rescued from the vehicle which was on its roof at the roadside. He was conscious and identified himself before being taken to hospital. An officer of the Police Highway Patrol, Senior Constable Burden, had taken control of the scene. The vehicle needed to be righted and moved. But scattered about inside and around it was a large amount of money in $20, $50 and $100 notes and some other items of property, including an open satchel containing a computer and what appeared to be a soft sunglasses pouch that was zipped up.
[3] Once Mr Ngan was taken away to hospital, Constable Burden set about gathering up the cash and other items the constable had identified as valuables. Without having counted the bank notes he put them and the pouch into the computer satchel for safekeeping and closed the satchel.
[4] Because Constable Burden did not normally undertake enquiries in relation to vehicle crashes as part of his duties, he had called a local member of the police, Senior Constable Johnson, to the scene. He handed Constable Johnson the satchel, partially unzipping it to show him the large amount of money inside. Constable Johnson put the satchel in the boot of his patrol car for safekeeping while Mr Ngan’s vehicle was being righted. He and Constable Burden collected further cash and personal effects lying in and around the vehicle. Constable Johnson, who suspected by this point that the money found scattered about might be drug money, then opened the satchel to check its contents…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v Ngan
Sign in free to access the full text
Details
AGLC
R v Ngan [2007] NZSC 105
Case
[2007] NZSC 105
Decision Date
CaseChat Overview and Summary
The appeal against conviction of Kevin Jack Ngan was dismissed by the Supreme Court of New Zealand. Mr Ngan was convicted of possession of a class A drug for supply following the discovery of methamphetamine and lysergic acid diethylamide (LSD) in a pouch inside his wrecked car. The appeal against conviction was brought on the basis that the evidence should not have been admitted because it was obtained by an unlawful and unreasonable search of the pouch by the police. The Supreme Court held that the police were acting in their capacity as bailees of necessity when they took possession of the pouch, and there was no breach of Mr Ngan's rights under the New Zealand Bill of Rights Act 1990. The Supreme Court also held that the evidence was properly admitted and that the appeal should be dismissed.