R v Petricevich

[2007] NZCA 325

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL, PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/07 [2007] NZCA 325

THE QUEEN

v

MICHELLE PETRICEVICH

Hearing:         18 July 2007

Court:            Arnold, Potter and Venning JJ Counsel:          C S Cull for Appellant

M D Downs for Crown

Judgment:      30 July 2007

Reasons:        6 August 2007

JUDGMENT OF THE COURT

A.       The appeal is dismissed.

B.       An order is  made that this judgment and the reasons are not to  be published in the news media or on the Internet or in other publicly accessible database until final disposition of the trial.   Publication in a

law report or a law digest is permitted.

R V PETRICEVICH CA CA236/07  30 July 2007

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]      The appellant faces one charge of possession of the Class C controlled drug cannabis for supply and one charge of offering to sell the Class C controlled drug cannabis.

[2]      On  28  March  2007  Judge  D  G  Harvey  ruled  that  the  evidence  of Detective Harris was to be admissible against the appellant at trial.  This appeal is against that ruling.

Background facts

[3]      On 1 April 2006 the police at Kaitaia seized a cellphone in the course of an inquiry unrelated to this appellant.  The cellphone was the property of the accused in the unrelated matter.  The accused in that matter was known to the appellant.

[4]      The police sent the cellphone to the electronic crime laboratory in order to retrieve information from it, including picture and text messages.  The cellphone was then returned, still switched on, to the police at Kaitaia on or about 2 or 3 May 2006. When Detective Harris received it back, he noticed an envelope icon on the screen which  indicated  to  him  that  a  text  message  had  been  sent  or  received  by  the cellphone.   The detective opened the message to determine whether the message received would advance the investigation against the other accused.   The message was dated 20 April.  It said:

Kia ora whanäu jus a lil txt 2 say I got sum scores if u intrestd.  Kia pai to koutou nei ra Mitch-l.

The  concluding  passage  translates  to  “have  a  good  day  everybody”.    The  text message was sent by the appellant.  Detective Harris used the cellphone to reply:

Will take 10 pound bro can you deliver it to the police station?

Shortly afterwards he received a text in response:

Smart fulla aye?  Wot u up 2 cuz?  Mitch-l.

[5]      On the next day, 4 May 2006, Detective Harris continued to send and receive text communications with the appellant to arrange a drug deal.  The appellant agreed to meet the detective at the Kaitaia rugby clubrooms to complete the deal.

[6]      At about 2 o’clock that afternoon Detective Harris and Detective Sergeant Robertson travelled to the Kaitaia rugby clubrooms.  Detective Harris continued to text the appellant’s phone.   Detective Sergeant Robertson stopped the appellant’s vehicle when she approached the clubrooms.  He asked if she was Mitch.  When she said she was, he cautioned her, then told her that the cellphone she had been texting the last few days had been with Detective Harris.  The appellant admitted that she had cannabis on her and produced a tin to Detective Robertson.  The tin contained 10 pre-rolled cannabis tinnies and a one ounce bag with 16  grams of high quality cannabis head, portions of tinfoil and two cannabis seeds.

[7]      During  the  course  of  text  exchanges  the  appellant  had  tried,  on  two occasions, to ring the cellphone.  The detective did not answer the phone.  Instead he sent a text to the appellant to say the phone was playing up and that he could only communicate by text.

[8]      Detective Harris accepted that the appellant thought she was communicating with the owner of the phone.  It is also accepted that Detective Harris did not seek the owner’s permission to use the cellphone to make the text communications.

District Court Judge’s decision

[9]      Judge Harvey noted that the appellant had initiated the conduct and was prepared to supply cannabis.  He rejected the contention that the offending was at the instigation of the police.

[10]     Next, Judge Harvey found the cellphone was legitimately in police custody and that Detective Harris was entitled to read the message.  The Judge considered there was nothing unfair about the subsequent police investigation and use of the cellphone in the course of that investigation.   Judge Harvey concluded there had been no unfairness in the way the police obtained the evidence.

[11]     In the alternative, Judge Harvey held that even if improperly obtained, the evidence would be admissible applying the Shaheed balancing test.

Appellant’s submissions

[12]     It is submitted for the appellant that the evidence of Detective Harris, which forms the basis of the charges in the indictment, is inadmissible as it was unfairly or improperly obtained.

[13]     Ms Cull submitted:

(a)       The cellphone was the property of another person and was only in

Detective Harris’ lawful possession as an exhibit.

(b)While  Detective  Harris  may  have  been  entitled  to  open  the  text message  and  then  to  try  to  identify  the  appellant  by  legitimate methods  he  was  not  entitled  to  use  the  cellphone  itself  for  that purpose.

(c)The use of the phone incited the offence and led to the identification of the appellant by enticing her to a place where she believed she was meeting her relative.

(d)Detective Harris had engaged in deception.   He impersonated the owner of the cellphone and deliberately did not respond to the telephone calls from the appellant telling her instead that the phone was not able to take calls.

(e)With  reference  to  R  v  Karalus  (2005)  21  CRNZ  728  (CA),  the conduct of the detective was such as to render inappropriate the subsequent prosecution even if the appellant could be said to have been predisposed to commit the offending.

(f)The Judge’s alternative consideration of Shaheed was incorrect as the present case does not involve a breach of the New Zealand Bill of Rights Act 1990.

(g)In the alternative if the Shaheed balancing approach was to be used the evidence should have been ruled inadmissible.

(h)It was necessary to exclude the evidence not only because of the method by which it was obtained but also to maintain the credibility of the police and justice system in the eyes of the public.

Respondent’s submissions

[14]     Mr Downs submitted that:

(a)The appellant had failed to demonstrate the Judge was plainly wrong in exercising his discretion to admit the evidence.

(b)This  was  not  a  case  of  entrapment.     Detective  Harris  merely uncovered  and  acted  upon  an  offer  by  the  appellant  to  supply cannabis.

(c)      It was of no assistance to the appellant to suggest the police may have breached the cellphone owner’s rights.

(d)The actions of the police fell well short of misconduct giving rise to an abuse of process that required the exclusion of the evidence.

Decision

(i)       Balancing exercise

[15]     The appellant’s rights under the New Zealand Bill of Rights Act 1990 are not engaged.  Her complaint is as to the police conduct that led to her apprehension and arrest, and particularly the use of the cellphone to that end.

[16]     Detective Harris’ evidence that arises from the use of the cellphone is both relevant and probative.  It will only be excluded by the Court on unfairness grounds. As this Court said in R v Fahey CA94/00 11 May 2000 (at [14]):

Evidence that is obtained illegally, if relevant and probative, is admissible subject to the discretion of the trial judge to exclude it on fairness grounds: R v Coombs [1985] 1 NZLR 318 Cross (1978) 19 ALR 641, of Eichelbaum CJ in R v Dally [1990] 2 NZLR 184, and of this Court in R v Grayson & Taylor [1997] 1 NZLR 399.

[17]     The determination of whether the evidence should be excluded on fairness grounds requires consideration of the competing interests of the accused not to be subject to unfair treatment and the public interest in apprehending offenders. As this Court recently said in R v W(328/06) CA328/06 31 October 2006:

[18]     The  common  law  discretion  to  exclude  evidence  unlawfully  or unfairly obtained has survived the New Zealand Bill of Rights Act 1990 and R v Shaheed, see R v Grayson and Taylor [1997] 1 NZLR 399 (CA) at 406-

407 and R v Murphey (2003) 20 CRNZ 278 (CA).   The exercise of the discretion involves balancing the public interest in bringing an offender to justice and the interest in protecting the individual from unlawful and unfair treatment.

[18]     In R v Ahamat CA143/00, 19 June 2000 this Court also confirmed at [11]:

The discretion to exclude evidence on fairness grounds involves fairness not just to the accused but also to the Crown.  It is not to be called in aid simply because the circumstances approach, but fall outside, those engaged by the Bill of Rights Act.   There must be unfairness in the manner in which the evidence is obtained (bearing in mind that even illegally obtained evidence is not automatically excluded) or unfairness likely to arise from the giving of the evidence at the trial.  In rare cases evidence might be excluded on this ground as a sanction against police misconduct – see R v Coombs [1985] 1

NZLR 318 and R v Fahey CA94/00 and CA135/00, judgment 11 May 2000. To exclude probative evidence on fairness grounds is warranted only when

that is consistent with the interests of justice or when that is necessary to assure the fundamental right of an accused to a fair trial.

[19]     Accepting for  present  purposes  that  the  police  use  of  the  cellphone  was wrongful because the cellphone was used without the owner’s consent and for a purpose other than the reason the police had for holding it, the question remains whether, in the exercise of the discretion, the interests of justice require that the evidence obtained as a result of that wrongful use should be excluded on fairness grounds.

(ii)      Entrapment

[20]     We agree with Judge Harvey’s finding that this was not a case of entrapment. The appellant was in the market to supply drugs.   She communicated an offer to supply drugs to a number of people by the first text message.  Where an undercover officer has done no more than give an offender an opportunity to make a sale, that is not entrapment: Police v Lavalle [1979] 1 NZLR 45 (CA); R v Climo SC AK T85/77

16 August 1977; R v Perston CA509/93 30 May 1994.  The present case is stronger from the police point of view.  The initial offer was not solicited by the police, but rather volunteered by the appellant.  Detective Harris did no more than take her up on the offer and arrange to make a purchase.

(iii)     Deception

[21]     Ms Cull referred to the recent cases of Karalus and R v Looseley; Attorney General’s Reference (No 3 of 2000) [2001] 4 All ER 897 (HL) in support of her submission that the police conduct in this case required the Court to rule the evidence inadmissible even if the appellant was predisposed to commit the offence. In Karalus, after referring to Attorney General’s Reference (No 3 of 2000) this Court (at [43]) was prepared to accept that:

The predisposition (or otherwise) of the target of the undercover operation to offend in a relevant way will usually be the primarily relevant consideration. But conceivably the conduct of an undercover police officer or informer may be such as to render entirely inappropriate a subsequent prosecution even if the defendant was predisposed to commit offences of the kind involved.

[22]     Ms Cull submitted the police conduct  was deceptive  and  such  deceptive conduct should lead to exclusion of the evidence.  She referred to Detective Harris first impersonating the owner of the cellphone and then not responding to the telephone calls and texting to say that the phone was not able to take calls.

[23]     As Judge Harvey noted, an undercover officer involved in setting up a drug deal will necessarily be involved in deception.  But Ms Cull submitted that this case was  different  to  that  of  an  officer  employing  deception  in  the  course  of  an undercover operation because Detective Harris had assumed the identity of a person known to the appellant.  Whether the deception or subterfuge is the assumption by an undercover officer of an entirely made up identity or, as in this case, the pretence by the officer that he was a person known to the appellant is not a material distinction when the police officer is playing the role of a purchaser of drugs.  In both cases the offender intends to deal with a person other than a police officer.   There is no significance in the fact the detective pretended to be a person known to the appellant. It is just as much an offence to supply drugs to a friend or associate as it is to supply to a third party.

[24]     Ms Cull also referred to s 13A of the Evidence Act 1908 and the process that section provides as an example of the distinction between the case of an undercover officer and the actions of the detective in this case.  However, s 13A does no more than provide a process to protect the identity of undercover officers.   It does not assist Ms Cull’s argument for a distinction to be drawn between the actions of an undercover officer and Detective Harris.

[25]     Further, deception by the police in other than undercover operations will not necessarily amount to misconduct that requires the ultimate sanction of the evidence being ruled inadmissible:   R v W(328/06) at [23] – [26];   R v Ross CA381/06 13

December 2006.  In Ross this Court (at [17]) referred to the Canadian case of R v Liew (1999) 137 CCC (3d) 353 where admissions were made to an undercover police officer during a conversation the appellant had with the officer in a police interview room in circumstances where the accused, who was under arrest at the time, believed the undercover officer was a co-offender. Major J said at p 367:

It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as the responses by the accused were not actively elicited or the result of interrogation.

[26]     In Ross the complainant, who had received a number of threatening calls and texts, went to the police.   With police guidance she responded to the texts.   The police formulated the texts for the complainant, but she converted them in to her own style and sent them.  The evidence of the text communications was ruled admissible. Ms Cull submitted that Ross could be distinguished as the text communications in that case were made with the consent of the owner of the phone.  We do not consider that factor makes a difference to the issue of whether the deception involved in the communications between the police and the appellant were, by their nature, unfair. In Ross the police communicated through the complainant.  In the present case they did so direct.   But in both Ross and in this case, the police were directing the communications with the accused in order to elicit evidence of offending.  No doubt Ross thought he was only communicating with the complainant, just as the appellant in this case thought she was communicating with a person known to her.

(iv)      Identification of the appellant

[27]     The fact that the use of the cellphone has led to the ultimate apprehension of the appellant does not, in our judgment, lead to a finding of unfairness.   An undercover officer will often approach a known drug dealer with a view to being put in contact with that dealer’s supplier.  A meeting with the supplier arranged in that way may lead to the apprehension and charging of that supplier.   The officer will have had to employ deception in order to obtain or discover the identity of the ultimate supplier.  The position in the present case is not materially different.

(v)      Use of the cellphone

[28]     The principal feature of this case is the use of the cellphone without the owner’s consent.   The use of the cellphone in that way may amount to a trespass against goods.  But, while the owner of the cellphone might have a complaint as to the  use  the  police  put  the  cellphone  to,  any  such  complaint  can  not  assist  the

appellant.  The rights infringed are the cellphone owner’s property rights.  The use of the  cellphone  does  not  engage  any  rights  the  appellant  may  have  under  the New Zealand Bill of Rights Act 1990, as Ms Cull accepted.  The appellant had no rights in, or to, the cellphone.   This Court applied similar reasoning in rejecting a challenge to the legality of a search in R v Fountain CA176/05 10 August 2005.  In Fountain the police had stopped and searched a car.   Based on the information acquired in that search they then obtained a search warrant for the home of the appellant, who was not in the car.  In dismissing a challenge to the search warrant on the grounds the initial search of the car was unlawful, the Court held (at [23]) that:

… not one of the appellants has standing to claim a breach of his or her rights by this conduct. None of them were present at the time; there was no interference with their liberty; nor with any of their rights.

(vi)      Privacy

[29]     Ms Cull quite rightly did not pursue a submission based on a claim to privacy in  the  appellant’s  text  communications.     The  offer  the  appellant  made  was not exclusive or limited to the cellphone owner.  The offer was, on its face, an open offer  to  a  number  of  people.     The  appellant’s  further  communications  with Detective Harris through the use of the cellphone thereafter confirmed that.   The appellant was not only intending to deal with the owner of the phone, she was willing to deal with a number of people.

(vii)     Were other investigating techniques available?

[30]     Ms Cull was prepared to accept that Detective Harris was justified in opening the message on the cellphone when he received it back from the electronic crime laboratory.   At the time the detective considered it may have been relevant to the inquiry related to the cellphone’s owner.  On discovering the message, which on its face was a plain offer to deal in drugs, the detective was entitled to take the matter further.   Indeed, the Detective was obliged to do so in his role as a police officer charged with the detection and prevention of crime.

[31]     Ms Cull submitted that the detective could have used other investigative techniques to seek to discover the identity of Mitch-l instead of using the cellphone to text the appellant.  But, as Judge Harvey found, there were no other investigatory techniques that were realistically available.  The detective was not challenged on his evidence that it would not have been viable to have gone to the appellant’s work (which he learnt through the course of the texting).  Further, there was evidence to confirm that cellphone numbers for pre-purchased cellphones were not traceable.

[32]     Once he had opened the text, Detective Harris was faced with an apparent offer to deal in drugs.   Drug dealing is serious offending and its detection is important, as was said by Lord Hutton in Looseley at [102]. If the detective was to take the matter further he had to employ the use of the cellphone.

The Evidence Act 2006

[33]     Section 30 of the Evidence Act 2006 will apply as the hearing will commence after 1 August 2006:  (s 5(3)).

[34]     The issue is whether the evidence was improperly obtained because it was obtained unfairly:  s 30(1)(a), s 30(5)(c).  For the reasons discussed above, we find, on the balance of probabilities, that the evidence was not obtained improperly as it was not obtained unfairly.

[35]     In the alternative, and in any event, even if the evidence had been obtained improperly, to exclude it would not be proportionate to the degree of impropriety of the police actions in using the cell phone to obtain the evidence.

[36]     The relevant features are:

(a)       The rights breached.   To the extent that rights have been breached, they are those of the owner of the cellphone, not the appellant.

(b)       The use of the cellphone, whilst deliberate, was not in bad faith.

(c)The evidence obtained through the use of the cellphone is probative evidence that lead to the apprehension of the appellant.   It is fundamental to the prosecution.

(d)      The offending with which the appellant is charged is drug offending.

While it may not qualify as serious offending (as the term is used in R v Williams CA372/05 29 November 2006 at [135]) drug offending is of its nature, to be regarded as serious offending.

(e)There were no other investigative techniques realistically available to ascertain the identity of the appellant.

(f)While there may have been no particular urgency it is difficult to see how the detective could have continued his investigation without acting in the way he did.  The alternative was to ignore the message.

Conclusion

[37]     In summary, while the investigative techniques used by the officer included deception and the use of another person’s cellphone, the actions of the police cannot be characterised as unfair to the appellant at common law. The conduct of the police is  not  such  that  the  admission  of  the  evidence  could  be  said  to  bring  the administration of justice into disrepute as that concept was considered in R v Dally [1990] 2 NZLR 184 at 192 – 193 (HC). There was no bad faith on the part of the police. There is nothing in the police action that requires the ultimate sanction of the evidence being ruled inadmissible.

[38]     Nor can the evidence be said to have been improperly obtained in terms of the Evidence Act 2006.   Alternatively, even if the evidence could be said to have been improperly obtained, the exclusion of the evidence would not be proportionate to the impropriety.  On that basis also the evidence would be admissible.

[39]     The appellant has failed to satisfy this Court that the District Court Judge was wrong to exercise his discretion to admit the evidence.

Result

[40]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington