R v R HC Nelson CRI 2005 042 1660

[2007] NZHC 77

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2005 042 1660

THE QUEEN

v

R

Hearing:         16 February 2007

Appearances: C Stevenson for Crown

H Roose for Accused

Judgment:      23 February 2007 at 2.30 p.m.

RESERVED JUDGMENT OF RONALD YOUNG J

Introduction

[1]      R   is charged with possession with methamphetamine for supply (Misuse of Drugs Act s 6(1)(f)), possession of a pipe to smoke methamphetamine (Misuse of Drugs Act s 13(1)(a)), possession of a restricted weapon in a public place (Arms Act s 51(1)(b)), cultivating cannabis (Misuse of Drugs Act s 9(1)), possession of equipment for used  for such  cultivation (Misuse of  Drugs  Act  s  12A(2)(a)), manufacturing methamphetamine (Misuse of Drugs  Act s 6(1)), possession of precursor   substances   (Misuse   of   Drugs   Act   s   12A(2)(a)),   possession   of

methamphetamine  at  Rai  Valley  for  supply  (Misuse  of  Drugs  Act  s  6(1)(f)),

R V R HC NEL CRI 2005 042 1660  23 February 2007

possession of equipment to manufacture methamphetamine at Rai Valley (Misuse of Drugs Act s 12A(2)(a)).

[2]      The evidence obtained by the Crown to support all of these charges flowed from the police decision to stop a car driven by Mr R   and the subsequent search of his vehicle on 30 May 2006.   The Crown seek an order under s 344A of the Crimes Act that the evidence of the officer who searched the car be admitted for the purpose of Mr R  ’s trial.   The Crown accept that if I refuse their s 344A application, which relates solely to the search of Mr R  ’s motor vehicle, then the evidence obtained as a result of the search of Mr R  ’s property is tainted and this evidence would not be admissible evidence at any trial.

Background Facts

[3]      On 30 May 2006 the police were observing a house at 161 Waimea Road. They were there watching for a Kurt Richardson whose address they believed it to be and who had breached bail on serious drug charges.  In about 12.50 p.m., the officers saw Mr R   outside the address talking to two persons.  They then saw him get into his vehicle and drive away from the address.   The police followed and stopped Mr R  ’s vehicle.   Initially, Detective McMorran, who arrived separately from Detective McLachlan, stopped Mr R  ’s vehicle and spoke with him.   Mr R   gave his name, address, date of birth and occupation.   Detective McMorran then went to his vehicle to check on Mr R  ’s licence details.

[4]      While he was doing so Detective McLachlan arrived and spoke with Mr

R  .  He told him he was going to search him and his motor vehicle pursuant to s

18(2) and (3) of the Misuse of Drugs Act.  He provided Mr R   with his police identification.  The Detective then gave Mr R   his Bill of Rights advice relating to access to a lawyer and told him that he was not obliged to say anything.   The Detective then asked Mr R   if he would find anything in the car.  The accused said there was about 2 grams in a bag in the back.  The Detective said he understood this referred to methamphetamine.

[5]      In the meantime, Detective McMorran discovered that the accused had his licence suspended earlier in May and he was therefore a disqualified driver.  He then arrested the accused.   Detective McLachlan drove the accused’s vehicle to police station where it was searched and then impounded pursuant to s 96 of the Land Transport Act.  The accused was also searched but nothing of particular significance was found.

[6]      The search of the car revealed some methamphetamine, $1500 cash and a Taser all in a bag in the car and $2500 in cash, a set of scales and what appeared to be equipment which could be used in the manufacture of methamphetamine in the boot of the car.  As a result of this discovery the police applied for and obtained a search warrant relating to the accused’s Rai Valley address.  That search located a number  of  chemicals  which  the  Crown  say were  precursors,  equipment  for  the manufacture of methamphetamine and a cannabis hydroponics set up in a room in the house.

[7]      In the meantime, Detective McMorran interviewed the accused, firstly, about what had been found in the “bum bag” in the motor vehicle.  Mr R   accepted the bag was his but denied that any of the money was from drug sales.  Mr R   was also  interviewed  later  about  the  drugs  and  equipment  found  at  the  Rai  Valley address.

Submissions

[8]      The accused gave notice to the Crown that the admissibility of the proceeds of the search of the vehicle was challenged because:

a)        The accused’s vehicle was unlawfully stopped;

b)       The search of the car was outside the statutory grounds contained in s

18(2) of the Misuse of Drugs Act and therefore illegal.

[9]      The accused submitted that if the search of the vehicle was found to be illegal then it could not be said to be reasonable in the circumstances and therefore the

evidence should be ruled inadmissible.  The accused submitted that if there was any Shaheed balancing required, then the balance clearly favoured this Court refusing to admit the evidence.

Discussion - Stopping

[10]     Firstly, I turn to the stopping of the accused’s vehicle.  Detective McLachlan stopped the accused’s vehicle.  He said in his depositions statement:

As a result of information from Detective McLachlan I followed the vehicle and stopped it on Montreal Street near the intersection of Toi Toi Street, Nelson.

[11]     This evidence, by itself, did not identify any reason to stop the vehicle. Detective McLachlan signed a first depositions statement, was cross-examined at depositions about the stopping and search, prepared and submitted a further brief of evidence relating to this 344A application and gave further evidence before me and was cross-examined.   At no time was he asked what, if any, information he had given Detective McMorran to justify stopping the vehicle.   Although it became apparent some time afterwards that Mr R   was a disqualified driver, there was no evidence, at the time Detective McMorran stopped Mr R  , that he knew this fact.

[12]     The Crown accepted that the police must have a statutory authority to stop a vehicle.  The Crown’s submission was that where a police officer suspects a driver is suspended or disqualified, then he may stop a vehicle and such a stopping is lawful. Mr Roose did not take issue with that proposition, but simply pointed out there was no evidence to justify the claim that Detective McMorran knew that Mr R   was disqualified when he stopped him. No other basis was suggested by either of the police officers to justify the stopping.

[13]     In the absence, therefore, of any evidence from the Crown as to the basis which the vehicle was stopped, I conclude that the vehicle was unlawfully stopped. I note, however, in this case that in fact there did exist a lawful justification to stop Mr R   independent of any desire to ask him his name, address and occupation. Mr R  , as I had said, was a disqualified driver and that would, if known, justify

stopping Mr R  .  That fact will be relevant in any Shaheed balancing that may be undertaken when considering the question of the search.

Search

[14]     At depositions Detective McLachlan was asked by counsel for the accused for the basis upon which he had exercised the power given in s 18(2) Misuse of Drugs Act to search the accused’s vehicle.  The Detective mentioned he had been searching for Mr Richardson who was to be tried on serious drug matters and whom the police believed was continuing to be involved in drug offending while on bail. The Detective mentioned that Mr Richardson was supposedly living at the address which Mr R   was observed standing outside.   The implication presumably was that because Mr R   had been seen outside Mr Richardson’s house this aroused some suspicion regarding what Mr R   was up to.

[15]     After the completion of the preliminary hearing, the accused gave notice to the Crown challenging the admissibility of the evidence obtained from the search of the car.  The Crown arranged for Detective McLachlan, therefore, to prepare and file a further brief of evidence after discussion with Crown counsel, no doubt for the purpose of dealing expressly with the challenge to the lawfulness of the search.  Both counsel for the accused and myself were provided with copies of that further brief. The brief does not directly assert the Detective considered he had reasonable grounds to believe, as required by s 18(2) Misuse of Drugs Act, nor does it expressly identify why the Detective considered a s 18(2) search of the car justified in law.  I accept of course that it is for this Court to decide objectively whether reasonable grounds in fact existed.

[16]     These factors in the brief seem relevant to the Detective’s decision:

a)        The address at 161 Waimea Road was “supposedly” Mr Richardson’s residence;

b)Mr Richardson was before the Court on methamphetamine charges and had breached his bail;

c)	The  Detective  believed  Mr  Richardson  was  continuing  to  deal  in drugs;
d)	The  Detectives  observing  Mr  Richardson’s  house  saw  Mr  R   standing outside talking to two people;
e)	Mr R   then drove away in a car.
[17]	After	observing  the  accused  drive  away  from  the   address  Detective

McLachlan said in his second deposition:

At  that  time  I  did  not  know  the  defendant’s  identity,  although  I  had previously spoken to him on an unrelated matter.

[18]     In evidence before me the Detective provided some additional reasons why he had searched Mr R   and his vehicle.  I did not find the Detective’s evidence either especially credible or reliable when identifying these “further” reasons to justify his  search.    Given  the  Detective  had  already been  asked  in  evidence  at depositions why he had invoked s 18(2) and given he had filed a supplementary brief, prepared by him with the assistance of counsel for the Crown focusing on the s

344A challenge, this further evidence rather seemed an attempt at justifying the search after the event.  The Detective said that Mr R  ’s name “had come up in various enquiries”.   He said that he believed that Mr R   was one of Mr Richardson’s customers on 30 May and he had purchased methamphetamine from him immediately prior to the search.   He also said that in his enquiries about Mr Richardson’s whereabouts “ Mr R  ’s name was mentioned as was the vehicle he was in as being an associate of Mr Richardson’s”.  The Detective said he believed Mr R   had come from Mr Richardson’s address shortly before he had spoken to the two people.  The Detective accepted that he had no evidence that Mr R   had been in Mr Richardson’s house immediately prior to his observation that day, nor had he any evidence upon which he could have inferred that Mr R   had purchased methamphetamine from Mr Richardson that day.  The Detective said that while he had not recognised Mr R   when he saw him at the car he had recognised him when Mr R   drove past.  I note this identification was not previously mentioned in any of the Detective’s statements.

[19]     I do not consider the Detective’s evidence could be relied upon when he claimed, prior to the search, he had information that Mr R   and Mr Richardson were associates at that time.  Nor, as I have said, was there any evidence whatsoever to support the Detective’s assumption that Mr R   had been at Mr Richardson’s place  that  day,  or  more  particularly  that  he  had  been  purchasing methamphetamine.

[20]     To return, therefore, to s 18(2) of the Misuse of Drugs Act which provides as follows:

18       Search and seizure

. . .

(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 Schedule 1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act [or any precursor substance specified or described in Part 3 of Schedule 4] and that an offence against this Act has been or is suspected of having been committed in respect of that drug [or precursor substance], 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.

[21]     Before the Detective, therefore, could search the accused’s car he had to have reasonable grounds to believe there were drugs in the car and suspect that an offence under the Act had been committed.  On the evidence he could not possibly have had such reasonable grounds for belief.  At best he had Mr R  , with some past drug association, standing outside Mr Richardson’s house, whom it was known was involved currently in serious drug offending.   Even if I accept all the additional evidence given by the Detective as reliable (and I do not) it still falls well short of sufficient to give reasonable grounds to believe.   Nor do I think an experienced Detective  such  as  Detective  McLachlan  could  possibly  have  believed  he  had sufficient for a search.  The Detective has 27 years experience in the police force.  If he had given the matter a moment’s thought, he would have understood he had only

the slightest suspicion, well short of reasonable grounds to believe drugs would be found in the car.

[22]     I think Crown counsel was probably correct when he said that the Detective’s focus  was  on  Mr  Richardson  and  that  he  gave  little  or  inadequate  thought  to Mr R  ’s position.   In my view the Detective’s actions were more than careless. He proceeded in reckless disregard of the statutory criteria in searching the vehicle.

[23]     I am satisfied, therefore, that this was an illegal search.  The Crown did not attempt to argue that the accused’s subsequent admission that 2 grams would be found in the car justified the search in any way.

[24]     The Crown argued, essentially conflating a reasonableness argument with the Shaheed balancing, that despite the illegality I should admit the evidence.   They submitted:

a)       There was a significant probability that the drugs and other items would have been found in the car in any event;

b)       The Detective’s search was in good faith and reasonable if not lawful;

c)        This was real evidence of high probative value;

d)       These were serious charges;

e)       If the evidence from the search was not admitted the Crown case both with respect to the items found in the car and the items found at the search of the Rai Valley property would collapse.

[25]     Counsel for the accused submitted that:

a)       This was a clear case of reckless disregard for an accused’s rights and an illegal search;

b)       There was no inevitability about finding the drugs and other items;

c)       Given the Detective’s actions it could not be said that the search was reasonable in the circumstances, and, given the stopping (and search) of the vehicle was illegal the search was also not reasonable and the evidence should not be admitted.

[26]     My conclusion [22] was that the Detective’s actions in searching Mr R  ’s vehicle were in reckless disregard of the s 18(2) obligations.   I acknowledge what was obtained was real evidence (hardly surprising given this was a search of a motor vehicle) and serious offending.  If the evidence is not admitted, this probably ends the Crown’s case. I consider the only factor that could possibly save the Crown’s case is the issue of “inevitable” or as the Crown submitted, “highly probable” discovery of  the  evidence  in  any event.    This  claim,  if  established,  the  Crown submits would establish the search as reasonable.  I now turn to consider, therefore, this proposition.

[27]     The evidence established that Mr R   was disqualified from driving from May to September 2006.   When he was stopped by the Detective he was clearly, therefore, driving whilst disqualified.  Detective McMorran said that while Detective McLachlan was speaking with the accused he checked and discovered that Mr R   was a disqualified driver. He then arrested Mr R  .

[28]     That arrest would not have justified a search of the accused.  I note that no incriminatory material was found on Mr R  ’s person.  The Crown did not claim that this arrest by itself would have justified a search of the vehicle.

[29]     Pursuant to s 96(1) of the Land Transport Act the Detective was obliged to seize and impound Mr R  ’s vehicle, given the vehicle was being driven by a disqualified driver.

[30]     The Crown submits that given the inevitable seizure of the vehicle it was highly probable the car would in some way be searched.  If it was, then the discovery of the drugs was, the Crown said, virtually inevitable.

[31]     Neither s 96 nor any of the surrounding sections relating to impoundment of vehicles  contain  any  express  power  to  search  a  vehicle  which  is  impounded. However,  there  can  be  situations  where  either  the  impounding  authority  or  the police may need access to the vehicle.  For example, someone who owns property may wish to uplift the property from the vehicle (see s 96(4)).  The vehicle may need to be moved, other than by tow truck and access to the vehicle to drive it may be required.  An inventory of the contents of a vehicle may need to be taken for some reasons.  All of these are possibilities.  None in a particular case can be said to be a certainty.

[32]     In this case, a further additional point is relevant.  Access to the driving and passenger compartment of the vehicle would not, as I understood the evidence, have given any indication that drugs or indeed anything suspicious was being carried in the vehicle.   The methamphetamine, the Taser and the $1500 cash were all contained in a pouch which was in the vehicle.  There seems to be no basis upon which a search of the pouch would need to be undertaken if, for example, a police officer or an impoundment contractor was shifting the vehicle or had to drive the vehicle for some reason.  It would only be, as I understand the evidence, if a search of the contents of the boot of the vehicle was undertaken that discovery of incriminatory material was a possibility.   Even then it may be that some form of specialist  knowledge  was  required  to  understand  the  purpose  for  which  the equipment in the boot could be used.

[33]     My conclusion is that while there was a possibility that a police officer would have gained access to the vehicle to drive it, it seems relatively unlikely that the drugs or drug paraphernalia would have been discovered in any event.  I assess this possibility as relatively low.

[34]     There is no evidence from the Crown therefore which satisfies me that the search here was reasonable.   The stopping of the vehicle was unlawful although I acknowledge, as I have previously mentioned, that if the Detective had been in possession  of  all  of  the  facts  he  could  have  legitimately  stopped  the  vehicle However at the time of stopping he had no grounds to do so.  Secondly, the s 18(2) search was unlawful and I find the Detective was reckless in his approach to the

search.  There was essentially no evidence upon which he could have had reasonable grounds to believe in terms of s 18(2).  There was a chance, but only a modest one, that the evidence of drug offending would have been found in any event arising from the arrest of the accused for driving whilst disqualified and the impoundment of the vehicle.  However this chance of discovery does not convince me the search was reasonable.   I am satisfied it was not.   I find the search was unlawful and unreasonable.

[35]     On Shaheed balancing there is nothing the Crown can point to which would favour admissibility.  If the statutory threshold provided by Parliament for searches of motor vehicles is to mean anything then in a case such as this in my view the evidence illegally obtained should not be allowed to be given as part of a police case.  I therefore refuse the s 344A application.

[36]     It may well mean that this prosecution for some or all offences  will  be unsuccessful.  I leave that for counsel to assess and communicate to me.

……………………………

Ronald Young J