R v RU CRI-2009-035-632 HC Wellington

[2010] NZHC 302

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-035-632

THE QUEEN

v

RU

Hearing:         26 February 2010

Counsel:         M Anderson for Crown

JKW Blathwayt and V A Pearson for Accused

Judgment:      11 March 2010 at 10am

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 10am on the 11th day of March 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This  is  an  application  under  s 344A  of  the  Crimes  Act  1961  as  to  the admissibility of certain evidence obtained pursuant to a search of the appellant’s person, and a subsequent search conducted following the invocation of s 18(2) of the Misuse  of  Drugs  Act  1975.    The  accused  faces  trial  on  three  drugs  charges: possession of methamphetamine for supply;   possession of cannabis for sale;   and possession of LSD.   The essential issue is whether the search of the appellant’s

person was lawful.

R V RU HC WN CRI-2009-035-632  11 March 2010

On 2 April 2009, police were called to an address at 32 Phillip Street Carterton, in relation  to  an  attempted  suicide.    Four  officers  attended.    Sergeant Basher  and Constable Gale were dispatched from Featherston.  Senior Constable Matheson and Senior Constable McKay were dispatched from Masterton.   For convenience (and without  intending  any disrespect),  I will  refer  to  the  officers  by surname  only, without repeating their rank.   I heard oral evidence from Basher and Matheson.   I also had available the deposition statements of Gale and McKay.

[2]      The information  which  the officers  had  when  they were  dispatched,  and which was supplemented as they were travelling to the address, was that the job code was 1X which indicated that it was priority 1 and an attempted suicide.  They were informed that a request had been made for police assistance for the accused and that that had been requested by his partner Ms Gleeson, but the initial contact had been a call from another person relaying that request from Ms Gleeson.  They were told that the accused was attempting self harm and that he had a pocket knife on his person. He was described as attempting self harm, possibly drug induced by methamphetamine, and there was a protection order in favour of Ms Gleeson.  They were given a brief summary of the accused’s history which included the protection order, the fact that he was alerted on the police system as a gang associate and that he had previous convictions for violence.  Basher agreed, when the communications centre record was put to him in cross-examination, that he was told that children were not at home, that the male had not hit the female but just been yelling, that the male had fallen asleep, that he was possibly on drugs, that he had a pocket knife and wanted to hurt himself and shortly after that the male was still holding the knife when he fell asleep.  They were informed that he was asleep, still holding the knife by his head and that it was unknown if he would get aggressive if he was woken up. That was the information that the officers had when they arrived at the house.  Both vehicles arrived at about 12.30pm, Basher and Gale a few moments before Matheson and McKay.  Basher and Gale went into the lounge.  The accused was on the couch and appeared to be asleep.  At that point the two other officers arrived.  When Basher spoke to the accused he responded and appeared to rouse.  He had something in his hand or beside him.  The accused said “I’m sorry” and handed over the knife.  At that point, Matheson deployed a taser by aiming it at the accused and saying “taser”. He  asked  the  accused  to  stand  against  a  wall  and  a  search  of  his  person  was

conducted by McKay.  That was done by having the accused empty his pockets, all items being taken from him and the officer, starting at the head and working down, using his hands to check all parts of the clothing:  folds, pockets, sleeves, and any cavities in the clothing down to the feet when shoes were removed.   During the course of that McKay very quickly found a small bag of cannabis which came out of one of the pockets of the hoodie or jacket the accused was wearing.   Matheson immediately invoked s 18(2) of the Misuse of Drugs Act 1975.  Methamphetamine, later established as seven grams in weight, was found in one of his pockets along with other items.

[3]      I must first find, on the balance of probabilities, whether or not the evidence was improperly obtained, under s 30 of the Evidence Act 2006.  The essential issue is whether the search of the accused’s person pursuant to which the cannabis was located was a lawful search.  If it was, then it is not in dispute that the invocation of s 18 was lawful, and that all the evidence subsequently obtained in that search was lawfully  obtained.    If  the  initial  search  was  not  lawful,  then  neither  was  the subsequent  search.    If  the  evidence  was  improperly  obtained,  then  the  issue  is whether the evidence should be held admissible pursuant to the balancing exercise in s 30.

[4]      Counsel  for  the  Crown  relies,  as  authority for  the  conduct  of  the  initial search, on s 41 of the Crimes Act.  That section provides:

Prevention of suicide or certain offences

Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.

[5]      Did  the  search  of  the  accused  and  the  detention  inherent  in  that  search involve  the  use  of  force reasonably necessary for  the  purposes  of  that  section? Mr Blathwayt,  for  the  accused,  submits  that  there  was  no  lawful  basis  for  the detention of the accused or the search conducted by McKay.   He submits that the detention was in breach of s 23(1) of the New Zealand Bill of Rights Act 1990.  He further  submits  that  at  least  five  minutes  before  their  arrival  police  had  been

informed that the accused was asleep and on their arrival they found him still asleep. He submits there was no suggestion that he was in possession of more than one weapon and the pocket knife or multi-tool was immediately handed over with an apology without a request from any officer.

[6]      I am satisfied that the force used was no more than was reasonably necessary in the circumstances.  The officers had to be able to ensure that the accused was not armed after he had handed over the knife.   Both Basher and Matheson said in evidence that they had concerns for the safety of themselves, the other occupant of the house, and the accused.   I consider that, in the circumstances, those concerns were justified until the possibility that the accused had some other weapon on his person  was  eliminated.    The  limited  force  used,  in  ensuring  that  the  accused complied with the request to stand by the wall and in searching him, was reasonably necessary for this purpose.

[7]      Mr Blathwayt  submits  that  in  relation  to  anticipated  suicide  and  other potential offences s 41 may be confined to cases where there is a reasonably close contemporal connection between the force and the act to be prevented so that it will not authorise a pre-emptive strike to prevent what may or may not occur at some indefinite future time.   I consider that there was a reasonably close contemporal connection between the force and the act to be prevented.  Police were responding to a call out for an attempted suicide.  The accused had handed over the knife, but it was reasonable for the officers to take the view that that did not of itself eliminate the risk of self harm, or of harm to themselves.   Their duties as law enforcement officers required them to ensure that any remaining risk of attempted suicide was minimised.     Conducting  a  search  of  the  accused’s  person  was  a  reasonable imposition of force on him for that purpose.  That could not be properly viewed as a pre-emptive strike to prevent what may or may not occur at some indefinite future time.  It was a reasonable measure to ensure that a present danger was removed.

[8]      A good deal was made in the course of the hearing of the circumstances of the deployment of the taser.   Matheson was closely and carefully cross-examined about that.   I do not consider the deployment of a taser in these circumstances involved the application of unreasonable force.  It was justified by s 41.  But in any

event I do not consider that there is any causal connection between the deployment of the taser and the discovery of the cannabis.  The evidence does not indicate to me that the accused’s compliance with the request to place himself in a position where he could be searched was obtained as a consequence of the deployment of the taser. The accused was cooperative.  I find that Matheson’s deployment of the taser was precautionary, and not for the purpose of obtaining compliance with the request that he place himself in a position where he could be searched.

[9]      For these reasons, I find that the search in which the cannabis was located was a lawful search.  That evidence is accordingly admissible.  The finding of that item gave reasonable ground for believing there may be drugs, under s 18 of the Misuse of Drugs Act, so that all evidence obtained in the subsequent search is also admissible.

[10]     That  conclusion  makes  it  unnecessary  for  me  to  consider  the  balancing exercise in s 30.  Had it been necessary for me to do so, I would have held, applying the balancing process in s 30, that the evidence should not be excluded.  The right to be free from unlawful search is an important right.  But in this case the intrusion into that right (if it was such because s 41 did not apply) was at the lower end of the scale.  There is a distinction to be drawn between a pat down search, which this was, and a strip search.   As to the nature of the impropriety, this was not deliberate, reckless, or done in bad faith.  I accept the evidence of the officers that they were acting in accordance with what they believed to be their duty.  There is no evidence that this search was undertaken for some collateral purpose.  Its purpose was related directly to the incident which the officers were attending.  The evidence obtained is real evidence, which is not susceptible to being unreliable as a result of the circumstances of its being obtained.   The offences charged are serious.   The possibility of other investigatory techniques is not relevant since the officers were not, at that stage,  conducting an investigation  into this offending.   There is no alternative remedy.   The measures were necessary to avoid apprehended physical danger to police or the accused.  No issue as to urgency in obtaining the evidence arises.

[11]     For these reasons, I rule that the evidence is admissible.

“A D MacKenzie J”

Solicitors:           Luke Cunningham & Clere for the Crown

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