R v S HC Wellington CRI 2007-085-3748

[2008] NZHC 586

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-085-3748

THE QUEEN

v

S

Hearing:         1 April 2008

Counsel:         T K Gilbert for Crown

M Lillico Stevenson for accused

Judgment:      24 April 2008 at 3.45pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.45pm on the 24th day of April 2008.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The accused faces one count of possession of methamphetamine for supply and one count of possession of cannabis. The evidence in support of those charges is largely derived from a search of the accused’s vehicle and of the accused on 23 May

2007.  Those searches were conducted in reliance of s 18(2) and (3) of the Misuse of Drugs Act 1975.  The accused challenges the admissibility of that evidence, and the Crown has sought a ruling under s 344A of the Crimes Act 1961.  The essential issue is whether the searching officer had “reasonable grounds for believing” that there

might be a controlled drug in the vehicle or on the accused’s person.

R V S HC WN CRI 2007-085-3748  24 April 2008

[2]      I heard evidence from both the officers involved, Detective Sergeant Fabish and Detective Fantham, and Mr S  .   Detective Sergeant Fabish was, in the course of his duties, investigating the activities of a Mr Les Aldridge, whom he suspected to be responsible for supplying large quantities of methamphetamine.  His inquiries indicated to him that Mr Aldridge was regularly flying between Auckland and  Wellington.    He  became  aware  that  Mr Aldridge  had  left  Wellington  for Auckland on the evening of 22 May, but that he did not have a return booking.  On

23 May he assigned Detective Fantham and another officer to observe all flights arriving in Wellington from Auckland.  He received information that a man had paid in cash at the Wellington domestic terminal for a ticket for Mr Aldridge on a flight from Auckland to Wellington later that afternoon.   When Mr Aldridge arrived off that flight, Detective Sergeant Fabish arrested him for possession of methamphetamine and  searched  him.    While  that  was  being  done,  Mr Aldridge received   a   text   message   on   his   cellular   phone,   as   a   result   of   which Detective Sergeant Fabish went to the departure drop off area, adjacent to the car park, where he encountered the accused.  He asked the accused if he was waiting for Les, to which the accused said yes.  Detective Sergeant Fabish considered that the accused fitted the description which he had been given of the person who had earlier paid for Mr Aldridge’s flight from Auckland.   He identified himself as a police officer and explained that they were dealing with Mr Aldridge for methamphetamine offences.  He obtained the accused’s details.  He asked the accused whether he had paid for Mr Aldridge’s plane ticket, to which the accused replied that he had.   He asked the accused if there were any drugs in the car, to which the accused replied no. He said that the accused was visibly nervous, that he was shaking, his voice sounded nervous, and he looked obviously worried and upset.  He formed the opinion from the accused’s appearance that he was most likely a P addict.   Detective Sergeant Fabish’s evidence was that the accused reached down where the detective’s feet were, grabbed a black bag like a satchel and tossed it into the back seat.  The bag looked to Detective Sergeant Fabish to be a type which he had regularly found used by dealers in controlled drugs.  Detective Fantham then arrived and was introduced to the accused.  Detective Sergeant Fabish advised the accused that he was invoking s 18(2) and 18(3) of the Misuse of Drugs Act 1975 and Detective Fantham cautioned the accused.  The car was driven a short distance to the airport police base where it was searched.   Among the items located, in the search of the vehicle and in the

associated search of the accused, was a total of 20 grams of methamphetamine and

22.4 grams of cannabis plant material.

[3]      There is some difference in the evidence between Detective Sergeant Fabish and the accused over precisely what occurred in the course of the initial exchange between the two, leading up to the invocation of the s 18 powers, particularly with relation to the bag.  Mr S   said that the bag was sitting on the passenger’s seat. Detective Sergeant Fabish was half sitting on the bag and in the course of conversation  he  said  to  him  “let  me  get  that  from  under  you  it  must  be uncomfortable”  and  then  took  the  bag  and  placed  it  in  the  back.     In  cross examination Detective Sergeant Fabish had said that the black satchel was in the foot well near his feet, that he was partly sitting in the car and he was not sitting on the bag nor were his feet on the bag.   He denied that Mr S   had said the words which Mr S   said were spoken by him about moving the bag.  Mr S   also denied acting in a nervous way at that stage.  He said that he became short of breath and found it hard to breath at a later stage, when he was being interviewed in the airport police base and was advised of what had been found in the bag.

[4]      The  first  question  which  I  must  answer  is  whether  these  searches  of Mr S  ’s vehicle and of his person were lawful.  If they were, then any evidence obtained as a result of those searches is admissible.  The issue is whether, objectively viewed, the police had reasonably grounds to believe that there may have been drugs present in the defendant’s vehicle or on his person.  Counsel for the Crown submits that those reasonable grounds were:

(a)      Police   were   aware   from   checks   with   Air   New   Zealand   that Mr Aldridge often flew from Auckland to Wellington and back, that he paid in cash at short notice, and that he  was generally out of Wellington for no more than 24 hours.  This led them to believe that he was travelling to Auckland to collect drugs;

(b)Police  found  methamphetamine  in  the  possession  of  Mr Aldridge when he arrived from Auckland;

(c)      A person matching the accused’s description had paid cash at short notice for Mr Aldridge’s return flight to Auckland;

(d)A person had texted Mr Aldridge to say that person was waiting for Mr Aldridge  in  the  part  of  the  car  park  where  the  accused  was waiting;

(e)      The accused admitted that he was waiting for Mr Aldridge and that he had paid for Mr Aldridge’s plane ticket;

(f)      The accused appeared nervous in police presence and threw a bag from the front seat of the car into the back seat.

[5]      Mr Lillico for the accused submits that there were not reasonable grounds for belief, for the following reasons:

(a)      There was an innocent reason for Mr S   to remove the bag to the back seat which would have been apparent to Detective Fabish at the time.

(b)Even viewed in the most cynical way, the removal of the bag to the back seat was only suspicious

(c)      It was Detective Fantham who brought the bag to Detective Fabish’s attention.   This would not have been necessary if Detective Fabish already believed it to contain drugs.

(d)      Mr S   came to police attention that day in an incidental way.

Mr Aldridge was the target of the police’s activities.  The police knew about Mr Aldridge and had informant information suggesting that he was dealing drugs and travelling regularly between Wellington and Auckland to do so.  No such information was held about Mr S  .

[6]      I  hold  that  there  were  reasonable  grounds  for  believing  that  there  were controlled drugs in the vehicle or on the accused’s person.  The combination of

circumstances to which Counsel for the Crown refers provided an ample basis for that belief.  There were grounds for believing that the accused was associated with Mr Aldridge and that he had paid for the plane ticket and that he was waiting to meet Mr Aldridge.   Detective Sergeant Fabish’s evidence was that Mr S   appeared nervous  when  he  approached  him.    Mr S    denies  that.    I  prefer  Detective Sergeant Fabish’s evidence on that point.  Mr S   acknowledges that he showed signs of distress, a difficulty in breathing, at a later stage.  I consider it most unlikely that he had maintained his composure to the extent that he asserts when he was first confronted.   Similarly, I prefer Detective Sergeant Fabish’s evidence concerning Mr S  ’s actions in moving the bag.  Mr Lillico placed considerable reliance, in challenging Detective Sergeant Fabish’s account, on the terms of his report under s 18(6).  On the basis of his evidence before me, which gave a much fuller account of events, I am satisfied that Detective Sergeant Fabish had reasonable grounds to form the belief, and did in fact form the belief, that the accused was likely to have drugs in his vehicle or on his person.

[7]      In the circumstances, and with the existence of reasonable grounds for that belief, the invocation of the powers in subs 2 was available.   The s 18(2) power should not generally be invoked where it is practical to apply for a search warrant. That was not a practical alternative in this case.  Not undertaking the search at that time  could  have  allowed  Mr S    time  to  destroy  the  drugs,  as  Mr Lillico acknowledges.  For these reasons, I hold that the evidence was lawfully obtained in that the powers in s 18 were able to be invoked, and the invocation of them in the circumstances was reasonable.

[8]      That finding makes it unnecessary for me to deal with the submissions as to whether  the  evidence,  if  unlawfully  obtained,  might  be  admissible  under  the balancing exercise described in s 30(2)(b) of the Evidence Act 2006.

[9]      I rule that the evidence obtained as a result of the searches of the accused and is vehicle is admissible at trial.

“A D MacKenzie J”

Solicitors:           Luke Cunningham & Clere, Wellington

Ord Lillico, Wellington