R v Schubert

[2007] NZCA 59

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN NEWS MEDIA OR ON 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

CA485/06 [2007] NZCA 59

THE QUEEN

v

KARL ALTON SCHUBERT

Hearing:         19 February 2007

Court:            O’Regan, Chisholm and Rodney Hansen JJ Counsel:   D J Blaikie for Appellant

E M Thomas for Crown

Judgment:      9 March 2007         at 12 noon

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe evidence of the finding of a firearm as a result of the search of the car which was associated with the appellant is not admissible at his trial.

COrder prohibiting  publication  of  the judgment in  news  media  or  on internet or other publicly accessible database until final disposition of

trial.  Publication in Law Report or Law Digest permitted.

R V KARL ALTON SCHUBERT CA CA485/06  9 March 2007

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]      Mr Schubert faces trial for aggravated burglary and possession of a firearm without lawful proper and sufficient purpose.   An important item of evidence in relation to both counts is evidence of a search of a vehicle driven by Mr Schubert, in which police found a military style semi-automatic rifle.

[2]      Mr Schubert’s counsel indicated to the Crown that there would be a challenge to the admissibility of the evidence of the search, and the fruits of the search.  The Crown therefore applied under s 344A of the Crimes Act 1961 for an order that the evidence obtained from the search be admissible at Mr Schubert’s trial.  In a decision dated 13 December 2006, Judge D J McDonald granted the Crown’s application and ruled that the evidence of the finding of the firearm was admissible.

[3]      Mr Schubert now appeals against the decision of Judge McDonald.   The appeal raises the following issues:

(a)       Was the search lawful?

(b)       Was the search reasonable?

(c)       Should the evidence be admitted under the Shaheed balancing test?

Was the search lawful?

[4]      The assessment of the lawfulness of the search requires some discussion of the circumstances which led to the police conducting a search of the vehicle which had been driven by Mr Schubert.

[5]      The Kerikeri police had been told of an armed man prowling at an address at Kerikeri in the early hours of the morning.   An experienced police sergeant was dispatched to the scene.

[6]      When the sergeant arrived at the scene, he saw a car parked about 100 metres from the scene.  He had been told the suspected offender was from Hamilton, had convictions for violence and was possibly associated with a gang.  The sergeant took a firearm with him to the scene.  A constable from Kaikohe was sent to assist.  The sergeant obtained a check on the vehicle’s registration.  The registration number of the car corresponded with a black Subaru whose owner was from Hamilton, and was not Mr Schubert.  The car which the sergeant observed was a white Subaru.   The sergeant suspected that the car may have been stolen.

[7]      The sergeant thought the car could be associated with the armed man.   He waited for the arrival of his colleague from Kaikohe, and when the colleague arrived the two of them returned to the white Subaru and inspected it.  The sergeant said he noticed that the lock on one of the doors appeared to have been tampered with.  The other doors were unlocked.  There was no-one in the car and nothing about the car seemed unusual.  The officers noticed that the car did not have any dew on it (unlike the police cars) and the bonnet appeared warm, indicating that the car had been driven recently.

[8]      The two officers then searched the car.  In the boot, they found the firearm inside a box marked “car jack”.

[9]      In evidence, the sergeant accepted that he did not turn his mind to what power he had to search the car.  He said he was surprised when he found the firearm. He accepted that he would not have had sufficient evidence to obtain a warrant to

undertake a search of the car.  He said the reason for the search was to assist him to determine if the car was linked to the armed man said to be in the area.

[10]     In light of the sergeant’s commendably candid answers in evidence in the District Court, it was inevitable that the District Court Judge would find that the search was unlawful.  He did so.  The Crown responsibly does not now contest that finding in this Court.  We confirm that we agree with it.  The search was made in circumstances where there was no lawful authority to undertake it.

Was the search unreasonable?

[11]     Judge McDonald found that the search was not unreasonable, and therefore not in breach of s 21 of the New Zealand Bill of Rights Act 1990.  He balanced the factors weighing against the reasonableness of the search and those weighing for its reasonableness.  The factors against the reasonableness of the search were identified as the illegality of the search, the fact that the police officers did not seek to find out more about the situation involving the armed man before proceeding with the search and the importance of the right to privacy, though the privacy expectation in relation to a motor vehicle was, he found, not as great as that in relation to a home.

[12]     The factors which weighed for the reasonableness of the search were the fact that the vehicle was unoccupied and unlocked and situated on a public street.  The search was conducted quickly.   Most importantly, the police officers were in  a situation of urgency.   It was the middle of the night, the nearest armed offenders squad was an hour and a half away and it was a potentially dangerous situation.  The officers had some grounds for suspicion of an association between the vehicle and the armed person.  The officers carried out the search in a balanced way and not with a deliberate or reckless disregard for the privacy rights of the appellant.  They were not grossly careless.

[13]     On behalf of the Crown Mr Thomas supported the Judge’s approach.  For the appellant, Mr Blaikie urged us to follow the approach adopted in R v Maihi (2002)

19 CRNZ 453.  In that case at [31], this Court said that the unlawfulness of a search invited  the  conclusion  that  it  was  also  unreasonable,  unless  there  was  some

countervailing factor or combination of factors allowing the Court to say that, although the search was unlawful, it was not appropriate to characterise it as unreasonable.   In the present case the urgency and potential danger were factors which the District Court Judge found as weighing for the reasonableness of the search,  but  we  do  not  believe  that  they  would  meet  the  Maihi  test  of  being sufficiently cogent to displace the presumption that an unlawful search is also unreasonable.

[14]     In any event, this Court has, since the date of hearing this matter, released its judgment in R v Williams [2007] NZCA 52, which upholds and extends the Maihi approach.  For present purposes, it is significant that the Court in Williams found that the existence of an emergency or urgency was insufficient to render reasonable an unlawful search: Williams at [20]. Thus, even if we accepted the District Court Judge’s analysis, that would be an insufficient basis for a finding of reasonableness in the circumstances of this case, on the Williams approach.

[15]     We conclude, applying Maihi, that the search in this case was unreasonable. That conclusion is consistent with Williams.

Should the evidence nevertheless be admissible under the Shaheed balancing test?

[16]     We now turn to the Shaheed balancing exercise.   In light of the approach adopted in Maihi, as affirmed and amended in Williams, a number of the factors which previously came into play in assessing whether a search was unreasonable are now considered in the context of the Shaheed balancing exercise.

Seriousness of breach

[17]     The starting point is the seriousness of the breach of the Bill of Rights.  We assess that aspect under three headings: the extent of the illegality of the search, the nature of the privacy interest and factors reducing or increasing the seriousness of the breach.

[18]     In the present case the search was undertaken with no lawful basis by an experienced police officer who acknowledged that he was aware that there was no lawful basis for the search.  The sergeant acknowledged that he was surprised when the weapon was found, which indicates that there was no suspicion that the vehicle actually contained the weapon.   There did not seem to be any real investigatory objective in making the search and, even if there had been, it was made in circumstances where it was not only unlawful but known to be unlawful.

Nature of privacy interest

[19]     As Judge McDonald found in his judgment, the nature of a privacy interest in a motor vehicle is of a lesser significance than that in relation to a home.  In this case there was an unlocked motor vehicle on a public road.  The appellant was not the owner of the vehicle, though it does not appear to be disputed that he was lawfully entitled to possess and use it at the relevant time.

[20]     As noted in Maihi at [34], citizens have less expectation of privacy when driving a motor vehicle on a public road than when they are inside their homes, but nonetheless the invasion of the privacy of a motor vehicle is “by no means…trivial”.

Factors reducing or increasing the seriousness of the breach

[21]     We now consider factors which reduce or increase the seriousness of the breach.  Mr Blaikie urged us to emphasise the fact that the search was undertaken by the officer in circumstances where he knew it was unlawful, but proceeded anyway. We  accept  that  that  is  so,  but  we  do  not  lose  sight  of  the  rather  extreme circumstances under which the two officers were operating at the time.  We accept, as the District Court Judge accepted, that the situation was fraught, given the possibility of the presence of an armed man in the area in the early hours of the morning in a remote location where reinforcements (particularly the armed offenders squad) were not able to be called upon quickly.

[22]     We conclude the breach was serious in this case because it had no lawful basis and the officers involved appeared to be aware that was so.  The gravity of the breach is tempered by the subject of the search being a motor vehicle, not a home, but as noted in Maihi the privacy interest is still significant.  We do not minimise the urgency of the situation, but urgency does not give rise to a power of search when Parliament has not created one.

Public interest factors

[23]     We now turn to the public interest factors pointing towards admission of the evidence.  These are the seriousness of the offence and the nature and quality of the evidence.

Seriousness of the offence

[24]     The allegation against the appellant is serious.  Aggravated burglary carries a maximum term of 14 years imprisonment.  If convicted it could be expected that the appellant would be subject to a sentence which has a starting point of two or three years imprisonment.  Not only is the charge of aggravated burglary serious in itself, but the fact that the appellant was in possession of a deadly firearm at the time, given the background to the offending, was a matter of serious concern.  That background was that the occupants of the house at Kerikeri had fled to Kerikeri from Hamilton, because of threats that had been made against them by the appellant.  The appellant’s presence in Kerikeri with a firearm was, therefore, particularly sinister.

Nature and quality of evidence

[25]     The evidence of the finding of the firearm is essentially the only evidence on the possession of a firearm count, and is very important evidence on the aggravated burglary count.   While there is some evidence of an eye witness who saw what looked like a gun, it may be that the inadmissibility of the evidence of the finding of

the firearm would make it very difficult for the Crown to prove the aggravating element of the burglary.

Is exclusion in proportion to the breach?

[26]     We  now  turn  to  the  assessment  of  all  of  the  above  factors,  in  order  to determine whether the evidence should be admitted in this case, notwithstanding the unlawful and unreasonable nature of the search.  We take as the starting point the serious breach of rights by the police in this case, given that the search was undertaken in circumstances where the officer knew that there was no power to search the vehicle, but proceeded to do so anyway.  While we sympathise with the position the officers were in, facing the danger of an armed man on the loose in the early hours of the morning at a remote location, that does not lead us to conclude that the Crown should be permitted to adduce evidence obtained from a search known to be unlawful at the time it was undertaken.

[27]     We see this case as pointing more strongly against admission of the evidence than Maihi, where the evidence was excluded.   In that case the breach was less serious than in the present case, though there was no emergency factor in that case. In our view the balancing exercise in this case comes down in favour of excluding the evidence, notwithstanding the serious nature of the offending and the importance of the evidence to the Crown case.

Result

[28]     We therefore allow the appeal.  The evidence of the finding of the firearm in the motor vehicle as a result of the police search is inadmissible at trial.

Solicitors:

Crown Law Office, Wellington