R v Sua CA365/05

[2005] NZCA 393

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA365/05

CA366/05

THE QUEEN

v

PALEPOI SUA

BRIAN JOHNSON MANKELOW

Hearing:         22 November 2005

Court:            Hammond, Williams and Gendall JJ Counsel:  M D Downs for Crown

N L Faigan for Appellant Sua
N C Wintour for Appellant Mankelow

Judgment:      22 November 2005

Reasons:        9 December 2005

REASONS FOR JUDGMENT OF THE COURT

A        The appeal was allowed and the evidence ruled inadmissible in the High

Court was ruled admissible.

R V SUA AND ANOR CA CA365/05  22 November 2005

BOrder prohibiting publication of the judgment and any part of the proceedings in news media or on Internet or other publicly accessible database until final disposition of trial. Publication in Law Report or

Law Digest permitted.

REASONS

(Given by Williams J)

Introduction

[1]      On 18 November 2004 at about 1515 hours a Police party searched a garage at 2 Helga Crescent, Te Atatu, Auckland.   The search was carried out without warrant under s 18(2) of the Misuse of Drugs Act 1975.  The two respondents to this appeal, Messrs Sua and Mankelow, were in the garage together with a Mr Gilpin who lived at the address.  A fully operable clandestine methamphetamine laboratory was discovered in the garage together with about 25 grams of the drug and about

$18,000 in cash.

[2]      As a result of the search, Messrs Sua, Mankelow and Gilpin were charged with manufacturing methamphetamine, possession of equipment and chemicals to manufacture the drug and possessing methamphetamine.  Mr Sua was also charged with possession of Lysergide following a personal search.

[3]      Mr Gilpin pleaded guilty to the manufacturing count and the Crown offered no evidence on the balance of the charges against him.

[4]      Messrs Sue and Mankelow challenged the admissibility against them of the evidence discovered on the search of the garage on a Crown application brought under the Crimes Act 1961 s 344A.

[5]      In  a  reserved  judgment  delivered  on  20  September  2005  Ellen  France  J

dismissed the Crown’s application.

[6]      The Solicitor-General has appealed that decision to this Court.

[7]      Between the hearings in the High Court and before us, the Crown changed its stance on the application and challenged the standing of Messrs Sua and Mankelow to contest admissibility of the evidence.  This was not a point to which counsel or the Judge had referred in the High Court.  It was, however, unanswerable.  As a result – and because the respondents’ trial was imminent – we allowed the appeal at the hearing on 22 November 2005 and advised counsel the reasons would be delivered later.  These are those reasons.

Facts

[8]      In the early afternoon of 18 November 2004 Constable Fillery was in a police car returning to the Henderson Police Station with a woman who had just been arrested, along with a number of others, on charges under the Misuse of Drugs Act

1975 following termination of a separate Police operation in Te Atatu.  During the journey,  the  woman  told  Constable  Fillery  that  methamphetamine  was  at  that moment being manufactured by Mr Gilpin at 2 Helga Crescent and that he had commenced the operation about 10:00am that morning.  She also told the constable there had been a chemical spill at the address the previous evening and women and children lived there.

[9]      Constable Fillery commenced a formal interview with the woman at 1314 hours.  It lasted about an hour.  At about 1430 hours he passed the information given him by the informant to Senior Sergeant Turley, a long-serving police officer with considerable experience in drug matters.  When approached by Constable Fillery, he was busy winding-up the other Police operation.   By chance, he had with him an inspector who was not only operations manager for West Auckland Police but was also a senior police legal adviser.

[10]     The Senior Sergeant knew Mr Gilpin from previous police operations as a methamphetamine “cook”.  By the time he received the information, Senior Sergeant Turley knew that, if it was accurate, the manufacturing process was likely to be nearing completion and that, once completed, any methamphetamine manufactured

would be rapidly removed from Helga Crescent and distributed for sale, and the persons involved in the manufacturing process would be likely to divide up the equipment so as to decrease the chance of its seizure or their being prosecuted. Because there were women and children at the address the Senior Sergeant was concerned about the possibility of a further explosion or spill, knowing the address was a wooden bungalow.   The Senior Sergeant spoke to the informant, whom he knew.  She repeated what she had told Constable Fillery.

[11]     This placed the Senior Sergeant in a quandary.   He said he suspected the “drug grapevine was ringing hot” because of the termination of the other operation earlier that day.   If Police delayed searching 2 Helga Crescent, it was likely the methamphetamine and manufacturing equipment would have disappeared.  Against that, it would have taken him at least an hour, probably up to an hour-and-a-half, to have a search warrant application prepared and the warrant issued, particularly when, in operations such as these, Police were only prepared to approach certain court staff or Justices of the Peace as issuing officers.  The alternative was to search 2 Helga Crescent without warrant on the grounds that he had “reasonable ground for believing” under s 18(2) that methamphetamine and equipment for its manufacture were at the property.

[12]     After conferring with the Police legal adviser, he decided to adopt the latter course.  He took the view he had no time to involve the Special Tactics Group of the Armed Offenders’ Squad which,  as a matter of policy, is normally involved  in securing  methamphetamine  laboratories.    He  rapidly  assembled  a  Police  party, calling some officers back to the station in order so to do, briefed them very quickly, issued them with necessary equipment and then proceeded in a convoy of Police cars the 8-9 kilometres to 2 Helga Crescent.   The convoy complied with all traffic regulations  and  did  not  operate  its  flashing  lights  or  sirens  so  as  to  draw  less attention to itself.   Twenty-six minutes elapsed between Senior Sergeant Turley receiving the information and the party leaving the Henderson Police station.   It arrived at 2 Helga Crescent at about 1515 hours with the results earlier mentioned.

[13]     In evidence on the s 344A application, Senior Sergeant Turley accepted that he had enough information to obtain a valid search warrant immediately after the

informant’s confirmation but refuted the suggestion that he might have sent one or more police officers to 2 Helga Crescent to stand guard whilst the warrant was obtained.  Such officers, he said, would have been seen by the countersurveillance cameras  located  just  outside  which  would  have  alerted  the  occupants  to  Police interest in the property.

[14]     Both respondents claimed to have been at Helga Crescent by chance.  Mr Sua said he called in to visit a mate and to wait until traffic died down.  Mr Mankelow said he has known Mr Gilpin since they were at school, his partner is Mr Gilpin’s cousin and they had visited Helga Crescent with their children on perhaps a couple of occasions over the fortnight or so Mr Gilpin had been a tenant.  Both claimed to be unaware of the manufacturing operation until they entered the garage.

Judgment under appeal

[15]     As noted, the respondents’ standing was never raised in the High Court.  As a consequence, the judgment under appeal nowhere discussed the main issue raised before us.  The facts were reviewed and there was a discussion as to whether it was unreasonable for the Police to invoke s 18(2) for what was argued to be a serious and deliberate breach of privacy with other options available.  The Judge appropriately discussed the authorities as to when Police can avail themselves of s 18(2) and concluded  there  was  sufficient  opportunity to  get  a  warrant  between  the  Police receipt of the information at 1314 hours and the search at 1515 hours.  She therefore concluded the search was unlawful and unreasonable, conducted the required balancing process under R v Shaheed [2002] 3 NZLR 377 and said at [32]:

In my assessment, to admit the evidence in this case would be to inappropriately minimise the important safeguards given by the search warrant process.   The protection that process affords to one of society’s important values should not be disregarded, albeit that the Police genuinely considered they had reason to do so.  If the focus of the balancing exercise was solely on the actions and bona fides of the Police, the evidence here would be admitted.  However, that is not the focus, it is but one factor.  In this case it does not lead me away from the view that the correct course is to exclude the evidence which was obtained through a search  of a  private dwelling that was not authorised in advance by a judicial officer when such authorisation could and should have been obtained.

Submissions

[16]     For the Crown, Mr Downs submitted the rights protected by New Zealand Bill  of  Rights  Act  1990  (BORA)  are  well  established  as  being personal  to  the individual and the s 21 right to be free of unreasonable search and seizure affords standing only to those with a reasonable expectation of privacy vis-à-vis the property or premises in issue.  Neither respondent was living at Helga Crescent.  Both denied any particular connection with it.   Neither could assert any licence or claim any interest in it.

[17]     Even if the appeal were advanced on the basis argued in the High Court, Mr Downs submitted the Police faced exigent circumstances and acted reasonably. He went so far as to submit that it was difficult to imagine a more clear-cut case justifying reliance on s 18(2).

[18]     For Mr Sua, Mr Faigan suggested the standing point was without merit since s 21 vouchsafed rights not dependent on ownership or residence.   He pointed to Mr Sua being searched personally.  Whilst that may be correct, as was pointed out during the hearing, the personal searches of the respondents were not in issue before the Judge or before us.

[19]     For Mr Mankelow, Mr Wintour drew attention to the respondents’ reasons for  being  at   2   Helga  Crescent   and   submitted   that   in   those  circumstances Mr Mankelow had a reasonable expectation of privacy as being present for lawful purposes with a licence, express or implied, from Mr Gilpin.  He submitted a visitor to the residence of a family member would have a reasonable expectation of privacy at that property and some degree of control over it.  With respect to counsel, those submissions merely need stating to demonstrate their insubstantiality on the standing issue.

Discussion

[20]     Once the issue of standing was raised, it was clear neither Messrs Sua nor Mankelow could have any legitimate expectation of privacy such as to enable them to invoke s 21 of BORA.

[21]     The lack of attention to the question of the required standing for a person to claim the protection of s 21 is perhaps somewhat surprising – but the necessity for standing is well established by the authorities.

[22]     In R v Savelio CA234/96 5 August 2005 the principal offender committed aggravated robbery and left the scene in a vehicle driven by another man.  The Police received information concerning Mr Savelio’s alleged involvement in the robbery and, later on the day of the incident, obtained a search warrant to search his father’s address.  Incriminating evidence was discovered.  While the search was in progress, Mr Savelio telephoned his father’s address saying he was driving towards it.  He and others who became his co-offenders were stopped by Police on the way to the address about 15 minutes later.

[23]     Mr Savelio spoke to a police officer “off the record”.  He then agreed to give a statement which was exculpatory.  He and his co-offenders then spoke in private following which Mr Savelio and one of his co-offenders made an inculpatory statement.  The following morning, after taking legal advice, Mr Savelio made a full statement of his involvement in the robbery.

[24]     Mr  Savelio  defended  the  charge  claiming  his  exculpatory  statement  was correct and he made the inculpatory statement under pressure from his co-accused. He challenged the admissibility of the statements.  Prior to the trial at which he was convicted both statements were ruled admissible.

[25]     One of the grounds argued at the re-hearing – a point never previously raised

– was whether the search warrant should have been issued. The supporting affidavit was held insufficient. That led this Court to consider consequential questions such as reasonableness of the search and whether the evidence found was inadmissible. A preliminary to consideration of those questions was “whether the appellant could be heard to impugn the search of his father’s premises”: at [38]. The evidence was that the appellant had a licence to use his father’s garage to “bunk up” but this Court held that he had no “personal authority given to anyone, whether his father, other members of his family, any invitee of his father or indeed any other person from entering the garage”: at [46]. That led to the conclusion that he had “no relevant

privacy rights which would be breached by a search of the garage” and accordingly he had no relevant remedy under s 21.

[26]     That view was based on consideration of the following authority:

[39]      In R v Bruhns (1994) 11 CRNZ 656 the accused complained about an alleged breach of the BORA rights of a witness who, having been intercepted by the Police on leaving a tinnie house, went with the Police into the house and identified the accused as the seller of the drug.   This Court held that the accused could not seek a remedy for himself in respect of an alleged breach of another person’s rights.

[40]      Bruhns was cited and followed in a very similar case, R v Wilson

[1004] 3 NZLR 257 where Cooke P said at 259:

Mr Harrison has argued that the purpose of the Bill of Rights Act is to give rights to all, and to ensure so far as can be done that in their conduct of investigations the police act in accordance with those generally available rights.   But we think that that is a somewhat loose way of describing the purpose or effect of the Bill of Rights. The rights affirmed therein are those of the persons to whom they are granted.  It is not any part of the scheme of the Bill of Rights Act that a person whose rights have been in no way infringed should be able to capitalise on any infringement of someone else’s rights.

There is no need or justification for taking the implications of the Bill of Rights so far, for, if there were anything in a particular case which  persuaded  the  Court  that  to  admit  evidence  against  a particular defendant was unfair to the extent that it should be excluded, that jurisdiction is always available.   In exercising that jurisdiction it could be material to consider whether a third party’s rights under the Bill of Rights had been infringed.

[41]     This Court noted in R v Holford [2001] 1 NZLR 385 at [16]:

It is now well established by decisions of this Court that the rights guaranteed under the  New  Zealand  Bill  of Rights  Act  1990  are essentially personal and that their vindication through exclusion of evidence cannot usually be claimed by a person to whom they are not due.   R v Bruhns (1994) 11 CRNZ 656;   R v Wilson [1994]

3 NZLR 257.

(See also R v Fountain et al CA176-179/05 10 August 2005 at [23]).

[27]     In Savelio the judgment then proceeded to consider the position when an accused has some licence to use the property searched and when their personal rights may be breached in those  circumstances.   That consideration, with reference to Canadian authority on the topic, contributed to the conclusion earlier mentioned but, since neither present respondent could possibly claim to have had a licence to use the

Helga Crescent garage, and certainly no licence to use the property for methamphetamine manufacture, we need not consider the issue.   We do note, however, that the Court in Savelio would have held the evidence discovered on the search admissible against Mr Savelio even had he had standing.  Given the present respondents’ lack of connection to 2 Helga Crescent we would, with respect to the Judge, have reached a similar conclusion in this case.

[28]     For the sake of completeness, we should add that, again with respect to her, we would have reached a different conclusion from Ellen France J had the matter been argued before us on the same basis as before her.  Factors contributing to that view include that the evidence showed Constable Fillery was not an officer who, in the circumstances, could have been expected to apply for a search warrant on his own.   Once Senior Sergeant Turley was apprised of the information, he made a reasoned  decision  in  exigent  circumstances  to  search  Helga  Crescent  without warrant.  Deciding to search the premises without warrant and effecting that search a little over half an hour later with the discovery of a methamphetamine manufacturing laboratory and substantial amounts of the drug and cash was reasonable when balanced against a delay of 1-1½ hours to obtain a search warrant and then execute it, probably after the drugs, money and equipment had left the premises.  There is the further point that search of a garage is not generally to be equated in seriousness with search of a private dwelling or an occupied vehicle.

[29]     For   those   reasons,   our   view   would   have   been   that   the   relevant commencement point for considering whether it was appropriate for Senior Sergeant Turley to invoke s 18(2) was 1430 hours when Constable Fillery passed on the information, that it was reasonable for Senior Sergeant to invoke s 18(2) in the circumstances then obtaining,  and  accordingly the  warrantless  search  under  that section  was  lawful.    For  the  reasons  mentioned,  we  would  also  have  held  the evidence  obtained  in  the  search  admissible  on  a  balancing  exercise  under  R  v Shaheed [2002] 3 NZLR 377.

Result

[30]     As  earlier  mentioned,  the  appeal  was  allowed  and  the  evidence  ruled admissible in our oral judgment delivered on 22 November 2005.  That conclusion was reached for the reasons set out herein and on both the bases argued before us.

Solicitors:

Crown Law Office, Wellington

Nigel L Faigan, Auckland for Respondent Sua