R v Towler HC Auckland CRI 2007-090-4763

[2008] NZHC 2302

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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 HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-090-4763

THE QUEEN

v

LYNNE EILEEN TOWLER

Accused

Hearing:         1 May 2008

Appearances: J Shaw for Crown

A Speed for Accused

Judgment:      2 May 2008 at 5:15 p.m.

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 2 May 2008 at 5:15 p.m.. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr J Shaw, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr A Speed, Barrister, Auckland

R V TOWLER HC AK CRI 2007-090-4763  2 May 2008

[1]      Ms Towler faces charges of possession of methamphetamine for supply, possession  of  cannabis  for  supply  and  unauthorised  possession  of  a  restricted weapon  (a  stun  gun).    Ms  Towler  challenges  the  admissibility of  much  of  the evidence relied on by the Crown on the grounds that the evidence was obtained following her arrest, the arrest was unlawful, and the evidence would not have been obtained but for the unlawful arrest.

[2]      The principal issues for determination are:

a)        Was there a proper exercise of a Constable’s discretion under s 315(2)

of the Crimes Act 1961 to arrest without warrant?

b)If  the  evidence  was  improperly  obtained  because  the  arrest  was unlawful, would the exclusion of the evidence be proportionate to the impropriety in terms of s 30 of the Evidence Act 2006.

[3]      The  issues  can  in  large  measure  be  determined  by  application  of  well established legal principles to facts which were not, on this application, in dispute to any extent.   The evidence from which the facts are drawn, as set out in the next section, comes from the brief of evidence of a police officer, Constable Gale, and oral evidence from Constable Gale given before me.   Mr Speed, on behalf of Ms Towler, advised that Constable Gale’s brief of evidence could be taken as read.

Facts

[4]      On 23 May 2007 Constable Gale  was driving a police patrol car  in  the Sunnyvale  area  of  Auckland.     He  was  accompanied  by  Constable  Rodokal. Constable Gale saw a Nissan car parked in the driveway of 127 View Road. Constable Gale said that he had received Police intelligence of suspicions of drug dealing from 127 View Road.   Ms Towler lived at 127 View Road, although the evidence before me did not indicate whether Constable Gale was aware of this at the time.

[5]      Having seen the car at 127 View Road, Constable Gale did a u-turn.  As he was driving back the Nissan car came in the opposite direction.  The driver was not wearing a seatbelt.  Constable Gale followed the car and activated the car’s red and blue lights and siren.  The Nissan continued down the road for approximately 100 metres, turned into another road and then stopped.

[6]      Constable Gale spoke to the driver who identified herself as Ms Towler. There were two men in the car, Mr Jordan and Mr Donaghue.   Ms Towler’s son, aged 12, was also in the car.

[7]      Constable Gale smelt a strong smell of cannabis coming from the car.   He invoked the power of search without warrant under s 18(2) of the Misuse of Drugs Act  1975.    A  small  amount  of  dried  cannabis  was  found  in  the  ashtray.    The occupants of the vehicle were searched.  Constable Gale also looked in Ms Towler’s handbag.  He said “there was a large quantity of cash in the bag so I immediately closed it and put it in the vehicle”.  Ms Towler admitted smoking cannabis while she was driving.  She said the cannabis belonged to Mr Jordan, that he had rolled it, and the three adults had smoked it.   Constable Gale made a radio check with Police Communications.  He was advised that Ms Towler had a criminal history, but got no details of that history.  Ms Towler was cautioned in the usual way.

[8]      Approximately 20 minutes after the car was stopped Ms Towler was arrested by Constable Gale for smoking cannabis.   Mr Jordan was arrested by Constable Rodokal.

[9]      Following processing at the Henderson Police Station, Ms Towler’s handbag was searched by Constable Gale in the presence of a senior sergeant.  There were the following items: $5,190 in cash; two plastic snaplock bags, each containing white powder; one plastic snaplock bag containing three small snaplock bags, each containing white crystals; one plastic snaplock bag containing yellow/white crystals; one plastic snaplock bag containing white crystals; two empty plastic snaplock bags; two short cut plastic straws; one cotton bud stick; and a small piece of paper with twelve names written on it, each name having a number written next to it ranging from 20 to 240.

[10]     Later that evening a search of Ms Towler’s home at 127 View Road was conducted pursuant to a search warrant. Further relevant items were found.

[11]     On the question of the decision to arrest Ms Towler there was the following exchange in Constable Gale’s evidence-in-chief:

Can we just focus upon the arrest of Ms Towler for a moment, can you outline for us please the reasons for your decision to arrest Ms Towler... I exercised my discretion and chose to arrest based on the fact that she was previously known to Police, so she had a criminal history. Also the fact that she  was  driving  a  motor  vehicle  whilst  smoking  can  whilst  smoking cannabis.

Just exploring those points, you mentioned first  the  fact  that she  had  a history, how was it that you were aware of that history... I made a radio check on her at the time and I was told by the Police Comms operator that she had a criminal history.

Did you know the details of that history... no I didn't.

The  second  point  that  you  mentioned  was  that  she  was  driving  whilst smoking cannabis... yes.

In  your experience as an officer would it be usual  or  unusual  to arrest someone for smoking cannabis... I would say usual.

[12]     In  cross-examination  it  was  put  to  Constable  Gale,  in  essence,  that  the cannabis smoking charge was not of significance and did not warrant arrest.   In response to questions in this regard, Constable Gale said that he “would say” it would be usual to arrest someone for smoking cannabis.  He also said that he took account of particular facts: Ms Towler was driving a car while smoking; she had her

12 year old son in the car while she was smoking cannabis; she was not wearing her seatbelt; and she took an unusually long time to come to a stop.  Constable Gale was asked why Ms Towler was arrested but not Mr Dongahue, who had also allegedly smoked cannabis.  Constable Gale said they arrested the “two people who were the main offenders in our minds”; Mr Jordan because he had supplied the cannabis and Ms Towler because she was driving while smoking and in the other circumstances mentioned.

[13]     A third factor mentioned by Constable Gale as a reason for arrest was that Ms Towler had been parked at the address under suspicion, 127 View Road.  Constable Gale was asked if the apparently large amount of cash in Ms Towler’s handbag had

been a factor in the decision to arrest.  He said that he had made the decision to arrest before he saw the money.  There was some challenge to this in cross-examination as to the precise sequence of events.  It is clear that the arrest occurred after Constable Gale saw the money.   In my judgment it is not important for the purposes of this application to decide whether the decision to arrest had been made before or after the money was seen because Constable Gale did say that seeing the money reinforced his decision to arrest.

[14]     Mr Speed cross-examined Constable Gale on the question as to whether he had considered alternatives to arrest as follows:

Did you consider giving her a caution... yes I would always consider that in these circumstances however decided against that.

What were the factors which made you decide not to caution her... the fact that she was driving whilst smoking, the fact that she had previous criminal history, and the fact that she was driving with a young child in the car whilst smoking cannabis.

What about giving her a warning, you consider giving her a warning... I

would consider it but I wouldn't have done so in that circumstance

Why not... because of those same factors.

What about giving her a summons or telling her I’m going to issue you a summons for smoking cannabis, why didn't you tell her that... again I would not normally summons someone in those circumstances. Police would routinely arrest.

You do accept though that a summons was – for a minor summary offence such as this is the normal way to deal with someone... in my experience it is not the normal way, it can be dealt with that way.

Did you consider proceeding by way of summons yes or no... no.

Discussion

[15]     Section 315 provides, so far as material:

315      Arrest without warrant

(1)       No one shall be arrested without warrant except pursuant to the provisions of—

(a)      This Act; or …

(2)       Any  constable  …  may  arrest  and  take  into  custody  without  a warrant— …

(b)       Any person whom he has good cause to suspect of having committed a breach of the peace or any offence punishable by … imprisonment:

…

[16]     Mr Speed accepted for present purposes that Constable Gale had good cause to suspect Ms Towler of having committed an offence punishable by imprisonment. The only issue related to the exercise of the discretion.  Mr Speed acknowledged that the essence of the submission was that the discretion was not correctly exercised because there had been a failure to consider a summons, rather than arrest.

[17]     The argument for Ms Towler fails as a matter of law.   An argument very similar to that advanced by Mr Speed was advanced for the appellant in Thomas v Attorney-General (Court of Appeal, 14 August 1997, CA139/96, Keith, Gallen and McGechan JJ).  In a judgment delivered by Keith J, the Court said at [9]:

On  the  law,  we  were  referred  to  Holgate-Mohammed  v  Duke  [1984] AC 437 and in particular to the statement by Lord Diplock (at 443) that the exercise of a power of arrest could be questioned by reference to the standard of unreasonableness under Wednesbury principles.   The principle that was relevant in that case was that the arresting officer “must exclude from his consideration matters which are irrelevant to what he has to consider”.  That is of course not the present case where the argument rather is that there had been a failure to have regard to a relevant consideration. The exercise of a power of arrest for an improper purpose is more readily the subject of censure and review than failing to have regard to some relevant purpose.  In the latter case the failure must be a failure to have regard to a mandatory purpose.  We were not referred to any case in which such an argument had succeeded in respect of a power of arrest.  As well, we are not aware of any requirement that that choice between arrest and other possibilities, when arrest is available, must as a matter of law always be made.  While we would accept that that could well be good police practice, we see no support for it in the words of s315 or in the relevant cases.   In any event in this case the argument fails on the facts: the sergeant has indicated why the alternative course of a summons was not pursued at the time.  (emphasis added)

[18]     The relevant statutory provisions have not been amended in any material way since  the  Thomas  decision.    A  police  officer  is  not  required  to  consider  all alternatives to arrest.  There was no error by Constable Gale as a matter of law.  And

on the facts, I am further satisfied that there was a conscious exercise of a discretion by consideration of factors that were plainly relevant.

[19]     The manner in which Constable Gale exercised his discretion under s 315 is also in accordance with further statements of principle in Attorney-General v Hewitt [2000] 2 NZLR 110. Randerson and Neazor JJ said:

[39]    The discretion available to a police officer under s 315 is broad and is to be exercised in the particular circumstances of the case. When considering whether the discretion has been properly exercised, the rights of the offender are relevant but the public interest in the prevention of crime and the prosecution of offenders is also to be taken into account as well as the exigencies faced by the police in a wide variety of situations.

[40]     In Holgate-Mohammed v Duke at p 443 Lord Diplock considered that the discretion to arrest could be challenged on the usual administrative law grounds established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233. In Holgate-Mohammed it was accepted that the discretion could be attacked for taking into account irrelevant considerations but the challenge failed on the facts. The scope for successful challenge on the grounds of failure to take into account relevant considerations is very limited or even non-existent because there are no mandatory considerations in the exercise of the discretion: see the remarks of Keith J in Thomas v Attorney-General (above) at p 9. Improper purpose or bad faith are available as bases of challenge but the existence of a collateral motive for an arrest does not necessarily make it unlawful: R v Chalkley [1998] 2 All ER 155 (CA). The authorities demonstrate that in the absence of bad faith or improper purpose, the prospects of a successful challenge to the exercise of the discretion to arrest are likely to be very limited.

The observation in the final sentence provides further support for the conclusion that there was no error by Constable Gale.  Mr Speed quite properly acknowledged that he was not submitting on this application that there was bad  faith  or  improper purpose on the part of Constable Gale.

[20]     Mr Speed referred to the subsequent Court of Appeal decision in Neilsen v Attorney-General  [2001] 3 NZLR 433; (2001) 19 CRNZ 1. Mr Speed sought support from that case on the facts. No material support can be gained from that case in relation to the facts. The general principles of law as stated in Neilsen do not support the argument for Ms Towler.

[21]     Because  I  am  satisfied  there  was  a  proper  exercise  of  the  constable’s discretion to arrest the application to exclude the evidence must fail.  However, in case I am wrong in that conclusion I will consider the question of proportionality under s 30 of the Evidence Act 2006.

[22]     Neither counsel submitted that I should have regard to any matters other than those listed in s 30(3) and I have, in large measure, confined my assessment of the issue to those matters.  Having done so I am satisfied that exclusion of the evidence is not justified.   My reasons can be stated reasonably briefly by reference to the relevant paragraphs in s 30(3):

(a)      The  importance  of  the  right  breached  and  the  seriousness  of  the intrusion.    There  is  no  question  that  the  right  is  a  particularly important one; the right under s 22 of the New Zealand Bill of Rights Act “not to be arbitrarily arrested or detained”.   On the present assumption that there was arbitrary arrest, it was also a reasonably serious intrusion because of the length of the detention.  However, on the facts of this case, an assessment of the relative seriousness of the intrusion cannot realistically be divorced from the consideration in paragraph (b).

(b)The  nature  of  the  impropriety,  in  particular,  whether  it  was deliberate, reckless, or done in bad faith.   None of the particular factors referred to apply in this case.  From this alone it may be said that this is not a bad case of impropriety.  When assessed in relation to the essential contention for Ms Towler, it may be seen to be a breach which borders on the inconsequential.   The complaint is a failure to consider a summons as an alternative to arrest.   Had Constable Gale consciously considered a summons, and then rejected it having regard to the other matters he did consider, the basis for the challenge would have disappeared.   And although there is a small degree of hypothesis, it does seem fairly certain, from the evidence Constable Gale gave that, had he considered summons, arrest would nevertheless have followed.  And in terms of a proper exercise of a

police constable’s discretion it could not then have been successfully challenged.   In essence, the breach on the present assumption was fairly technical.

(c)      The nature and quality of the improperly obtained evidence.   It is important evidence without which the Crown is unlikely to be able to proceed with these serious charges against Ms Towler.

(e)      Whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used.   This is a further important consideration weighing against exclusion  of  the  evidence.    Seriously  incriminating  evidence  was found in Ms Towler’s handbag.  Constable Gale did not continue with the search of the handbag when he found the large amount of cash, because he had already decided to arrest Ms Towler, or clearly had that in mind.  Not continuing with the search, because of the presence of a substantial amount of cash, was a responsible course of action in Ms Towler’s interests.   This is a relevant consideration against excluding the evidence going beyond particular matters listed in s 33. The further point, arising directly from paragraph (e) is that, had the search of the handbag continued on the road, the items that were found at the police station following arrest would legitimately have been found before arrest.  Arrest would then undoubtedly have been an appropriate course of action.   In fact, it would have been a dereliction of duty for Constable Gale not to have arrested had he found the evidence of methamphetamine dealing on a search of the handbag on the roadside.

(f)-(h)  These have no application.

[23]     In  my  judgment,  had  there  been  an  unlawful  arrest,  I  would  not  have excluded the evidence pursuant to s 30(2) of the Evidence Act 2006.

[24]     The application is dismissed.  Ms Towler remains on remand on bail for trial

commencing on 10 July 2008.

Peter Woodhouse J