R v Watts CA350/05
[2006] NZCA 405
•1 May 2006
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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 COURT OF APPEAL OF NEW ZEALAND
CA350/05
THE QUEEN
v
CLINTON LAWRENCE WATTS
Hearing: 12 April 2006
Court: Hammond, Goddard and Priestley JJ Counsel: W M Johnson for Appellant
B J Horsley for Crown
Judgment: 12 April 2006
Reasons: 1 May 2006
REASONS FOR JUDGMENT OF THE COURT
A The appeal is dismissed.
BThis judgment is not to be published in news media or on internet or other publicly accessible database until final disposition of trial.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.
R V WATTS CA CA350/05 12 April 2006
REASONS
(Given by Goddard J)
[1] This is an appeal from a pre-trial ruling of Judge Tuohy, ruling admissible under s 344A Crimes Act 1961 two matters: a statement made by the appellant to a police officer after his vehicle was stopped; and evidence of a brass knuckle-duster being located at the appellant’s address of 50 Hair Street, Wainuiomata.
[2] Because of the imminence of the trial, we dismissed the appeal at the conclusion of the oral hearing. We said we would give our reasons as soon as we could conveniently do so. These are those reasons.
Background facts
[3] The appellant is alleged to have committed a ‘road rage’ assault on the complainant in the afternoon of 12 May 2004. The complainant said that when he was confronted by the appellant he saw the appellant “pull something brass out of his pocket”. The complainant said it then felt as if he “was being hit with a weapon. It felt like something solid. The solid object was in his right hand”. There were several witnesses to this alleged assault, one of whom noted the make and registration number of the appellant’s vehicle, a blue Toyota, registration RX1386.
[4] The matter was promptly reported and at 4.45pm a police officer on uniform patrol in the area went to the appellant’s address at Hair Street and spoke with him. The appellant made a statement, which was recorded in the officer’s notebook and signed by him as true and correct. In his statement the appellant said the complainant had provoked the incident and assaulted him first. He said he was hit several times by the complainant and also by a friend of the complainant and sustained cuts and abrasions.
[5] The same day the police obtained a search warrant, which specified the following:
That there is reasonable ground for believing that there is (are) in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises or place situation at 50 Hair Street, Wainuiomata, the following thing(s), namely: a heavy brass heavy brass metal object capable of being hidden in a trouser pocket and used as a weapon, looking much like a metal knuckle-duster.
(upon or in respect of which an offence of assault with a weapon has been or is suspect of being committed)
This is to authorise you at any time or times within one month from the date of this warrant to enter and search the said building, aircraft, ship, carriage, vehicle, box, receptacle, premises or place situated at 50 Hair Street, Wainuiomata … and also to seize (anything up on or in respect of which the offence has been or is suspected of having been committed) (or anything which there is reasonable ground to believe is intended to be used for the purposes of committing the offence).
[6] Two days later, Constable Isaac was working on uniformed patrol in the area. His notebook entries for that date record that he went to 50 Hair Street at 5.00pm to execute the search warrant but no one was at home. He returned at 6.24pm and as he was driving along Hair Street he saw the appellant driving his blue Toyota in the opposite direction on Hair Street. Invoking his powers under s 314B Crimes Act
1961. Constable Isaac stopped the appellant’s vehicle on Main Road, which is around the corner from Hair Street. He introduced himself to the appellant and informed him that he was stopping him under s 314B and advised him of his rights. He told the appellant that he had a search warrant relating to his house and vehicle, and that the warrant would be executed at that time. He handed the appellant a copy of the search warrant. What transpired next is recorded slightly differently in the Constable’s depositions statement and his notebook record. In his depositions statement Constable Isaac said:
I began searching the accused’s vehicle and asked him if he knew what the item was that I was looking for and he replied that he did.
He then stated that he would tell us where it was that it was inside his house. At 6.40pm the accused showed us into his address and took us into his
bedroom where he located a brass knuckle-duster, which was hidden
underneath a mig welding machine on a shelf in the bedroom
The accused then handed it to me.
[7] In his notebook Constable Isaac recorded:
Explained that we were searching his vehicle under search warrant and that we would then go to his address at 50 Hair Street to search his address for a weapon which he is alleged to have used in an incident on the 12th of May. I ask him where the item is and he states that it is at home. I ask him to accompany us to his house which he is compliant in doing. Watts shows us into his house and takes us into his bedroom where he locates a brass knuckle duster which has been hidden underneath a mig welder on a shelf.
[8] The subtle difference between the two excerpts lies in the statements “I … asked him if he knew what the item was that I was looking for and he replied that he did” and “I ask him where the item is and he states that it is at home”.
The pre-trial application
[9] At the pre-trial hearing there was a challenge to the admissibility of the appellant’s statement that he knew “what the item was” that the Constable was looking for and a challenge to the subsequent finding of the brass knuckle-duster at his home, both based on an alleged unlawful stopping of the appellant’s vehicle in Main Street and a constructive detention of him at that time. Mr Johnson argued that the effect of those unlawful actions led to the appellant’s admission that he knew what the Constable was looking for, and that admission in turn led to the locating of the knuckle-duster at the appellant’s home.
[10] Section 314B Crimes Act 1961 states as follows:
314B General power to stop vehicles
(1)Any member of the Police may stop a vehicle for the purpose of conducting a search under a statutory search power if the member of the Police is satisfied that,—
(a)In respect of a statutory search power to search without a warrant, the ground or grounds, as the case may be, for exercising that statutory search power, as set out in the applicable statute, exist; or
(b)In respect of a statutory search power to search with a warrant, the warrant has been issued and is in force.
[11] Judge Tuohy found that the stopping of the vehicle had been unlawful, as the warrant only specified authority to search a vehicle situated at 50 Hair Street. As the vehicle was not situated at 50 Hair Street when stopped, the Judge found there was no lawful authority to search it. He found, however, that despite the unlawful search of the vehicle there was no constructive or arbitrary detention of the appellant nor any detention of him under an enactment.
[12] Turning to consider the admissibility of the admission made to Constable Isaac, the Judge found (in terms of Constable Isaac’s depositions statement) that the appellant knew what the item was that the police were looking for; because he had been shown a copy of the warrant, which clearly specified the brass knuckle-duster and the appellant then voluntarily chose to disclose that he knew what it was (or what the police were looking for) and that the item was in his house. On that basis the Judge found there was nothing unfair in the evidence of the admission being adduced notwithstanding the unlawful stopping of the appellant’s vehicle.
[13] Turning to the locating of the knuckle-duster at the appellant’s house, the Judge found that the police were in possession of a lawful search warrant under which they were entitled to search the appellant’s house and there was no basis for holding that the search of the house was somehow vitiated by the earlier unlawful stopping and search of the appellant’s vehicle. The Judge found that the house would have been searched sooner or later pursuant to the search warrant and, provided the search was thorough enough, Constable Isaac would have found the knuckle-duster for himself. Further, the search could not be characterised as unreasonable as the appellant had co-operated with it.
The appeal
[14] On appeal Mr Johnson raised several issues. First, he questioned whether Constable Isaac had correctly administered a full caution to the appellant when he stopped his vehicle because although in his depositions statement Constable Isaac said that he told the appellant he could “refrain from making a statement” this was not noted in the Constable’s notebook. All that was noted in the Constable’s notebook was that he “informed him of Bill of Rights”.
[15] The second issue was the difference (already referred to) in Constable Isaac’s brief and in his notebook as to what he said to the appellant about the item to be searched for, and when he said that to the appellant. Referring to his cross- examination of the Constable and to a question from Judge Tuohy, Mr Johnson submitted that Constable Isaac must have suggested to the appellant what the item was, rather than the appellant volunteering knowledge of what the police were looking for. Mr Johnson further submitted that administering of a caution (albeit incorrectly) indicated that the appellant was being detained while his vehicle was being subjected to the unlawful search. He submitted that the unlawful stopping of the vehicle and the consequential unlawful detention of the appellant, during which he admitted knowledge of the knuckle-duster and its location, provided a nexus between Constable Isaac’s unlawful actions and the subsequent location of the knuckle-duster. Further that the evidence of finding the knuckle-duster was tainted to a degree that could not be saved on application of the balancing exercise in R v Shaheed [2002] 2 NZLR 377.
Discussion
[16] Judge Tuohy found as facts that the appellant was not under arrest or being detained under any enactment when his vehicle was stopped and that the administering of his rights at that time did not create a situation of detention. Before us, Mr Johnson accepted that the appellant was free to have walked away from the Constable and thus conceded that he was not detained. On that basis, there was no obligation on the Constable to advise the appellant of his rights under s 23 New Zealand Bill of Rights Act 1990 and the fact that he did so is not a manifestation of an intention to apprehend or hold the appellant: R v Fukushima CA128/04
13 September 2004 (at [59]-[62]).
[17] The associated complaint that the Constable may not have given the appellant a full form of caution adds nothing to the issue of detention. Even if the issue had relevance, the shorthand record in Constable Isaac’s notebook, that he “informed him of Bill of Rights” is consistent with the more detailed explanation of those rights given in his depositions statement.
[18] The issue as to whether the semantic difference between the notebook record and Constable Isaac’s depositions statement over why he wished to search the appellant’s vehicle is neither here nor there. As Judge Tuohy found, the appellant knew from the outset what the police were looking for, because he had been given a copy of the search warrant to read in which the brass knuckle-duster was specified as the object of the search. Therefore, whether Constable Isaac asked the appellant whether he knew what the item was that he was looking for, or asked the appellant where the item was, is irrelevant. The answer that was volunteered by the appellant was in knowledge of the specifics in the search warrant.
[19] That leaves the issue as to whether the subsequent seizure of the knuckle- duster from the appellant’s address was tainted because it followed the prior illegal search of his vehicle. The problem with that issue however is that the search warrant itself was lawful. Therefore, the prior search of the appellant’s was inconsequential in the subsequent location of the knuckle-duster. Constable Isaac was returning to make a second attempt at executing the warrant at the appellant’s address when he fortuitously encountered the appellant driving away from the address. That encounter and the unlawful stopping of the appellant’s vehicle does not affect the subsequent lawful execution of the warrant at the appellant’s home. Thus there is no nexus between the fortuitous but unlawful stopping of the vehicle and the subsequent location of the knuckle-duster at the appellant’s address. Further, the search was eminently reasonable, as Judge Tuohy found, because of the appellant’s co-operation which expedited the inevitable search of his home.
Conclusion
[20] The evidence of the appellant’s admission to Constable Isaac and the subsequent finding of the brass knuckle-duster as his address is properly admissible at his trial.
[21] The appeal is dismissed.
Solicitors:
W M Johnson, Wellington, for Appellant
Crown Law Office, Wellington
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