Roberts v Police
[2024] NZHC 1160
•10 May 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-419-13
[2024] NZHC 1160
BETWEEN CHANCE COLVIN ROBERTS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 May 2024 Appearances:
L A Elborough for Appellant A Alcock for Respondent
Judgment:
10 May 2024
JUDGMENT OF LANG J
[on appeal against–pre-trial ruling as to admissibility of evidence]
This judgment was delivered by Justice Lang On 10 May 2024 at 10.00 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
L A Elborough, Hamilton
Hamilton Legal Ltd, Office of the Crown Solicitor, Hamilton
COLVIN ROBERTS v NEW ZEALAND POLICE [2024] NZHC 1160 [10 May 2024]
[1] Mr Colvin Roberts faces a charge of being in possession of cannabis for supply.1 The charge was laid after a police officer discovered a plastic bucket containing cannabis plant in the boot of Mr Colvin Roberts’ vehicle when she searched it on 22 June 2022. This occurred when the officer impounded the vehicle after she had seen Mr Colvin Roberts driving it whilst he was suspended from driving.
[2] Mr Colvin Roberts challenged the admissibility of the evidence on the basis that the search of his vehicle was unlawful and unreasonable. He contended the search constituted a breach of his right under s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) to be free from unreasonable search and seizure.
[3] In a judgment delivered on 16 February 2024, Judge K B F Saunders held that the search of the vehicle was unlawful and unreasonable but that the evidence was nevertheless admissible.2 Mr Colvin Roberts seeks leave to appeal against the Judge’s decision under s 215(2) of the Criminal Procedure Act 2011.
[4] The police do not oppose leave to appeal being granted. The evidence is in any event central to the prosecution case. I therefore grant leave.
The evidence
[5] The sole witness called for the prosecution at the pre-trial hearing was Senior Constable Casey Walker. She has been a police officer for approximately 18 years, the last 14 of which she has spent in road policing duty. Mr Colvin Roberts and his mother gave evidence for the defence.
[6] Senior Constable Walker said that on 21 June 2022 she was off duty and went to a supermarket in Cambridge. Whilst there, she saw Mr Colvin Roberts and his partner, both of whom she knew through previous dealings in her role as a police officer. She also knew that they were both currently suspended from driving. When Senior Constable Walker left the supermarket, she saw Mr Colvin Roberts and his partner get into a motor vehicle in the carpark. Mr Colvin Roberts’ partner then drove the vehicle away.
1 Misuse of Drugs Act 1975, s 6(1)(f).
2 Police v Colvin Roberts [2024] NZDC 3131.
[7] On the following day, Senior Constable Walker said she was driving past the address where Mr Colvin Roberts was living with his mother. As she passed the address, she saw Mr Colvin Roberts drive out of the driveway. She stopped him a short distance down the road and told him she was going to impound his vehicle for 28 days because he was driving whilst suspended. She suggested that Mr Colvin Roberts should walk back to his address and arrange for someone to assist him to remove any items that he wished to take from the vehicle.
[8] Mr Colvin Roberts returned to his mother’s address on foot and his mother then drove him back to where his vehicle was parked on the side of the road. They then removed a number of items from the interior of the vehicle. Senior Constable Walker said she did not see Mr Colvin Roberts take items from the boot of the vehicle. He said in evidence that he had taken some tools out of the boot of the vehicle at a time when Senior Constable Walker was back in her vehicle.
[9] Mr Colvin Roberts and his mother loaded the items they had taken from his vehicle into his mother’s vehicle. They both said that at this point Senior Constable Walker asked Mr Colvin Roberts whether he wished her to take an inventory of the items that remained in his vehicle. He told her that he did not, and that he had taken what he needed from the vehicle. Senior Constable Walker said in cross-examination that she did not ask Mr Colvin Roberts whether he wished her to take an inventory of the items that remained in his vehicle. She said her invariable practice when impounding a vehicle was to undertake an inventory search regardless of the wishes of the owner. The Judge resolved this issue in favour of Senior Constable Walker on the basis that it was unlikely she would have asked Mr Colvin Roberts if he wanted her to undertake an inventory search if she was going to do that in any event.
[10] Mr Colvin Roberts and his mother then left the scene. At or about the point where the tow truck arrived, Senior Constable Walker said she inspected the interior of the vehicle but saw no items of value. She then opened the boot and saw an orange plastic bucket that had a lid on it. She opened the lid and discovered plastic rubbish bags inside. These were found to contain just over one kilogram of cannabis plant material. Mr Colvin Roberts’ fingerprints were later found on one of the bags taken from the bucket.
[11] Senior Constable Walker immediately went to Mr Colvin Roberts’ address, where she advised him of his rights under the NZBORA. She then asked him some questions. When she asked him who owned the items in the orange bucket that she had found in the boot of his vehicle, he walked away.
[12] On 15 September 2022 Senior Constable Walker served a summons to attend Court on Mr Colvin Roberts. She said that at this time he spontaneously told her that he thought there were some items relating to his vehicle in the bucket that she had found in the boot of the vehicle.
[13] On Mr Colvin Roberts’ behalf, counsel acting for Mr Colvin Roberts cross- examined Senior Constable Walker at length regarding the reasons for the inventory search. However, she maintained that she carried such searches out as a matter of routine when impounding vehicles after a person had been found driving whilst suspended or disqualified. This was to ensure that no items of value had been left in the vehicle. The search was also undertaken to ensure there was nothing in the vehicle that might be of danger to the staff of the towage firm who would be responsible for removing the vehicle and storing it.
[14] Counsel for Mr Colvin Roberts cross-examined the officer about the latter issue in the following way:
Q. And today in your evidence you said you also wanted to do this inventory in case there was anything dangerous to the tow truck driver in the car. Yeah?
A. Correct.
Q.Why didn’t you ask him who’s right there “Is there anything in the car that could be dangerous to anybody?”
A. I, we don’t ask that question.
Q.Why not? He’s there. He’s co-operating. He’s come and got stuff out of the car. Why not ask him that question?
A. End of the day we’re still going to do an inventory to make sure that there’s nothing, there’s no allegations that things have been taken or there’s nothing that’s going to harm the tow truck driver.
Q.Well you don’t have to make an inventory if it’s not necessary. Why was it necessary to do an inventory here?
A.To make sure that there is nothing else that – because just if somebody comes and takes stuff from the vehicle they don’t always take everything and then they’ll come back and they will make allegations that things have been stolen and weapons can be found in vehicles that they aren’t going to tell us.
Q.You’ve got this man right there. You don’t ask him any questions about what’s left in the vehicle and anything like that do you, you don’t ask him?
A. No.
Q. But you’ve had dealings with him in the past, right?
A. Correct.
Q. Is that why you wanted to have a look in his car after he’d left?
A. No.
Q.You had no reason to suspect that there was any items of danger in that vehicle did you?
A. We deal with vehicles all the time that have weapons and that we, we don’t know about.
Q.You had no grounds to suspect that there would be anything dangerous in that vehicle did you?
A. As I said it was to do an inventory to make sure.
Q.No, no. Answer the question please. You have no reason to suspect that there was any items that were dangerous in that vehicle, did you?
A. It’s unknown.
Q. So you had no reason to suspect did you?
A. Like I said it’s for inventory’s purposes. It’s not, yeah.
Q.Well you said that you wanted to look into the vehicle to see, to make sure there was nothing dangerous in there. The question you’re not answering and I’m putting it to you again was you had no reason to suspect there was anything dangerous in there did you?
A. It’s the unknown. We don’t know and that’s why we do it.
Q. So the answer to the question is yes you had no reason to suspect there was anything dangerous in the car?
A.Like I said we don’t know what’s in there so we and just because one day it might not be there, the next day it could be there.
Q.Constable, I’m not sure why this is a difficult question for you to answer.
A. That’s how I’ve answered it.
Q.Did you have any reason to suspect there was anything dangerous in that vehicle?
A. As I said we don’t know and that’s we search.
The Judge’s decision
[15] The Judge found the search of the vehicle was unlawful for the following reasons:
[37] The Supreme Court has upheld inventory searches as the development of the common law exception to warrantless search powers but I agree with Justice Isac [in Gardner v New Zealand Police3] that this does not give carte blanche to search as a matter of routine, there must be a reasonable connection between the search and the reason for it. It seems to me that this is precisely the situation here. Senior Constable Walker conducted the inventory search only because it is what she always does.
[38] I accept her evidence she did not ask Mr Colvin Roberts if he wanted an inventory search done, she had no reason to ask that question, she was going to do it anyway. Clearly if she had asked and then searched it would tend to suggest improper motive and I do not accept she acted in bad faith.
[39] But, doing something because you always do it does not however necessarily justify the conduct. Each case is fact specific and here it was quite clear to Senior Constable Walker that Mr Colvin Roberts had taken the opportunity given to him to remove all property he wanted from his vehicle.
[40] On that basis there was nothing to suggest anything of value remained inside it. In other words there was no need to preserve or to protect property.
[41] That is what distinguishes this case. It is for example quite different to that where someone has been arrested for drink driving and the vehicle has been left on the side of the road for some period of time. Here, Senior Constable Walker had called the towing company and the vehicle was within view at all times.
[42] Accordingly, it is for this reason that I find the warrantless search was unlawful. There was simply not enough objective material to warrant an inventory search. Had Mr Colvin Roberts not taken property then in accordance with [Ngan v R4] the search would have been a lawful one.
[16] The Judge then undertook the balancing exercise required by s 30(3) of the Evidence Act 2006. Rather than summarise her conclusions, I set them out again in full:
3 Gardner v New Zealand Police [2022] NZHC 1258.
4 Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48.
[44] I acknowledge that I have already found that the police did not have a lawful basis on which to search Mr Colvin Robert’s vehicle in the first place so that the degree of intrusion into his right under s 21 of the New Zealand Bill of Rights Act must be assessed on that basis. However, the question here turns on my assessment of whether I am satisfied that this was a bone fide good faith inventory search to secure and identify valuable property in the interests of Mr Colvin Roberts and to ensure the safety of others.
[45] Having heard evidence and carefully considered it, I think Senior Constable Walker was genuinely acting in good faith and I reject the suggestion that she was acting in bad faith, deliberately and at least reckless. I accept her evidence that it made no difference to her that Mr Colvin Roberts had removed personal items from the vehicle. I have already expressed my view on that approach.
[46] Safety is a valid reason. Experience shows weapons can be found in circumstances where it may not have been immediately obvious.
[47] I reject Mr Sutcliffe's submission that it is a non-descript plastic bucket. To the contrary, it is precisely in my view the type of property a police officer would want to check by looking inside it.
[48] The nature and quality of the improperly obtained evidence is strong. Without question it establishes Mr Colvin Roberts had a bucket in the boot of his vehicle that contained an amount of cannabis which triggers the presumption for cannabis dealing. His fingerprints were found on a plastic bag within the bucket and the evidence if it is accepted is strong. Without it the prosecution cannot proceed.
[49] While I acknowledge this is not the most serious example of cannabis dealing, it is nevertheless moderate offending.
[50] I do not accept there were other investigatory techniques, techniques not involving any breach of rights known to be available but not used. Mr Sutcliffe makes the point that Mr Colvin Roberts could have been asked if he consented to a search and says he likely would have refused. I turn that around and put the proposition that he knew what was in his vehicle and he took what he thought was important to him, the irony being he did not take the orange bucket.
[51]There was no perceived immediate danger nor was there any urgency.
[52] Balancing these factors as I must, I find the exercise favours admission of this evidence.
Appellate approach
[17] An appeal against a pre-trial ruling is a general appeal that proceeds on the basis of the evidence given in the Court below. Mr Colvin Roberts is entitled to this
Court’s opinion regarding the correctness of the Judge’s decision. However, he bears the onus of identifying errors in the approach taken by the Judge.5
The appeal
[18] On Mr Colvin Roberts’ behalf, Mr Elborough challenges the approach taken by the Judge in undertaking the balancing exercise under s 30 of the Evidence Act. He contends the Judge failed to assess the degree of intrusion the unlawful search had on Mr Colvin Roberts’ rights. He also argues that she failed to take into account the need for a credible and effective criminal justice system.
[19] However, in preparing for the appeal I considered a more fundamental issue needed to be re-visited. This related to whether the Judge was correct to find that the search of the vehicle was unlawful. I therefore issued a Minute in which I asked counsel to be in a position to address that issue at the hearing. I am grateful to counsel for the quality of the argument they provided to me at short notice on the important issue that I considered the appeal to raise.
Was the Judge correct to find that the search of the vehicle was unlawful?
The issue
[20] In order to place the Judge’s reasoning in context, and to understand the issues this aspect of the appeal raises, it is necessary to refer to the law that has developed at a senior appellate level in relation to searches by the police that have come to be known as inventory searches.
[21] Recent appellate authority has established that, when the police impound a vehicle under s 96(1) of the Land Transport Act 1998, they have the power to search it to make an inventory of its contents. The power arises either as part of their duty at common law to protect property of which they are bailee or as a necessary incident of their obligation to impound vehicles under s 96(1) of the Land Transport Act. The most recent decision of the Court of Appeal on the point also suggests that, where third parties become involved in the towing and storage of the vehicle, the police have the
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]-[5].
power to search the vehicle to ensure there is nothing in it that might pose a danger to the third party. In the present case Senior Constable Walker relied on both grounds as justifying her search of Mr Colvin Roberts’ vehicle.
[22] The issue in the present case is therefore whether it was both lawful and reasonable in the circumstances of the present case for Senior Constable Walker to search the boot of Mr Roberts’ vehicle for these reasons.
The authorities
[23] The issue of inventory searches was first touched on in New Zealand by the Court of Appeal in R v Taui.6 Counsel for the Crown in that case had argued that the police have the power to search every vehicle impounded under s 96(1) of the Land Transport Act to check that there is nothing hazardous in it. The Court held that it did not need to determine this issue because it was satisfied that power existed to search the vehicle in question under ss 224 and 225 of the Crimes Act 1961 in any event.7
[24] One of the leading authorities in this area of the law is the judgment of the Supreme Court in Ngan v R.8 That case did not concern an inventory search of a vehicle impounded under s 96(1). However, observations made by the Supreme Court in Ngan have influenced the approach taken by the Court of Appeal to the lawfulness of inventory searches undertaken of vehicles impounded under s 96(1).
[25] In Ngan, the police were called to an incident in which the appellant’s vehicle had crashed and he had been taken to hospital. The police gathered up large quantities of cash that were scattered in and around the vehicle. The police also located and subsequently opened a pouch that they found at the scene. This was found to contain a methamphetamine and LSD. The issue on appeal was whether the police acted reasonably in opening the pouch. In considering that issue the Supreme Court examined the public law duties of the police, which are directed at the protection and welfare of the public at large.9
6 R v Taui CA225/06, 29 November 2006.
7 At [23].
8 Ngan v R, above n 4.
9 At [12], citing Thomas v Sawkins [1935] 2 KB 249 at 254 (HC).
[26] The Supreme Court held that there could be no doubt that the police acted both lawfully and reasonably in taking control of the appellant’s property left in and around his vehicle after he had been taken to hospital.10 The question then arose as to whether they were then justified in searching the pouch. The Court held that the prudent course in all the circumstances was for the police to ensure that, if money was in the pouch, it could be accurately accounted for.11 This occurred in circumstances where the police had good reason to suspect, and did in fact suspect, that there may be further cash in the pouch.12 This meant the search of the pouch was both lawful and reasonable.
[27] Subsequent judgements of the Court of Appeal have suggested that s 96 provides the police with the power to conduct inventory searches of vehicles impounded under that section. In Tuato v R, the appellant was arrested after he was found driving whilst suspended.13 An issue then arose as to whether he owned the vehicle he had been driving. A police officer looked in the glove box of the vehicle to see whether it contained anything that might assist in determining this issue. The Court of Appeal held that it was reasonable for the police to take this step given the issue that had arisen.14 The Court went on to observe:
[12] Secondly, we regard the search of the glove box search as within both the powers of the police under s 96(4) of the Land Transport Act and the general powers and duties the police have at common law to protect life and property. Implicit in s 96(4) is that the police must secure and safeguard personal property in an impounded vehicle. If that is not done the police will not be able to release that property to its owner on request, as required by the sub-section. Here, the car was to be towed by a contractor, first to the police station, and from there to the contractor’s impoundment yard for storage. In that situation, we consider the s 96(4) powers may have entitled the police to go through the car in order to make an inventory of the personal property in it. In a situation – and this appeared not to be one – where the police were concerned about the security of the impoundment yard, the police may well have been justified in removing the personal property in the car for safe storage. Anything in the car indicating who owned the car would obviously be of particular interest to the police in ensuring that the personal property was returned to its owner.
(Footnote omitted)
10 At [28].
11 At [29].
12 At [29].
13 Tuato v R [2011] NZCA 278.
14 At [11].
[28] The Court then went on to examine how the Supreme Court in Ngan had dealt with the requirements of s 21 of NZBORA. It cited in this context the following passage from Ngan:15
… Both the common law and s 21 require of the police officer that he or she should not act unreasonably in dealing with the property, that is, that the officer must act only for the purpose of its preservation, and that what is done with the property pending its restoration to the owner must be reasonably connected with that purpose. If it is necessary to conduct a search of the property in order to ascertain its ownership and/or its nature, that too must not be done unreasonably. An excessive search or one conducted for an ulterior purpose, in order, for example, to obtain evidence of criminal offending, would not be reasonable and indeed might also be unlawful. But if the police officer is genuinely acting for the predominant purpose of preservation of the property, the fact that he or she may suspect wrongdoing associated with the property will not in itself make the dealing with the property either unlawful or unreasonable at common law or under s 21.
[29] On Mr Colvin Roberts’ behalf Mr Elborough places reliance on the following passage from Tuato:
[18] Thus, both s 21 and at common law, the touchstone of whether Constable Campbell’s action in looking at the glove box is lawful is whether it was done reasonably to protect the car and its contents, including to ascertain their ownership. Measured against that touchstone, and for the two reasons we have given, we regard Constable Campbell’s action in looking in the glove box as lawful.
[30] In Holdem v R, the police arrested the appellant and impounded the vehicle he weas driving after they discovered he was suspended from driving.16 As the appellant was being placed in a police vehicle, he told his partner to retrieve certain items from the vehicle before it was towed away. He did not ask his partner to retrieve a backpack that one of the attending police officers had seen sitting on the back seat of the vehicle. When a police officer subsequently searched the backpack to find out who owned it, he found a set of digital scales. The police then exercised their powers of warrantless search under s 20 of the Search and Surveillance Act 2012 (SSA). This resulted in the police finding quantities of methamphetamine in the backpack, as well as cash and other indicia of drug dealing activity.
15 Tuato v R, above n 13, at [17], citing Ngan v R, above n 4, at [22].
16 Holdem v R [2014] NZCA 546.
[31] Dealing with the lawfulness of the initial search of the backpack, the Court observed:
[22] Third, it is also well-established that the police are entitled to search a vehicle they have impounded in order to make an inventory of the personal property in it for the benefit of the owner or owners of the property who are entitled to possession of it under s 96(4).17 The police are entitled to search such property without a warrant, provided they do so reasonably and for the purposes of preserving property and identifying its owner. Searches of this nature conducted reasonably and for these purposes will not be in breach of s 21 of NZBORA.
[32] The most recent decision of the Court of Appeal to consider inventory searches is Casey v R.18 In that case the police had arrested the appellant and impounded his vehicle after he was found driving whilst forbidden to drive. The officers who impounded the vehicle found white crystals that they believed to be methamphetamine when they conducted an inventory search before the vehicle was towed away and stored in the yard of a towage firm. The officers then conducted a warrantless search under s 20 of the SSA and found further quantities of methamphetamine in the vehicle. Constable Larsen, one of the officers who conducted the inventory search, had asked the appellant whether there was anything dangerous or illegal in the vehicle. He explained that he took this step because he knew the police had a duty of care to the towage firm and also a responsibility to the owner of the vehicle to ensure that any of his property in the vehicle was protected from theft by a third party.
[33]The Court in Casey observed:
[16] The obligation under ss 96(1) and 96(4) to impound a vehicle and return personal property in the vehicle to its owner renders the police bailees of the vehicle and its contents. Prior to the SSA this circumstance was recognised as imposing an obligation to take reasonable steps to secure the property, which requires an inventory. In Tuato v R, this Court considered the search of a vehicle impounded under s 96(1)(b) because the driver’s licence was suspended. On the basis of R v Ngan, the police were regarded as bailees and the Court considered that:
Implicit in s 96(4) is that the police must secure and safeguard personal property in an impounded vehicle. If that is not done the police will not be able to release that property to its owner on request, as required by the sub-section. Here, the car was to be towed by a contractor, first to the police station, and from there to the contractor’s impoundment yard for storage. In that situation, we consider the s
17 R v Ngan, above n 4, at [22] and [24], and Tuato v R, above n 13, at [12] and [18].
18 Casey v R [2021] NZCA 29 (footnotes omitted).
96(4) powers may have entitled the police to go through the car in order to make an inventory of the personal property in it.
[34]The Court of Appeal in Casey went on to say:
[18] We do not accept that the SSA affects the recognised common law duty on a bailee to take an inventory of bailed goods for the purposes of keeping them safe pending their return to the true owner. It is evident from cases decided by this Court since the SSA came into force that this duty continues to be recognised.
[35] Importantly for present purposes, the Judge in the present case cited the following passage from Casey:19
[21] In the case of an impounded vehicle that is to be held in police custody for 28 days, a number of interests arise. Constable Larsen identified the fact that, in addition to protecting the owner of the property from theft by third parties, the police had to be concerned with protecting the towing and storage agents from potentially dangerous objects and from the possibility of false allegations of theft being made against them. The purpose of undertaking an inventory of the contents of a vehicle ensures that all these interests are recognised and protected. It would run counter to and undermine the purpose of the common law duty to allow one party, albeit the owner of the property, to exert control over the bailment obligation.
[36] As Isac J subsequently noted in Gardner v Police, this approach “appears to note a shift away from the view that inventory searches are conducted for the benefit of the owner of the property in question towards the view that they serve broader interests, including those of an impounding agent.”20
This case
[37] As will be evident from the evidence given by Senior Constable Walker, the police seek to justify the search of Mr Colvin Roberts’ vehicle on two grounds. First, that it was necessary to conduct an inventory search to guard against a subsequent claim by Mr Colvin Roberts that items of his property had gone missing from his vehicle whilst it was impounded. Secondly, to ensure there was nothing in the vehicle that may pose a danger to the staff of the towage firm.
19 Police v Colvin Roberts, above n 2, at [33], citing to Casey v R.
20 Gardner v Police, above n 3, at [67].
The inventory search
[38] In Gardner v Police, Isac J reviewed the authorities referred to above and concluded that neither Ngan nor the text of s 96 itself supports a general police power to undertake inventory searched of impounded vehicles that contain items of property.21 However, he accepted that he was bound by “a clear line of Court of Appeal authority establishing the lawfulness of inventory searches – whether derived from police common law duties or s 96 of the Land Transport Act itself.”22 Like Isac J, I am bound by this line of authority.
[39]It is evident from the first paragraph of the Judge’s remarks set out above at
[15] that she relied on the reasoning of Isac J in Gardner in concluding that the search was unlawful. However, this overlooked the fact that Isac J later acknowledged he was bound by appellate authority on the issue of the lawfulness of the inventory searches when a vehicle is impounded under s 96.
[40] It is also evident that the Judge considered there needed to be a connection between the search and the reason for it. She considered it was not sufficient for the officer to search the vehicle merely because that was her practice on every occasion when she impounds a vehicle. The Judge also considered there was no reason for Senior Constable Walker to conduct an inventory search once Mr Colvin Roberts had told her he had taken the property that he wanted from the vehicle. His advice meant there was no further need to preserve or protect any property that may have remained in the vehicle.
[41] However, I consider this reasoning does not take into account the evidence that Senior Constable Walker gave. She said she invariably carried out an inventory search when she impounded a vehicle regardless of whether the driver had removed items from the vehicle. She did so to protect the police from subsequent claims by the owner that items had been removed from the vehicle whilst it was impounded.
21 At [77].
22 At [69].
[42] The Judge also appears to have approached the issue of lawfulness on the basis that the police require reasonable grounds to believe that an item of value, or presenting potential danger, may be in the vehicle. That is not the case. None of the appellate authorities to which I have referred have imposed this qualification.
[43] Further, as Senior Constable Walker made clear during cross-examination, it does not matter whether the driver of a vehicle is satisfied he or she has removed all items of value from the vehicle. The driver may have missed an item of value and may only realise later that it was left in the vehicle. Whether or not this is so can only be ascertained by a physical inspection of the vehicle at the time it is impounded.
[44] It follows that, based on current Court of Appeal authority, I respectfully differ from the Judge in relation to the lawfulness of the inventory search. Senior Constable Walker was entitled to carry out an inventory search when she impounded Mr Colvin Roberts’ vehicle.
The search for dangerous items
The argument for Mr Colvin Roberts
[45] Mr Elborough submits that Casey represents the only occasion on which the courts have recognised a right or obligation on the part of the police to search a vehicle to ensure there is nothing in it that might harm a third party who will be dealing with it after it is impounded. He submits that this is a very different issue from that discussed in Ngan. In Ngan, the Supreme Court held that the police acted lawfully when they uplifted property at the scene of the accident and searched the pouch because these acts fell within obligations owed by the police to the owner of the vehicle involved in the accident. The majority in Ngan held that this fell within the range of things that the police do for the benefit of the public in furtherance of their general responsibility to protect life and property, but which are not directly associated with the prevention or detection of crime.23 Mr Elborough submitted that the reasoning in Ngan does not support the approach taken in Casey.
23 Ngan v R, above n 4, at [13].
[46] Mr Elborough also pointed out that all the cases in this area have ultimately been determined on the basis of whether the search in question was reasonable or unreasonable in terms of s 21 of NZBORA. He submitted that the circumstances in which the search of Mr Colvin Roberts’ vehicle was carried out meant that the search was unreasonable and in breach of his rights under s 21.
Analysis
[47] I accept Mr Elborough’s submission that Casey represents the only appellate endorsement of the proposition that the police may search a vehicle to ensure there is nothing dangerous in it. I also accept that this is a different issue to that which was considered in Ngan. However, the Crown has obviously been alert to the issue since at least 2006 because it sought to justify the police search on this basis in Taui. As I have already noted, the Court of Appeal did not consider it necessary to consider this argument in Taui.
[48] It is not surprising that the issue was not discussed either in Ngan or the cases that followed it prior to Casey because it does not appear to have been raised in those cases. However, the issue was raised squarely in Casey because of the evidence given by the police officer who carried out the search in that case.
[49] The Court of Appeal in Casey plainly accepted the Crown’s argument that the possibility that an impounded vehicle may contain dangerous items gives rise to a right or obligation on the part of the police to search the vehicle to ensure the safety of third parties who will be dealing with it.24 Further, the Court did not impose any qualification on the obligation other than that it must be exercised to protect third parties from possible danger. Importantly, the Court did not say that the obligation only arises where the police have reason to believe there may be a dangerous item in the vehicle.
[50] I am obviously bound by the reasoning in Casey. However, for what it is worth I do not consider it to be an unwarranted extension of the approach taken in Ngan. As
24 At [21].
the Court of Appeal pointed out in Casey,25 it is clear from Ngan that the common law duties being exercised by the police in their capacity as bailees of property are not exercised solely for the benefit of the owner of the property but rather for the general benefit and protection of the public. Where the police elect not to transfer property to a third party for safekeeping, I consider this principle extends to ensuring that the third party is safe from any danger posed by items that may be stored within the vehicle. The only practical means of achieving this is for the police to search the vehicle.
[51] I consider the same situation has arisen in the present case as arose in Casey. Senior Constable Walker said in evidence that one of the reasons she searched the vehicle was to ensure there was nothing in it that might create a danger for the staff of the towage firm. She was not shaken on that explanation in cross-examination. It follows that the search of the boot of the vehicle was undertaken lawfully for that reason alone.
Was the search nevertheless conducted unreasonably?
[52] As the majority pointed out in Ngan, the common law rights and duties of the police must now be tested also against the right to be free from unreasonable search and seizure afforded by s 21 of NZBORA.26 An excessive search conducted for an ulterior purpose, for example to obtain evidence of criminal offending, would not be unreasonable and may also be unlawful.
[53] Further, as Tipping J pointed out in Ngan, a lawful search may be unreasonable because of the manner in which it was effected or because of some other factor such as the time at which it was undertaken.27
[54] In the present case Senior Constable Walker denied in cross-examination that she had opened the boot to see whether there may be evidence of criminal offending inside. She said that her previous dealings with Mr Colvin Roberts had only related to driving matters. The Judge accepted that Senior Constable Walker acted in good faith and there is nothing in the evidence to support a different view. Nor is there any
25 At [20].
26 At [22].
27 At [44], citing R v Maihi (2002) 7 HRNZ 126 (CA) and R v Williams [2007] 3 NZLR 207 (CA).
other factor about the search to suggest it was unreasonable. It involved no more than opening the lid of the boot, at which point the bucket containing the cannabis was immediately visible. And, as the Judge accepted, the bucket was precisely the type of container that could hold a dangerous object.
[55] I therefore do not accept that the search was carried out in an unreasonable manner or for an ulterior motive. It did not breach Mr Colvin Roberts’ right under s 21 of NZBORA to be free from unreasonable search.
Result
[56] Although I have followed a different route, I come to the same conclusion as the Judge. The evidence of the search is therefore admissible at Mr Colvin Roberts’ trial.
[57] However, the breadth of the power to search for dangerous items as authorised in Casey is currently extremely broad. It is apparent from Senior Constable Walker’s evidence that she routinely searches all cars that she impounds for dangerous items regardless of the circumstances in which the impounding occurs. Other officers may be taking the same approach. There must, however, be circumstances where it is obvious to the police that no dangerous items are likely to be present. The Court of Appeal may in an appropriate case consider that some form of restriction needs to be imposed on the power to search for dangerous items.
[58]The appeal against the pre-trial ruling is dismissed.
Lang J
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