S v Police HC Wellington CRI-2006-485-21

[2006] NZHC 726

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-21

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 May 2006

Appearances: P V Paino for Appellant

T Epati for Respondent

Judgment:      26 June 2006 at 3.00 pm

In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.00 pm on the 26th day of June 2006.

JUDGMENT OF CLIFFORD J

Background

[1]      After a defended hearing in the District Court, the appellant S   was found guilty by Judge Tuohy on a charge of wilfully obstructing  a constable acting in the execution of powers conferred by or pursuant to the Misuse of Drugs Act 1975.  At the same time Judge Tuohy found Mr S   not guilty on a separate charge under s 23(a) of the Summary Offences Act  1981 of resisting a

constable acting in the execution of his duties.

S V NZ POLICE HC WN CRI-2006-485-21  26 June 2006

[2]      Mr  S    appealed  against  that  conviction.    The  police  did  not  appeal against Judge Tuohy’s finding of not guilty on the second obstruction charge.

[3]      These, perhaps somewhat unusual, circumstances arose in the following way, essentially as recorded in Judge Tuohy’s oral judgment.

[4]      The police executed a search warrant at Mr S  ’s home.   I note at this point that  Mr S   challenges the adequacy of proof of the existence of that warrant.

[5]      After knocking, the police entered the premises.   Mr S   initially went outside, but seeing a policeman there he went back inside and shut himself in a bathroom.  After some discussion he came out of the bathroom, and was questioned by the police.   A short time later, a police officer conducting the search noticed something in Mr S  ’s mouth.  Mr S   initially denied having anything in his mouth, then said it was toilet paper to stop a bleeding lip. Upon being asked to open his mouth for inspection, and spit out what was in his mouth, he refused.

[6]      The exchange between the police and Mr S   then became a little heated. Judge Tuohy found that the officers had formed a reasonable belief that Mr S   did have something in his mouth, that it was something incriminating and that it was most likely an illegal drug and that Mr S   was attempting to dispose of it by chewing and/or swallowing it.  A second officer then asked Mr S   to remove the item from his mouth, stating that force would be used to remove it if necessary. Mr S    did  not  comply  with  that  demand  and,  as  Judge  Tuohy  says  with considerable understatement, “a lengthy physical struggle then commenced”.   That lengthy struggle eventually involved four police officers unsuccessfully attempting to overcome Mr S  ’s resistance to their considerable physical efforts to apply force to obtain the item from his mouth over a period of 10 to 20 minutes.

[7]      Judge Tuohy found that after some time, and still being unsuccessful, the police officers became concerned about the possibility of Mr S   suffering positional asphyxia or choking on the item in his mouth.  The police then gave up those  attempts,  and  pepper  spray was  used  on  Mr  S  .    The  police  frankly acknowledged the use of pepper spray to make Mr S   stop struggling and to make him give up what was in his mouth.

[8]      Following  the  application of the  pepper  spray,  Mr  S    did  expel  the remnants (chewed pieces of some substance-like plastic wrap) of whatever he had in his mouth.  An analysis for controlled drugs produced negative results.

[9]      As  a  result  of  these  events,  two  obstruction  charges  were  laid  against

Mr S  .

[10]    At the outset of the case Mr Paino, Counsel for Mr S  , sought to particularise the facts involved as they related to the two specific charges of obstruction.   Judge Tuohy did so  in the following way as regards the charge of obstruction under the Misuse of Drugs Act.

[22]      At  the commencement  of  the  hearing  Mr  Paino,  quite  properly, required the prosecution to specify exactly what it was relying on in relation to the obstruction charge.  Sergeant Ford specified the act of obstruction as attempting to dispose of some evidence by having something in his mouth and refusing to spit it out when requested.  It is the charge particularised in that way which the Court has to consider.

[23]     It is obvious from my factual findings that I am satisfied beyond reasonable doubt that the defendant did obstruct Detective Humphries in that way, and that he did so wilfully, that is, intentionally.   The issue is, is it proven beyond reasonable doubt that Detective Humphries was acting in the execution of a power conferred by or pursuant to the Misuse of Drugs Act?

[24]      The  way  this  charge  has  been  particularised,  it  is  not  primarily directed towards the physical struggle which took place.  On the informant’s case, the charge would be established by a passive refusal to spit out the item when required.   That is the charge, which effectively the prosecution are making, given the particulars that were quite properly requested and supplied at the commencement of the hearing.

[25]     Was Detective Humphries acting in the execution of lawful powers conferred by or pursuant to the Misuse of Drugs Act when he made demand on  the  defendant  to  spit  out  the item  in  his  mouth,  which  demand  the defendant attempted to evade by refusing to do so and by chewing and

swallowing the item?    This charge is a specific charge under s 16 of the Misuse  of  Drugs  Act.     It  is  not  the  more  normal  general  charge  of intentionally obstructing a police officer under the Summary Offences Act. The difference is, it is not enough for the police officer to be acting under the general scope of a constable’s duty, for example the general scope of a constable’s duty to obtain evidence for the prosecution of offences.   There must be proven a duty conferred by or pursuant to the Misuse of Drugs Act (paras [24] and [25]).

[11]     It  followed  that  the  more  general,  second,  obstruction  charge  related  to Mr S  ’s  participation  in  the  physical  struggle,  which  followed  his  initial, passive, refusal.

[12]     Mr S   did not give evidence, and the facts as alleged by the police were largely not in dispute.  Rather Mr Paino challenged the police case on two bases:

a)       First, the police had not proved – as was necessary – the existence of the search warrant as they did not produce the original search warrant in evidence.

b)       Secondly,  Mr  S    could  not  be  found  guilty  of  either  of  the obstruction  charges.    As  regards  obstruction  under  the  Misuse  of Drugs Act, the police were not acting under a power which entitled them to compel Mr S   to spit out the item in his mouth, hence his passive refusal was not obstruction.   As regards the more general charge  under  the  Summary  Offences  Act,  they  were  not  acting lawfully in the execution of their duties.

[13]     Judge Tuohy found that the uncontradicted oral evidence of the police as to the existence of the warrant was sufficient for his purposes, the best evidence rule aside.

[14]     He then found that the warrant authorised the police to attempt, under the Misuse of Drugs Act, to take possession of items on the premises by lawful means, including by:

Requesting  someone  on  the premises  to  hand  over  any  item  which  the detective had reasonable ground to believe was one of the drugs which he was authorised to search for.  In my view, by deliberately refusing to hand

over the item, to deliver it up, the defendant did obstruct the officer, that is, prevented, hindered or made more difficult the officer’s duty to recover any such items, a duty which emanated from the search warrant under the Misuse of Drugs Act (para [29]).

[15]     Judge Tuohy found, in light of the prohibition in the Misuse of Drugs Act on internal searches and distinguishing R v Roulston [1998] 15 CRNZ 515, that what had happened subsequent to Mr S  ’s passive refusal was properly categorised as an intended internal search, beyond the powers of the police.  Hence Mr S   was not resisting a police officer in the course of his duty, an essential element of the charge.  The second obstruction charge was therefore dismissed.

Appeal

[16]     Before me, Mr Paino repeated the challenges he had made in the District Court to the proof of the warrant and to the Misuse of Drugs Act obstruction charge. He referred, on the former, to Cross on Evidence on the documentary evidence rule. On the latter, he referred to Elder v Evans [1951] NZLR 801, Keenan v Attorney General  [1986] NZLR 244 and Taylor  v  New Zealand  Poultry  Board  [1984]  1

NZLR 294.  His essential point was that although the police were entitled to request Mr S   to show them what was in his mouth, and to request him to spit that item out,  they  had  no  power  to  compel  him  to  do  so.    In  declining  their  request, Mr S   may have been making their job more difficult (obstructing them to that extent), but he was not obstructing them in the execution of a power conferred on them by the Misuse of Drugs Act.  He could not therefore be guilty of the offence charged.

[17]     The Crown largely relied on Judge Tuohy’s decision.  As earlier noted, there was no appeal against the dismissal of the second obstruction charge.

Analysis

[18]     I propose to deal with the obstruction point first, and then the question of the sufficiency of the proof of the warrant.

[19]     The starting point for considering Mr Paino’s challenge to the obstruction charge is the particulars of that charge as recorded by Judge Tuohy.  That is, as set out in para [24] of his oral judgment, “on the informant’s case, the charge would be established by a passive refusal to spit out the item when requested”.  The act relied on is, therefore, Mr S  ’s passive refusal to spit the item out of his mouth when asked to do so.  When sentencing Mr S  , Judge Tuohy confirmed this in saying:

The obstruction that I have found proven is your refusal to comply with [Detective Humphries’] request to effectively deliver to him an item in your mouth.

[20]     The power provided by s 16 of the Misuse of Drugs Act is a power of search of persons.   That power is, however, limited as regards internal searches.   Section

18A(1) provides as follows:

18A     Internal search of person under arrest

(1) Notwithstanding anything in section 57A of the Police Act 1958 or any other enactment or rule of law to the contrary, no member of the Police shall conduct an internal search of any part of the body of any person nor, except in accordance with subsection (2) of this section, shall he cause any other person to conduct such a search:

Provided that, with the consent of the person concerned, a member of the

Police may search that person's mouth.

[21]     The police did not therefore, without Mr S  ’s consent which clearly had not been provided, have the power to search Mr S  ’s mouth.

[22]     The police were, however, entitled to request Mr S   to spit the item out of his mouth.

[23]     Does Mr S  ’s passive refusal to do so constitute obstruction?  I think the question here is whether, given the specific provisions of the Misuse of Drugs Act limiting powers of internal search, and acknowledging that an internal search of the mouth may only lawfully be conducted with the consent of the person in question, Mr S   acted with lawful excuse when he passively declined to spit the item out of his mouth.

[24]     As best as I am able to ascertain, this particular issue has not been considered before in the context of s 16 of the Misuse of Drugs Act.

[25]     Cases on obstruction more generally, including those referred to by Mr Paino, are however on point.

[26]     In Elder v Evans [1951] NZLR 801 the appellant had refused to give his name to the police, having been found in the early hours of the morning sleeping on the side of a road on the outskirts of a city covered by sacks and newspapers. He was arrested for obstruction on the grounds of that refusal. On the question of whether that refusal constituted obstruction, Hay J analysed the position as follows:

a)       There was no specific provision requiring the appellant to provide his name, as there was in other cases.

b)       It had, however, been argued (accepting that physical obstruction was not required) that as the constable was carrying out his duty to investigate, the refusal of the appellant to provide his name was obstruction.

[27]     On this latter argument,  which  is similar  to  the  basis  upon which Judge

Tuohy decided the matter, Justice Hay concluded:

It would, however, be going too far to hold that mere non-disclosure by a person of his name and address amounts to wilful obstruction, even where the person making the enquiry is a constable engaged in the execution of his duty.

[28]     In my  view,  Elder v Evans directly considered the argument  of whether obstruction would arise because an officer was entitled to make a request of a person and may have been doing so in the execution of his duty.  The court there found that in the absence of a power to require the provision of information, or in this case the performance of the requested act, obstruction did not arise.  This is where I depart from Judge Tuohy’s approach.

[29]     The leading English case of Rice v Connelly [1966] 2 QB 414 also considers the question of lawful excuse in the context of obstruction charges. There the defendant refused to supply his name and address to a constable. Although the constable was acting in the execution of his duties, and the defendant had made it more difficult for the constable to carry out those duties, there was no legal compulsion on the defendant to supply the information. He was therefore, the Court found, acting with lawful excuse and his behaviour did not constitute obstruction.

[30]     In this situation, Mr S   was entitled to decline to allow an internal search of his mouth to be undertaken by the police.  Furthermore, there is no specific power under the Misuse of Drugs Act entitling the police to require Mr S   to spit out the contents of his mouth.  On that basis, and in line with the Elder v Evans and Rice v Connolly authority, Mr S   did have a lawful excuse.   He was therefore not obstructing the police when he passively declined, as the charge was particularised, to spit out the item when required.

[31]     This  conclusion  is,  I  think,  reinforced  by  the  specific  provisions  of  the Misuse  of  Drugs  Act  which  provide  the  police  with  ways  of  addressing  the reluctance of persons to be searched internally, and the procedures in that regard provided by s 18A(2) and following.

[32]     I reach that conclusion for the following reasons:

a)       First, the explicit recognition that an internal search of the mouth may only be carried out with the consent of the person in question.

b)       Secondly,   the   explicit   procedures   prescribed   in   s 18A(2),   and following, which provide the police with a method to obtain evidence of items “secreted” within the body in ways which recognise the need to protect against internal searches.

c)       Thirdly, I note that in R v Tupara (1996) 3 HRNZ 77, the Court of Appeal considered the purpose of the protections provided by s 18(A)(i). It commented as follows:

A practical approach to the construction of the section is called for. The purpose of the section is to prevent the invasion of the body contrary  to  accepted  standards  of  dignity,  bodily  integrity  and privacy.  Probing within the mouth with a finger or other instrument or  forcing or  holding open the mouth so as  to conduct  a  visual examination of the interior are what seems to be contemplated (page

81, lines 35-40).

[33]     It is also, in this context, appropriate to consider whether there may have been some implied duty on Mr S   to co-operate with the police, as has been found in certain circumstances.   Again, given the statutory framework, I do not consider that to be the case.   The following comments from Brooker’s Summary Proceedings provide some guidance on this point:

The extent to which expressed statutory powers may properly be supplemented  by  a  combination  of  implied  duties  to  co-operate  in  the offence of obstruction is uncertain and controversial.   It requires a value judgment in balancing the desirability of effective law enforcement and the maintenance of personal liberty: CC Ross “Two cases on obstructing a constable” [1977] Crim LR 187 at page 186.   The existence and scope of such a duty has been said to depend on whether it is “a compelling inference from the nature of the police duty or right”: Smith v Hogan Criminal Law (7th Edition), page 421 (SO 23.06).

[34]     Given the elements of s 18A that I have referred to above, and on the basis of the decision in R v Tupara that the action of forcing or holding the mouth open to permit inspection constitutes an internal search and therefore requires consent, I do not think a duty to co-operate by opening the mouth and then spitting out, which in effect overrides the protections of s 18A, can be implied.  Such a duty would appear to render nugatory those protections in the case of internal searches of the mouth.

[35]     Finally on this point, I have considered whether cases such as R v Tupara and R v Roulston might  imply some limited duty to  co-operate, which Mr  S  ’s “passive refusal” infringed, and thus that refusal should properly be regarded as constituting obstruction.  In both R v Tupara and R v Roulston force was applied in an effort to encourage a person being searched to spit out an object concealed in the mouth, and/or to prevent them from swallowing that object and/or to protect them from the harm that might be caused were they to swallow that object.  In both cases the application of force involved was held not to constitute an unlawful internal search, and the evidence obtained as a result of the application of that force was held to be admissible.  Can it then be asserted that a person being searched has a duty to

do what might be achieved by the application of force, which falls short of constituting an unlawful internal search?  Thus, for example, in R v Forde [1985] 81

Cr App R 19, walking away and swallowing something when a constable sought to exercise  his  statutory  power  to  detain  and  search  for  drugs  was  held  to  be obstruction.  I think that the answer to that question in this situation is principally to be found in the Court of Appeal’s recognition, in R v Tupara, that forcing or holding the mouth open, in that instance so as to constitute a visual examination, constituted an internal search.   In my view, that finding is against an implied duty in these circumstances, as it would appear unlawful for the police to compel a person being searched to open their mouth.  In these circumstances, it is also important to note that Judge Tuohy found, and there is no appeal against this finding by the police, that the subsequent physical efforts of the police were not undertaken in the execution of their duties.   In reaching that view, Judge Tuohy distinguished the facts in these circumstances   from  those  considered  by  the  Court   of  Appeal  in  Roulston, particularly by reference to the fact that Mr S   was not undergoing a lawful search of his person when he put the item into his mouth and that there was no immediate fear for his safety.  Moreover, I think it is important to note that neither Tupara  nor  Roulston  were  concerned  with  the  question  of what  constitutes the offence of obstruction, but rather addressed questions relating to the admissibility of evidence and, in that context, the legality of searches.

[36]     I therefore uphold Mr S  ’s appeal against conviction on the charge of obstruction under the Misuse of Drugs Act on the basis that he acted with lawful excuse.

[37]     I turn now to the question of the sufficiency of the proof of the existence of the search warrant.

[38]     This is, in terms of the characterisation of the issues in Cross on Evidence, best characterised as an attempt by Mr Piano to rely on the documentary evidence rule, rather than the more general best evidence rule.

[39]     As Cross on Evidence notes, and as a number of the cases state, the extent to which this rule survives, and the circumstances in which it will be applied, would appear to be a matter not without difficulty.  The Court of Appeal considered issues relating to the best evidence rule, in the context of a challenge to the admissibility of evidence obtained in reliance on a search warrant, in R v Thompson [2001] 1 NZLR

129.

[40]     In that case a search warrant had been executed on the defendant’s property and evidence found that supported criminal charges.  The affidavit that supported the issuance of the search warrant was subsequently lost before it could be disclosed to the defence.  A detective, upon request, then reconstituted the content of the original affidavit  from  memory,  whereupon  it  was  tendered  as  evidence  to  support  the validity of the  search  warrant.    In  pre-trial argument  it  was  submitted that  the reconstituted  affidavit  was  inadmissible,  that  the  search  warrant  was  therefore invalid and that any evidence discovered upon execution of the search warrant was also consequently inadmissible.

[41]     The Court of Appeal held that the reconstituted affidavit could be admitted as secondary evidence as to  the  content  of the  original  affidavit.  Accordingly,  the District Court Judge had been entitled on the evidence to conclude that the reconstituted affidavit was a reasonably fair and accurate reflection of the original, was therefore reliable, and that the evidence disclosed in it was sufficient to enable the Deputy Registrar to issue the warrant.

[42]     At p 142, the Court stated the law to be as follows:

[45] At common law, too, secondary evidence is admissible to prove the contents of a document which has been lost or destroyed and where in the case of a lost document a reasonable effort has been made to find it (May, Criminal Evidence (4th ed, 1999) at paras 3-08 and 3-13 to 3-14; Andrews & Hirst on Criminal Evidence (2nd ed, 1992) at para 11.19). What is needed is proof by or on behalf of the person who should have had possession of the original that it has been duly searched for without success (Law Book Company, Laws of Australia 16 at para 16.5.33).

[43]     This was elaborated on at pp143-144:

[50] Mr Pike accepted, rightly in our view, that faced with a challenge to the search warrant the Crown, as the only possible source of the information, has an obligation to disclose evidence on which the issue of the search warrant was  based.  Clearly,  it  is  desirable that  police seeking  a  warrant  should preserve a copy in their records “just in case” the original goes astray. And the Department for Courts should consider establishing rules or a standard protocol  providing  for  the  preservation  and  custody  of  applications  in writing for search warrants and notes made by the issuing officer of the grounds for issuing warrants.

[51] But the mere absence of the original record should not necessarily of itself  entail  the  drastic  penalty  of  invalidity.  That  would  frustrate  the important public interest that the police should not be unduly impeded in the investigation and prosecution of offending and that the value of the search warrant as a legitimate weapon in society’s fight against crime should not be unduly impaired (Attorney-General of Nova Scotia v MacIntyre (1982) 65

CCC (2d) 129 (SCC)). In principle, and reflecting relevant policy considerations, where the original document is lost or unavailable secondary evidence may be given in the usual way and it will be for the Court considering the challenge to the issue of the warrant to assess the weight to be given to that evidence. That was the course adopted in the District Court in the Canadian cases of R v Askov (1987) 60 CR (3d) 261 and R v Dean (1988) 4 WCB (2d) 182 cited in Fontana, The Law of Search and Seizure in Canada  (4th ed,  1997) at  p 205.  A cautious  approach to the secondary evidence should,  however,  be taken,  recognising  the possibility  that  the absence of the original record may hinder the accused in the exercise of a right pertaining to the defence of a criminal prosecution.

[52] That conclusion reflects the purpose underlying s 204 that a process should not be held invalid by reason of any omission (here, to preserve the original against the possibility of a challenge at some unspecified future time to that process), unless the Court is satisfied there has been a miscarriage of justice. On the contrary, there could be a miscarriage of justice if the presumption of validity  of the search warrant  could be swept  aside and available  secondary  evidence  ignored  where  the  original  documentation which led to its issue has been lost and where, on the Judge’s finding, as here, there is no question of deliberate destruction of the affidavit or any evidence of impropriety on the part of the Crown such as to constitute an abuse of process. If the Court is able to be satisfied by the Crown that reliable secondary evidence is available, it also seems impossible to argue that the search under the warrant could then be characterised by reason of the loss of the original record as an “unreasonable search and seizure” or that s

24 or s 25 of the Bill of Rights had been infringed.

[44]     Here, Mr Paino did not challenge the credibility of the police witnesses who spoke of the existence of the warrant, and of its contents.  Judge Tuohy, who heard the  evidence  on  that  point,  found  it  credible  and  noted  that  it  had  not  been challenged.  Mr Paino, as I understand matters, did not put to the police witnesses

whether in fact the warrant existed and what in fact were its terms.   Rather, at the end of the hearing, his point was that in the absence of the production of an actual copy of the warrant, and notwithstanding the oral evidence that had been provided, the police had failed to provide sufficient proof of the existence of the warrant.

[45]     In those circumstances, and given the difficulties with these evidence rules, I am not prepared to hold that the police case failed because they did not produce the actual warrant.  On this point, Cross on Evidence at 20.5 notes as follows:

The requirement that the original be produced, goes merely to the mode of proof.  If, therefore, the rule is not insisted upon by an opponent, it need not be observed, (R v Alexander & Taylor [1975] 741).

[46]     If Mr Paino had “insisted” that the rule be observed, then the position might have been different.  As I understand matters, he did not.  He simply made the legal point that in the absence of production, the evidence provided was insufficient.  He did not challenge that evidence itself.  I, therefore, do not uphold Mr S  ’s appeal on that point.

Result

[47]     I therefore allow Mr S  ’s appeal against conviction on the charge of obstruction under the Misuse of Drugs Act 1975 on the basis that his actions did not at law constitute obstruction.

Clifford J

Solicitors:

Paino & Robinson, Wellington for Appellant

Luke Cunningham & Clere for Respondent