Speight v Police
[2019] NZHC 1919
•8 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-131
[2019] NZHC 1919
BETWEEN FLOYD JOHN SPEIGHT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 August 2019 Appearances:
C Mitchell for the Appellant
H Macdonald for the Respondent
Judgment:
8 August 2019
JUDGMENT OF GORDON J
This judgment was delivered by me
on 8 August 2019 at 11.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor Auckland Counsel: C Mitchell, Auckland
SPEIGHT v POLICE [2019] NZHC 1919 [8 August 2019]
Introduction
[1] This is an appeal against a pre-trial ruling regarding the admissibility of evidence obtained from a warrantless search of the appellant’s vehicle by the Police under s 29 of the Search and Surveillance Act 2012 (SSA). The appellant, Floyd Speight, appeals the District Court Judge’s decision that the evidence is admissible.1
[2]Mr Speight is charged with:
(a)possession of a knife in a public place;
(b)possession of a Class C controlled drug (cannabis);
(c)possession of a pipe for consumption of methamphetamine;
(d)possession of methamphetamine; and
(e)failure to answer District Court bail.
[3] The basis of the appeal is that the search was unlawful and in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). Therefore, Mr Speight submits the evidence was improperly obtained and should be excluded under s 30 of the Evidence Act 2000. The Police oppose leave to appeal and the appeal in substance.
Background
[4] Mr Speight and his associate were in Mr Speight’s vehicle parked in a car park in the Henderson area. Mr Speight’s associate removed a lighting unit from the soffit adjacent to an Internet cafe and fled in Mr Speight’s vehicle. The event was witnessed by a member of the public who called the Police.
[5] Sergeant Burrell was notified and was provided with a description of Mr Speight’s associate. The sergeant arrived at a nearby gas station where Mr Speight
1 Police v Speight [2019] NZDC 3147 [Decision on appeal].
and his associate were located. The associate was arrested and dealt with by another constable. Sergeant Burrell then spoke with Mr Speight, who said he did not know who the other person (his associate) was. But he said he knew where the light was and pointed to an item in a nearby bush.
[6] Sergeant Burrell considered the associated cabling (also stolen property) might be in Mr Speight’s vehicle. He invoked the search powers under ss 29 and 110 of the SSA. He was uniformed and identified himself. Sergeant Burrell explained the reason for the search and gave Mr Speight his rights as he was detained pursuant to the SSA. No further evidence related to the theft was found. But the sergeant found drugs, drug- related paraphernalia and a knife.
District Court decision
[7] The pre-trial issue to be determined was whether the search undertaken was lawful and reasonable in the circumstances.2 The District Court Judge held the search was lawful, its execution not unreasonable and the evidence obtained admissible.3
[8]The Judge’s reasons were as follows.
[9] First, there was lawful authority for the warrantless search. The Judge found that the sergeant had reasonable grounds to believe there was stolen property in the vehicle. While Mr Speight was (initially) cooperative, Sergeant Burrell had reason to be sceptical given Mr Speight’s account of events. For example, Mr Speight claimed he did not know who the other person (his associate) was, despite that person having been a passenger in Mr Speight’s vehicle. The sergeant had properly exercised his search powers under s 29 of the SSA.
[10] Whilst there were other investigative methods available, such as locking up the car, accompanying Mr Speight to the Internet cafe and seeing whether the light found in the bush was the light in question, the Judge noted that “policing is a dynamic exercise. Circumstances change and develop as events progress.”4 The sergeant had
2 At [2].
3 At [23]–[24].
4 At [17].
evidence of a theft. He did not have more detail about the item stolen. But there was Mr Speight, who claimed not to know his passenger whom he had driven from the scene of the theft. The Judge observed that “The sergeant was entitled to view that claim with some scepticism.”5 The Judge concluded that:
[19] … he [did not] know if any other items related to that theft would be found in the car. Objectively, there was [sic] empirically reasonable grounds to believe that there was stolen property in the car, given the recency of the offence and the acknowledgment of involvement. The sergeant was not obliged to accept the defendant’s account. …
[11] Secondly, as to the reasonableness of execution, the Judge observed that the sergeant had “complied fully with the provisions of s 131(1) of the [Search and Surveillance] Act in the exercise of that search power”.6
Leave to appeal
[12] The appellant appeals under s 215 of the Criminal Procedure Act 2011. That section provides in relevant part:
215 Right of appeal by prosecutor or defendant against certain pre- trial evidential decisions in Judge-alone case
…
(2)The defendant or the prosecutor may, with the leave of the first appeal court, appeal to that court against a decision that is one of the following:
(a)making or refusing to make an order under section 79 (as to admissibility of evidence): …
[13] Mr Mitchell, for Mr Speight, did not file an application for leave to appeal nor do his written submissions address the question of leave. At the hearing, Mr Mitchell made an oral application for leave. It was a bare application without any supporting submissions other than an assertion that there would be a miscarriage of justice if leave was not granted. Mr Mitchell did not make any submissions as to why the Court should extend time for the filing of an application for leave to appeal.7
5 At [18].
6 At [22].
7 The decision of the District Court Judge is dated 21 February 2019. Section 220(2) of the Criminal Procedure Act 2011 provides that a notice of application for leave to appeal must be filed within 20 working days after the date of the decision to which the appeal relates. Section 220(3) provides
[14] Without intending to suggest the Court condones such a failure to file an application, I will nevertheless put the above matters to one side and consider the leave application on its merits. But first I record the respondent’s opposition.
[15] Ms Macdonald submits that leave to appeal should be refused. Mr Speight has failed to advance any grounds of appeal upon which the District Court Judge’s decision could be impugned. Ms Macdonald submits that the submissions filed on behalf of Mr Speight amount to no more than a reiteration of the submissions made before the District Court Judge and disagreement with the Judge’s ruling.
[16] In R v Leonard, the Court of Appeal identified a non-exhaustive list of considerations in determining leave applications.8 In Hohipa v R, the Court of Appeal confirmed that those factors continue to apply to pre-trial appeals under the Criminal Procedure Act.9
[17] One of the factors favouring leave is where the application involves the admissibility of evidence that is important to one of the parties. That is the case here. The evidence in question is the sole basis for the charges. The Crown accepts that the:
… evidence is critical to the prosecution case, and if ruled inadmissible, will result in the charges against Mr Speight being withdrawn (with the exception of the charge of failing to answer bail).
[18] A further factor favouring leave is that the proposed grounds of appeal are arguable while one of the considerations for refusing leave is that the proposed appeal is without merit. Having regard to these two factors, I will proceed to consider the merits of the appeal and then return to the issue of leave.
Search and seizure principles
[19] Section 29 of the SSA provides that a constable may search a vehicle without a warrant where he or she has reasonable grounds to believe that any stolen property is in or on the vehicle. Section 110 then provides:
that the first appeal court may at any time extend the time allowed for filing a notice of application for leave to appeal.
8 R v Leonard [2007] NZCA 452 at [13].
9 Hohipa v R [2015] NZCA 73, [2018] 2 NZLR 1 at [27].
110 Search powers
Every search power authorises the person exercising it—
(a)to enter and search the place, vehicle, or other thing that the person is authorised to enter and search, and any item or items found in that place or vehicle or thing, at any time that is reasonable:
…
(d)to seize anything that is the subject of the search or anything else that may be lawfully seized: …
[20] The SSA defines “search power” to include “every power, conferred under this Act … to enter and search … (without warrant) any place, vehicle, or other thing”.10 Section 118 then confers powers of detention incidental to powers to search places and vehicles. That section permits the detention of any person who is in the vehicle at the commencement of the search.11
Submissions
[21] Mr Mitchell submits the evidence was obtained unlawfully. In particular, he says:
(a)the Judge erred in finding there were objectively reasonable grounds to believe there was stolen property in Mr Speight’s vehicle;
(b)the Judge erred in misapplying the statutory test for s 29 of the SSA, which is whether objectively there was stolen property;
(c)given his cooperation with the Police, Mr Speight should have been exempt from suspicion;
(d)the Police should have taken a different investigative approach, namely to make enquiries of the owner of the light, eliminating any need to search Mr Speight’s vehicle; and
10 Search and Surveillance Act 2012, s 3(1).
11 Section 118(1)(a).
(e)Mr Speight’s detention during the search was unlawful.
[22] In essence, Mr Mitchell says that once the light was found in the bush, the case was solved. He submits that Sergeant Burrell searched Mr Speight’s vehicle “without a warrant on the pretence that they were looking for a piece of light wiring”. And that this was a breach of Mr Speight’s right to be free from unreasonable search and seizure under s 21 of the NZBORA. Mr Mitchell further submits the evidence cannot be saved under s 30 of the Evidence Act.
[23] Ms Macdonald submits the appeal should be dismissed as the search was lawful and the evidence was not improperly obtained. If the Court were to determine that the evidence was improperly obtained, she says, on balance, the evidence should not be excluded under s 30 of the Evidence Act.
Discussion
[24]I address each of the appellant’s submissions in turn.
[25] First, did Sergeant Burrell have objectively reasonable grounds to believe there was stolen property in Mr Speight’s vehicle? If not, then he breached s 29 of the SSA and the warrantless search would have been unlawful (and in breach of s 21 of the NZBORA). Mr Mitchell says Sergeant Burrell had no reasonable grounds to believe there was stolen property in Mr Speight’s vehicle because “only one light was reported missing that morning in Henderson”, and that light had been found. Mr Speight pointed it out to Sergeant Burrell. So, he says, the case was closed.
[26] However, as the Judge noted, Mr Speight was seen driving the culprit who had taken the light. Despite this, Mr Speight denied knowing the culprit. There was thus reason for Sergeant Burrell to be sceptical of Mr Speight’s account. Further, as to the reasonableness of Sergeant Burrell’s belief, he did not know whether the light in the bush was in fact the light in question. The information he had been given was that the culprit had “broken the wires and then got into the defendant’s vehicle”.12 On these
12 Decision on appeal, above n 1, at [6].
issues, Sergeant Burrell said, when asked why he believed there were stolen items in Mr Speight’s car:
Well, there was [sic] two reasons. Although he had, the defendant had showed me a light behind the petrol station, I was unaware of what light I was looking for. The chances are it may have been that light that he showed me that was stolen, or not. The second reason being is I was looking for parts of that light, which I told the defendant at the time, on [sic] particular a wire.
[27] On the basis of the above evidence I find that the Judge was correct to conclude that Sergeant Burrell had reasonable grounds to believe there was stolen property in the vehicle in terms of s 29 of the SSA.
[28]Additionally, the Judge was correct to distinguish R v Anderson.13 In that case:
[31] … Neither constable had any knowledge of any property being stolen on the night and nor did they have in mind any stolen property which might be in or on the Honda vehicle. They had nothing to relate the Honda vehicle to any stolen property. In those circumstances there could be no reasonable belief … that there may be stolen property in or on the Honda vehicle.
[29] Secondly, Mr Mitchell says the Judge misapplied the statutory test under s 29. He says the test in R v Timutimu is whether objectively there was stolen property in the vehicle.14 He says that the Judge’s comment that Sergeant Burrell “did not know if any other items related to that theft would be found in the car”15 contradicts his finding that the s 29 test was satisfied. However, what the Court said in R v Timutimu is that:
[41] The essence of the power is a reasonable basis for belief that there is property stolen or obtained by dishonesty inside the vehicle. The test appears to be objective, focused not so much on the actual belief of individual Constables, but, rather whether there existed empirically reasonable grounds for a belief: R v Laugalis (1993) 10 CRNZ 350 at 354.
[30] In other words, the test is whether the belief that there is stolen property in the vehicle is objectively reasonable. And this is the test applied by the Judge:
[22] … The fact that there was not further evidence relating to the theft found within the vehicle does [not] detract from the reasonableness of that belief or render the search unlawful or unreasonable.
13 R v Anderson (2005) 21 CRNZ 393 (CA).
14 R v Timutimu [2006] DCR 38 (HC).
15 Decision on appeal, above n 1, at [19].
[31] That is the correct approach. Furthermore, for the reasons discussed at [27] above, Sergeant Burrell’s belief was objectively reasonable.
[32] Thirdly, as to the submission that Mr Speight’s cooperation ought to have exempted him from suspicion, I agree with the Judge that there was reason for Sergeant Burrell to be sceptical of Mr Speight’s account. Further investigation was not unreasonable.
[33] Fourthly, as to alternative investigative methods, Sergeant Burrell accepted that there were alternative methods available to him. One such alternative, as submitted by Mr Mitchell, was to lock up the car, accompany Mr Speight to the Internet cafe (which was nearby) and check whether the light obtained from the bush was the light that was taken from the cafe. Mr Mitchell says that if the sergeant had done so, he would have discovered that the wire was still attached to the building, thus eliminating the need to search Mr Speight’s vehicle.
[34] However, Mr Mitchell has not provided any authority for the proposition that a warrantless search under s 29 of the SSA cannot be conducted until all other avenues of enquiry are exhausted. Section 29 simply requires that the constable conducting the search has reasonable grounds for his or her belief. The availability of other investigative approaches does not render the belief unreasonable.
[35] Finally, was Mr Speight’s detention during the search unlawful? There is evidence that Mr Speight became argumentative when Sergeant Burrell tried to search the vehicle. The sergeant was simply exercising his power under s 118. There is no evidence that the detention was in excess of the powers conferred by s 118 of the SSA.
[36] For all the above reasons, the search was lawfully carried out under s 29 of the SSA.
[37] I now turn briefly to s 21 of the NZBORA. That section protects against unreasonable search and seizure. It does not prevent a lawful search carried out in accordance with s 29 of the SSA and related provisions such as s 118. Mr Mitchell has not advanced any arguments to suggest that, what I have found to be a lawful
search, was otherwise unreasonable. I do not see any reason to disagree with the District Court Judge on that issue. Accordingly, there was no breach of s 21 of NZBORA. Nor has Mr Mitchell identified any evidence that the evidence was obtained unfairly. For the purposes of s 30 of the Evidence Act, it therefore cannot be said that the evidence was improperly obtained.
[38] Accordingly, the evidence seized in the warrantless search of Mr Speight’s vehicle is admissible.
Conclusion
[39] I return to the application for leave to appeal. Although the application involved the admissibility of evidence that was important to one of the parties, the grounds of appeal lacked merit. I therefore refuse leave to appeal. As is apparent, even had I granted leave, I would dismiss the appeal on the merits.
Gordon J
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