The Queen v Fowler

[2007] NZCA 1

IN THE COURT OF APPEAL OF NEW ZEALAND

CA418/06
[2007] NZCA1

THE QUEEN

v

DAVID DOUGLAS FOWLER

Hearing:1 February 2007

Court:O'Regan, Robertson and Arnold JJ

Counsel:G D Trainor for Applicant

S B Edwards for Crown

Judgment:5 February 2007 at 12pm

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS REFUSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       David Douglas Fowler has been committed for trial on one count of possession of a Class B controlled drug for the purposes of supply.  Pre-trial he challenged the admissibility of evidence obtained as a result of a search of a large wallet he was carrying when he went to the door of a flat at a time that police were executing a search warrant on the premises.  Mr Fowler alleged that he should have been advised that he had the right to consult a lawyer prior to the search and that the failure to so advise him meant that the search was unlawful.

[2]       District Court Judge Crosbie found that Mr Fowler was not detained at the time the search was conducted, that, if he had been, the delay in cautioning him was not unreasonable, the search was not unreasonable and that in any event the evidence, if in breach of the New Zealand Bill of Rights Act 1990 (NZBORA) should be admitted in accordance with the balancing test in R v Shaheed [2002] 2 NZLR 377 (CA).

[3]       Mr Fowler seeks leave to appeal that pre-trial ruling.

Background

[4]       It is not in dispute that on 24 May 2006 the police were lawfully executing a search warrant at a house in Christchurch when Mr Fowler arrived on the scene.  He parked his car in the driveway and walked up to the door of the house with a large wallet in his hand.  A police officer, having informed him of the existence of a search warrant, asked Mr Fowler to produce his wallet.  In the wallet was found enough Ritalin and Rubefin tablets (which are class B drugs) to activate the presumption of possession for supply.  

[5]       In this Court the case was advanced on the same issues as were in contention in the District Court.  They involve the consideration of ss 21 and 23(1)(b) of the NZBORA which provide:

21Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

23Rights of persons arrested or detained

(1)       Everyone who is arrested or who is detained under any enactment -

…

(b)Shall have the right to consult and instruct a lawyer without delay and to be informed of that right

…

Issues

(a)      Was the applicant detained?

[6]       It is a matter of fact and degree in every case as to whether a person who is present while a search warrant is being executed is detained: R v Nielson CA53/93 15 June 1993.

[7]       In Everitt v Attorney-General [2002] 1 NZLR 82, this Court noted at [7] that determining whether someone is detained in terms of the NZBORA involves a mixed subjective/objective test as to whether “the suspect [has] a reasonably held belief, induced by police conduct, that he or she is not free to leave”.

[8] Judge Crosbie found there was no evidence suggestive of detention. Nothing advanced before us suggests that any realistic challenge can be made to the Judge’s finding that this was “simply a temporary check on the accused’s liberty, which does not merit the label of detainment”: at [25].

(b)Was the delay in informing of a right to consult a lawyer unreasonable?

[9]       Counsel for Mr Fowler, Mr Trainor, argued that the delay in cautioning Mr Fowler until after the search was unreasonable.  Our finding that there was no detention at the time of the search, and consequently no obligation to caution Mr Fowler at the time of the search, means it is not strictly necessary to deal with this argument.  However, we record that we would have rejected this argument if it had been a live issue.

[10]     Mr Fowler went to the door of the property and was told by a police officer that a search was being conducted.  The police asked to search the large wallet he was carrying. He was not informed of his rights under the NZBORA until immediately after the drugs were found in it.

[11]     This Court in R v Mallinson [1993] 1 NZLR 528 at 530 held that “without delay” imported a test of whether the delay was “reasonable in all the circumstances having regard to the purpose of the right … If the right is to be effective it must be exercisable before the legitimate interest of the person who is arrested are jeopardised”.

[12]     We find no substance in Mr Trainor’s argument under this head.  Even if it had been concluded that he was detained at the time his wallet was searched, his legitimate interests were not jeopardised by the police not giving him his rights until after the search.  There was a search warrant in existence.  The applicant was obliged to submit to a search.  He could not have been given any advice that would have prevented this from happening.  Mr Fowler did not suffer any prejudice in his legal position and the delay in cautioning was, in the circumstances of the case, not unreasonable.

(c)Was the search in any event unreasonable?

[13]     It is contended that the search undertaken was in breach of s 21 of the NZBORA because:

(a)Mr Fowler was not the subject of the original search warrant and voluntarily entered the premises and could not have expected the search; and

(b)he was searched outside the premises in full view of neighbours and passersby.

[14]     Section 18(1) of the Misuse of Drugs Act 1975 provides that where police have obtained a search warrant they can search any person found on the premises.  It matters not whether the applicant was visiting or lived there.  There was nothing unreasonable about the police search of a person found at the premises who acknowledged that he was an associate of one of the occupants.  Further, there is nothing akin to the circumstances in R v Pratt [1994] 3 NZLR 21 (CA) where this Court criticised the strip-search of the appellant in the middle of the street. Searching the applicant’s wallet while at the door of the property was not unreasonable.

(d)      Was the Judge wrong in his assessment of the Shaheed balancing test?

[15]     Although Judge Crosbie found that the evidence was not obtained in breach of the NZBORA, he held that on the Shaheed balancing test the evidence should have been admitted in any event.  Mr Trainor submitted that the balancing exercise was flawed because the breach was not minor and the search resulted in a more than insignificant invasion of the applicant’s privacy.

[16]     The issue is not live before us, but we have no doubt that the Judge’s conclusion was correct.  We note that the Judge’s view that the absence of evidence of bad faith on the part of the police (at [36](d)) was a factor.  Good faith is entirely neutral, but that error is inconsequential in the circumstances of this case.

[17]     If it had been found that Mr Fowler was detained, the delay in cautioning him was minuscule and, immediately following the search of the wallet (which only took a brief time) Mr Fowler was informed of his right to consult a lawyer.  Nothing a lawyer could have said or done would have altered the fact that a search was to be carried out.  Mr Fowler made no inculpatory remarks prior to caution.  The opening and looking into the wallet was not a significant invasion of privacy.  The balance is overwhelmingly in favour of admission.

Conclusion

[18]     The application for leave to appeal is refused.

Solicitors:
Trainor MacLean, Christchurch, for Applicant
Crown Law Office, Wellington