The Queen v Maihi

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/02

THE QUEEN

RIKI TEAWAWA MAIHI

Hearing:	13 August 2002
Coram:	Tipping J McGrath J Anderson J
Appearances:	P G Mabey QC for Appellant J C Pike for Crown
Judgment:	22 August 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

Riki Teawawa Maihi seeks leave to appeal from a pre-trial ruling declaring admissible at his trial evidence found as a result of searches of his person and his motor vehicle. He contends that the searches were unreasonable and that the evidence which they produced should have been declared inadmissible. This is the first case to reach this Court in which the Judge below has dealt with an admissibility issue after the introduction of the new approach laid down in R v Shaheed [2002] 2 NZLR 377. Before describing the facts which gave rise to the present question, it may be helpful to summarise the approach which Shaheed requires in the circumstances of this case.
The first issue is whether the searches of the appellant’s person and vehicle were unreasonable and thus a breach of his rights under s21 of the New Zealand Bill of Rights Act 1990. If the searches were unreasonable, the Court must decide whether the evidence which resulted from them should nevertheless be admitted. If the searches are found to have been reasonable, no breach of rights is involved and hence no question of inadmissibility arises.
In this case it is accepted the searches were unlawful. That fact and the basis of the unlawfulness are relevant to whether the searches were unreasonable but not determinative of that question. An unlawful search is not per se unreasonable. Conversely a lawful search is not per se reasonable. What can be said is that the unlawfulness of a search may well suggest that it is also unreasonable. Similarly the lawfulness of a search may well suggest that it is reasonable. The reasonableness or unreasonableness of a search is ultimately a value judgment which the Court must make on a principled basis, bearing in mind all the relevant factors of the case.
Shaheed makes it clear that the question whether a search was reasonable or unreasonable is a question which is separate from, and prior to, the question whether the resulting evidence should be admitted. In this case the Judge indicated he found it convenient to examine the two topics together. That, with respect, is not what Shaheed requires. Proceeding as the Judge did involved him in an unnecessary inquiry. Having decided the searches were reasonable he nevertheless also addressed the question whether the evidence should be admitted. He held it should but, on the hypothesis of reasonable searches, the admissibility question did not arise. It is only if a search is found to be unreasonable that admissibility questions have to be addressed.
We also observe that following Shaheed there should not, save perhaps in unusual circumstances, be any need for Judges to address the search and seizure jurisprudence of other countries. The task is simply to apply the Shaheed approach to the particular case. Overseas examples are not likely to be of much help, unless they have a close resemblance to the case in hand. Shaheed moved away from the earlier prima facie exclusion rule and introduced a balancing test. Both that test, and the prior question of reasonableness, are matters which should be informed primarily by New Zealand values. The value judgments of overseas Courts may, on occasions, be helpful in a general way but ultimately New Zealand Judges must make decisions based on their own perceptions of the reasonableness of searches and where the balance of all the competing admissibility factors may lie in relation to evidence which has resulted from an unreasonable search.

Background

Mr Maihi is due to stand trial in the High Court at New Plymouth on an indictment containing three counts:
[1]possession of iodine, a material capable of being used in the manufacture of the Class B controlled drug amphetamine;
[2]possession of the Class B controlled drug morphine for the purpose of supply; and
[3]possession of the Class C controlled drug cannabis for the purpose of sale to a person of or over the age of 18 years.
These charges arise out of events which took place at Bell Block on Sunday 15 April 2001 during the Easter weekend. A motor cycle convention was being held in New Plymouth over that weekend. It was organised by the Magog Gang. A number of other gangs were represented from throughout the North Island. The New Plymouth police had been reinforced by police from outside Taranaki for the period of the so-called convention. Information had been received by the police from a reliable source that Black Power gang members were carrying weapons with them over the weekend for protection in case of attack by other gangs. The local Black Power gang has its Headquarters in De Havilland Drive. The Magog Gang had organised a motor cycle drag event for the afternoon of 15 April 2001. The venue for this event was approximately 750m from the Black Power Headquarters.
Three police officers in an unmarked vehicle were driving along De Havilland Drive at approximately 4.40pm that day. The officers were Detective Sergeant Stokes, Detective Barry and Constable Watkins. The Detective Sergeant was based in Otahuhu and was in charge of the Auckland Motor Cycle Gang Unit. He had been in the police since 1985 and in the Criminal Investigation Branch since 1991. He had performed a number of intelligence gathering and associated roles and had been a member of the Auckland Organised Crime Unit. On Friday 13 April 2001 he travelled to New Plymouth with two other members of the Motor Cycle Gang Unit to assist in the policing of the various motor cycle gangs over the Easter period. Constable Watkins was driving the unmarked police car. Detective Barry was also from Otahuhu and a member of the Auckland Motor Cycle Gang Unit.
The officers saw Mr Maihi drive a black ute out of the Black Power Headquarters onto De Havilland Drive. He accelerated quickly in the direction of the drag event. The police car followed the black ute. The officers did not know who Mr Maihi was at the time, nor did they know whether he was a member of the Black Power gang. Mr Maihi appeared to realise that he was being followed by the unmarked police car. He was seen to lean down to his left hand side and then to his right hand side as he was driving along. The police officers considered that he was attempting to hide something. The Detective Sergeant decided to stop the car and have it searched under s202B(1) in conjunction with s202A(4)(a) of the Crimes Act 1961 which relates to possession of offensive weapons in a public place. In his deposition evidence the Detective Sergeant said that as a result of information which he had previously received, he believed the driver of the vehicle, now known to be Mr Maihi, was committing an offence against s202A(4)(a) in that he was in possession of an offensive weapon in a public place.
The car Mr Maihi was driving was stopped in the manner prescribed by s314B(2) of the Crimes Act. The unmarked police car pulled up behind the ute, flashing its red and blue lights and sounding its siren. Mr Maihi stopped his vehicle. The Detective Sergeant approached him, showed him his police identification card, and asked him to get out of the vehicle. Mr Maihi reached over and locked the passenger’s door, got out of the driver’s seat and locked the driver’s door. The Detective Sergeant told him that he had been stopped pursuant to s314B(1) in order that his vehicle could be searched without warrant. He advised Mr Maihi that he and his vehicle would be searched without warrant for weapons pursuant to s202B(1).
The Detective Sergeant then complied with s23 of the New Zealand Bill of Rights Act 1990 and explained the provisions of s202B(1) to Mr Maihi. Mr Maihi said that he did not consent to any search and that the police would have to arrest him or have a warrant. The Detective Sergeant then asked Mr Maihi his name, which was given. He was also asked for and gave his date of birth and his address, which he gave as 58 Willoughby Street, Hamilton. He produced his driver’s licence which confirmed these details. The Detective Sergeant described Mr Maihi as being very aggressive throughout all his dealings with him. He spoke in a very loud voice and adopted an aggressive stance. The Detective Sergeant thought Mr Maihi was trying to intimidate him.
He demanded the names and numbers of the three police officers present. These were give to him and he recorded them on a piece of paper. He also wrote down the section of the Crimes Act that the Detective Sergeant had invoked. When the Detective Sergeant was speaking to Mr Maihi, he saw he had a small “leatherman” type of tool attached to his keyring. He told Mr Maihi that he could see a knife on his keyring. Mr Maihi started to open the tool, saying that it was a pair of scissors. The Detective Sergeant told him to desist. He briefly continued but then stopped opening the item. The Detective Sergeant thought he was becoming increasingly aggressive and confrontational. The following exchange then took place with Mr Maihi standing directly in front of the Detective Sergeant, adopting what the latter described as a threatening stance:
Detective Sergeant:     Look I am not going to wait all day. You and your vehicle are going to be searched without warrant for weapons pursuant to Section 202B(1) of the Crimes Act.
Mr Maihi:That’s bullshit. I know my rights.
Detective Sergeant:     If you don’t allow the search you will be arrested.
Mr Maihi:This is all bullshit. I will have you for this.
Detective Sergeant:     If you continue to refuse to allow the search you will be arrested. You may ring your lawyer and speak to him for advice if you like.
Mr Maihi:I’m not ringing anyone. I know my rights. This is all bullshit.
At 4.54pm the Detective Sergeant arrested Mr Maihi for obstruction. Mr Maihi was handcuffed “due to his aggressive attitude and to prevent the disposal of evidence”. On a preliminary physical search the Detective Sergeant located a knife in Mr Maihi’s boot by his left ankle. He was then placed in the back seat of the police car with Detective Barry sitting next to him.
Constable Watkins and the Detective Sergeant then carried out a search of Mr Maihi’s vehicle. Although not so stated, we infer that they must have taken his keys from him and thereby opened the locked door. The Detective Sergeant noticed a plastic bag containing cannabis on the left hand side floor of the vehicle. Having made this find, the Detective Sergeant spoke with Mr Maihi and told him that both he and his vehicle were now going to be searched without warrant pursuant to s18(2) and s18(3) of the Misuse of Drugs Act 1975. Constable Watkins conducted a search of the car and located a sock containing two sealed packages. The Detective Sergeant searched Mr Maihi’s wallet and found a small self-sealing plastic bag which contained a substance in powder form. There then followed an exchange between the Detective Sergeant and Mr Maihi in which the latter acknowledged that the powder was amphetamine. The Detective Sergeant then sought further information from Mr Maihi but, under caution, he declined to say anything further.
At 5.10pm the police officers left De Havilland Drive and drove with Mr Maihi to the New Plymouth Police Station, arriving there at 5.20pm. He was taken into the watchhouse to be properly searched. In a coin pocket of his jeans the Detective Sergeant found a small self-sealing plastic bag that contained a substance in powder form. Mr Maihi acknowledged that this too was amphetamine. The bag containing cannabis was an “LB”, that being a recognised expression in the drug world for one pound of cannabis. Morphine sulphate tablets (misties) were also found.
It was on the foregoing sequence of events, and the evidence discovered, that Mr Maihi faces trial in the High Court on the charges earlier set out.

The relevant legislation

Section 202A(4)(a) of the Crimes Act makes it an offence for any person to have with him in a public place, without lawful authority or reasonable excuse, any knife, offensive weapon or disabling substance. Under s202B(1) any constable who has reasonable grounds for believing that any person is committing an offence against s202A(4)(a) may stop and search that person and any vehicle in which that person is travelling. The person and vehicle may be detained for as long as is reasonably necessary to conduct the search. Hence to be justified in stopping Mr Maihi, the Detective Sergeant was required to have reasonable grounds for believing he had possession of any knife, offensive weapon or disabling substance. The Detective Sergeant deposed that he did so believe. That was not challenged. What was challenged was the reasonableness of the grounds for his belief.

High Court judgment

In giving his ruling the Judge dealt with this point in the following way:
Did the officers have “reasonable grounds for believing that [the accused was] committing an offence against section 202A(4)(a)” and that “the vehicle contain[ed] any knife [or] offensive weapon…”? Undoubtedly there were reasonable grounds for suspicion that the vehicle contained a knife and there were reasonable grounds for believing that the vehicle might contain a knife, but in my view the evidence falls short of establishing reasonable grounds for believing that the vehicle did in fact contain a knife. (original emphasis)

On that premise, which Mr Pike did not challenge, it followed that the stopping of Mr Maihi and the officers’ search of him and his vehicle was not authorised by s202B(1). No other basis to justify the search in law was advanced.

We should mention the invocation of s18 of the Misuse of Drugs Act 1975 upon which the officers relied to search the vehicle further after the initial s202B(1) search. In a case where it is the initial invalid search which gives rise to the invocation of the Misuse of Drugs Act provisions, we do not consider it right to hold that a subsequent search on the basis of those provisions, is a legally justified search. The unlawful opportunity to invoke s18 cannot in our view give a lawful foundation for its invocation. It is right to note that Mr Pike did not so argue. Hence both the stopping of Mr Maihi and the ensuing searches of his person and vehicle were not legally justified and, as Mr Pike again properly accepted, must be regarded as having been undertaken unlawfully. The Judge concluded that although the searches were unlawful, they were nevertheless not unreasonable in terms of s21 of the Bill of Rights.
In that respect the Judge summarised his conclusion in this way:
The police intervention was activated by the suspicious conduct of rapid driving and unusual reaction to their presence by someone whom there was reasonable basis to suspect to be in possession of a weapon, even though the grounds for suspicion fell short of grounds for belief. Their decision to stop and search was well understandable in the circumstances. Had they allowed a man believed to be armed to continue to drive rapidly, and apparently in a state of high excitement, towards the other gangs and he had provoked violence, the police would not have been forgiven. Just as the law of tort has recognised the need for allowance when a human is acting in the agony of the moment, so here the law must in my view allow a margin of judgment to recognise the competing demands to which the police are subject when deciding to act or to refrain from acting. There is nothing to suggest that the officers were acting otherwise than conscientiously, albeit in breach of s202B.
It will be noted that the Judge referred in this passage to Mr Maihi being “apparently in a state of high excitement”. He implied that to an extent the police were acting “in the agony of the moment” and thus should be allowed “a margin of judgment”. Mr Mabey QC for Mr Maihi challenged the factual premises of “high excitement” and “agony of the moment”, and also an earlier comment made by the Judge that the circumstances involved “the potential for grave criminal offending involving weapons”. We will be addressing these matters against in our overall consideration of the circumstances but can say at this point, with respect, that we consider the Judge’s descriptions overstated the position. The Judge heard no oral evidence. He addressed the issues simply on the depositions and an agreed chronology. We are therefore in as good a position as he was to draw inferences from this written material; both from what it says and what it does not say.

Submissions

Mr Mabey argued that the Judge was wrong to characterise the searches as not unreasonable. He submitted that the Judge’s premise of some form of emergency was unsound. This was simply one man driving in the general direction of the drag event. It was highly unlikely that he was bent on a solo raid on other gang members. The police officers had not claimed in their evidence that they were facing an emergency or some like situation which demanded their immediate intervention. This was something which the Judge had found without sufficient support in the evidence.
Furthermore, Mr Mabey submitted, the officers could simply have followed the black ute and if it had gone past the site of the drag event any possible concerns about confrontation would have been allayed. Mr Mabey also pointed out that there was no history of conflict between Black Power and the Magogs. With regard to admissibility and the Shaheed balancing exercise, Mr Mabey referred the Court to various matters, which were, in his submission, relevant. He contended that a proper balance required exclusion of the evidence.
Mr Pike emphasised the general circumstances of the weekend. They involved the potential for conflict with several different gangs attending the convention. He reminded the Court that the police had word that Black Power were going to arm themselves over the weekend, albeit for defensive purposes. The Magog premises were only 750m from those of Black Power from which Mr Maihi had emerged. In Mr Pike’s submission the circumstances in which the police had to make a decision how to respond to what they saw were of some urgency.
It was a reasonable inference that Mr Maihi, whose identity the officers did not initially know, was linked in some way with Black Power and was therefore likely to be armed. His actions in the car were suspicious. While there were no reasonable grounds for belief, the grounds for suspicion that Mr Maihi possessed an offensive weapon must have approached those appropriate to belief. The police would not have been doing their duty had they simply left Mr Maihi to drive on. Hence, so Mr Pike argued, the Judge had been right to find that these unlawful searches were nevertheless not unreasonable. If he were wrong on that, Mr Pike argued that the Shaheed balance of all relevant matters favoured admission of the evidence notwithstanding the finding that the searches were unreasonable which, on this premise, the Court would have made.

Reasonableness of search

We cannot accept Mr Pike’s submission that the circumstances came very close to giving the Detective Sergeant reasonable grounds for his belief that Mr Maihi was in possession of an offensive weapon. Although, as the Judge said, Mr Maihi might have been carrying a weapon, the objective facts gave no reasonable basis for a belief that he was doing so. The information the police had received could not be viewed as giving them authority (on the basis of reasonable grounds for belief) to stop every Black Power member they saw over that weekend and search him for knives or other weapons. That proposition really demonstrates the difference in the present context between suspicion and belief.

The general information which the police had received gave reasonable grounds for suspicion that all Black Power members might be armed, but unless other factors could be added in the particular case, the general information gave no reasonable grounds for belief that the particular Black Power member under consideration was armed. Indeed it was not known at the time whether Mr Maihi was a Black Power member. All the police could rely on was an inference that he was connected with Black Power by dint of his having been seen leaving their premises. The laudable purpose of taking steps to prevent violence before it happened cannot alter the basic starting point that there were no reasonable grounds for believing Mr Maihi was armed.
In the present case the fact that Mr Maihi drove at speed out of the Black Power premises and on the highway does not materially add to the general suspicion, nor does his direction of travel, in view of the fact that he was alone and the route he was taking was not inevitably leading him to the drag event. The only factor which could be said to increase the general suspicion was Mr Maihi’s conduct when he was understood to have spotted the unmarked police car. But that conduct, while consistent with moving an object or objects inside the car, raised only a speculative inference that he was in possession of a weapon. Overall we are of the view that the objective facts fall well short of giving the necessary reasonable grounds for belief.
The clearly unlawful nature of the searches is very material to their reasonableness, the more so because we cannot view the police as having acted in circumstances of urgency or emergency. In this respect we differ from the Judge. The threat which Mr Maihi posed to public safety was not, in the circumstances viewed objectively, very great. It is difficult to see how the Judge was able to infer that he was in a highly excited state. There was also insufficient foundation for the Judge's view that there was the potential for grave criminal offending involving weapons. Of course there was a possibility of this occurring. But that possibility was in the circumstances little more than speculative.
We move now to the circumstances of the searches themselves. A material aspect is that Mr Maihi objected in unmistakable terms to their taking place. He claimed the police had no right to search him and his vehicle. He was, in the event, correct in that contention. By undertaking the searches in those circumstances, the police were not dealing with a case in which there was consent or at least lack of opposition. While by no means decisive the point does not make a finding of reasonableness any easier. If the Courts do not tangibly uphold the stance of those who rightly object to being unlawfully searched, by characterising such searches as unreasonable, save when the facts clearly require the contrary conclusion, the risk is that respect for the law generally may be undermined.
Having carefully reflected on the points which Mr Pike advanced in support of the Judge’s conclusion, we find ourselves unable to agree with it. As we noted earlier, the unlawfulness of a search, while not per se making it unreasonable, invites that conclusion unless there is some countervailing factor or combination of factors which allows the Court to say that, although the search was unlawful, it is not appropriate to characterise it as unreasonable. Unless the Crown is able to advance sufficient countervailing material, the Court is likely to find an unlawful search to be unreasonable. The nature and circumstances of the unlawfulness will of course be relevant to how much weight the countervailing factor or factors must have. The more serious the unlawfulness the greater the countervailing weight must be and vice versa. In this case the unlawfulness of the search was substantive rather than technical, and the search fell short of being legally justified by an appreciable margin. For the various reasons we have canvassed we hold that the searches were unreasonable and thus constituted a breach of the rights afforded to Mr Maihi by s21 of the Bill of Rights.

Admissibility

It is at this point that the Shaheed balancing exercise must be undertaken. No prima facie exclusion now follows from the finding of a breach of s21. The essence of the Shaheed approach is captured in paragraph [156] of the judgment of Richardson P, Blanchard and Tipping JJ: see [2002] NZLR at 422:
To sum up, where there has been a breach of a right guaranteed to a suspect by the Bill of Rights, a Judge who is asked to exclude resulting evidence must determine whether that is a response which is proportionate to the character of such a breach of the right in question. The Judge must make that determination by means of a balancing process in which the starting point is to give appropriate and significant weight to the existence of that breach but which also takes proper account of the need for an effective and credible system of justice. This approach should not lead, in most cases, to results different from those envisaged in earlier judgments of this Court but will, it is hoped, lead to a judicial technique which involves a greater exercise of judgment than the previous focus on a “prima facie rule” may have encouraged.

The Shaheed Court drew attention to a number of matters which it is appropriate to consider as part of the balancing exercise. We will examine them against the circumstances of the present case in a moment.

As the starting point is to give appropriate and significant weight to the breach of the suspect’s rights, the ultimate inquiry will generally come down to whether vindication of that breach by exclusion of the resulting evidence is outweighed in the particular case by the competing public interest in bringing offenders to justice. The more serious the breach the stronger the public interest factors must be before they can be seen as outweighing the need to vindicate the breach by exclusion of the resulting evidence. Conversely, of course, a lesser breach requires less on the public interest side of the scales to outweigh it. In this case the discovery of the evidence in issue is directly linked to the breach. Thus no issues such as those which divided the Court in Shaheed arise here. Furthermore, there can be no suggestion that the evidence would have been discovered in any event.
As indicated in paragraph [147] of Shaheed, we start by examining the nature of the right and the breach. To the extent this has already been done in the reasonableness discussion, the exercise should be repeated from the different perspective of striking the appropriate balance between private right and public interest. The right to be secure against unreasonable search or seizure is in itself an important one. In this case the breach did not involve a major invasion of privacy, as in Shaheed, but it was by no means a trivial invasion either. While citizens have less expectation of privacy when driving a motor vehicle on a public road than when they are inside their homes, the privacy value involved can be measured to a relevant extent by the fact that s202B searches are justified on the presence of reasonable grounds for belief rather than on the lesser basis of reasonable grounds to suspect.
We note next the fact that the breach in the present case cannot be characterised as having been committed deliberately, or in reckless disregard of the accused’s rights, or in circumstances amounting to gross carelessness: see Shaheed at paragraph [148]. That tells not so much in favour of admissibility, rather it is the absence of a feature which would have pointed strongly in favour of exclusion. And, as Shaheed suggests, the undoubted good faith on the part of the police should in this case be regarded as a neutral feature.
The next relevant factor is the nature and quality of the disputed evidence. That evidence is what is often described as real evidence, meaning evidence of tangible things found as a result of the searches. Its reliability in that respect is undoubted. Furthermore, the evidence did not come into being as a result of the breach. It existed independently. The evidence here stands in contrast, in this respect, to an admission or some other form of evidence which would not have existed had the breach not occurred. We also note and take into account that the evidence is central to the intended prosecution. Without it there is no case against Mr Maihi on any count. In this respect it is relevant to note that Mr Maihi is not charged with any offence under s202A(4)(a) relating to the knife, and it was belief in his possession of a knife or other offensive weapon that was the subject of the original stopping. The finding of drugs was a fortuitous consequence of the unlawful stopping of Mr Maihi’s vehicle.
Next we address the nature of the offending which the evidence is intended to establish. It cannot be said that the offences with which Mr Maihi is charged are particularly serious. They would be likely to be visited, if proved, with a term of imprisonment but at a relatively low level. It cannot, in our view, be said that exclusion of the evidence, and hence the inability to prosecute Mr Maihi, would be a remedy disproportionate to the breach. The public interest in convicting Mr Maihi of the drug offences with which he is charged does not self-evidently outweigh the fact that if the evidence is admitted there would be no vindication of the breach of Mr Maihi’s s21 right. No remedy other than exclusion was said by the Crown to be appropriate. We are of the same view.
It is necessary now, having assessed all the foregoing points, to express our conclusion on where the balance lies. Although the case can be seen as coming quite close to the borderline, we consider there is not enough weight in the public interest side of the scales to outweigh the starting point, which is to give appropriate and significant weight to the fact that Mr Maihi’s s21 rights were breached. The public interest in prosecuting him for the drug offences with which he is charged does not, in our judgment, outweigh the starting point and the features associated with it. Relief by exclusion of the evidence is not disproportionate to the breach. The vindication of Mr Maihi’s rights in this the only appropriate way does not undermine the need to maintain a credible and effective system of criminal justice. It follows that in our view the Judge below was in error in his conclusion that the evidence should be admitted.

Conclusion/formal orders

For these reasons we give Mr Maihi leave to appeal against the order of the High Court declaring the evidence to be admissible. His appeal is allowed. The High Court order is set aside and in its place we make an order declaring the evidence in issue to be inadmissible.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 205

22 August 2002