The Queen v Ngan

[2006] NZCA 329

IN THE COURT OF APPEAL OF NEW ZEALAND

CA220/06

THE QUEEN

v

KEVIN JACK NGAN

Hearing:20 September 2006

Court:Glazebrook, Robertson and Ellen France JJ

Counsel:C W J Stevenson for Applicant

M D Downs and E V Lamont-Messer for Crown

Judgment:1 December 2006 at 3 pm

JUDGMENT OF THE COURT

Leave to appeal is granted, but the appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The applicant was convicted of possession of a Class A drug (methamphetamine) for supply.  Because of time delay, there is an application for special leave to appeal as well as an appeal against conviction.  The delay arose as the applicant sought leave to apply directly to the Supreme Court following his conviction at a jury trial.  Leave was refused on the basis that the Court of Appeal had not determined the issue of the reasonableness of the search and because counsel had introduced new points of argument based on overseas jurisdictions: Ngan v R [2006] NZSC 41 at [9]. The Supreme Court considered that the appeal against conviction should be heard in the Court of Appeal.

[2]       In such circumstances, and as there is no prejudice to the Crown, special leave to appeal is granted. 

[3]       The sole question on the appeal is whether there was a miscarriage of justice because, at the jury trial, evidence was received which Mr Ngan says was inadmissible.

[4]       Three issues were raised in this post conviction appeal relating to police action at the scene of a motor accident:

·     Whether the police actions amounted to a search;

·     Whether the police actions were lawful; and

·     If unlawful, were the fruits of their actions nonetheless admissible.

Factual background

[5]       The circumstances of what occurred (as found at the relevant pre-trial hearing in the High Court at Wellington on 27 June 2005) are of critical importance.

[6]       Mr Ngan was driving his Mitsubishi on State Highway 1 near Marton when the car left the road and rolled, ending up on its roof up a bank on the side of the road. Mr Ngan was injured, although he was still able to give his name to fire service personnel before he was airlifted to Palmerston North Hospital.

[7]        The car was badly damaged, and a large amount of property was strewn in and around it. A member of the fire service called Senior Constable Burden, who had been controlling traffic, over to the car and pointed to a large number of $50 and $100 notes lying on the ground. The constable noticed an open black computer satchel complete with computer, a sunglasses pouch, and a digital camera behind Mr Ngan, who was still trapped in the car.

[8]        Once Mr Ngan was rescued from the vehicle, the constable removed the computer satchel and set about recovering the cash. He put the cash, digital camera, and the sunglasses pouch inside the satchel. He did so for the purpose of safe-keeping, having identified these items as valuables.

[9]       Senior Constable Burden is a member of the Police Highway Patrol of some 30 years’ experience. He does not normally undertake enquiries in relation to motor vehicle crashes. For that reason, he asked the local on-call member of the police to attend the scene. That was Senior Constable Johnson.

[10]     Constable Burden handed the satchel to Constable Johnson when the latter arrived at the scene. He gave Constable Johnson a quick explanation as to where he had obtained the satchel and unzipped it briefly to show him the cash before handing it to him. Constable Johnson then secured it in the boot of his patrol vehicle.

[11]     The two police officers helped the fire service personnel to right the vehicle.  Then they removed the remaining personal effects from the vehicle, and picked up the remaining cash and personal effects that had been lying on the ground. Constable Johnson noted that there were four pocket knives, a CD case containing various music CDs, a cellular telephone and a car stereo. There was also a newspaper clipping.

[12]     Constable Johnson opened the computer satchel in the presence of Constable Burden to check its contents. He opened the sunglasses case. He explained that he did so because he thought from the feel of the soft case that it might contain money and wanted to open it in the presence of a witness. In it he found what proved to be 6.9g of methamphetamine, and two flakes of LSD.

[13]     Constable Burden said that he thought Constable Johnson commented that it might be drug money when he first handed over the satchel. Constable Johnson accepted that his suspicions were aroused by the large quantity of cash, before he opened the sunglasses case.

[14]     The car was removed by truck. Mr Ngan’s personal effects were taken to the Hunterville Police Station and catalogued. The officers explained that it is normal police practice to take custody of and catalogue property that appears to be valuable at an accident scene, where no-one from the vehicle is in a condition to do so themselves. The police do so for safekeeping. Cataloguing involves opening anything that appears to contain valuables, and counting money. For example, if a wallet is found the police will open it, count any cash, and itemise the cash along with any credit cards. This is normally done in the presence of a witness. The police use a property record sheet (police form 268). It is a standard form used for property that is seized or taken with or without warrant, as an exhibit, for safe keeping, or as deceased property. There is provision for signature of the officer who completes the form and a witness.  The form provides that the original is to be supplied to the person from whom the property was seized or taken.

[15]     At the police station, the money was counted and found to amount to $9,400. Constable Johnson also read the newspaper clipping. It reported a Judge saying of Mr Ngan that he had a raging drug habit.

[16]     Constable Johnson formed the view, upon seeing the drugs when he opened the sunglasses case at the scene, that there were reasonable grounds to seize the drugs under s 18 of the Misuse of Drugs Act 1975. That was duly done. He did not follow the procedure in s 18(4) of the Misuse of Drugs Act because Mr Ngan was not present, having been taken to hospital.

Previous Court Proceedings

[17]     The Crown filed a pre-trial application under s 344A of the Crimes Act 1961 for an order that the evidence of the discovery of methamphetamine and LSD in receptacles which were in Mr Ngan’s car following the accident was admissible.

[18]     Miller J concluded that the police had conducted a search as recognised by this Court in R v Fraser [1997] 2 NZLR 442.

[19] The Judge turned to the reasonableness of the search having noted that the Crown “accepted there was no statutory authority for the search of the sunglasses case. Accordingly, it must be described as an illegal search”: at [17].

[20]     Miller J concluded that the search was reasonable and therefore there was no breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA).

[21]     R v Shaheed [2002] 2 NZLR 377 (CA) was argued before him, but Miller J concluded it was not necessary to undertake the balancing exercise as no breach was found. He noted, however, that even if there was a breach he would have admitted the evidence on the basis of inevitable discovery.

[22]     That ruling was appealed to this Court: R v Ngan CA241/05 24 November 2005.  In delivering its reasons for judgment, when discussing the search and the recording of items recovered and secured, the Court said:

[23]     There can be no doubt as to the entitlement of the police in exercise of their common law powers and duties to take into their possession items of property from a crashed vehicle where the owner is in no condition to do so.  That is an incident of the police’s function of protecting the community’s property.

[24]     Given such obligation it follows in our view that there must be an equivalent entitlement on the part of the police to identify what it is that they have secured so that it can be duly recorded and ultimately accounted for.

And later it noted:

[26]     … There is accordingly force in Ms Laracy’s submission challenging the prosecution’s concession that the police were acting unlawfully.

[23]     This Court found it unnecessary to determine the question of lawfulness as it agreed with Miller J that the drugs would inevitably have been discovered.

[24]     Mr Ngan stood trial before Goddard J and a jury on one count of possession of the Class A controlled drug methamphetamine for the purposes of supply.  He had pleaded guilty to charges of possession of LSD and unlawful possession of the four knives.  He was convicted and appealed on the basis that there was a substantial miscarriage of justice by reason of the admission of evidence obtained from the satchel.

Did the actions of the officers constitute a “search”?

[25]     For the purposes of this appeal we are content to treat matters on the basis that there was a search of the pouch and the wallet in the circumstances set out in [6] to [16].  We recognise that there may be arguments as to the exact metes and bounds of the concept of search which may still require elucidation, but they do not require determination here.

[26]     What is in issue is whether the police actions were unlawful.  Even if what occurred was not a NZBORA search but the actions of the police are for some other reason unlawful, the question of admissibility still arises.

Were the police actions lawful?

[27]     As noted in [22], this Court held in the previous appeal that there was an incidental common law power to take possession of items in circumstances such as those which existed in this case, and a derivative requirement on the police to identify what had been secured. 

[28]     Mr Stevenson argued that there had been no need to open the pouch at the scene of the accident to check its contents to ensure that they were secured.  He accepted that he was bound by Miller J’s acceptance of the evidence of Constable Johnson that, when he handled the case, he did not think it contained sunglasses but thought it might contain more cash.  The police officer said the sunglasses case was opened for safekeeping reasons and would have been open for that purpose at the police station had it not been opened at the scene.

[29]     Faced with the hurdle of that finding, counsel submitted nonetheless that permitting search in these circumstances effectively gave the police a generalised authority to search through a citizen’s personal property just in order to protect themselves from a later claim of having interfered with the property.

[30]     Mr Downs noted that the lawfulness of “inventory searches”, as a function of the Police’s duty to protect property, had not been the subject of detailed analysis in New Zealand.  It has been considered in other jurisdictions.

Canada

[31]     The Supreme Court of Canada, in R v Caslake [1998] 1 SCR 51, discussed (but did not determine) whether an inventory search made consequent upon arrest ought to be an exception to the right to be free from unreasonable search and seizure. The Court recognised that the police may need to catalogue property in their possession but held that an inventory search does not give the police the power to search for criminal justice ends. The motives of the police in conducting the search were of primary significance in determining the reasonableness of the search: at [17]. The police must be attempting to achieve some valid purpose: at [19].

United States

[32]     The United States Supreme Court in Colorado v Bertine, 479 US 367 (1987) similarly held that an inventory search following arrest was not in breach of the Fourth Amendment as long as the search was conducted according to standard criteria and on the basis of something other than the suspicion of evidence of criminal activity. The Supreme Court said that the policy behind an inventory search was to ensure that property in police control was not lost, stolen or vandalised and to ensure police safety.

[33]     Later, in Florida v Wells, 495 US 1 (1990) the Supreme Court held that where there was no (or insufficiently formulated) police policy governing an inventory search, such a search was unconstitutional. It held that standardised criteria were essential to circumscribe individual police officer’s use of this power. Limitation was required to ensure that officers did not use the power as a ruse to search for incriminating evidence. The Court was not concerned with the content of the policy, only that such a policy existed.

Applicability to New Zealand

[34] In Canada especially, the fact that a person has been arrested (and the person therefore has a reduced expectation of privacy) was a significant part of the reasoning. In New Zealand the situation is different as s 57A of the Police Act 1958 gives the police a statutory power to search a person upon arrest. Nothing in this judgment is to be taken as relating to powers of search (including “inventory searches”) in the case of arrest.

[35]     In the present case, the property came into the possession of the police because of the accident in which the applicant was injured.  The police had a duty at common law to protect this property.  The common law power of police in such a situation extends to cataloguing possessions over which they are taking control, as long as this is reasonably required in the circumstances.

[36]     Mr Stevenson’s contention that the pouch initially, and the wallet subsequently, could have simply been put into tamper-proof sealable bags does not provide a total answer.  It may be necessary to check what is actually inside a bag, wallet, suitcase, or other receptacle for identification purposes, for information about relatives or for medical reasons.  It may also be necessary to check contents in case in their preservation and storage they are capable of doing harm.  It may also be appropriate, depending on the circumstances, to catalogue what is contained in such receptacles to ensure the proper preservation of the property and to minimise the potential for allegations subsequently being advanced that property had been tampered with while in the custody of the police.  The cataloguing of possessions applies particularly to cash and valuables (as was the circumstances in this case, see [14]) and this is in accordance with standard police practice.

[37]     Although New Zealand Courts have been slow to extend common law powers or find implied authorisation without a statutory base, if the Police are to be accountable for the safe custody of items in their possession, it follows as a matter of practical necessity that they have an ability to catalogue the items to ensure that they are not lost or interfered with.  To the extent that examination is reasonably required to achieve that end, the activity will not be unlawful.

[38]     The police were confronted by an extraordinarily large amount of cash which was littered around and in the car which had been in the accident.  There were many thousands of dollars and in those circumstances the police action in checking what else was in the wreck, recording what was there and securing it was no more than was reasonably required by the police officers.  Mr Stevenson realistically accepted that, if the police were entitled to open the pouch and the drugs were discovered, there was ample justification for the subsequent opening of the wallet at the police station.

[39]     What occurred was lawful and reasonable.  The material discovered was admissible evidence and the conviction was properly entered.

If the police actions were unlawful, were the fruits nevertheless admissible?

[40]     We have found that what the police did, in all the circumstances, was lawful.  It was not suggested that the actions were nonetheless, in some way, unreasonable.  The third issue therefore does not require consideration.

Appeal consequences

[41]     In the course of the hearing, dialogue occurred as to the proper test to be applied if this Court was satisfied that evidence about the drugs had been wrongly admitted.  What was the consequence of that for other evidence (including Mr Ngan’s answers at a police interview which were predicated on the discovery of the drugs, and his sworn testimony at trial) in that event? 

[42]     Mr Downs responsibly accepted that, without the evidence of the drugs found at or around the wrecked car, there could have been a successful s 347 application prior to trial.  Accordingly, in the particular facts of this case, the interests of justice would have required that the conviction be quashed.

Conclusion

[43]     The police actions which resulted in the drugs being found were lawful, and the evidence was admissible.  The appeal against conviction is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington