The Queen v Taylor

[2006] NZCA 76

IN THE COURT OF APPEAL OF NEW ZEALAND

CA384/05

THE QUEEN

v

ARTHUR WILLIAM TAYLOR

Hearing:4 April 2006

Court:O'Regan, John Hansen and Harrison JJ

Counsel:D R La Hood for Appellant

B J Horsley for Crown

Judgment:3 May 2006 

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal is dismissed.

REASONS

(Given by O’Regan J)

[1]       Mr Taylor seeks leave to appeal against a pre-trial ruling made by Gendall J under s 344A of the Crimes Act 1961 (R v Taylor HC WN CRI 2004-091-4321 6 September 2005).  In that decision, the Judge ruled that evidence obtained by the police as a result of the search of a “lockup” (storage shed) rented by Mr Taylor was admissible at Mr Taylor’s trial. 

[2]       Mr Taylor faces trial on an indictment containing 15 counts being possession of a class B controlled drug, morphine, for the purpose of supply (two), possession of a class C controlled drug, cannabis plant, for the purpose of supply, possession of a precursor substance (three), possession of firearms and pistols (four), possession of explosives (two), possession of a material (iodine rock) with the intention of using it to manufacture methamphetamine and receiving stolen goods (two).  The principal Crown evidence in relation to these charges is the fruits of the search now under challenge.

Facts

[3]       The facts are set out in some detail in the judgment of Gendall J, and reference should be made to that judgment for a full narrative.  For present purposes, the following summary will suffice. 

[4]       Mr Taylor was married to Carolyn Jamieson on 11 December 2004.  Episodes of domestic violence took place on the wedding day and on 13 December 2004. The latter led to Mrs Taylor making a formal complaint to the police on 14 December 2004. 

[5]       On 16 December 2004 Mr Taylor was taken to the police station for questioning in relation to the allegations of domestic violence made by his wife.  Earlier that day at a briefing Detective Sergeant Fabish was informed that Mrs Taylor had mentioned to a police officer during a telephone discussion that Mr Taylor had a lockup which may be of interest to the police.  The detective was detailed to pick Mrs Taylor up and find the lockup.  He met Mrs Taylor on that day and she told him that the contents of the lockup comprised “drugs and guns”. 

[6]       Mrs Taylor did not know the address of the lockup but told the detective she had been to it previously and was able to direct him to it.  Later, she told him there was property belonging to her in the lockup. The detective said he believed the information he received from Mrs Taylor, though he acknowledged that she was clearly under the influence of drugs at the time she gave him the information and was behaving erratically.  She told the Judge that she had taken an overdose of valium and was heavily under the influence of it at the relevant time.  She said in her evidence that she had no recollection of the events of 16 December. 

[7]       The detective went with her to the lockup and found that it was securely locked with a lock on the door and two separate sliding bolts with padlocks, and that it had what he thought was a monitored alarm system (it subsequently transpired it was not, in fact, monitored). 

[8]       The detective and Mrs Taylor then left the lockup and went to the home of Mr and Mrs Taylor to look for the keys to the locks on the lockup, but failed to find them.  They then returned to the lockup and the detective broke the locks and entered the lockup by force.  He said in evidence that he was acting under s 18(2) of the Misuse of Drugs Act 1975, s 60 of the Arms Act 1983 (in fact, the section which appears to have been more relevant was s 60A), and a consent to entry given to him by Mrs Taylor.  This consent was evidenced by a notation in the detective’s notebook in the following form:

I, Carolyn Jamieson, the wife of Arthur Taylor, give my consent for police to enter a lockup I know to be used by Arthur Taylor as located and shown by myself.

Mrs Taylor denied in evidence that she had signed this (she alleged a forgery) but the Judge found she had. 

[9]       When the detective entered the lockup he found what he thought might be a bomb, and the alarm was activated.  He was concerned about the possibility of a booby trap and therefore exited the lockup and summoned a bomb disposal team.

[10]     Another detective then sought and obtained a search warrant for a further search and seizure of items in the lockup.  The material referred to in the indictment was then located and seized, along with cash totalling $66,020, some digital scales and a “burglary kit”. 

High Court decision

[11]     Gendall J found that the search was lawful.  He found that the detective had reasonable cause to believe that there were “illicit drugs” in the lockup.  He noted that the detective’s notes referred to “cannabis” but that his evidence at the s 344A hearing was that he was told that the lockup contained “guns and drugs”.  The Judge found the detective was entitled to rely on the information given to him by Mrs Taylor, notwithstanding her condition, because as Mr Taylor’s wife she could be taken as knowing what was in the lockup, which the detective understood she had previously been inside and in respect of which she knew the location.  He found that the detective could get some corroboration from the fact that Mr Taylor had a storage unit away from his home, and the unusual security arrangements at the lockup itself.

[12]     The Judge did not consider whether the search was also authorised by the Arms Act in his judgment, but indicated in the course of the cross-examination of the detective that he thought the Arms Act did not apply.

[13]     The Judge also found that the search was reasonable.  He noted the detective’s evidence that the detective regarded the situation as urgent, and thought that delaying the search to apply for a warrant was unwise.  Mrs Taylor was expressing grave fears for her safety from associates of Mr Taylor, and Mr Taylor’s criminal past made this fear realistic.  In addition the detective said he thought the lockup had been under some form of observation or surveillance and that he and Mrs Taylor had been seen when they first visited the lockup.  So interference with the lockup was another possibility if he left it unattended.  The Judge noted that it would have been possible to get a scene guard while the warrant was obtained, but determined that, in the overall circumstances it was not unreasonable to search without a warrant.  He was fortified in that conclusion by the fact that Mrs Taylor had provided active assistance and probably consent to the search.

[14]     Although it was not necessary for him to do so, the Judge determined that if it had been necessary to decide the point, he would have ruled the evidence as admissible after applying the balancing exercise described in the decision of this Court in R v Shaheed [2002] 2 NZLR 377.

Issues on appeal

[15]     On behalf of Mr Taylor, Mr La Hood challenged the High Court finding that the search was lawful, but in doing so relied on a ground which had not been argued in the High Court.  He argued that, if the search was unlawful, contrary to the finding of the High Court Judge, this Court needed to re-assess the High Court findings on unreasonableness and on the Shaheed balancing test because the High Court Judge’s findings on those issues proceeded from his finding of lawfulness.  That means that there are three issues which we need to address in sequence, namely:

(a)       Was the search lawful?

(b)       Was the search unreasonable?

(c)On the Shaheed balancing test, should the evidence obtained from the search be admissible? 

Was the search lawful?

[16]     Mr La Hood contested the High Court finding that the information available to the detective was capable of providing reasonable grounds for the belief required by s 18(2).  But his primary argument was that the detective did not have reasonable belief as to the presence of controlled drugs of the kind specified in s 18(2), and therefore the search was unlawful.  In that regard he relied on the decision of this Court in Hill v Attorney-General (1990) 6 CRNZ 219. 

[17]     On behalf of the Crown Mr Horsley argued that Hill could be distinguished on the facts.

[18]     Before turning to Hill, we consider the wording of s 18(2) itself.  It provides:

(2)        Where any member of the police has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in the Schedule 1 or in Part 1 of Schedule 2 or in Part 1 of Schedule 3 to this Act or any precursor substance specified or described in Part 3 of Schedule 4 and that an offence against this Act has been or is suspected of having been committed in respect of that drug or precursor substance, he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1).

[19]     Mr La Hood’s argument was that the information available to the detective in this case was not sufficient to found a reasonable ground for believing that the drugs present in the lockup were drugs of the kind specified or described in the relevant parts of the relevant schedules to the Misuse of Drugs Act referred to in s 18(2).  In that regard he highlighted the fact that the High Court Judge had found that the detective was entitled to form a reasonable belief of the presence of illicit drugs, which could perhaps be extrapolated to refer to controlled drugs, but did not make a finding that the detective had reasonable grounds for believing that they were controlled drugs of the specified kinds mentioned in s 18(2).

[20]     A similar issue arose in Hill.  In that case a search was made of a taxi under s 18(2).  The search was undertaken because, earlier the same night, a police officer had witnessed what appeared to be a transaction involving the sale and purchase of drugs (described as two small sachets containing a white substance) being conducted from the taxi.

[21]     The police officer who conducted the search acknowledged that the information available to him was that the drugs which might be present in the taxi were in the form of white powder in plastic bags, which he acknowledged could be class A or class B drugs or possibly class C drugs.  When asked what kind of drugs he was looking for he said that he did not know.  He was then asked:

You wouldn’t have been able to say that the drugs fell within the First Schedule or Part I of the Second Schedule?

To which he answered:

I don’t really think it matters under the Act, I had good cause to suspect, I made my search on good faith and I believe there were reasonable grounds for that search.  I don’t think it matters.

[22]     In giving the principal judgment, Smellie J commented at 231:

I think it is inescapable that Parliament intended to restrict the right of search without warrant [under s 18(2)] to specific cases.  The right to search without warrant is triggered only when there is an objective belief that one of the drugs expressly included in the First Schedule or in Part I of the other Schedules is present.  The answers [the police officer conducting the search] gave under cross-examination demonstrate that at the time of the search he held no such belief.

[23]     Casey J and Richardson J agreed.  Richardson J said he was satisfied that there existed reasonable grounds for believing that the alleged sale transaction involved a controlled drug, and therefore that such a drug from the same stock was in the taxi at the time of the proposed search.  But he said that this did not satisfy the requirements of s 18(2).  He said s 18(2) was drafted in a manner which limited its application to situations where only some of the total range of controlled drugs is involved.  This was because it was intended to be available only “in confined circumstances”.  He said (at 222):

The subsection may be invoked where through other evidence, such as of other transactions, or overheard conversations, or a tip-off, there is reasonable ground for belief as to the identity of the drug or at least that it comes within the statutory prescription.

…

In the present case the police officer did not direct his attention to the confines of s 18(2) and there is no basis in the evidence for an inference that his reasonable cause to believe was in relation to a controlled drug or drugs within the statutory prescription.

[24]     The approach of the Court in Hill involves a very strict and narrow view of the power conferred by s 18(2).  However, the decision is clear in its terms and it was not suggested to us that it should be reconsidered.  Any such reconsideration would not be appropriate for a divisional Court in any event.

[25]     We accept Mr La Hood’s submission that the reasoning of Hill is directly applicable to the present case.  Mr Horsley sought to distinguish Hill on the basis that, in Hill, the critical factor was that the police officer had effectively excluded a finding that he had formed a requisite belief in the answers he gave in cross-examination [21] above.  He said that, because there was no cross-examination in the present case relating to the detective’s belief as to the presence of particular controlled drugs, the case could be distinguished.  We disagree.  It is for the Crown to establish the legality of the search, not for the accused person to prove its illegality.  If the evidence before the Court does not establish reasonable grounds for belief that there are in the premises to be searched drugs fitting the statutory prescription, then the law as set out in Hill must be applied, and the search must be found to be unlawful.

[26]     That makes it unnecessary for us to deal with Mr La Hood’s secondary argument, namely that the evidence did not establish reasonable grounds for belief on the part of the detective that controlled drugs were in the lockup.

[27]     Mr Horsley sought to revive the argument that the search was lawful under the Arms Act.  He said the detective gave evidence of reliance on the Arms Act in the following terms:

My understanding was that if the firearms are inside and under [Mr Taylor’s] control that we could search or the police could search without a warrant and particularly so in cases like where there’s domestic violence and I’ve certainly done that before at domestic situations.

[28]     Mr Horsley said this indicated reliance on s 60A of the Arms Act (rather than s 60, to which the detective referred).  He said the facts as known to the detective did give him reasonable grounds to suspect that there were firearms in the lockup under Mr Taylor’s control and that there were grounds under the Domestic Violence Act 1995 for the making of an application for a protection order by Mrs Taylor against Mr Taylor.  Accordingly the detective was entitled to conduct a warrantless search under the section.

[29]     We accept Mr Horsley’s submission that s 60A may have provided a basis for a lawful search of the lockup.  But the way the case was conducted in the High Court meant that defence counsel did not get the opportunity to cross-examine on that issue.  In those circumstances, we cannot make a finding that the search was lawful under the Arms Act.  At most we can say that there was a real possibility of lawfulness under the Arms Act that may be relevant to the reasonableness of the search and the Shaheed analysis, to which we will come later.

Was the search unreasonable?

[30]     As the Judge’s finding of reasonableness was predicated on his finding of lawfulness, we need now to re-evaluate that issue. 

[31]     Mr La Hood argued that, if the search was unlawful, then it could not be reasonable unless there was some countervailing factor or combination of factors allowing the Court to say that, although the search was unlawful, it was not appropriate to characterise it as unreasonable: R v Maihi (2002) 19 CRNZ 453 at [31]. 

[32]     Mr Horsley urged us to characterise the unlawfulness of the search as technical in nature, and to conclude that this technical deficiency did not affect the reasonableness of the search.  We do not think that the unlawfulness can be properly characterised in that way.  The search was undertaken in circumstances where the police officer did not have the statutory authority to undertake it, and in the absence of any other countervailing factors, the Maihi test for unreasonableness is satisfied.

[33]     As an alternative Mr Horsley asked us to find that the search was reasonable because, though not lawful under s 18(2), it was lawful under s 60A of the Arms Act.  However, as we mentioned earlier, we are not able to make a finding to that effect in the unusual circumstances of this case.

[34]     In Shaheed, this Court said at [141]:

Where the police have without practical justification departed from the standards required by the law, it is better that the breach should be marked by a statement from the Court that their behaviour was unreasonable; and that the decision whether or not to exclude the resulting evidence is then made on a principled basis in light of that conclusion.

[35]     Taking that approach, and applying the test from Maihi noted above, we conclude that the search was unreasonable in the present case.

The Shaheed balancing test

[36]     We now turn to the balancing exercise described in Shaheed at [145]-[156].

Nature of right and breach

[37]     The starting point for the balancing exercise is the nature of the right and the breach: Shaheed at [147]. In the present case the right to privacy was infringed, but the nature of that right in relation to a lockup at a location remote from the appellant’s residence is of much lesser concern than would be the case if the search had taken place at his residence. Mr La Hood accepted that. But he argued that the decisions of this Court in both R v Laugalis (1993) 10 CRNZ 350 and Maihi, where the police conducted searches of the accused person’s car, illustrated that the privacy right for premises and vehicles outside the home was still considered important.  The right to privacy is important but, in our view, an intrusion into a lockup is not as serious an invasion of privacy as would arise if the search had involved a private residence. 

Seriousness of the breach

[38]     In Shaheed this Court said that exclusion of evidence will often be the only appropriate response where a serious breach has been committed deliberately or in reckless disregard of the accused’s rights, or where police conduct in relation to that breach has been grossly careless: Shaheed at [148]. The Court drew a clear distinction between a deliberate breach of rights by the police, and an action which arises from a genuine misunderstanding or a difficult legal complication.

Good faith

[39]     There is no doubt that the present case is an instance of a police officer proceeding in the belief that he was acting lawfully.  Indeed, he may have been correct in relation to the power to search under s 60A of the Arms Act for the reasons given earlier.  We agree with the High Court Judge that unusual circumstances justified the detective’s decision not to defer the commencement of the search until an application for a warrant was prepared and a warrant obtained.  It is also clear that the officer acted in good faith, which, as Shaheed notes at [149], is a neutral factor.

Other techniques

[40]     We have considered whether there were other investigatory techniques available to the police Shaheed at [150]. Of course, obtaining a warrant would have been an alternative, but as noted earlier we believe there was good reason for the detective to proceed without one in the circumstances of this case. The unlawfulness and unreasonableness of the search arises from the fact that the detective did not have the reasonable belief required by s 18(2) as interpreted in Hill.  If the detective had had that reasonable belief, the search would not have been rendered unlawful or unreasonable by the detective’s decision not to delay the search until a warrant was obtained.  We do not believe that there were any alternative means of investigation other than a search of the lockup.

Nature of offending

[41]     In Shaheed at [152], this Court noted that, where the crime was very serious, that factor coupled with the importance of the evidence in question may outweigh even a substantial breach. In the present case the offending was serious drug offending, though not of the very worst kind. Nevertheless, the evidence obtained as a result of the search appears to indicate significant drug dealing involving a number of different drugs and on an obviously commercial basis, as well as the availability of a number of dangerous firearms.

Nature and quality of the disputed evidence

[42]     The evidence in this case is obviously reliable, being evidence of a physical, tangible nature which, on its face, strongly suggests guilt. That is a factor favouring admissibility: Shaheed at [151]. It can be distinguished from evidence such as a confession obtained by a breach of rights where there would be real doubts as to its reliability. The evidence is such that its inadmissibility would be likely to require the withdrawal of the charges: it is, in effect, the only Crown evidence.

Balance 

[43]     In our view the application of the balancing exercise mandated by Shaheed leads to the conclusion that the evidence ought to be admitted in this case, notwithstanding the unlawful and unreasonable search.  The actions of the police, while unlawful, were not in any way deliberate or cavalier.  The evidence is essential to the prosecution for serious offending.  The invasion of privacy was serious, but substantially less serious than an unlawful search of a residence or vehicle.  We conclude, therefore, that the evidence is admissible at trial.

Result

[44]     Accordingly, we have reached the same conclusion as the High Court Judge, albeit as a result of a different analysis arising from the different way in which the case was argued in this Court.  We grant leave to appeal but dismiss the appeal.

Solicitors:
Sladden Cochrane & Co, Wellington for Appellant
Crown Law Office, Wellington