The Queen v Te Rure (aka Smiler)

[2007] NZCA 185

IN THE COURT OF APPEAL OF NEW ZEALAND

CA355/06
[2007] NZCA 185

THE QUEEN

v

BASZIL TE RURE (AKA SMILER)

Hearing:18 April 2007

Court:Glazebrook, Randerson and Ronald Young JJ

Counsel:S N Hewson for Appellant

K Raftery for Crown

Judgment:9 May 2007 at 4pm

JUDGMENT OF THE COURT

An extension of time for appealing is granted but the appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]       The appellant was found guilty by a jury in the High Court at Wellington on multiple charges relating to the possession and supply of controlled drugs and charges of receiving stolen property.  Miller J was the presiding Judge and sentenced the appellant to six and a half years imprisonment on 23 February 2006.

[2]       This appeal is against conviction only.  The appeal is advanced on the following grounds:

(a)Evidence obtained following a search of the appellant’s motor vehicle should not have been admitted because a search of the vehicle was illegal and unreasonable;

(b)The totality of the evidence revealed serious discrepancies in the police testimony amounting to an abuse of process; and

(c)Evidence available to the prosecution and either lost or not disclosed resulted in an unfair trial and/or an abuse of process.

[3]       An extension of time to appeal is sought.

Factual background

[4]       The appellant and a female passenger were in a car in central Wellington in the early hours of 28 October 2003.  The vehicle was stopped under s 114 Land Transport Act 1998 by two police officers (Constables Ibbotson and Doocey).  The appellant left the vehicle and approached Constable Doocey who observed the appellant appeared to be under the influence of some sort of drug. Constable Doocey’s evidence was that he looked into the appellant’s car with a torch and noticed a point bag on the floor in the back of the car.  He pointed this out to Constable Ibbotson and they then invoked the power to search under s 18(2) Misuse of Drugs Act 1975, informing the appellant about the point bag and otherwise complying with their statutory obligations. 

[5]       Constable Doocey searched the appellant who was found to have a “P” pipe, a point bag and a small quantity of methamphetamine on his person.  Constable Doocey’s evidence at a pre-trial hearing before Gendall J was that he asked the appellant if he had anything else on him or in the car.  The appellant’s response was “No the P bag is empty” and that “I’ve put it all in there”.  Constable Doocey said the appellant then pointed to the substance in the bowl of the pipe and said “Look we have been smoking it.  There’s still heaps of P in the pipe”.

[6]       At some point, Constables Doocey and Ibbotson were joined by Constables Burke and Callon and two other officers.  While at the roadside, the appellant fled down the street and had to be restrained.  He was arrested for obstruction and subjected to a more thorough search.  The appellant and the female passenger were then taken in separate patrol cars to the Wellington Central Police Station.  All the attending officers agreed in evidence that no-one had entered the appellant’s car when it was at the roadside except Constable Morris who had done so for the purpose of driving it to the police station.

[7]       Issues arose pre-trial about the items alleged to have been found in the car.  The police evidence was that during the search at the police station, any items of interest were photographed “in situ” before being recorded by Constable Burke and later photographed outside the car.  According to the police evidence a number of photographs of items “in situ” (including the photograph of the point bag first noticed by Constable Doocey), were lost.

[8]       The search of the vehicle revealed a laptop bag containing methamphetamine, ecstasy tablets and a laptop computer (later found to be stolen property).  Also found were glass pipes, empty point bags and two sets of electronic scales.  The results of this search led to the police obtaining a warrant to search the appellant’s residence where over 600 ecstasy tablets were found along with a small amount of methamphetamine, more than $117,000 in cash, scales, pipe, points bags and a number of further items of stolen property.

The pre-trial hearing

[9]       Gendall J conducted a pre-trial hearing which occupied 6 days in 2005: 21-22 April; 5 ‑ 7 July; and 23 August.  Mr Hewson on behalf of the appellant challenged the admissibility of the evidence obtained as a result of the initial and subsequent searches.  The principal submission made by Mr Hewson was that the searches of the appellant, the motor vehicle and the premises were unlawful and unreasonable under the New Zealand Bill of Rights Act 1990.  He submitted the police did not have reasonable grounds to conduct a search under s 18(2) of the Misuse of Drugs Act.  A critical issue was whether the point bag which the police officers claimed to have seen in the rear seat area of the appellant’s motor vehicle actually existed.  As the Judge recorded, Mr Hewson’s essential submission:

was that Constables Callon and Burke who searched the vehicle were not telling the truth and secondly, the three police officers who say they saw the bag in the rear foot well of the car in Lorne Street were also not telling the truth.  There may have been a concerted “cover up”.

[10]     Gendall J’s finding on this crucial issue was:

[17]  The evidence satisfies me beyond any possible doubt that the officers had reasonable grounds for belief in terms of s 18 once they observed the point bag in the rear of the car, particularly when accompanied by the behaviour, manner, and erratic agitation displayed by the accused.  Constables Doocey, Ibbotson and Callon saw the bag in situ in Lorne Street and it remained there until seen again by Constable Callon when he retrieved it upon a search of the car itself back at the police station.  On the evidence I have heard I am satisfied the bag was present, was seen, (indeed the accused referred to it at the scene) and together with the accused’s demeanour provided grounds for the reasonable belief that an offence against the Misuse of Drugs Act had occurred inside the car being driven by the accused.  Their evidence as to the reasonable grounds for their belief, namely observing the point bag in the rear of the car was corroborated by Constable Callon who also saw the bag when called to the scene in Lorne Street.

[11]     The evidence and argument before Gendall J covered the following additional topics:

(a)Alleged discrepancies in the evidence of the officers as to the relevant events including how the searches at the roadside and the police station were conducted;

(b)Alleged discrepancies in the manner of recording exhibits found;

(c)The issue of the “lost” film;

(d)Alleged inadequate disclosure by the police (which resulted in an adjournment after the initial sitting in April and further enquiries being made as to the loss of  photographs); and

(e)Timing discrepancies between reports given to the police communications centre and the time when the provisions of s 18(2) Misuse of Drugs Act were invoked (the suggestion being that there was a discrepancy between the evidence of Constables Doocey and Ibbotson on this issue and the recording of events at the communication centre).

[12]     One of the points most strongly advanced by Mr Hewson was in respect of the film said to have gone missing.  On that point, Gendall J found:

[14]  For all the speculation and intrigue engendered by Mr Hewson’s pursuit of the missing second film (either negatives or prints), the fact remains that there was no evidence given by the accused or anyone else to contradict that of the three police officers that they saw the point bag in the rear of the car in Lorne Street.  The absence of a second instamatic film does not assist the accused one way or the other and is, in my view, immaterial to the issue I am required now to decide, namely “reasonable grounds for belief” in terms of s 18.  The absence of a photograph of the item in situ does not aid the police of course.  But it does not prove that the item was not there, just as it does not prove that it was there.  It adds nothing except that it enabled Mr Hewson to pursue the suggestion, essentially, that the police were lying about the photograph and the presence of the bag and may have constructed an elaborate scenario to deceive.  But that suggestion has no sound, or any, basis being speculative and even whimsical.

[13]     Having found as an established fact that the point bag was observed in the rear of the appellant’s vehicle before the search was invoked under s 18(2), the Judge was able to conclude that, along with the evidence about the appellant’s demeanour, there were grounds for the reasonable belief that an offence against the Misuse of Drugs Act had occurred.  It followed that there were also grounds to search the vehicle at the police station, the Judge finding that in the early hours of a Sunday morning it would have been impracticable to obtain a search warrant without considerable delay and inconvenience.  And, the Judge found, there was a proper basis to obtain the search warrant in respect of the dwelling occupied by the appellant.  All the searches were therefore lawful and there was no basis for them to be regarded as unreasonable.

Miller J’s ruling at trial

[14]     There was no appeal against the pre-trial ruling of Gendall J.  But following the close of the defence case at trial, Mr Hewson sought on the appellant’s behalf a stay or discharge on the grounds of police misconduct.  He did so on substantially the same grounds as had been the subject of the pre-trial application.  The trial Judge permitted Mr Hewson to outline his argument but declined to hear from him in detail.  The Judge recorded the grounds for the application:

[1]  …The application turned on the bona fides of the turn-out and non ‑ warrant search of the car, the securing and recording and exhibiting of items seized, and the loss of certain evidence, being the film that Constable Callon took and the disposal of the motor vehicle some time after its seizure.  Mr Hewson also referred to the failing memories of critical witnesses and deficiencies in Police disclosure. 

[2]  The core of the complaint is the grounds for the search of the car and its occupants under s18(2) of the Misuse of Drugs Act, and the subsequent search of the car.  The car was stopped by Constables Ibbotson and Doocey and later searched by Constable Callon, assisted by Constable Burke.  It was said that the officers lied about seeing a point bag that triggered the search, and that Constable Callon covered for them by claiming to find point bags and other drug paraphernalia in the rear of the car.

[15]     The Judge concluded:

[5] … The issue has been apparent from the beginning of the trial, and the application was foreshadowed yesterday.  I am familiar with the evidence, and I am satisfied that the application has no prospects of success.  Far from being satisfied that the Police Officers acted illegally, and accordingly gave false evidence before me, I found their evidence to be entirely plausible.  It is true that there are minor inconsistencies in their accounts, and it is also true that there were deficiencies in complying with Police procedures regarding the handling of exhibits.  But those matters are explicable, and fall far short in my opinion of establishing impropriety.

[6]  Nor do I accept that failing memory has been a significant issue in this case.  And there is nothing to suggest a material problem with disclosure, or that the defence has been prejudiced as a result.

[16]     The Judge dismissed the application accordingly.

Miller J’s directions to the jury

[17]     The trial Judge directed the jury very fully on the use which they might make of the evidence of police misconduct alleged on behalf of the appellant.  He first directed the jury that the physical evidence obtained in the various searches had been ruled admissible.  It followed that the jury was entitled to have regard to that evidence but the weight to be attached to it was for the jury to decide.  The jury was specifically advised that it could reject the evidence entirely if the jury considered it to be unreliable.

[18]     The Judge canvassed in some detail the evidence called by the Crown which had been challenged on the appellant’s behalf.  This covered much the same ground as the evidence before Gendall J at the pre-trial hearing.  The theme emphasised by the Judge in his summing up was that it was a matter for the jury to consider issues such as the missing photographs and to decide whether that cast doubt on the evidence the police had presented.  And, on the critical issue of whether the point bag was seen in the rear of the appellant’s car, the Judge directed the jury:

[54]  Now I want to say something about the relevance of police misconduct.  Assuming you think that they did act improperly, it is of course relevant to credibility and reliability of the police witnesses concerned, particularly since they maintained in evidence before you that they did see the point bag in the car and, in Constable Callon’s case, that he did find the point bags and so on in the back seat and boot of the car.  You can reject all or part of their evidence as you see fit.  If you do reject their evidence, you will also need to consider whether the remaining evidence, including the physical evidence and the evidence of other police officers, is credible and reliable, and to the extent that it is, whether it proves all or any of the charges beyond reasonable doubt.

[19]     Miller J went on to draw attention to the fact that although Mr Hewson had put it to Constable Callon that he had concocted evidence, that proposition was not put directly to Constables Doocey, Ibbotson and Burke.  The Judge directed the jury that the failure to challenge the honesty of some of the police witnesses directly did not mean the jury had to accept their evidence.  But in considering the suggestion that they behaved dishonestly, they were entitled to take that fact into account.

[20]     It is evident from Miller J’s summing up that Mr Hewson had also submitted to the jury in his closing address that the police had been sloppy or even dishonest in meeting the disclosure obligation and there were questions as to the adequacy of the chain of custody evidence. 

Discussion

[21]     In support of the appeal, Mr Hewson sought to take this Court point by point through much the same issues already canvassed before Gendall J during the pre-trial application and the material canvassed at trial before Miller J.  The difficulty is that a submission of this nature wholly overlooks the role of an appellate court in a criminal case.

[22]     The appellant’s submission effectively asked us to overturn the factual findings made by Gendall J on the pre-trial application which focused on the validity of the searches undertaken.  The hurdle faced by an appellant on an issue such as this is substantial, especially when Gendall J’s decision was not appealed before trial and a trial has since ensued.  The essential question is whether it has been demonstrated that Gendall J was wrong to accept the evidence of Messrs Doocey, Ibbotson and Burke as to the existence of the point bag in the rear of the appellant’s vehicle.  On that point, Gendall J had the advantage of seeing and hearing all the witnesses, an advantage not available to us.  The Judge found that, notwithstanding all the points raised by Mr Hewson, the evidence of the police officers was credible and he accepted it.  There was no evidence to the contrary. 

[23]     Indeed, as the Judge observed, the appellant himself had referred to the existence of the point bag when questioned by Constable Doocey at the roadside.  And, the Judge accepted that the existence of the point bag was recorded as exhibit 304 by Constable Burke at the police station.  As the Judge noted, the absence of a photograph of the point bag did not assist in establishing the existence or otherwise of the point bag.  Essentially, the appellant’s argument would mean that at least four police officers were involved in some form of dishonest cover up.  The Judge rejected that suggestion and was fully entitled to do so.

[24]     Mr Hewson accepted that, if the point bag had been found in the rear of the appellant’s motor vehicle as the police stated, then he was not in a position to submit that the initial search or any of the subsequent ones were unlawful or unreasonable.  That was a proper concession for him to make.

[25]     When the matter was raised again at trial before Miller J and the jury, we are satisfied the Judge approached the matter correctly.  In our view, it was not incumbent upon him to hear Mr Hewson’s argument in full.  The issue had already been fully canvassed before Gendall J and Miller J had all the evidence before him.  There was no proper basis for Mr Hewson to resurrect the issue of admissibility of the evidence at trial.  Miller J’s findings on that point in his formal ruling would have precluded that possibility in any event. 

[26]     We are also satisfied the Judge very properly and fairly covered in his summing up all the points of alleged discrepancies in the police evidence and the allegations of police misconduct.  Plainly, the jury was fully aware of all the evidence and submissions on that point.  The Judge made it clear they were entitled to consider all that material in deciding whether to accept or reject the police evidence and in determining whether the Crown had proved its case beyond reasonable doubt.

[27]     We are unable to detect any element of unfairness to the appellant nor any abuse of process.

[28]     An extension of time for appealing is granted but the appeal must be dismissed.

Solicitors:

Crown Law Office, Wellington