Thompson v Police HC Hamilton CRI 2010-419-56
[2010] NZHC 2009
•17 November 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2010-419-56
CRI 2010-419-57
BETWEEN CHARLESTON STEVENSON THOMPSON
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 15 September and 1 October 2010
Counsel: M D Talbot for Appellant
S N Cameron for Respondent
Judgment: 17 November 2010
JUDGMENT OF HEATH J
This judgment was delivered by me on 17 November 2009 at 3.00pm pursuant to Rule 11.5 of the
High Court Rules
Registrar/Deputy Registrar
Solicitors:
Talbot Law, PO Box 24232, HamiltonCrown Solicitor, PO Box 19173, Hamilton
THOMPSON V NEW ZEALAND POLICE HC HAM CRI 2010-419-56 17 November 2010
Contents
The issue [1] The alleged offending [5] The District Court judgments
(a) The admissibility ruling [16] (b) The conviction judgment [23] (c) Sentencing [24] The appeal [25] Analysis
(a) The admissibility question
(i) Was the search of the car reasonable? [29]
(ii) Admissibility: s 30(2)(b) Evidence Act 2006 [50] (b) Conviction appeal [54] (c) Sentence appeal [59] Result [63]
The issue
[1] A relatively simple set of facts gives rise to a difficult point of law.
[2] A vehicle was stopped at a traffic checkpoint. The driver (Mr Thompson) was disqualified. Lawfully, one of two police officers, Constable Endres, took steps to prevent him from driving and to impound the vehicle.[1] Mr Thompson provided Constable Endres with a key to the car, so that it could be towed away, and accepted an offer to be driven home by the other officer, Constable Gardner. After Mr Thompson left the scene, Constable Endres looked into the vehicle, without his consent. Subsequently, items located in the vehicle were seized and used as evidence against Mr Thompson on two charges of burglary. Was this evidence
admissible against him?
[1] Land Transport Act 1998, s 96.
[3] The substantive trial issue was identity: who was the burglar? In the course of a defended hearing in the District Court at Hamilton on 4 May 2010, Judge Maze ruled the evidence admissible.[2] The totality of the evidence adduced at the defended hearing led the Judge to enter a conviction against Mr Thompson on one charge of burglary;[3] the other charge was dismissed.[4] On 8 June 2010, Mr Thompson was
sentenced to a term of imprisonment of two years and three months.[5]
[2] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Ruling No. 1).
[3] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Conviction judgment).
[4] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Ruling No. 2). The Judge found that there was no case for Mr Thompson to answer on this charge.
[5] Police v Thompson DC Hamilton CRI 2010-019-1344, 8 June 2010 (Sentencing Notes).
[4] Mr Thompson appeals against both conviction and sentence.
The alleged offending
[5] Mr Thompson faced two charges of burglary. Both involved residential premises; one at Finchley Place and the other at Discovery Drive, both in Hamilton East. The two burglaries took place on 17 February 2010.
[6] Constable Endres and Constable Gardner were performing traffic control duties on River Road, Hamilton, at about 1.00pm that day. Constable Endres gave evidence of having seen a bald male Maori in a dark green sedan, parked at the side of the road, as she made her way towards a checkpoint that they were establishing. While manning the checkpoint, Constable Endres saw the green sedan approach. As she went to speak to the driver, Mr Thompson took off his t-shirt and threw it into the back seat of the vehicle.
[7] Constable Endres asked Mr Thompson to produce his driver licence. He said that he did not have it with him. She also asked for anything that might assist her to identify him. Taking a black back-pack, which he held against his midriff, Mr Thompson opened the glove box. Mr Thompson was unable to produce a licence.
[8] Constable Endres asked if she could look into the bag. Mr Thompson declined to let her do so. The officer informed him that she had a duty to impound the car, indicating that he was then entitled to go free. Constable Gardner was asked to take Mr Thompson home to Huntly. The vehicle was locked by Mr Thompson, who gave the keys to Constable Endres. Constable Endres took the keys, completed paperwork for the impoundment and waited for a tow-truck driver to arrive.
[9] After Constable Gardner and Mr Thompson left the scene, Constable Endres noticed a video camera in the back of the vehicle. She made a decision to unlock the
vehicle and remove it. She said that she did so to ensure that it was kept safe, aware that complaints of items being taken from vehicles in similar circumstances had previously been made. At that stage, she intended to return the camera to Mr Thompson.
[10] When Constable Endres reached inside the vehicle, she observed several packets of tobacco and some jewellery boxes. Opening the boxes, she discovered that they were empty.
[11] Constable Endres was aware that Mr Thompson did not consent to her searching his car or the property inside it. However, her view was that she had not searched the car; rather, she believed that she was entitled to remove items in the car for safe keeping.
[12] Having obtained the items from the car, Constable Endres considered that it would be helpful to look at the contents of the back-pack, which Mr Thompson had taken with him. Constable Endres contacted Constable Gardner, asking him to search the back-pack or, if Mr Thompson refused, to take him to the police station for further questioning.
[13] Constable Gardner asked Mr Thompson if he could look inside the back- pack. Permission was refused. Constable Gardner told Mr Thompson that there was “stuff in the car that [did] not really add up”. At that stage, Constable Gardner said that Mr Thompson’s demeanour changed. He tried to open the door of the car, while it was moving.
[14] Ultimately, Mr Thompson pushed the central consol lock, unlocking the door. At some point, he opened the door and fell onto the road. Mr Thompson was pursued by Constable Pirihi (from the Huntly police station) and located near local rugby league grounds.
[15] Mr Thompson was then advised of his rights and arrested for causing intentional damage to the patrol car. When Mr Thompson was taken to the police station at Huntly, a large amount of jewellery was found in the back-pack.
Subsequently, he was charged with the two burglaries, on the basis that the items found in his possession and in the car were those taken during the burglary.
The District Court judgments
(a) The admissibility ruling
[16] It was always clear that the prosecution case would turn primarily on the admissibility of the evidence derived from the searches undertaken by Constables Endres and Gardner. Mr Thompson asserted that both searches were unreasonable[6] and that the evidence was, therefore, “improperly obtained”.[7]
[6] New Zealand Bill of Rights Act 1990, s 21.
[7] Evidence Act 2006, s 30(5)(a).
[17] Judge Maze correctly identified two distinct challenges to the admissibility of the evidence:
a) The “search” of the vehicle by Constable Endres;
b)The detention of Mr Thompson by Constables Gardner and Pirihi and the subsequent search of the back-pack.
[18] The Judge held that the evidence gathered by Constable Endres was improperly obtained but took the view that, applying the balancing test mandated by s 30(2)(b) of the Evidence Act 2006 (the Act), that the evidence ought to be admitted.
[19] Judge Maze said:[8]
[8] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Ruling No. 1).
[20] I deal firstly with the evidence from Constable Endres. I do consider that this was improperly obtained evidence. She acted in good faith. That I can concede entirely. Indeed, her evidence was absolutely straightforward and it is clear that until she saw the boxes and the tobacco, her only concern was, in a sense, as a Good Samaritan. But for the reasons identified by Mr Talbot, Ngan [[2008] 2 NZLR 48 (SC)] does not apply; this vehicle had been secured. I refer to paragraph [112] of the decision and it is quite clear that
the officer had no lawful basis to use the key to unlock the car to look at the contents when she knew the defendant had refused her permission and she knew he had only given her the key for the limited purpose for which she had asked for it. However, the constable’s actions were in good faith. It is a breach of the defendant’s right to privacy, but I do accept that a vehicle in a public place does not give rise to the same privacy rights as the entry of someone’s home. Although Mr Talbot has referred to the entire paragraph [112] of Ngan, Ngan is not the first time the superior courts have referred to such a distinction. In essence, I accept that there is, on balance of probabilities a breach of rights but it is at the lower end of the scale.
...
[22] I now consider the s 30(3) considerations, which are discretionary. The importance of the right breached by the impropriety is, as I have already foreshadowed, at a lower end of the scale from an intrusion into someone’s home or a search of their person. The officer acted in good faith and so the nature of her impropriety is very much at the lowest end of the scale. There was no act undertaken in bad faith by her, although I must say her comment to Constable Gardner could have been better considered. In those circumstances there is no evidence obtained after she had ceased acting in good faith.
[23] The nature and quality of the improperly obtained evidence is important because I have a clear identification of the camcorder and the gold bag and the tobacco by one of the complainants of burglary. It therefore gives rise to recent possession. In considering the seriousness of the offence with which the defendant is charged, there appear to be in a sense a developing view that if the charge is more serious, then a more robust view will be taken in favour of inclusion rather than exclusion, which is perhaps a little odd but nevertheless that does seem to be the way the cases have developed. At the time there were no other investigatory techniques available but not used, because the officer did not know at the time she opened the car to keep safe the camcorder, that there was any difficulty. The impropriety was not necessary to avoid apprehended physical danger and there was no true urgency.
[24] In those circumstances, the balancing exercise that I am obliged to undertake must point firmly in favour of inclusion of the evidence. I appreciate the points made by Mr Talbot but the end result must be almost akin to a police officer seeing something while simply intending to do her best, without intending in any way to compromise or adversely affect the defendant. That being the case, it is difficult to see that it could be in any way proportionate to exclude her evidence. Her evidence will therefore be admissible. (italics are my emphasis; underlining is Judge Maze’s)
The paragraph in Ngan to which Judge Maze referred[9] is taken from the dissenting judgment of McGrath J.
[9] Ibid, at para [20].
[20] In relation to Constable Gardner, the District Court Judge took the view that detention of Mr Thompson and the subsequent search of his bag were unlawful. She was concerned that Constable Gardner had detained Mr Thompson in his car “for no reason other than to force [him] to consent to a search”.[10]
[10] Ibid, at paras [25]-[27].
[21] In applying the balancing test to the evidence gathered by Constable Gardner, Judge Maze held that the evidence should be ruled inadmissible. She took the view that there were other investigatory techniques known by the officer to have been available, but not considered by him.[11]
[11] Ibid, at paras [28]-[31].
[22] The Judge’s finding on the inadmissibility of evidence gathered from Constable Gardner’s search meant that the charge of burglary of the premises at Discovery Drive was dismissed, on the basis of no case to answer. That left only the burglary charge relating to the Finchley Place property to be determined.
(b) The conviction judgment
[23] In finding the Finchley Place charge proved, Judge Maze said:[12]
[12] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Conviction Judgment).
[2] The unchallenged evidence is that items ultimately found in the defendant’s car, including a Sony digital camcorder, tapes, tobacco and a gold coloured pouch, were taken from the complainant’s property between
8.45am and 4.15pm on Wednesday, 17 February 2010. Finchley Place is in
Hamilton East. The defendant was apprehended at a checkpoint stop at
1.05pm on River Road, which is part of Hamilton East and in part adjacent to Hamilton East. There is therefore proximity of the place, and in the
circumstances, proximity of time.
[3] The argument for the defendant is that this is not sufficient for proof of the charge laid, beyond reasonable doubt, because even if proven that the defendant was in possession of compromising property, it is not evidence beyond reasonable doubt of him having committed the burglary. It is possible the burglary occurred shortly after 8.45am and therefore some four hours before he was apprehended with the property.
[4] I consider that in light of the place where the defendant was found, the property found in his possession and identified by the constable by reference to photographs 5 and 6 including the camcorder, tobacco and the bag of jewellery, that the only reasonable inference to be drawn from the defendant being in possession of those items is that he was the person who
committed the burglary. There is proximity of time, proximity of place and identification of the items themselves. I also note the circumstances in which they were found, including the officer’s evidence that the defendant took off a t-shirt as the police approached and threw it onto the back seat to, I am satisfied, attempt to hide what was there. They all indicate that the only reasonable inference to be drawn is that the defendant was the burglar. That charge is proven.
(c) Sentencing
[24] The Judge characterised Mr Thompson as a recidivist burglar. Noting that he was assessed, by the pre-sentence report writer, as having a low motivation to address his offending and a continuing disregard for the law, Her Honour said:[13]
[13] Police v Thompson DC Hamilton CRI 2010-019-1344, 8 June 2010 (Sentencing Notes).
[5] In 2004 for three offences of burglary you were sentenced to three years’ imprisonment. You had a short term without any further convictions, then you were back before the Courts for three charges of being unlawfully in an enclosed yard and receiving. You were also back for male assaults female, although that is entirely different as to type and I put it to one side, but for the continuing dishonesty you were then given an opportunity to show your ability to comply, in effect, given a chance with a community- based sentence in 2008. That, however, appears to have been treated by you as encouragement because on 8 May 2008 you committed a further burglary. For that you received 12 months’ imprisonment. Then shortly after your release from that, you are back before the Courts for two of receiving and one of unlawfully in an enclosed yard. Once again you were sentenced to imprisonment and I have already referred to your breaches of that sentence.
...
[7] You are a recidivist burglar. I consider that there is some generosity to you in adopting the starting point of two years’ imprisonment for the burglary. I treat as an aggravating factor the fact that you were subject to conditions of release at the time of committing the offence and, having regard to your history of breaching that sentence, I consider an uplift of three months is appropriate. That brings me to two years, three months. I have not made an uplift to reflect your previous conviction history because, of course, that would be double counting.
[8] Mr Talbot recognises that whatever else is said about the support of your partner, the opportunity for a clean break and a fresh start elsewhere and the submission that you can be seen as generally compliant of recent years with sentences, there cannot be any allowance for any of that by way of reduction. The end result must therefore be that on the charge of burglary you are convicted and you are sentenced to imprisonment for two years and three months. On the charge of breaching conditions of release I have already had regard to it as an aggravating factor. On that you are convicted and sentenced to one month concurrent.
[25] Mr Talbot, for Mr Thompson, challenges the conviction on the grounds that the Judge erred in holding that the evidence gathered by Constable Endres from the vehicle was admissible. Alternatively, he contends that the admitted evidence, while sufficient to prove a charge of receiving stolen property, was not enough to prove, beyond reasonable doubt, that Mr Thompson was the burglar. The sentence is challenged on the grounds of manifest excess.
[26] Ms Cameron, for the Police, contends that:
a) The impugned evidence was not improperly obtained;
b)If the Judge were right to hold that the evidence was “improperly obtained”, she correctly applied the balancing test to rule the evidence admissible;
c) The totality of admissible evidence was sufficient for the Judge to infer that Mr Thompson was the burglar;
d) The sentence was within the range available to the Judge.
[27] The appeal was first called before me on 15 September 2010. At that stage, I raised with counsel the possibility that the impounding provisions of the Land Transport Act 1998 might inferentially create a right of search. Although that point had not been addressed in counsel’s submissions, it had been left open by the Court of Appeal in R v Taui.[14]
[14] R v Taui CA225/06, 29 November 2006 at para [10].
[28] I adjourned the hearing, so that counsel could consider that issue and present argument on all live points on 1 October 2010. I am grateful for the quality of the submissions I received and the benefit I gained from oral argument.
(a) The admissibility question
(i) Was the search of the car reasonable?
[29] In considering the question of admissibility, some of the District Court
Judge’s factual findings assume importance:
a) After Constable Gardner and Mr Thompson had left the scene to travel back to Huntly, Constable Endres noticed a video camera in the back of the vehicle. Even though she used the key to the vehicle provided by Mr Thompson to open the car (contrary to his refusal to allow a search of the vehicle), she acted in good faith, with the
intention of removing the camcorder from the car for safe-keeping.[15]
[15] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Ruling No. 1) at paras [7] and [20].
The Judge described Constable Endres actions, to this point, as being akin to a “Good Samaritan”.[16]
b)When removing the camcorder, Constable Endres observed several packets of tobacco and some jewellery boxes. Constable Endres believed that she could take them for safe-keeping. She opened the boxes and found that they were empty. At that point, she considered there might be some basis to take a closer look at the contents of the
back-pack that Mr Thompson had taken with him.[17]
[16] Ibid, at para [20].
[17] Ibid, at paras [7] and [8].
[30] Judge Maze considered that the search was undertaken from the time that Constable Endres used the key to unlock the vehicle, contrary to Mr Thompson’s express instructions. That view was formed on the basis that Constable Endres knew that the key had been given to her “for the limited purpose for which she had asked
for it”; namely to allow the vehicle to be opened and readied for towing to an appropriate storage place.[18]
[18] Ibid, at para [20].
[31] In R v Ngan,[19] the issue for the Supreme Court was whether Police officers had conducted a search in breach of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) by opening a zipped pouch found in a crashed car belonging to Mr Ngan. Section 21 of the Bill of Rights provides:
[19] R v Ngan [2008] 2 NZLR 48 (SC).
21. Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[32] The pouch contained a quantity of methamphetamine and the vehicle, in which the pouch was found, had, scattered about, inside and around it, a large sum of money in $20, $50 and $100 denominations. The evidence was gathered at the crash scene after Mr Ngan had been taken to hospital.
[33] Four of the Supreme Court Judges found that a search had been undertaken at the point when the Police opened the zipped pouch. A majority (Elias CJ, Blanchard and Anderson JJ) took the view that, while police officers were entitled to take possession of the pouch for safe-keeping, they conducted a search of it when the pouch was opened and they looked inside. The majority took the view that the search was justified on the basis of “the principles of common law”.[20]
[20] Ibid, at para [14], applying Entick v Carrington (1765) 19 State Tr 1030 at 1066.
[34] At common law, any person who finds an item of property and takes possession of it as a temporary custodian on behalf of the true owner, is treated as a bailee of that property and is under an obligation to keep it safe and return it to the owner, if that were possible.[21] In the circumstances of Ngan, the majority held that, where an owner is known but unable to take responsibility for his or her own property by reason of injury, someone who steps in to look after the property as a custodian must be treated as a bailee by finding.[22] The taking of steps of that type
was beneficial to the owner, since it minimised the risk of the property being lost or damaged.[23]
[21] Ibid, at para [15].
[22] Ibid.
[23] Ibid, at para [16].
[35] Accordingly, Elias CJ, Blanchard and Anderson JJ took the view that a police officer who was “genuinely acting for the predominant purpose of preservation of the property” will not be dealing with the property in an unlawful or unreasonable manner, whether at common law or under s 21 of the Bill of Rights.[24] On the other hand, an excessive search or one conducted for an ulterior purpose (for example) “to obtain evidence of criminal offending” would not be reasonable and might also be unlawful.[25]
[24] Ibid, at para [22].
[25] Ibid, at para [22].
[36] Tipping J agreed that, by taking possession of the pouch, the police officers seized it and a search occurred once the pouch was unzipped. The Judge assumed, because the contrary was not argued, that the actions of the Police constituted a search for the purposes of s 21.[26] Although McGrath J took the view that no search had been undertaken for the purposes of s 21,[27] Tipping J recorded, in a footnote,
that his observations “should not be construed as suggesting [he had] any particular attraction for the view which McGrath J [had] expressed”.[28]
[26] Ibid, at para [45].
[27] Ibid, at paras [112]-[117].
[28] Ibid, at para [41] and fn 44.
[37] I am bound by the majority view in Ngan. Applying that authority, I conclude that no search could have been undertaken until after Constable Endres opened the jewellery box. From that time, the Constable’s approach changed; she contacted Constable Gardner in an endeavour to procure a search of the backpack that Mr Thompson had taken with him. In terms of the majority’s judgment, she was
(at that stage) trying to obtain evidence of criminal offending.[29]
[29] Ibid, at para [22]. See also Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Ruling No. 1) at paras [7] and [8] for relevant factual findings.
[38] The attempt by Constable Gardner to secure evidence from Mr Thompson’s back-pack was ruled inadmissible.[30] Constables Endres’ actions were lawful, if the
items were removed genuinely (before she contacted Constable Gardner about the backpack) for safe keeping, or if the impoundment provisions of the Land Transport Act 1998 (the Act) provide a basis for search and seizure of personal property located in an impounded motor vehicle.
[30] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 at paras [25]-[31].
[39] In R v Taui,[31] the Court of Appeal was asked to consider whether a power to search a motor vehicle arose as an incident of the impoundment provisions of the Act. On the facts of that case, it was unnecessary to resolve the point. The Court considered that the search was justified as an incident of arrest.[32] In leaving the point open, the Court of Appeal commented that the question whether the impoundment provisions gave rise to a power of search was a “significant” one, “analysis of which should be reserved for a case that turns on it”.[33]
[31] R v Taui CA225/06, 29 November 2006.
[32] Crimes Act 1961, ss 224 and 225. R v Taui CA 225/06, 29 November 2006, at paras [18] and [19].
[33] R v Taui CA225/06, 29 November 2006 at para [23].
[40] For the purposes of this case:
a) Grounds existed for the police officers to seize and impound Mr Thompson’s vehicle; the officers had reason to believe that Mr Thompson was driving the vehicle on a road while disqualified from holding or obtaining a driver licence.[34]
[34] Land Transport Act 1998, s 96(1)(a).
b)When undertaking the impoundment process, an enforcement officer must complete a notice in a prescribed form which is then given to the driver (unless he or she has left the scene), the registered owner of the vehicle and to the storage provider.[35] A copy of the notice must be retained for 12 months.[36] The notice must, among other things, identify the date and time of the seizure and the place where the vehicle is to be impounded.[37] It has not been suggested that the police officers failed to comply with those obligations.
[35] Ibid, s 96(2)(a), (b), (c) and (d).
[36] Ibid, s 96(2)(e).
[37] Ibid, s 96(2)(a)(iii) and (iv).
c) It is implicit, from the requirement to state the place where the vehicle is to be impounded, that impoundment occurs at the time the vehicle is put into storage by the storage provider.[38]
[38] Section 97(1) of the Land Transport Act 1998 states that an impounded vehicle must be stored where the enforcement officer directs.
d)Personal property present in a motor vehicle at the time of seizure and impoundment must be released on request “to a person who produces satisfactory evidence to the effect that he or she was lawfully entitled to possession of the vehicle or personal property immediately before
the vehicle was moved”.[39] If the vehicle and personal property is not
[39] Land Transport Act 1998, s 96(4).
subsequently claimed within the specified time an enforcement officer may give approval for the storage provider to become the owner of the vehicle and any personal property located in it, for all purposes.[40]
e) The storage provider must release personal property present in a motor vehicle at the time of seizure and impoundment to a bailiff or constable executing a warrant to seize property, or to any person acting on behalf of the owner of the goods if that person produces
satisfactory evidence of the owner’s consent to such release.[41]
[40] Ibid, s 98(4) and (5). This is based on the need for fees and charges to be paid for towage and storage of the vehicle. Section 98(4)(c) also requires, before approval is given, that no person other than the registered owner has established to the satisfaction of the authorised officer that he or she is entitled to possession of the vehicle.
[41] Ibid, s 96(4A).
[41] Sections 96(4) and (4A) provide:
96. Vehicle … seized and impounded for 28 days in certain circumstances
...
(4) Personal property (other than property attached to or used in connection with the operation of the vehicle) present in a motor vehicle at the time of the seizure and impoundment must be released on request to a person who produces satisfactory evidence to the effect that he or she was lawfully entitled to possession of the vehicle or personal property immediately before the vehicle was moved.
(4A) Personal property present in a motor vehicle at the time of the seizure and impoundment must be released subsequently to—
(a) a bailiff or constable who is executing a warrant to seize property:
(b) a person acting on behalf of the owner of the goods if the person produces satisfactory evidence of the owner's consent to such release.
....
[42] The purpose of those provisions is to ensure that personal property present in a motor vehicle when it is seized and impounded is released to a person who was lawfully entitled to possession of the vehicle or the personal property immediately before the vehicle was impounded. That may be a person authorised to drive the vehicle (whether or not the owner), the owner of the property, a bailiff or constable executing a warrant to seize property or an agent of the owner.
[43] There is nothing in s 96(4) and (4A) which would negate the ability of a police officer to remove personal property from the vehicle for safe-keeping. The obligation is to deal with the property in terms of those provisions; not to leave them in the vehicle until a request for return is made or a valid warrant to seize the property executed. Therefore, provided Constable Endres intended to keep the property safe at the time she removed it from the vehicle, the action taken by her did not infringe s 96(4) and (4A). Neither did it engage s 21 of the Bill of Rights, for
reasons akin to those given by the majority of the Supreme Court in R v Ngan.[42]
[42] R v Ngan [2008] 2 NZLR 48 (SC) at para [22].
[44] Mr Talbot submitted that a contrary conclusion was justified by application of the decision of the Court of Appeal of Ontario in R v Nicolosi.[43] In that case, a similar issue arose under applicable Canadian law, under which police officers had power to take a vehicle into “the custody of the law” and to cause it to be taken to and stored in a specific place.[44] In Nicolosi, police officers had seen the appellant driving recklessly and, on inquiry, learnt that his licence and registration had expired.
[43] R v Nicolosi [1998] 127 CCC (3d) 176 (CA Ont). Nicolosi was subsequently followed by the Ontario Court of Appeal in R v Wint [2009] ONCA 52.
[44] Highway Traffic Act, RSO 1990 c.H8, s 221(1).
[45] Under relevant police guidelines, officers in Ontario were obliged to check the exterior of the vehicle for damage, to examine the interior for “loose property of apparent value” and to record observations on a pre-typed form referred to as “an impoundment or held vehicle report”. One of the officers entered the front passenger’s door of the vehicle so that the interior could be examined visually, to enable the form to be completed. After kneeling for about five seconds on the front passenger seat, the officer observed a handgun lying on the floor. The gun was not visible from outside the vehicle.
[46] The Court of Appeal of Ontario held that both the vehicle and its contents were in custody on impoundment. Doherty JA said:[45]
[N]o one in the position of the appellant could reasonably expect that the police or their authorised agents would not enter the vehicle on one or more occasions while the vehicle was “in the custody of the law”. For example, it could be reasonably expected that the police or their agents would enter the vehicle to move it from the roadside, or to ensure that it could be safely towed without doing damage to the vehicle or its contents, or to safely secure the vehicle and its contents at a storage facility. Absent a reasonable expectation that the police or their agents would not enter the vehicle while it was in their custody, I do not see how the appellant can establish a reasonable expectation of privacy with respect to any of the contents of the vehicle which were plainly visible upon entering the vehicle. Constable Bishop's actions did not infringe the appellant's reasonable expectation of privacy and could not constitute a violation of s. 8.1 [of the Canadian Charter of Rights].
[45] At para [22].
[47] The Ontario Court of Appeal held that the words “[taking] the vehicle into the custody of the law” in s 221(1) of the Highway Traffic Act 1990 involved more than mere assumption of possession and control of the vehicle, implying an obligation to ensure safe keeping of the vehicle and preservation of its contents during the period of impoundment.[46] Those observations seem to be consistent with the views expressed in the Supreme Court, in Ngan.
[46] Ibid, at para [30].
[48] In common with what was said by Doherty JA in Nicolosi,[47] in a case where the vehicle is impounded under s 96, a person in the position of Mr Thompson must have expected a police officer to enter the vehicle for the purpose of ensuring that it
was transported to a place of storage. Any privacy interest in the vehicle or its contents diminishes significantly once entry into the vehicle is inevitable and an ability to keep safe items of personal property within the vehicle implied. Protections for citizens from excessive police conduct lie in the need for reasonable behaviour on their part. If common law powers are exercised reasonably, for the predominant purpose of preservation of the property that conduct cannot be regarded
as an unreasonable search, for the purposes of s 21 of the Bill of Rights.[48]
[47] Ibid, at para [22]; set out at para [46] above.
[48] R v Ngan [2008] 2 NZLR 48 (SC) at paras [15]-[21].
[49] On this point, I respectfully disagree with the District Court Judge and hold that the evidence gathered from Mr Thompson’s vehicle was not “improperly obtained”.
(ii) Admissibility: s 30(2)(b) Evidence Act 2006
[50] Having regard to my conclusion that there was no search infringing s 21 of the Bill of Rights, it is strictly unnecessary to consider whether the District Court Judge was correct to hold, in any event, that the evidence was admissible. The Judge embarked upon that task because, once she held that s 21 had been infringed, the evidence gathered was “improperly obtained”.[49]
[49] Evidence Act 2006, s 30(5)(a).
[51] If evidence were “improperly obtained” the Court retains a discretion to admit the evidence. The test is whether exclusion of the evidence is proportionate to the impropriety.[50] In analysing that issue, the Court must balance factors that give appropriate weight to the impropriety against those that take proper account of the need for an effective and credible system of justice.[51] A non-exhaustive list of factors to be considered in that balancing exercise are set out in s 30(3) of the Evidence Act.
[50] Ibid, s 30(2)(b).
[51] Ibid.
[52] Judge Maze concluded that the factors weighing in favour of admissibility outweighed those against. Her reasons for doing so are set out at para [19] above.[52]
[52] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Ruling No. 1) at para [22]- [24].
[53] Mr Talbot attempted to persuade me that the Judge erred in her approach to the balancing exercise. Had it been necessary to determine this issue, I consider it is plain that the Judge made the correct decision, for the reasons she gave. I would have adopted what was said by the District Court Judge, on this issue.
(b) Conviction appeal
[54] Once the evidence gathered at the time of seizure of the motor vehicle is admitted, the only point that remains for determination on the conviction appeal is whether, on the totality of evidence available, there was sufficient to prove beyond reasonable doubt that Mr Thompson was the burglar. That is a factual question of identity. The Judge approached it by reference to the (so called) “doctrine of recent
possession”.[53]
[53] Police v Thompson DC Hamilton CRI 2010-019-1344, 4 May 2010 (Conviction Judgment) at paras [2]-[4].
[55] The nature of the “doctrine” was explained by the Court of Appeal in
R v Stuart.[54] Harrison J, for the Court, said:[55]
[17] ... What is known as the doctrine of [recent] possession is no more than a description of the reasoning process legitimately available to a Court when evaluating evidence led at trial to support a dishonesty charge. Whether the doctrine is properly described as a ‘specific piece of law’ or not is of no consequence. Judge Moore was right about its purpose and effect. As Mr Greig accepted, he correctly directed the jury that, in the absence of an explanation which might reasonably be true, it could draw an inference adverse to Mr Stuart from the fact of his possession of the stolen bike the day after the robbery.
[54] R v Stuart [2008] NZCA 66 at para [17].
[55] Ibid, at para [17].
[56] There is an inherent flexibility in determining whether possession is “recent”
for this purpose. In Greenland v Police,[56] I said:
[27] As Mr Crayton for the Police, submitted, there is an inherent flexibility in determining whether possession is “recent”. Harrison J [delivering the judgment of the Court of Appeal in R v Stuart]was right to characterise the “doctrine” as no more than a label for a process of reasoning.
[56] Greenland v Police HC Hamilton CRI 2008-419-92, 5 February 2009 at para [27].
[57] Reflecting those observations, the classic direction to a jury on this point is set out in R v Aves:[57]
Where the only evidence is that an accused person is in possession of property recently stolen, a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession, or (b) if the jury are satisfied that the explanation he does offer is untrue. If, however, the explanation offered is one which leaves the jury in doubt whether he knew the property was stolen, they should be told that the case has not been proved, and therefore the verdict should be Not Guilty.
[57] R v Aves [1950] 2 All ER 330 (CA) at 330.
[58] Once again, I find myself in full agreement with the reasons given by Judge Maze that Mr Thompson was the burglar.[58] There was proximity in time, place and circumstance. There was the conduct of Mr Thompson in taking off his t- shirt and throwing it into the back of the vehicle in an attempt to conceal other property in the car. There was also the matching of property in the car with items taken from the Finchley Place property. In those circumstances, the appeal against
conviction must fail.
(c) Sentence appeal
[58] See para [23] above.
[59] Mr Thompson appeals against the sentence imposed on grounds of manifest excess.[59] I agree with Ms Cameron, for the Police, that this was a serious burglary involving property valued at $7,000 by a recidivist offender whose previous convictions for burglary and dishonesty offences cover a period of some 24 years.
[59] The reasons for imposing the sentence are set out in para [24] above.
[60] The starting point for sentence of two years’ imprisonment was well within the range available; indeed, it could well have been higher and still withstood appellate scrutiny. An uplift of three months was given for an aggravating factor personal to Mr Thompson, namely offending whilst subject to conditions of release.
The Judge made no uplift to reflect previous convictions for burglary and dishonesty as she considered that would be “double counting”.
[61] In R v Columbus,[60] the Court of Appeal explained the general approach taken in burglary offences which requires a previous conviction history to be put to one side:
[60] R v Columbus [2008] NZCA 192 at paras [12]-[15].
[12] The starting point traditionally adopted in sentencing burglars who have a number of previous burglary or related dishonesty convictions sits in a distinct category. As this Court has previously observed in R v Lowe[61] at [31]:
[61] R v Lowe CA62/05, 4 July 2005.
The normal meaning of “starting point” is the sentence appropriate for the offending, prior to considering aggravating and mitigating factors relevant to the offender. Relevant prior convictions are, if taken into account at all, taken into account by way of uplift on the starting point. In the case of recidivist burglars, however, this Court appears frequently to have taken the appellant’s prior history into account when fixing the actual “starting point”...
[13] We agree that it is not the function of a divisional Court to resolve apparent inconsistencies in approaches to starting points between burglary and other offending. Nevertheless, we may be able to offer some guidance in this difficult area.
...
[14]...[I]n sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police.[62]
[62] Senior v Police (2000) 18 CRNZ 340 (HC).
[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward[63] and Power.[64] The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal
inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[63] R v Ward [1976] 1 NZLR 588 (CA).
[64] R v Power [1973] 2 NZLR 617 (CA).
[62] Based on evidence relating solely to the Finchley Place burglary, I am satisfied that the sentence imposed by the Judge was within the range available. It cannot be said that the sentence imposed was manifestly excessive. The appeal against sentence must also be rejected.
Result
[63] Mr Thompson’s appeal against both conviction and sentence is dismissed.
P R Heath J
Delivered at 3.00pm on 17 November 2010
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