Tuato v R - [2011] NZCA 278

IN THE COURT OF APPEAL OF NEW ZEALAND

CA637/2010
[2011] NZCA 278

BETWEEN SAKAIO IOANE TUATO
Appellant

AND THE QUEEN
Respondent

Hearing: 13 June 2011

Court: Wild, Keane and Miller JJ

Counsel: C W J Stevenson for the Appellant
H Ebersohn for the Respondent

Judgment: 17 June 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Wild J)

This is an appeal against a ruling by Judge Hubble in the Wellington District Court that evidence found when police searched a car is admissible in the appellant’s forthcoming trial.
We uphold the Judge’s ruling, though our reasons for doing so differ from the Judge’s.
In the early hours of 11 November 2009 Detective Ducey stopped a car being driven in Porirua by the appellant, for a random breath test. He passed the breath test. However, a police check revealed that the appellant’s driver’s licence was suspended. The appellant was evasive when asked who owned the car. He said it was a friend but could not, or would not, name the owner. A further police check established that the owner was simply one “Kingy”, with a Porirua address. The car had not been reported stolen.
The appellant was arrested and charged with driving when his licence was suspended. Section 96(1)(b) of the Land Transport Act 1998 required the police to impound the car. Because the car was to be impounded, Detective Ducey sought the assistance of Constable Campbell, who was patrolling nearby.
The critical finding of fact in the judgment is this:
[7] Constable Campbell said that when filling out the form for impoundment of the vehicle under s 96, he sought to check the name “Kingi” by looking in the glove box of the car for any paperwork that might be there. When he opened the glove box he found the Methamphetamine pipe and accordingly, invoked the powers under s 18(2) of the Misuse of Drugs Act [1975]. He found a small plastic bag containing Methamphetamine, a green SKS semi-automatic rifle; and 47 live rounds of ammunition. The accused’s DNA was found on the Methamphetamine pipe but there was no evidence connecting him to the firearm or ammunition other than possessions in the vehicle.
The Judge considered that the only basis on which the search of the glove box could be regarded as legal was as a necessary incident of the car being impounded. He pointed out that there “was no urgent need to double check ownership of the vehicle and no evidence of any criminality relating to it”. [1] That is, there was no evidence that the car had been stolen or used to commit a crime.
[1] All at [25].
The Judge ruled that Constable Campbell’s evidence of finding the drugs, firearm and ammunition was admissible for two reasons. First, because those items would inevitably have been discovered when the police inspected the glove box and boot of the car in discharge of their duties under s 96(4) of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tuato v R

Details

AGLC: Tuato v R [2011] NZCA 278
Case: [2011] NZCA 278
Decision Date: 17 June 2011

CaseChat Overview and Summary

Sakaio Ioane Tuato appealed against a ruling by the Wellington District Court that evidence found when police searched a car should be admissible in his forthcoming trial. The appeal was dismissed by the Court of Appeal of New Zealand. The appellant had been stopped by police for a random breath test and subsequently arrested for driving with a suspended licence. The car was impounded, and a police officer opened the glove box, where a methamphetamine pipe was found. The officer then invoked the powers under the Misuse of Drugs Act 1975 and found a small plastic bag containing methamphetamine, a green SKS semi-automatic rifle, and 47 live rounds of ammunition. The appellant’s DNA was found on the methamphetamine pipe but there was no evidence connecting him to the firearm or ammunition other than possession in the vehicle.

The Court of Appeal held that the search of the glove box was lawful because the police officer was reasonably attempting to ascertain the car’s ownership, as the appellant had been evasive when asked who owned the car. The search was also within the powers of the police under s 96(4) of the Land Transport Act 1998 and the general powers and duties of the police to protect life and property. The Court found that the police officer’s action in looking in the glove box was a confined and non-intrusive search, and the evidence obtained was reliable and highly probative.

The Court of Appeal held that the evidence of the drugs, firearm, and ammunition was admissible in the appellant’s trial because the exclusion of the evidence would have been disproportionate to the impropriety of the search. The Court balanced the relevant matters, including the importance of the right under s 21 of the Bill of Rights Act 1990, the level of intrusion, the impropriety of the search, the reliability and probative value of the evidence, and the nature of the charges. The Court found that the impropriety was minor, the evidence was highly probative, and there were no other means of ascertaining who owned the car readily available to the police.

Final orders: The appeal is dismissed, and the evidence found in the car search will be admissible in the appellant’s trial.

Orders