Tweeddale v Police
[2015] NZHC 1298
•9 June 2015
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2015-483-5 [2015] NZHC 1298
BETWEEN WAYNE PAUL TWEEDDALE
Appellant
AND
POLICE Respondent
Hearing: 15 April 2015 Counsel:
S W Rollo for Appellant
H C Mallalieu for RespondentJudgment:
9 June 2015
JUDGMENT OF THE HON JUSTICE KÓS
[1] A man appears to have assaulted his partner. Before they drive off together, he is heard to say he will kill her. Later his vehicle is stopped at a roadblock by the police armed offenders squad. The woman is now driving a second car, following behind. The man, Mr Tweeddale, is detained beside his vehicle. A search of the vehicle is made to ensure there are no weapons in it. No weapons are found. But some cannabis is.
[2] Is evidence from the search admissible on a charge of cannabis possession?
[3] The police say the search is lawful, required to avert an emergency involving risk to life or safety.1 Mr Tweeddale says that in all the circumstances there was no (or was no longer) risk to life or safety requiring an emergency response.
1 Search and Surveillance Act 2012, s 14(1)(b).
Background
[4] On 5 January 2014 the police at Wanganui received information that Mr Tweeddale had run amok and assaulted his partner, a Ms Corlette. She had spent the night in town. Mr Tweeddale suspected she had cheated on him. He drove into town from their house in the country at Mangamahu, a distance of about 50 kms. He found Ms Corlette. She was next seen sitting in his utility vehicle, with facial injuries. Mr Tweeddale was heard by the informant to say, “I’m going to kill her”.
[5] Mr Tweeddale drove off with Ms Corlette. His driving was wild. He hit a fence. He rear-ended Ms Corlette’s sister’s car. He hit another fence. He has past convictions for violent offending. He was known by the police to possess firearms. He is president of the local Hells Angels motorcycle club chapter.
[6] Before leaving the police station, Sergeant Evans prepared a police safety order. This is provided for in Part 6A of the Domestic Violence Act 1995. Once served it requires the subject – in this instance Mr Tweeddale – to surrender any weapon and to leave any house occupied by the identified “person at risk” – here, Ms Corlette. In short it meant Mr Tweeddale, once served, could not return to the couple’s home at Mangamahu.
[7] The police armed offenders squad were called out. They searched the Mangamahu house. No one was there. Mr Tweeddale’s utility vehicle was then seen driving along Creek Road, near his house in Mangamahu. A police roadblock was established at a one-way bridge. Mr Tweeddale was stopped. Also in his vehicle were two male teenagers.
[8] Behind his vehicle was a sedan. Ms Corlette was behind the wheel. There were a number of children with her. The number is uncertain, but she and Mr Tweeddale have six children aged between 5 and 15 years. As Sgt Evans accepted in cross-examination, it was reasonable to assume that Ms Corlette had driven from Wanganui, following Mr Tweeddale.
[9] Although the roadblock was manned initially by just two police officers, numbers quickly grew. Within a few minutes there were seven officers and a police
dog in attendance. Five were armed offenders squad officers. All armed. Two other officers were there, unarmed. One was Sgt Evans. He took charge.
[10] Senior Constable Hogan was one of the officers initially manning the roadblock. He asked Mr Tweeddale and his passengers to leave their vehicle. Mr Tweeddale asked what was happening. Snr Const Hogan said Sgt Evans would explain once they were sure he and his passengers posed no threat to the police. Meantime they were told to stand with their palms on the back or tray of the utility.
[11] Sergeant Evans spoke first to Ms Corlette. He noted injuries on the right side of her face. He says they were “moderate to serious”. Ms Corlette denied that Mr Tweeddale had assaulted her. She said she had fallen over. Sgt Evans did not believe her. He thought the injuries too severe to have been caused by a fall. He explained the police safety order to Ms Corlette. It had not yet been served on Mr Tweeddale. Ms Corlette was unhappy about the order. Of course, it meant Mr Tweeddale could no longer stay in his own home. In reality, it might mean Ms Corlette would have to shift out. Presumably with at least some of the children.
[12] Detective Gorringe appears to have taken charge of the search of the vehicle. He said that he did so to ensure no weapons were available to Mr Tweeddale, given his violent history, previous access to firearms, threats made to kill his partner and his Hells Angels office. His evidence was:
I determined that I would have a quick look in his vehicle to ensure no weapons would be available to him. This would ensure we could continue to deal with Tweeddale with no risk to police, his partner or the children.
[13] During the search, drugs were found. Det Gorringe folded down the back seat of the utility so he could look behind it. He saw what looked to him like an ounce bag of cannabis leaf. He advised Sgt Evans and s 20 of the Search and
Surveillance Act 2012 was invoked to undertake a detailed search of the vehicle.2
2 Herein “the Act”.
[14] Sgt Evans’ evidence appears to be that he spoke to Mr Tweeddale only after the initial search that found the cannabis.3 He says that he told Mr Tweeddale that cannabis had been located in his vehicle, and that a s 20 search was now being undertaken. He then introduced himself and the other officers. He goes on to say that Mr Tweeddale at that point was wandering about a bit and he directed him to place his hands on the tray of the vehicle until the search had been completed. He
appears to have complied.
[15] No further drugs were found. Mr Tweeddale was arrested for possession of the cannabis. He was taken to the Wanganui police station. Ms Corlette drove her car off in the direction of the family home at Mangamahu. Mr Tweeddale was subsequently charged with possession of cannabis.4 He was neither arrested for nor charged with assaulting Ms Corlette.
[16] Finally, it is unclear exactly when the police safety order was served on Mr Tweeddale. Sgt Evans’s evidence in chief refers to a discussion about the order with Ms Corlette. Not with Mr Tweeddale. Under cross-examination he simply confirmed that the order was served. He did not say when. On the evidence, and taking Sgt Evans’ evidence (summarised at [14]) at face value, it is more likely that
service occurred after the initial search of the vehicle.5
Objection to admissibility
[17] Mr Tweeddale challenges the authority of the police to search his vehicle. He challenges also the admissibility of the evidence of the finding of the cannabis in his vehicle as a result of the police search.
[18] The sole ground advanced by the police justifying the search was s 14 of the
Act. That provides:
3 Det Gorringe’s evidence conflicts with that to some extent. An exact chronology cannot be ascertained.
4 Misuse of Drugs Act 1975, s 7(1)(a) and (2).
5 The potential significance of this is discussed at [49] below.
Warrantless entry to prevent offence or respond to risk to life or safety
(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b) there is risk to the life or safety of any person that requires an emergency response.
[19] Mr Tweeddale’s position is that, at the time of the search, no offence was being committed likely to cause injury to any person. Nor was there any risk to life or safety of any person requiring an emergency response.
Judgment appealed
[20] In a careful yet concise judgment, Judge Cameron noted the defence position that the presence of seven police officers, five armed, meant the scene could be rendered safe without resorting to a search of the vehicle. But the Judge did not agree. He took notice of Mr Tweeddale’s past criminal offending, the strong possibility that he had seriously assaulted his partner that morning (and threatened to kill her), his past possession of firearms and the fact that he was a very large and strong man.
[21] The Judge concluded:6
In my view until it was ascertained whether or not there were weapons in the vehicle there were reasonable grounds to suspect that there was a risk to the life or safety of any person, namely his partner, requiring an immediate response by way of a search of the vehicle. In other words, the circumstances points to a serious and dangerous situation in the nature of an emergency which required police to be satisfied that there were no weapons at the scene accessible to the defendant.
Issues on appeal
[22] This appeal gives rise to two issues:
(a) Was the search of the vehicle lawful?
(b) Is the evidence nonetheless admissible under s 30 of the Evidence
Act?
Was the search of the vehicle lawful?
[23] The law governing search of persons and property was systematised in a coherent form by enactment of the Act in 2012. Whether the Act is a code governing warrantless searches is undecided. The Court of Appeal in Ashby v R noted academic opinion to that effect, but said that it did not need to decide the point.7
[24] The Act distinguishes between searches of persons, places, and vehicles. It provides for warrantless searches of vehicles in specific, limited circumstances.
[25] Section 14, on which the police rely here, deals with places and vehicles, rather than persons. It applies, as we have just seen, where an offence is being or about to be committed that would be likely to cause injury to a person, or serious damage or serious loss to property, or where there is risk to life or safety of a person that requires an emergency response.
[26] Cognate provisions dealing with searches to protect public or police safety (as opposed to effecting arrest, protecting evidence or apprehending illicit items) are quite limited:
(a) Section 18 permits search of person, place or vehicle where a police officer has reasonable grounds to suspect a person is in possession or control of arms and is in breach of the Arms Act 1983, is by reason of a physical or mental condition incapable of proper control of the arms
or may cause bodily injury, or a protection or police safety order is in force against him8 under the Domestic Violence Act 1995.
(b)Section 28 is a crossover provision – part safety, part apprehension. It permits search of a vehicle where a police officer has reasonable grounds to suspect an occupant is committing an offence under s
202A(4)(a) of the Crimes Act 19619 and that the vehicle contains a
knife, offensive weapon or disabling substance.
(c) Section 85 provides for rub-down search of a person who has been arrested or lawfully detained to ensure he or she is not carrying anything that may be used to harm anyone. The permitted search is to the person. It does not, in its own terms, extend to search of a vehicle.
(d)Section 88(2)(a) is in similar terms, but goes further. It applies where there are reasonable grounds to believe that an arrested or detained person is carrying an item that may be used to harm anyone. Unlike s
85, it is not limited to a rub-down search. It does not include the search of a vehicle.
[27] The police here rely on none of these. Plainly the latter two are of no assistance. But ss 18 and 28 call for further comment. It is sufficient to focus on the former.
[28] To bring this search within s 18(2) the police would have needed to show two things. First, that a police safety order was “in force” or that grounds existed for making a protection order.10 This requirement could have been met. Regardless when
the police safety order was served, its preparation indicates grounds also existed for
8 Or where a protection order could be obtained. The reference to protection order in s 18(2)(c)(ii) was considered wide enough to also encompass a police safety order, so the omission of the latter is insignificant: Ministry of Justice and the Law Commission “Departmental Report for the Justice and Electoral Committee: Search and Surveillance Bill” at [122], appended to Search and Surveillance Bill 2009 (45–1) (select committee report) at Appendix G.
9 This provision concerns possession of a knife, offensive weapon or disabling substance without lawful authority or reasonable excuse. It includes a firearm.
10 Section 18(2)(c) of the Act.
a protection order.11 Secondly, that there were reasonable grounds to suspect that Mr Tweeddale carried, possessed or had control of arms.12 Here the police fall short – under both ss 18(2) and 28. As Judge Cameron noted, the police accepted the search was not authorised by s 28.13 That is, a search of a vehicle where there are reasonable grounds to suspect it contains an offensive weapon, and an offence being committed under s 202A(4)(a).14 Before me Mr Mallalieu suggested s 28 could have been relied upon, had there been information that the vehicle contained a weapon. But there was not, and nor was it suggested that the appellant’s previous possession of firearms sufficed.15
[29] The police relied therefore alone on s 14. I now return to that provision.
[30] The Court of Appeal in Ashby held that s 14 is not a search power.16 Nor is it a power of entry for the purpose of carrying out a search. Instead “it is a power to enter to prevent criminal offending, or to take action to avert a risk to life or personal safety.” Section 14 was broader than the previous provision under s 317(1) of the Crimes Act. That permitted entry to prevent the commission of an offence likely to cause immediate and serious injury to a person or property, provided the constable believed on reasonable probable grounds that such an offence was about to be committed. The new legislation permitted entry to avert a risk to life or safety, without requiring there to be any actual or apprehended offence.
[31] In that case the police had been called to a house after a 111 call from a member of the public. The call said a distressed man was crying for help from beside a suburban garage. When the police arrived they could hear that for themselves. The crying out continued for some minutes. The police then made a forcible entry, using force to lift the garage roller door. There they found Mr Ashby. He was the lawful occupant. He was highly agitated, talking to himself, sweating
and fidgeting while pacing up and down the garage. He would not tell the police if
11 See discussion at n 8 above.
12 Section 18(2).
13 Police v Tweeddale DC Wanganui CRI 2014-083-050, 11 November 2014 at [14].
14 As noted at n 9, that includes a firearm.
15 See Rimine v R [2010] NZCA 462 at [22] where even a flag on police records indicating a past incident of threatening police with a firearm did not found a reasonable suspicion, without greater specificity.
16 Ashby v R [2013] NZCA 631, [2014] 2 NZLR 453 at [23].
he was all right. He asked them to leave. (Mr Ashby later claimed, somewhat incongruously that he had been “ranting” while working on a vehicle engine, and becoming frustrated). The police then searched the house to make sure that nobody else was present and (if they were) to make sure that they were safe. In the course of going through the lounge, the constable noticed a glass pipe on the coffee table. It was the sort of pipe used to smoke methamphetamine. The police then continued to search, presumably under either ss 15 or 16 of the Act. They found quantities of methamphetamine. Mr Ashby was charged with possession of methamphetamine to
supply17 and possession of the pipe for the purpose of smoking methamphetamine.18
The principal issue in the case was whether s 14 permitted forcible entry. The Court of Appeal concluded that it did. Otherwise s 14 would be useless in the event of an emergency where a locked door stood between a constable and a person in danger.19
That construction was not affected by s 6 of the New Zealand Bill of Rights Act
1990.20 The entry was justified.
[32] As to the search in that case the Court concluded:21
In brief, the circumstances justified [the police] in checking to ensure there was no one else in the house at risk. The search resulted in evidence that is properly admissible against the appellant at his trial.
[33] The application of s 14 requires an operational assessment in terms required by the legislation, made prior to the commencement of the search. In this case, because only the second limb of s 14(2) is engaged, the police officer who initiated the search had first to have reasonable grounds to suspect that there was a current and continuing risk to the life and safety of any person requiring an emergency response. That risk assessment is necessarily objective and must take into account all reasonably evident circumstances.
[34] I turn to the facts of this case.
17 Misuse of Drugs Act 1975, s 6(1)(f).
18 Misuse of Drugs Act 1975, s 13(1)(a).
19 At [55]–[56].
20 At [57]–[58].
21 At [60].
[35] On the one hand there was Mr Tweeddale’s history of violent offending, his physical stature, his known access to firearms, the likelihood that he had assaulted his partner, and the fact that he had been behaving erratically at an earlier stage. Also relevant was the presence of Ms Corlette and the children at the scene, albeit in a different vehicle.
[36] On the other hand, there were these considerations:
(a) Mr Tweeddale was now behaving calmly and generally complying with directions.
(b)He was no longer within the vehicle, and was standing away from the cab area.
(c) There were seven police officers present. (d) Five of them were armed.
(e) There was also a police dog present.
(f) Ms Corlette and the children were in a separate vehicle.
(g)A police safety order had been prepared and could be served on Mr Tweeddale. For the term of the order, Ms Corlette and Mr Tweeddale could no longer cohabit their family home. Mr Tweeddale would also have had to surrender any weapons, including firearms in his possession.22
(h)If further physical separation was required, the police were plainly in a position to arrest Mr Tweeddale for the assault on Ms Corlette.
Despite her denial, the police had not believed her explanation.
22 Domestic Violence Act 1995, s 124E.
[37] In the quite unusual circumstances of this case, I do not consider that the searching officer here had reasonable grounds to suspect that there was a current and continuing risk to the life and safety of any person requiring an emergency response.
[38] First, the circumstances set out at [36], in particular the balance of force (both persons and arms) and the ability to arrest Mr Tweeddale, meant the immediate scene was secure. Accordingly, the risk was so diminished that there was no longer an “emergency” to avert. That is simply the consequence of very good police work.
[39] Secondly, the Court will not readily second-guess the expert risk assessment of experienced police officers, if they ask themselves the right question. But here they did not do that.
[40] The question that needed to be asked was one essentially fitting the terms of s
14(2)(b): are there reasonable grounds to suspect there is a risk to the life or safety of a person requiring an emergency response? That is, a current and continuing risk.
[41] Instead what appears to have happened was simply the implementation of a standard armed offenders squad practice of “making the situation safe”. Det Gorringe characterised the search as being part of the standard practice, or “best practice”, of the armed offenders squad. As he put it:
The best course of action for us was to make the situation safe. That’s what
we did.
Later in his evidence he described it as “making the vehicle safe”. Under cross- examination he said:
QThe procedure and the level of detail that you went to in order to make the area safe by searching the vehicle?
A. Yeah generally if the Armed Offenders Squad stop a vehicle, we’ll search it once we’re done to make it safe, same with a house, if we turn up, the person comes out, we still search the house to make it safe and then we deal with them.
Q. Okay so as part of your standard operating procedure would it be fair to say that more often than not you will conduct a thorough search of a vehicle to make sure it’s safe?
A. Yeah we would.
Q. Okay.
A. If it’s an AOS job, yes.
Q. Okay.
A. There’s obviously distinction between AOS jobs and general duties
jobs.
[42] That procedure is perfectly sensible no doubt, but operating procedure must bend to limits delineated by the statute. The procedure simply assumes that any armed offenders squad deployment is an “emergency” for the purposes of s 14, and continues throughout engagement with a suspected offender to be so. As a matter of principle that is not correct, although as a matter of practice it may often be the case, at least to the point of arrest. What is needed is a context-specific assessment of risk to life or safety made before the search was commenced. There is simply insufficient evidence that that was done here.
[43] Thirdly, had Mr Tweeddale been arrested, as he might well have been for the apparent assault on Ms Corlette, what then would the continuing emergency have been? In what respect, then, was his mere detention without arrest inherently more dangerous? It may be noted that the initial response to the emergency presented by Mr Tweeddale’s actions was the preparation of a police safety order, the eventual service of that order upon him at the roadside, and no arrest for assault.
[44] Finally, I emphasise that it is the whole combination of circumstances in this case, set out in [36], that meant that searching the vehicle was not in fact required to avert an emergency. A different combination of circumstances would compel a different assessment. It may also have led to a different conclusion.
[45] For the purposes of s 30 of the Evidence Act 2006, I am satisfied on the balance of probabilities that the search of Mr Tweeddale’s vehicle on 5 January 2014 was unlawful.
Is the evidence nonetheless admissible under s 30 of the Evidence Act?
[46] Evidence unlawfully obtained may nonetheless be admitted under s 30. That depends on whether exclusion would be disproportionate to the impropriety.
Appropriate weight must be given to the impropriety, but proper account must also be taken of the need for an effective and credible system of justice.23 In evaluating s
30 I naturally bear in mind the considerations provided in s 30(3).
Factors weighing against admission
[47] Factors weighing against admission include the following.
[48] First, Mr Tweeddale’s right to be free from unreasonable search is fundamental.24 An unlawful search does not necessarily breach that right but, as Tipping J put it in Hamed, it is likely to be well on the way towards such a breach.25
Mr Mallalieu submitted that the importance of the right not to be searched is weaker in relation to a vehicle in a public place, in contrast to the search of one’s home or person. I do not find the distinction particularly attractive. A similar submission was made in Rimine v R. As the Court of Appeal noted there, the right of privacy protected by s 21 has greater resonance in relation to a home than a vehicle, but the
expectation of privacy is still important in relation to a vehicle.26
[49] Mr Tweeddale’s expectation of privacy might conceivably have been diminished somewhat had the police safety order been served on him prior to the search for weapons. As noted earlier, service of such an order requires the subject to surrender immediately any weapons in his possession or control.27 However the evidence suggests service probably post-dated the search.28 The existence of the unserved order does not alter Mr Tweeddale’s rights to privacy and freedom from
unreasonable search.
[50] Secondly, the alleged offending disclosed is of a relatively low level of seriousness, judged by the maximum penalty that may be imposed.29 Possession of
cannabis commands a maximum sentence of three months’ imprisonment or a fine
23 Evidence Act 2006, s 30(2)(b).
24 Evidence Act, s 30(3)(a); New Zealand Bill of Rights Act 1990, s 21.
25 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [226].
26 Rimine v R [2010] NZCA 462 at [27].
27 Domestic Violence Act 1995, s 124E(1)(a)(i).
28 See [16] above.
29 Evidence Act, s 30(3)(d).
not exceeding $500, or both.30 While all offending punishable by imprisonment is to be regarded as serious, it is plainly at the lower end of the punitive spectrum defined by Parliament.31 This conclusion is consistent with the decision of the Court of Appeal in Hawkes v R.32 The alleged offending was not remotely of the same magnitude as that in Rimine v R (possession and supply of methamphetamine).33
[51] Thirdly, alternative investigatory techniques were available.34 If the police had serious reason to be concerned that Mr Tweeddale might assault Ms Corlette further, he should have been arrested. If they had reason to suspect possession of firearms, then in the circumstances a warrantless search for them under s 18(2)(c) could have been undertaken. And if they had serious reason to suspect the possession of drugs in his vehicle, then a warrantless search might then be
undertaken if the requirements of s 20 of the Act were met.35
[52] Fourthly, it is not suggested any alternative remedies are appropriate to restore Mr Tweeddale’s rights after the unlawful search.36 The only appropriate remedy concerns the admission or not of this evidence.
Factors weighing in favour of admission
[53] Factors weighing in favour of admission are as follows. [54]
First, I accept that the search was not undertaken in bad faith.37
The
circumstances were, or had been, charged with emotion and anxiety. There had been apparent violence used, and there had been a threat. There was potentially a question of safety. But the precautions already taken meant it was not an “emergency” for the purposes of s 14. A context-specific assessment, as opposed to the application of
standard “best practice”, would have reached that recognition.
30 Misuse of Drugs Act 1975, s 7(2)(b).
31 Hamed v R, above n 25, at [242].
32 Hawkes v R [2015] NZCA 49 at [26].
33 Rimine v R [2010] NZCA 462.
34 Evidence Act, s 30(3)(e).
35 Such a search was undertaken here, after the cannabis was found: see [13] – [14] above.
36 Evidence Act, s 30(3)(f).
37 Evidence Act, s 30(3)(b).
[55] Secondly, the evidential product of the search is valuable.38 It is real evidence, i.e. cannabis. If admitted, and absent a defence, it will likely secure a conviction.
Neutral considerations
[56] The other considerations provided for in s 30(3) have limited application in this case. As Mr Mallalieu rightly observed, the consideration in s 30(3)(g) relating to safety is simply circular in this context. The same may be said of urgency.39
Conclusion
[57] In my view the appropriate balance in this case comes down clearly on the side of exclusion of the unlawful search evidence. No arrest was effected for the evident assault on Ms Corlette. The purpose of the search was not to detect further offending, although that was its outcome. The purpose of the search was simply to render a detention scene secure, when (as I have found) that scene had already been secured. The discovery of the evidence was wholly adventitious, with the unlawful substance being found in the course of a search of the vehicle for objects still lawfully possessed. The search was an unacceptable and needless intrusion upon Mr Tweeddale’s civil rights, and its slender product should not in those circumstances be received in evidence.
[58] I find that the exclusion of this evidence is proportionate to the impropriety of its acquisition.
Result
[59] The appeal is allowed.
38 Evidence Act, s 30(3)(c).
39 Evidence Act, s 30(3)(h).
[60] The evidence obtained in the search of Mr Tweeddale’s vehicle was obtained unlawfully. Its exclusion is proportionate to the impropriety of its acquisition. It is inadmissible against Mr Tweeddale at trial.
Stephen Kós J
Solicitors:
Crown Solicitor, Wanganui for Respondent
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