Wedge v The King
[2024] NZCA 259
•21 June 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA788/2023 [2024] NZCA 259 |
| BETWEEN | CAITLYN ROZENA WEDGE |
| AND | THE KING |
| Court: | Cooke, Moore and Osborne JJ |
Counsel: | C G Tuck and A O Belloir-Spense for Applicant |
Judgment: | 21 June 2024 at 10.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooke J)
The applicant seeks leave to appeal a decision of the High Court dismissing her appeal from a decision of the District Court at a Judge-alone trial finding her guilty of one charge of possession of cannabis for supply.[1] The District Court did not accept the applicant’s argument that the evidence in support of the charges had been improperly obtained,[2] found the charges proved on the basis of that evidence,[3] and sentenced her to 60 hours’ community work and six months’ supervision.[4]
[1]Wedge v Police [2023] NZHC 2773 [High Court judgment].
[2]Police v Wedge [2023] NZDC 11027 [Admissibility judgment].
[3]Police v Wedge [2023] NZDC 29493 [Verdict judgment].
[4]Police v Wedge [2023] NZDC 6976 [Sentencing judgment].
On appeal the High Court agreed with the District Court that the relevant search was not unlawful and dismissed her appeal against conviction.[5] The applicant now seeks leave to pursue a second appeal pursuant to s 237 of the Criminal Procedure Act 2011.
Relevant background
[5]High Court judgment, above n 1.
In the early hours of 15 June 2022, police stopped a car driven by the applicant in Papamoa. She initially gave false details, but after officers established her true identity, she was arrested for breaching her bail conditions and driving while disqualified.
The police then began arranging for her vehicle to be impounded for 28 days as required by s 96(1) of the Land Transport Act 1998 (LTA). Before the vehicle was towed away and stored by a stowage firm, a constable conducted an inventory search of the vehicle in accordance with the implicit duty in s 96(4) of the LTA to secure and safeguard personal property in an impounded vehicle.[6] Inside the vehicle on the passenger seat was a receptacle described as a “cookie container”. When the container was opened it was found to contain cannabis. The officer then exercised powers to conduct a warrantless search of the vehicle under s 20 of the Search and Surveillance Act 2012 (the SSA) which resulted in the discovery of three sets of scales, several plastic bags, cash, two mobile phones and what is described as a “tick book”. The total amount of cannabis found was 46 grams.
[6]Tuato v R [2011] NZCA 278 at [12].
In the District Court, Judge Lawson applied the Supreme Court’s decision in R v Ngan and this Court’s decision in Casey v R and concluded that, given that the officer considered that the cookie container contained something other than cookies it was appropriate for him to open and look into it to properly conduct the inventory search.[7] He then concluded that the subsequent warrantless search for drugs under s 20 of the SSA was also lawful.[8] Furthermore, he concluded that even if there was an unlawful search the evidence would have been admissible under s 30 of the Evidence Act 2006.[9]
[7]Admissibility judgment, above n 2, at [6]–[13] referring to R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48; and Casey v R [2021] NZCA 29.
[8]Admissibility judgment, above n 2, at [13].
[9]At [14].
On appeal the High Court agreed with the District Court that the search of the container was a legitimate exercise of the inventory search.[10] Lang J then concluded that there was a legitimate exercise of the warrantless search power under s 20 of the SSA as the vehicle was going to be towed by a towage firm who were to be given the keys to the vehicle.[11] Lang J also concluded that even if the power under s 20 did not arise that police would have been entitled to continue with the inventory search which would have revealed the other items. He also concluded that even if the evidence was not properly obtained it would have been admissible under s 30 of the Evidence Act.[12]
Relevant law
[10]High Court judgment, above n 1, at [13].
[11]At [16].
[12]At [17].
The Criminal Procedure Act relevantly provides:
237 Right of appeal against determination of first appeal court
(1)A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.
(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
An appeal is unlikely to give rise to an issue of general or public importance unless it raises an issue of general principle or of general importance in the administration of the criminal law, including one that has broad application beyond the circumstances of the particular case. Not every error in the trial process will amount to a miscarriage of justice. The threshold is a high one.[13]
Submissions
[13]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [32]–[42].
The applicant argues that the inventory search was unlawful and unreasonable. She emphasises the original rationale and purpose for inventory searches and argues that police need to believe that a receptacle contains property of value before it can be searched. The searching officer did not reasonably suspect that there was property of value in the cookie container. That distinguished this case from Ngan where the searching officer believed there was likely to be cash in the receptacle.[14] Similarly in Casey, the officer opened the receptacle believing it might contain more cash given the cash found in the vehicle.[15] But here the officer only thought that the receptacle did not contain cookies, which was a different state of belief. He did not believe it held valuable property.
[14]R v Ngan, above n 7, at [28]–[29].
[15]Casey v R, above n 7, at [9]–[10].
The warrantless search under s 20 was then unlawful because it would not have occurred but for the unlawful inventory search. It was important that this further search involved the power under s 20, and not the inventory search power. The requirements for warrantless searches under s 20 did not arise because the officer did not believe that evidence would be destroyed if the search was not carried out immediately.
In terms of s 30 of the Evidence Act, there were two reasons why the search was unlawful, a strong public interest in protecting privacy, offending at a relatively low level and no urgency. Given the importance of the right in s 21 of the New Zealand Bill of Rights Act 1990, exclusion of the evidence was proportionate.
Assessment
We accept the respondent’s submission that the law governing inventory searches is generally well settled, and that the purpose of searches is to ascertain the nature of the property being seized so it can be known whether steps need to be taken for its preservation, as well as to ensure it does not present a danger to others.[16] In a series of decisions this Court has upheld the legitimacy of inventory searches of bags or other receptacles in a vehicle when the driver of a vehicle is found to be driving unlawfully or there is a warrant for the driver’s arrest, and the vehicle is impounded.[17] The applicant may still have an argument based on the suggested need for an officer conducting an inventory search to have a positive belief that there is valuable property in a container being opened. But to the extent that this argument remains available notwithstanding these earlier decisions it is fact specific and no issue of more general or public importance arises.
[16]R v Ngan, above n 7, at [16].
[17]Casey v R, above n 7; Maihi v R [2015] NZCA 438; and Holdem v R [2014] NZCA 546.
We agree that the High Court Judge’s conclusion that the requirements for warrantless searches under s 20 of the SSA, particularly the requirement that the officer had reasonable grounds to believe that evidential material would be destroyed if an immediate search was not carried out, can legitimately be challenged. But the High Court Judge’s alternative finding that, even if s 20 did not apply, the search would be authorised as an inventory search appears sound. We do not accept that that the fact s 20 was relied upon necessarily means that the inventory search powers could not be. This means that the applicant’s proposed appeal may ultimately hinge on the legality of the inventory search, which turns on questions of fact and not wider issues of general or public importance.
In any event, the conclusions of both the District Court and the High Court that the evidence would remain admissible under s 30 of the Evidence Act notwithstanding any unlawfulness also seems to us to be sound. The applicant was driving in breach of bail, and whilst disqualified. Her arrest, the impounding of her vehicle, and an inventory search were inevitable in those circumstances. If the inventory search then went too far the invasion of her rights does not seem to us to be serious, and the evidence recovered was highly probative of drug offending whilst the applicant was on bail. We do not consider the proposed challenge to the assessment made by the lower courts under s 30 of the Evidence Act is a strong one, and it is again fact specific.
For these reasons we do not consider that the proposed appeal raises an issue of general or public importance, or that there is a risk of a miscarriage of justice if leave is not granted.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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