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The Queen v Edward James Power [1999] NZCA 299; (1999) 17 CRNZ 662 (9 December 1999)

Last Updated: 29 November 2011

THE QUEEN

V

EDWARD JAMES POWER

Introduction

[1] Mr Power challenges a pre trial ruling pursuant to s344A of the Crimes Act 1961 in which evidence of items seized upon the execution of a search warrant, but outside the terms of that warrant, was ruled admissible. In a considered decision dated 9 August 1999 the learned District Court Judge held that evidence of the finding and seizure of firearms and ammunition, class B drugs, and various items of stolen property was admissible, albeit that the search warrant the execution of which revealed such items authorised only the seizure of cannabis and items relevant to cannabis offending.

Background

[2] The appellant is described as a senior member of a gang suspected to be centrally involved in the possession and supply of cannabis. The police obtained information that he leased a lock-up storage unit, number 200, at a facility at Takanini. Such unit is one of about 380 leased to members of the public. Other members of the gang of which the appellant is a member are also believed to lease units there.
[3] On 19 November 1998 the police obtained a search warrant in relation to unit 200. It was issued pursuant to the Summary Proceedings Act 1957. No complaint was or could be levelled at the way in which the warrant was obtained or its terms. It authorised the police, for a period of one month, to search for and seize cannabis together with “packaging, correspondence and paraphernalia relating to the possession/possession for supply and selling of [that] class C controlled drug”. At about 8.30 pm on 19 November a Detective Holmes executed the warrant. Unit 200 measured about 4 metres by 3 metres with a height of about 2.5 metres. The detective conducted a search by torch light. Within a cardboard box he located a number of bags of cannabis plant. Two further officers were called to the scene. The search continued and a quantity of methamphetamines, an AK 47 magazine containing live rounds, 17 shotgun cartridges, and a box of 7.62 mm ammunition were located and seized. The police then secured the unit and left. This first search was intended to be a covert one.
[4] On 24 November 1998 Detective Holmes was directed to conduct a further search of unit 200, this time in daylight. This search attracted the attention of others. The management of the facility, described as two elderly persons, were made aware of the police presence. Moreover, other unit holders were coming and going and a number of people could see the police activity from an adjacent park. The reason for the second search was a belief that further drugs may be located, since the first search was limited in nature and curtailed by poor lighting. Within the unit the detective located a hedge trimmer, concrete cutter and chain saw (all of the Stihl brand), an AK 47 rifle, a Winchester shot gun, a Taurus pistol, and a SKB shot gun. After inspection of these items a check of police records was made which confirmed that all the property was stolen. In light of this the items were seized and removed as evidence.
[5] For the purpose of the s344A application the Crown provided a draft indictment. It included two counts of possession of drugs for the purpose of supply, being the cannabis and methamphetamines seized from unit 200. In addition there were counts of burglary and theft, with alternative charges of receiving, and five charges of possession of firearms or ammunition contrary to the Firearms Act 1983. All such charges flowed from the seizure of items from unit 200.

District Court Decision

[6] Counsel for the appellant contended that the items seized, other than the cannabis, represented the proceeds of an illegal search, which was also unreasonable in terms of s21 of the New Zealand Bill of Rights Act 1990. With reference to illegality, reliance was placed upon McFarlane v Sharp [1972] NZLR 838 (CA) in which this Court reaffirmed the New Zealand position that a search warrant does not authorise seizure of material outside the scope of the warrant, albeit that there is a proper basis for the conclusion that the items in question afford evidence of the commission of an offence. In McFarlane the Court left for legislative consideration the alternative approach which has found favour in other countries, including for example England where in Chic Fashions Ltd v Jones [1968] 2 QB 299 the admissibility of incriminating items seized beyond the ambit of a warrant, was supported. Counsel, recognising that illegality is not determinative of admissibility, further contended that seizure of the subject items was not reasonable and that evidence of their discovery should therefore be ruled inadmissible in accordance with the principles in R v Grayson and Taylor [1977] 1 NZLR 339 (CA).
[7] The learned Judge ruled that evidence could be given of seizure of the items on both 19 and 24 November 1998. In the first place he was prepared to hold that since the searches themselves were legal and since the appellant was not the lawful owner of the items from unit 200, their seizure was not unlawful vis a vis him. The Judge considered that “on that basis alone” evidence of discovery of the property should be allowed.
[8] However, in case this conclusion was wrong he considered whether there were other available grounds for admissibility. With reference to the methamphetamine he found that this was lawfully seized because it was located inside the same cardboard box in which the cannabis was found. In short the police were entitled to seize the box including its “entire contents”. With reference to the firearms, ammunition, and stolen property the Judge readily found their seizure was reasonable. Accordingly he ruled all the challenged evidence to be admissible.

Decision

[9] We are in no doubt that the decision to admit the evidence was correct, although our reasons for that conclusion are somewhat different to those which prompted the learned Judge. Mr France accepted that this case did not require re-examination of the New Zealand position exemplified by McFarlane v Sharp. We agree, but record our view that a fresh look at this question is warranted. The facts of this case provide a graphic example of a situation where seizure of items, not covered by the terms of a valid warrant, but patently stolen goods, should be permitted at law. The law would be brought into disrepute if the seizure were held unreasonable.
[10] We turn to examine the admissibility issue in terms of s21 of the New Zealand Bill of Rights Act 1990. It is convenient to refer to certain of the guiding principles which were gathered in Grayson and Taylor, in particular principles 2, 4 and 7 (from p 407 of the report):

2. The settled principle of the common law of New Zealand is that evidence obtained by illegal searches is admissible subject only to a discretion, based on the jurisdiction to prevent an abuse of process, to rule it out in particular circumstances on the ground of unfairness to the accused. This ground of challenging admissibility is not affected by the availability of a challenge under s21.
4. A search is unreasonable if the circumstances giving rise to it make the search itself unreasonable or if a search which would otherwise be reasonable is carried out in an unreasonable manner. So too seizure. Whether a police search or seizure is unreasonable depends on both the subject-matter and the particular time, place and circumstance.
7. Illegality is not the touchstone of unreasonableness. In terms of s21 what is unlawful is not necessarily unreasonable. The lawfulness or unlawfulness of a search will always be highly relevant but will not be determinative either way.

Against this background we turn to the facts and circumstances of this case.

[11] With reference to both controlled drugs and firearms, the police possess powers of search and seizure without warrant provided there are grounds for suspicion or belief of relevant offending : s18(2) Misuse of Drugs Act 1975 and s61(1) Arms Act 1983, respectively. Understandably these powers were not resorted to in this case, since the drugs and firearms were located in the course of a search authorised by warrant in any event. Nevertheless the fact remains that these items are in a special category where Parliament has conferred special powers in relation to their seizure. We see this as highly relevant in the present context.
[12] Next is the factor that all items were discovered in the course of a lawful police search. The officers were authorised by a valid warrant to enter and search unit 200. There was not therefore an improper invasion of privacy, which is a common feature of cases of this kind. Moreover the appellant who asserts a breach of his right to be secure against unreasonable search or seizure has no legitimate interest in the property in question. This is the point which so influenced the District Court Judge. He was prepared to conclude it rendered the seizure lawful. We prefer to consider the point in the context of reasonableness.
[13] The nature of the place from which the items were recovered is also important. A storage unit, one of many in a facility available to the public, is to be viewed quite differently to, for example, a private home. In addition, in this case other interests required recognition, in particular those of the managers of the facility who were naturally fearful when firearms and ammunition were located on the site. Further, the situation changed appreciably when it became obvious to the police officers that members of the public, whether visiting the storage facility itself or in the adjacent park, had observed the search taking place. This circumstance compelled immediate seizure of the firearms and ammunition in particular, since the risk of information passing to the appellant or other members of his group was obvious.
[14] The risk posed by the items found is also a compelling factor. Nothing could be left to chance when firearms and live ammunition were located in this particular situation. With reference to the stolen property it is highly significant that before seizure was effected steps were taken to confirm that the items were indeed the proceeds of crime. It was not therefore a case of seizure based upon reasonable suspicion or belief, but rather actual knowledge.
[15] We have already mentioned details relevant to the storage unit itself. The police had information to the effect it was leased with the use of a false name. In our experience it is not uncommon for storage units to be used for the storage of prohibited or dishonestly obtained property. Here the police found a particularly potent mix of controlled drugs, firearms, and recently stolen items. The risk involved in not effecting immediate seizures was both extreme and obvious..
[16] We are in no doubt that the above factors, in combination, dictate that the seizure of the relevant items was reasonable in the particular circumstances which prevailed. Accordingly we agree with the conclusion of the District Court Judge that the evidence in question is admissible. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington