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The Queen v Ropiha [2006] NZCA 199 (7 August 2006)

Last Updated: 15 August 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA36/06

THE QUEEN

v

TRIESTE MARTIN ROPIHA

Hearing: 27 July 2006

Court: Hammond, Randerson and Panckhurst JJ

Counsel: W T Nabney for Appellant
H D M Lawry for Crown

Judgment: 7 August 2006 at 10 am

JUDGMENT OF THE COURT

Leave to appeal out of time is granted but the appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] After trial by jury in the High Court at Hamilton, the appellant was convicted on 1 November 2005 of one count of possession of methamphetamine for supply. He had earlier pleaded guilty to one count of possession of a pipe. He was sentenced on 6 December 2005 to four years imprisonment on the possession charge with a concurrent sentence of four months imprisonment for possession of the pipe.
[2] The appellant initially appealed against both conviction and sentence but, in the end, proceeded only with the appeal against conviction. The notice of appeal was not filed until 3 February 2006 and is out of time. The grounds for appeal were stated in the notice to be that a pre-trial decision of Nicholson J under s 344A Crimes Act 1961 wrongly allowed the Crown to lead evidence of items found when the appellant was searched at the Hamilton Police Station on 31 January 2005. In that search, the police found methamphetamine and the pipe concealed between the appellant’s buttocks.
[3] The appellant was in police custody at the time of the search which was undertaken under the authority of s 57A Police Act 1958. The sole ground of the s 344A application was an allegation that the police had conducted an internal search of the body of the appellant contrary to s 18A Misuse of Drugs Act 1975.
[4] After hearing evidence from a number of police officers and from the appellant, Nicholson J delivered his decision on 31 October 2005 rejecting that allegation and finding that the police had not touched the appellant’s anus, either externally or internally, nor had they pulled his buttocks apart. He rejected the appellant’s evidence that he had inserted an object into his anus containing the methamphetamine and that it was removed from there by force by the police. Nicholson J concluded that the search was conducted within the authority of s 57A Police Act and that the evidence was properly admissible.
[5] There was no suggestion before Nicholson J that the search was unreasonable or unlawful on any other ground. In particular, it was not alleged that excessive or unreasonable force was used during the course of the search which had involved the use of pepper spray on the appellant and a struggle with four police officers before he was subdued.
[6] Following the ruling by Nicholson J, the appellant’s trial commenced before Frater J the same day, 31 October 2005. A number of police officers gave evidence at trial and were cross-examined as to the manner in which the search at the Hamilton Police Station was conducted. On this occasion the appellant neither called nor gave evidence himself. His defence at trial was that the drugs were for his own use and not for the purpose of supply. The jury plainly rejected that defence.
[7] Despite extensive evidence and cross-examination of Crown witnesses about the manner in which the search was carried out, there was no further challenge by the appellant to the admissibility of the evidence obtained in consequence of the search. However, Mr Nabney for the appellant now seeks to contend for the first time on appeal that the search, while lawful, was unreasonable and in breach of ss 21 and 24 New Zealand Bill of Rights Act 1990. He also contends that the search was in breach of s 23(5) New Zealand Bill of Rights Act in that the appellant was not treated with humanity and with respect for his human dignity. He further submits that the evidence arising from the search should not have been admitted and that, in consequence, there was a miscarriage of justice.

Process Issues

[8] There are a number of process difficulties with this appeal. First, the appellant is out of time and requires leave to appeal. Secondly, this Court has stated repeatedly that if there is any significant challenge to the admissibility of evidence, particularly on the basis of alleged breach of the New Zealand Bill of Rights Act, a pre-trial application under s 344A Crimes Act should be brought to ensure the issues are fully and carefully dealt with. Thirdly, the issue which the appellant now seeks to have aired in this Court has not previously been raised either prior to or even during the trial. This gives rise to particular difficulties because we have not had the benefit of a ruling in the lower Court on the matter at issue. Finally, if all other difficulties are overcome, the appellant would need leave to amend his grounds of appeal.
[9] We must express our grave concern about these process issues, particularly the failure by the appellant to raise all available grounds to challenge the admissibility of the impugned evidence in the pre-trial application. Mr Nabney for the appellant sought to explain the failure to raise the unreasonable or excessive force issue on the footing that it was not until trial that one of the witnesses gave evidence which suggested the appellant had not shown any signs of physical aggression before he was pepper sprayed. However, even when that evidence emerged, there was no renewed challenge at trial to the admissibility of the relevant evidence.
[10] Despite these serious misgivings, both counsel dealt with the issue on the merits and, in deference to counsel, we now discuss the relevant evidence. In doing so, we are not to be taken as condoning the approach adopted in this case. Nor should it be assumed that this Court will be prepared to consider a case such as this on the merits on another occasion.

Background facts

[11] The appellant and two other men were arrested after their motor vehicle was stopped near Karapiro on 31 January 2005. They were taken first to the Cambridge Police Station. Constable Gardner described the appellant as being "unco-operative and quite arrogant" at that stage. He accepted however that there was no physical aggression at that point. At Cambridge, the appellant was subjected to a "pat down" search. Nothing incriminating was found at that stage.
[12] Several police witnesses gave evidence of the appellant’s demeanour upon his arrival at the Hamilton Police Station later that day. Witnesses described him as aggressive or extremely aggressive. Although there was some variation between the accounts given by the police officers in attendance, it is not in dispute that the station supervisor at Hamilton Police Station, Senior Sergeant Shields, formed the view that it was necessary to subject the appellant to a full search. When asked to submit to a full search, the appellant’s response was to tell Senior Sergeant Shields to "get fucked". He continued to be aggressive and confrontational and continued to refuse to be searched. Senior Sergeant Shields said that he began to suspect that the appellant was hiding something given his continual refusal to be searched even though the appellant had been informed that if he continued to refuse, physical force would be used.
[13] Constable Gardner accepted in cross-examination that the appellant had complied with requests to remove his shirt and pants. But Constable Gardner also stated, supported by Constable Sickelmore, that Senior Sergeant Shields instructed the appellant to lower his underpants and to do a full squat. Both officers stated that the appellant only partially squatted and turned away so that the police were unable to see his behind. The evidence established that the appellant refused to undertake a full squat.
[14] Although Senior Sergeant Shields did not himself say so, other police witnesses confirmed that the Senior Sergeant informed the appellant that if he did not submit to a full search voluntarily, then pepper spray would be used. Senior Sergeant Shields himself gave evidence that he continued to try to reason with the appellant, telling him that he did not want to fight with him but, if it came to it, then that is what would happen. The Senior Sergeant stated that the appellant moved away to the side of the holding room and sat on a bench "looking away from us in a stance which indicated to me that he was not going to co-operate and he was not going to listen to us any further".
[15] Senior Sergeant Shields then instructed the watch house keeper to spray the appellant with pepper spray. This was done but did not have the desired effect. Rather, it seemed to have caused the appellant, perhaps not surprisingly, to start yelling and struggling with the officers present. He was then pepper sprayed again and was restrained on the floor by four officers. During the course of the struggle, a small package fell out from between the appellant’s buttocks and a Constable Sabin observed the end of what looked like a glass pipe protruding from between the appellant’s buttocks. Constable Sabin took hold of the pipe and pulled it out.

Conclusions

[16] Assessing the evidence at trial as best we can, it was established that while the appellant was not physically aggressive until he was pepper sprayed, he repeatedly failed to co-operate with a full search while in custody at the Hamilton Police Station. He became verbally aggressive when asked to submit to a full search, swearing at the officers. While there is evidence that he co-operated in removing his shirt and pants, he also repeatedly refused to squat fully. He was told on several occasions that force would be used if he did not co-operate and was also told that pepper spray would be used if necessary. When he continued to refuse to undergo a full search, he was sprayed twice, became physically violent and was restrained by four police officers. The physical evidence already described was then located without any breach of s 18A Misuse of Drugs Act. The discovery of this material confirmed Senior Sergeant Shields’ justifiable suspicions that, in refusing to submit to a full search, the appellant was attempting to hide incriminating evidence.
[17] The search was authorised under s 57A Police Act and was therefore lawful. But as this Court held in R v Grayson & Taylor [1997] 1 NZLR 399 at 407, 408, a search which is lawful is not necessarily reasonable. However, on the evidence, we are not persuaded that, in the circumstances of this case, any unreasonable or excessive force was used or that there was any breach of the New Zealand Bill of Rights Act in consequence. Given the appellant’s confrontational behaviour and his consistent refusal to submit to a full search, the police were justified, after repeated warnings, in using force to carry out the search. There is no evidence that any of the physical force used for that purpose was excessive. We note in that respect that the appellant did not give evidence at trial at all, let alone evidence that excessive force was used on him or that he was subjected to indignities.
[18] Our only reservation is in relation to the use of pepper spray in a pre-emptive way rather than using it to subdue a suspect or arrested person after he has displayed physical aggression or at least threatened it. The difficulty for us is the absence of any evidence as to police practice or procedures in relation to the use of pepper spray and the circumstances in which it may be justified. If it had been intended to pursue this issue, it ought to have been properly raised in a s 344A application prior to trial so that the police had the opportunity to deal with the issue and to adduce evidence in relation to it. We can only deal with the evidence before us on this point. Given the warnings which were given, the appellant was well aware of the likely consequences of his continued refusal to co-operate and we are not persuaded on the materials before us that the use of the pepper spray was unreasonable in the circumstances. We are not however to be taken to be expressing the view that the use of pepper spray in circumstances such as this is generally acceptable.

Result

[19] There being no opposition to the grant of application for leave to appeal out of time, leave is granted accordingly. We also grant leave to amend the notice of appeal to cover the new ground. However, for the reasons given, we are satisfied that the search was not undertaken in breach of any of the provisions of the New Zealand Bill of Rights Act 1990 and that the impugned evidence was properly admissible. It follows that there has been no miscarriage of justice and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	After trial by jury in the High Court at Hamilton, the appellant was convicted on 1 November 2005 of one count of possession of methamphetamine for supply. He had earlier pleaded guilty to one count of possession of a pipe. He was sentenced on 6 December 2005 to four years imprisonment on the possession charge with a concurrent sentence of four months imprisonment for possession of the pipe.
[2]	The appellant initially appealed against both conviction and sentence but, in the end, proceeded only with the appeal against conviction. The notice of appeal was not filed until 3 February 2006 and is out of time. The grounds for appeal were stated in the notice to be that a pre-trial decision of Nicholson J under s 344A Crimes Act 1961 wrongly allowed the Crown to lead evidence of items found when the appellant was searched at the Hamilton Police Station on 31 January 2005. In that search, the police found methamphetamine and the pipe concealed between the appellant’s buttocks.
[3]	The appellant was in police custody at the time of the search which was undertaken under the authority of s 57A Police Act 1958. The sole ground of the s 344A application was an allegation that the police had conducted an internal search of the body of the appellant contrary to s 18A Misuse of Drugs Act 1975.
[4]	After hearing evidence from a number of police officers and from the appellant, Nicholson J delivered his decision on 31 October 2005 rejecting that allegation and finding that the police had not touched the appellant’s anus, either externally or internally, nor had they pulled his buttocks apart. He rejected the appellant’s evidence that he had inserted an object into his anus containing the methamphetamine and that it was removed from there by force by the police. Nicholson J concluded that the search was conducted within the authority of s 57A Police Act and that the evidence was properly admissible.
[5]	There was no suggestion before Nicholson J that the search was unreasonable or unlawful on any other ground. In particular, it was not alleged that excessive or unreasonable force was used during the course of the search which had involved the use of pepper spray on the appellant and a struggle with four police officers before he was subdued.
[6]	Following the ruling by Nicholson J, the appellant’s trial commenced before Frater J the same day, 31 October 2005. A number of police officers gave evidence at trial and were cross-examined as to the manner in which the search at the Hamilton Police Station was conducted. On this occasion the appellant neither called nor gave evidence himself. His defence at trial was that the drugs were for his own use and not for the purpose of supply. The jury plainly rejected that defence.
[7]	Despite extensive evidence and cross-examination of Crown witnesses about the manner in which the search was carried out, there was no further challenge by the appellant to the admissibility of the evidence obtained in consequence of the search. However, Mr Nabney for the appellant now seeks to contend for the first time on appeal that the search, while lawful, was unreasonable and in breach of ss 21 and 24 New Zealand Bill of Rights Act 1990. He also contends that the search was in breach of s 23(5) New Zealand Bill of Rights Act in that the appellant was not treated with humanity and with respect for his human dignity. He further submits that the evidence arising from the search should not have been admitted and that, in consequence, there was a miscarriage of justice.

[8]	There are a number of process difficulties with this appeal. First, the appellant is out of time and requires leave to appeal. Secondly, this Court has stated repeatedly that if there is any significant challenge to the admissibility of evidence, particularly on the basis of alleged breach of the New Zealand Bill of Rights Act, a pre-trial application under s 344A Crimes Act should be brought to ensure the issues are fully and carefully dealt with. Thirdly, the issue which the appellant now seeks to have aired in this Court has not previously been raised either prior to or even during the trial. This gives rise to particular difficulties because we have not had the benefit of a ruling in the lower Court on the matter at issue. Finally, if all other difficulties are overcome, the appellant would need leave to amend his grounds of appeal.
[9]	We must express our grave concern about these process issues, particularly the failure by the appellant to raise all available grounds to challenge the admissibility of the impugned evidence in the pre-trial application. Mr Nabney for the appellant sought to explain the failure to raise the unreasonable or excessive force issue on the footing that it was not until trial that one of the witnesses gave evidence which suggested the appellant had not shown any signs of physical aggression before he was pepper sprayed. However, even when that evidence emerged, there was no renewed challenge at trial to the admissibility of the relevant evidence.
[10]	Despite these serious misgivings, both counsel dealt with the issue on the merits and, in deference to counsel, we now discuss the relevant evidence. In doing so, we are not to be taken as condoning the approach adopted in this case. Nor should it be assumed that this Court will be prepared to consider a case such as this on the merits on another occasion.

[11]	The appellant and two other men were arrested after their motor vehicle was stopped near Karapiro on 31 January 2005. They were taken first to the Cambridge Police Station. Constable Gardner described the appellant as being "unco-operative and quite arrogant" at that stage. He accepted however that there was no physical aggression at that point. At Cambridge, the appellant was subjected to a "pat down" search. Nothing incriminating was found at that stage.
[12]	Several police witnesses gave evidence of the appellant’s demeanour upon his arrival at the Hamilton Police Station later that day. Witnesses described him as aggressive or extremely aggressive. Although there was some variation between the accounts given by the police officers in attendance, it is not in dispute that the station supervisor at Hamilton Police Station, Senior Sergeant Shields, formed the view that it was necessary to subject the appellant to a full search. When asked to submit to a full search, the appellant’s response was to tell Senior Sergeant Shields to "get fucked". He continued to be aggressive and confrontational and continued to refuse to be searched. Senior Sergeant Shields said that he began to suspect that the appellant was hiding something given his continual refusal to be searched even though the appellant had been informed that if he continued to refuse, physical force would be used.
[13]	Constable Gardner accepted in cross-examination that the appellant had complied with requests to remove his shirt and pants. But Constable Gardner also stated, supported by Constable Sickelmore, that Senior Sergeant Shields instructed the appellant to lower his underpants and to do a full squat. Both officers stated that the appellant only partially squatted and turned away so that the police were unable to see his behind. The evidence established that the appellant refused to undertake a full squat.
[14]	Although Senior Sergeant Shields did not himself say so, other police witnesses confirmed that the Senior Sergeant informed the appellant that if he did not submit to a full search voluntarily, then pepper spray would be used. Senior Sergeant Shields himself gave evidence that he continued to try to reason with the appellant, telling him that he did not want to fight with him but, if it came to it, then that is what would happen. The Senior Sergeant stated that the appellant moved away to the side of the holding room and sat on a bench "looking away from us in a stance which indicated to me that he was not going to co-operate and he was not going to listen to us any further".
[15]	Senior Sergeant Shields then instructed the watch house keeper to spray the appellant with pepper spray. This was done but did not have the desired effect. Rather, it seemed to have caused the appellant, perhaps not surprisingly, to start yelling and struggling with the officers present. He was then pepper sprayed again and was restrained on the floor by four officers. During the course of the struggle, a small package fell out from between the appellant’s buttocks and a Constable Sabin observed the end of what looked like a glass pipe protruding from between the appellant’s buttocks. Constable Sabin took hold of the pipe and pulled it out.

[16]	Assessing the evidence at trial as best we can, it was established that while the appellant was not physically aggressive until he was pepper sprayed, he repeatedly failed to co-operate with a full search while in custody at the Hamilton Police Station. He became verbally aggressive when asked to submit to a full search, swearing at the officers. While there is evidence that he co-operated in removing his shirt and pants, he also repeatedly refused to squat fully. He was told on several occasions that force would be used if he did not co-operate and was also told that pepper spray would be used if necessary. When he continued to refuse to undergo a full search, he was sprayed twice, became physically violent and was restrained by four police officers. The physical evidence already described was then located without any breach of s 18A Misuse of Drugs Act. The discovery of this material confirmed Senior Sergeant Shields’ justifiable suspicions that, in refusing to submit to a full search, the appellant was attempting to hide incriminating evidence.
[17]	The search was authorised under s 57A Police Act and was therefore lawful. But as this Court held in R v Grayson & Taylor [1997] 1 NZLR 399 at 407, 408, a search which is lawful is not necessarily reasonable. However, on the evidence, we are not persuaded that, in the circumstances of this case, any unreasonable or excessive force was used or that there was any breach of the New Zealand Bill of Rights Act in consequence. Given the appellant’s confrontational behaviour and his consistent refusal to submit to a full search, the police were justified, after repeated warnings, in using force to carry out the search. There is no evidence that any of the physical force used for that purpose was excessive. We note in that respect that the appellant did not give evidence at trial at all, let alone evidence that excessive force was used on him or that he was subjected to indignities.
[18]	Our only reservation is in relation to the use of pepper spray in a pre-emptive way rather than using it to subdue a suspect or arrested person after he has displayed physical aggression or at least threatened it. The difficulty for us is the absence of any evidence as to police practice or procedures in relation to the use of pepper spray and the circumstances in which it may be justified. If it had been intended to pursue this issue, it ought to have been properly raised in a s 344A application prior to trial so that the police had the opportunity to deal with the issue and to adduce evidence in relation to it. We can only deal with the evidence before us on this point. Given the warnings which were given, the appellant was well aware of the likely consequences of his continued refusal to co-operate and we are not persuaded on the materials before us that the use of the pepper spray was unreasonable in the circumstances. We are not however to be taken to be expressing the view that the use of pepper spray in circumstances such as this is generally acceptable.