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R v Noble HC Auckland CRI 2005-044-841 [2006] NZHC 1673; [2006] 3 NZLR 551; (2006) 22 CRNZ 442 (3 April 2006)

Last Updated: 17 January 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2005-044-841}

THE QUEEN

v

PAUL CHARLES NOBLE

Hearing: 27 February 2006

Counsel: Mr P S Dean for the Crown

Mr G A Anderson for the Defendant

Judgment: 3 April 2006

JUDGMENT OF WINKELMANN J [S 344A Application]

Crown Solicitor, Auckland

_{G A Anderson, Auckland}

R V P C NOBLE HC AK CRI 2005-044-841 [3 April 2006]

[1] The respondent, Mr Noble is charged with one count of possession of the class A drug methamphetamine for supply. The Crown makes application for an order that evidence obtained during a search of Mr Noble’s car shortly after his arrest, be ruled admissible for the purposes of the forthcoming trial. Mr Noble opposes the application and says that the search was illegal and unreasonable, and the evidence obtained thereby should be excluded.

[2] The issue that arises on this application is whether, in the absence of any statutory power to conduct the search, the search of the car can be justified as an exercise of the common law power to search on arrest.

Factual background

[3] Mr Noble was at Clemows Lane, Albany at about 7am on Sunday 12

September 2004. He was the driver of the car registered OK6540. He parked his car and walked onto a nearby property at 57 Clemows Lane, with another male, Mr York. Mr Noble was observed by two occupants of the property at 57 Clemows Lane to be looking at a car parked in the driveway. One of the occupants spoke to Mr Noble who said that he was there to pick up a car, but added that he must have the wrong car.

[4] A short time later the respondent and Mr York were seen walking up the driveway at 28 Clemows Lane. Mr Noble was seen looking closely at another car that was parked in the driveway there.

[5] At about 7.39am Mr Noble was walking along Albany Express Lane with Mr York. Both were stopped and spoken to by the police. Mr Noble and Mr York were subsequently arrested for being unlawfully on property.

[6] When spoken to by the police, Mr Noble gave the correct details as to his identity and produced a current drivers licence. Mr York did not produce identification and gave details as to his identity, the veracity of which was doubted by at least one of the arresting officers. He identified himself as a Mr Yorce.

[7] Both of the arrested men were returned in a police car to the local Police

Station. On arrival, Mr York quickly volunteered his correct identity.

[8] Acting Sergeant Haldane was some distance away from the scene of the arrest, but was listening to communications on the police radio. He understood from the discussions he overheard that there was a concern that the second individual, Mr York, had given false details of his identity. Although not requested to, Acting Sergeant Haldane drove to Clemows Lane at about 8.08am and saw a car parked near 57 Clemows Lane. He carried out registration checks on the car and found that the registered owner was Mr Noble, the respondent.

[9] The car was parked some distance from the scene of the arrest. It was locked but the right rear quarter light window had been smashed. Acting Sergeant Haldane reached his arm in through that window and unlocked the car. He then searched its interior. His evidence was that he was searching for identity documents in the name of the second arrested male. Nothing of any interest was located in the interior of the car. Acting Sergeant Haldane then opened the boot using the internal lever. He located, amongst other things, a black polar adventure backpack. He said that he considered the backpack most likely to contain identity documents. When he searched the backpack he found various items including two used syringes, a set of digital scales and two snaplock point size plastic bags. He also found a jersey wrapped around a large snaplock plastic bag. Inside that snaplock bag were a quantity of smaller snaplock bags each filled with what he believed to be the class C controlled drug cannabis.

[10] At that point Acting Sergeant Haldane said that he invoked s 18(2) of the Misuse of Drugs Act 1975, although there was nobody in or near the car to inform of his invocation of the statutory power of search.

[11] He carried on with his search. He found a snaplock bag containing a metal Port Royal tobacco tin. Inside the tin were 14 small snaplock bags each filled with white granules. Subsequent testing has confirmed that these white granules are methamphetamine. The total quantity of methamphetamine contained within those bags is 14.6 grams.

[12] It is submitted on behalf of Mr Noble that the search was unlawful and unreasonable. It is submitted that the breach of Mr Noble’s rights by reason of this search was sufficient so that in all the circumstances the evidence should be excluded. Mr Anderson, counsel for Mr Noble, points particularly to the following matters:

a) Acting Sergeant Haldane was not requested to undertake the search.

b) There was no apparent urgency to obtain correct details for the second individual. Other investigative techniques were available to the officers involved in the arrest. There is no evidence to suggest that Mr York had been searched for identifying papers and further inquiries were able to be made at the station.

c) The car was Mr Noble’s car. It was accepted by the police that Mr

Noble had provided correct identification immediately.

Legality of Search of Car

[13] The starting point for a consideration of the admissibility of the evidence is s 21 of the New Zealand Bill of Rights Act 1990 which provides:

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

[14] In the absence of countervailing factors such as urgency or preservation of evidence, an illegal search is likely to be an unreasonable search. If the Court is satisfied that the search was unreasonable, it must then exercise a discretion as to whether to exclude the evidence thereby obtained: R v Maihi [2002] NZCA 205; (2002) 19 CRNZ 453.

[15] It was conceded by the Crown that the search was not carried out pursuant to a statutory power to search but the Crown argues that the search of the car was lawful as being an exercise of the common law power to search on arrest. If it was unlawful, the Crown contends that it was nevertheless reasonable. There was, as conceded by Mr Noble, no suggestion of bad faith on the part of the Acting Sergeant

in conducting the search. The Crown submitted that the Acting Sergeant “was dealing with an accused” who had given false information as to his identity, who had travelled to the area with Mr Noble in Mr Noble’s car and had been seen acting suspiciously in the area.

The Common Law Power to Search on Arrest

[16] The existence of a common law power to search on arrest has long been recognised in New Zealand but its extent in New Zealand is uncertain (Adams

10.8.07, R v Bainbridge [1999] NZCA 180; (1999) 5 HRNZ 317 (CA)). In Barnett v Grant [1902] 21

NZLR 484 at 491 the Court of Appeal said:

We think it may be taken to be settled law that a constable who is legally authorised to arrest an accused person may, at the time of such arrest, and as incidental to it, seize and take possession of articles in the possession or under the control of the accused person, as evidence tending to show the guilt of such person. This is a power at common law, and exists as an incident to the arrest, and this whether the arrest is one which may be without a warrant, or, as in the present case, one which can only be made under a warrant, and whether the offence is of the nature of a felony or merely a misdemeanour. It is founded on the right to search a person upon his arrest; and the police are entitled to hold and detain property so taken as instruments of proof against the accused, subject to the right of the proper authority to direct such property to be restored to the accused person if it is found that it is in no way connected with the charge made against him:

[17] In Craig v Attorney General [1986] NZHC 151; (1986) 2 CRNZ 551, Tompkins J reviewed New Zealand and English authorities as to the extent of the common law power to search on arrest. He cited with approval the decision of the English Court of Appeal in R v Naylor [1979] Crim LR 532, where Donaldson LJ, said of the power to search on arrest:

It is the duty of the Courts to be ever zealous to protect the personal freedom, privacy, and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence, and does not commit further crime such, for example, as malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular

prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.

...

So far as searches are concerned, [the officer] should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone’s pockets or handbag is less of an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so.

[18] Tompkins J, concluded that the principles applicable in New Zealand were those articulated by the Courts of England. In particular he concluded that it is unlawful to search a person for no reason other than the person’s arrest; there must be good reasons for the search such as safety concerns or the need to preserve evidence.

[19] At issue in Everitt v Attorney General [2002] 1 NZLR 82, was the lawfulness of a strip-search of a cycle courier at a police station. The majority of the Court of Appeal held that at the time of the search it had not been decided that Everitt should be locked up in police custody, so that the power to search under s 57A of the Police Act 1958 did not arise. Section 57A of the Police Act provides in material part:

(1) Subject to subsection (4) of this section, where any person (in this section referred to as the detainee) is taken into lawful custody and is to be locked up in Police custody, a member of the Police [or any searcher employed for the purpose under section 57B], may conduct a search of that person and take from him all money and all or any property found on him or in his possession, and may use or cause to be used such reasonable force as may be necessary to conduct that search or take any money or property.

...

(4) No search shall be conducted under this section unless the detainee is at a police station, or in any other premises, or in any car, being used for the time being for Police purposes.

(5) Nothing in this section shall limit or affect the right at common law of a constable to search any person upon that person's arrest.

[20] The Court of Appeal held that it was too late for the police to argue on appeal that the search was a lawful exercise of the common law power to search. The

Constable had claimed he was acting under the statutory power, and the availability of the common law power of search had not been raised as an issue at trial.

[21] Thomas J said of the common law power to search:

Traditionally, the Courts have been reluctant to recognise a general common law right for the police to search an arrested person. This reluctance is evident in the numerous dicta quoted by Holland J in Rudling v Police (Supreme Court, Auckland, M 1498/78, 18 December 1978). The right to search an arrested person was eventually acknowledged where it is necessary to obtain evidence of a crime or to ensure that the person does not have a weapon or the means of injuring himself or herself, or other persons, while in custody. But the notion of a general rule was steadfastly rejected. Much would depend on the circumstances of the case.

Consequently, Holland J correctly concluded in Rudling v Police that there was no general right at common law to search on arrest. The test, he held (at p 9), must be whether the arrested person gives reason to suspect that he might have on him either evidence relating to the crime in respect of which he has been arrested, or other crimes, or something which could cause injury to himself or the persons or property of others while under arrest.

Parliament enacted s 57A in response to this decision. The section was clearly intended to provide the police with a general right to search every person to be locked up while in police custody. The section provided the “general rule” which had been perceived to be lacking in the common law. Once the decision to lock up the arrested person had been made, the common law requirements of reason to suspect that the arrested person might have evidence on his or her person, or have something concealed which could cause injury to them or others while in custody, was no longer required.

[22] Richardson P said in relation to the common law power:

The conditions attaching to the power and its relationship to s 57A may raise difficult questions which should be left for consideration on a proper factual foundation ...

[23] In New Zealand the common law power to search on arrest has been recognised as, in some circumstances, authorising a search of the car of an accused. R v Ataria (CA58/97, 17 July 1997) was a case concerning the legality of the search of the car of an arrested person in the absence of a warrant. The police stopped the car because of its rough condition. They noticed a set of allen keys inside it. One of the appellants was arrested for possession of instruments. The car was taken to the police station and searched. The appellant had said that he did not wish the car left at the roadside.

[24] Blanchard J, delivering the judgment of the Court held:

The search which occurred at the police station was part of the arrest process. On finding instruments in the car and arresting an occupant in that connection the police were entitled to search the car.

[25] In R v McFall (HC Hamilton, T20514, 2 June 2005, Priestley J) the McFalls were stopped by the police in their car. Mr McFall initially gave a false name, but then gave correct details. When the officer moved away from the car to check those details Mr McFall drove away. He was pursued for a time before the chase was called off. The police subsequently found the car abandoned. The police arranged for it to be towed to a salvage yard. The following day a police officer attended the yard and searched the car. The Crown sought to adduce evidence as to three items found on that search. The admissibility of the evidence was challenged on the basis that the search was unlawful.

[26] Relying on Ataria, Priestley J expressed the view that the car could have been searched without warrant immediately or soon after the chase if during that time- frame the McFalls had been arrested, such a search being part of the ‘arrest process’. However, there was a delay of 36 hours in searching the car as there was no urgency in undertaking the search as the car was effectively impounded. A search warrant could have been obtained. Priestley J found that the search was unlawful and unreasonable.

[27] The extent of the common law power of search on arrest has received recent detailed consideration in the United Kingdom and Canada. R v Commissioner of Police (ex parte Rottman) [2002] UKHL 20 was a case concerning a search of a person’s house, after his arrest outside the house on a warrant in relation to extradition matters. Because the offence in respect of which extradition was sought was not a domestic offence (but rather one alleged to have been committed in Germany), the provisions of s 18 of the Police and Criminal Evidence Act 1984 (PACE) did not apply. That section gives the Police power to enter and search any premises occupied or controlled by a person under arrest if there are reasonable grounds to suspect that there was on the premises evidence relating to that offence or some other offence of a defined type. The Court in Rottman therefore had to consider whether the common law power of search on arrest authorised the search of

the accused’s house even though the accused was not in the house at the time of arrest.

[28] The majority concluded that after arresting a person in his house or in the grounds of his house, an officer had power at common law to search the house and seize articles which the officer reasonably believed to be material evidence in relation to the crime for which the accused had been arrested. The majority cited with approval the following passage from Lord Denning’s judgment in Ghani v Jones [1970] 1 QB 693:

I would start by considering the law where police officers enter a man's house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford LC in Pringles v Bremner and Stirling (1867) 5 Macph HL 55, 60 and Chic Fashions (West Wales) Ltd v Jones [1967] EWCA Civ 4; [1968] 2 QB 299." (Emphasis added)

[29] Lord Hope of Craighead dissented in Rottman. He said of the passage in

Ghani v Jones relied upon by the majority:

In my opinion the best guide to what Lord Denning had in mind is to be found in the fact that he said that he was setting out, without citing cases, what he took to be settled law. It was settled law that a police officer seeking to effect an arrest, with or without a warrant, was entitled to search the person of the suspect. It was also settled law that he was entitled to search premises where the suspect might be hiding for the purpose of finding the suspect and effecting the arrest. And it was settled law that he was entitled to seize things found in the course of either of these exercises which he reasonably believed to be material evidence in relation to the crime for which the suspect was being arrested or, having entered the premises in possession of a search warrant, he found articles in relation to a crime other than that for which the search warrant was granted. But there was no basis in the authorities for saying that it was settled law that a police officer, having effected an arrest, was then entitled to conduct a search of the premises for evidence without first having obtained a search warrant. I do not detect in Lord Denning's remarks an intention to extend the law to this effect. Nor was it necessary for him to do so for the decision in that case. The passage which I have quoted was plainly obiter, as the decision in the case did not turn on the question whether the police were entitled to take possession of the documents without a search warrant.

[30] In R v Caslake [1998] 1 SCR 51, the Supreme Court of Canada defined the limits of the common law power of search more narrowly. At issue in that case was the status of evidence obtained on search of a car. Several hours after arresting an accused for possession of narcotics, an officer conducted a search of his impounded car, and found cash and two individual packages of cocaine. The officer did not have a search warrant, or the accused’s permission to search the car. The accused argued that the evidence obtained on search was inadmissible because it was obtained in breach of s 8 of the Canadian Charter of Rights and Freedoms. Section 8 of the Charter guarantees the right to secure against unreasonable search or seizure.

[31] The Court was unanimous in its view that the common law right to search incidental to an arrest could in certain circumstances extend to an accused’s car. The majority decision was delivered by Lamer CJ who described the extent of the power as follows:

... the search must be truly incidental to the arrest: the police must be able to explain, within the purposes recognised in the jurisprudence (protecting the police, protecting the evidence, discovering evidence) or by reference to some other valid purpose, why they conducted the search. They do not need reasonable and probable grounds. However, they must have subjectively had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. That inference may be rebutted by a proper examination.

[32] The majority held that as the purpose of the search was to inventory the contents of the car, that fell outside the bounds of the legitimate purposes of search incidental to arrest. However the search was otherwise reasonable and the evidence admissible. The minority (L'Heureux-Dubé, Gonthier, Bastarache JJ) held that the search drew its authority from the arrest itself, and it was not necessary for the Crown to establish reasonable and probable grounds independently justifying the conduct of the search. The search was therefore lawful notwithstanding the officer’s subjective belief in the purpose and justification for his inventory search.

[33] The majority of the House of Lords in Rottman expansively defined the extent of the common law power of search on arrest. However that approach has to be considered against the background of the statutory powers of search on arrest

under s 18 of PACE in respect of domestic offending. The development of the common law by the House of Lords has undoubtedly been shaped by those particular statutory provisions. Such a development in this country would be out of step with the general legislative scheme in New Zealand which carefully circumscribes the situations in which warrantless searches can be conducted (see for example s 18

Misuse of Drugs Act, ss 60 & 60A of the Arms Act and s 225 of the Crimes Act). The interpretation of such statutory powers in this country is also specifically guided by s 21 of the New Zealand Bill of Rights Act. Likewise, any developments in the common law must be broadly commensurate with the New Zealand Bill of Rights Act principles. The extension of the common law in the way contemplated by the House of Lords to create a general power of search on arrest, extending well beyond the person and immediate environs of the accused and with no requirement of proportionality or an objectively reasonable reason for search would involve significant departure from the existing state of the law in New Zealand. I am satisfied that the approach should not be adopted in New Zealand.

[34] The approach of the majority of the Supreme Court of Canada in Caslake is more in step with the existing New Zealand authority as to the scope of the power of search, which must be construed consistently with the New Zealand Bill of Rights Act.

[35] In the light of the above analysis I consider that the relevant principles that can be deduced in relation to the extent of the common law power to search on arrest and that apply in New Zealand are as follows:

1. The Police have a common law power of search on arrest of the accused which is not coterminous with the power contained in s 57A of the Police Act. The power is to search the accused and the accused’s immediate physical surroundings (which may include the accused’s car) if satisfied that that is necessary for a reason incidental to the arrest.

2. What constitutes a reason incidental to the arrest will depend upon the circumstances of the case but may include safety considerations for

the accused or others, protecting evidence or discovering evidence related to the offending for which the accused has been arrested. The mere fact of arrest alone will not be sufficient.

3. Whether or not a search is justified at common law will depend upon both the subjective reason of the Police for conducting the search and the objective reasonableness of those reasons.

[36] In this case I am satisfied that the search of the car was not truly incidental to the arrest of Mr Noble or Mr York. There is nothing to suggest, and it was not suggested that the search was necessary to preserve or discover evidence in relation to the alleged offending.

[37] The Crown says that the purpose of identifying Mr York was a purpose incidental to the arrest. However, that was not an objectively reasonable purpose for the following reasons:

(a) Neither Mr York nor Mr Noble were in or around the car at the time of the arrest or the suspected offending.

(b) The car was not Mr York’s. It was Mr Noble’s. Material tending to identify Mr York was not likely to be found in the body of the car, much less in the boot.

(c) Acting Sergeant Haldane was not asked by the arresting officers for assistance in identifying Mr York, and in particular was not asked to search the car.

(d) There was no urgency in obtaining Mr York’s personal details, and Constable England gave evidence that she intended to check on the details when back at the station.

(e) Although the quarter light window on the car was broken, which could reasonably have given rise to security concerns regarding the car, Mr Noble was not asked if he wanted Police to secure the car for

him. Acting Sergeant Haldane did not suggest that security concern for the car led him to search the car.

[38] I am therefore satisfied that the search was illegal. It was also, for the reasons set out in the paragraph above, unreasonable.

[39] As noted previously, after conducting a preliminary search of the car resulting in the discovery of what appeared to be cannabis, Acting Sergeant Haldane purported to invoke s 18(2) of the Misuse of Drugs Act. While this point was not addressed further in submissions, I am satisfied, having found that the initial search was without legal foundation, any invocation of the s 18(2) powers thereafter was so clearly and causally related to the initial breach that it too would be in breach of s 21.

Balancing exercise

[40] Having found that the search was unlawful and unreasonable it is necessary to conduct the balancing exercise contemplated in R v Shaheed [2002] 2 NZLR 377 in determining whether to exclude the evidence.

[41] The particular breach of Mr Noble’s rights arose from a search of his car. Although the invasion of privacy involved in a search of a car may not be as great as that involved in a search of a home, arbitrary searches of cars are not regarded by the Courts as trivial matters (see R v Maihi [2002] NZCA 205; (2002) 19 CRNZ 453). In R v Anderson (2005) 21 CRNZ 393 (CA) in the course of excluding evidence obtained through an unreasonable search the Court said, at [38]:

The value of the right to protection from prosecution in reliance on an unlawful and unreasonable search is obviously significant. The right to protection from unreasonable search would not have been the subject matter of a specific provision in the Bill of Rights Act if it were otherwise.

[42] Another factor weighing in favour of exclusion is the availability of other investigatory techniques. Further enquires could have been made on the return of the accused and the arresting officers to the station. That was the intention of at least one of the arresting officers. In fact, on arriving at the police station, Mr York promptly provided accurate details of his identity.

[43] A factor weighing in favour of the admissibility of the evidence, is the nature and quality of the evidence. Here the evidence is physical evidence, and hence inherently reliable. It is of critical importance to the Crown’s case. It is also evidence of drug related offending. While serious offending, it is not offending at the most serious end of the spectrum.

[44] Having weighed all of these other matters I am satisfied that the breach of rights involved was so serious that I should exercise my discretion to exclude the evidence. Accordingly, I decline the Crown’s application for an order that the evidence obtained on search of Mr Noble’s car can be ruled admissible.

Winkelmann J