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K v Police HC Wellington CRI-2006-485-7 [2006] NZHC 296 (29 March 2006)

Last Updated: 10 April 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2006-485-7}

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 21 March 2006

Appearances: W M Johnson for Appellant

T J Gilbert for Respondent

Judgment: 29 March 2006

_{JUDGMENT OF GODDARD J}

[1] The appellant was tried before a Judge alone in the District Court on charges arising from the stopping and searching of his vehicle on Kapiti Road, Paraparumu on 18 October 2004. He was found not guilty of obstructing a police officer in the lawful execution of her duty and guilty of being in possession of a knife in a public place without lawful excuse. It is from that conviction that he now appeals.

[2] In brief terms, the history of the matter is that the police received a complaint about the manner in which the appellant was driving and stopped the appellant in his vehicle at Paekakariki at approximately 11.40pm. A passive breath test was

_{administered which the appellant passed. He was then questioned as to whether he}

K V POLICE HC WN CRI-2006-485-7 29 March 2006

had been consuming any medication or drugs that may have affected his driving. He denied that he had done so. The police were not, however, satisfied that the appellant was not under the influence of some substance. They therefore decided to follow him in the public interest. His manner of driving continued to be of concern and prompted police to again stop him, this time using their powers under s 314B Crimes Act 1961.

[3] On looking into the vehicle through the open driver’s door one of the police officers saw a small glass container with a clear liquid in it on the floor well under the appellant. The appellant seemed agitated and put his foot over the glass container, trying to move it under the seat. The officers then advised him that they were executing their powers of search under s 18(2) Misuse of Drugs Act 1975. The appellant was cautioned, advised of his rights and told to exit the vehicle. He did not comply with this order and was arrested for obstruction. A search of his vehicle yielded a glass pipe in a leather case and two butane gas torches commonly used for the consumption of methamphetamine and a small plastic syringe with a small amount of clear liquid in it. Fifteen point bags containing approximately 1.5 grams of methamphetamine were also found inside a key holder which the appellant attempted to throw into an adjacent property.

[4] Charges in relation to the drugs and utensils found were ultimately dismissed by consent, the procedural conditions for the admissibility of the certificate of analysis not having been met.

[5] The sole charges for determination by the District Court Judge were the charge of obstruction and the charge of possession of a knife in a public place “Kapiti Road, Paraparaumu” without reasonable excuse (s 13A Summary Offences Act 1981). The knife was a dagger in a leather sheath. It was located on the front passenger seat of the appellant’s vehicle during the search. The appellant admitted that the knife was his.

The District Court judgment

[6] The presiding Judge, Judge Kelly, found that s 314B Crimes Act had not provided power to stop the appellant’s vehicle in order to search it under s 18(2) Misuse of Drugs Act because, although at the time the vehicle was stopped the police officers believed the appellant may have been driving under the influence of drugs, that did not constitute reasonable grounds for believing there were drugs in his vehicle. The stopping of the vehicle under s 314B having been unlawful, the resultant search under s 18(2) Misuse of Drugs Act was also unlawful. The Judge then turned to consider whether the search was nevertheless reasonable, on application of the principles in R v Grayson and Taylor [1997] 1 NZLR 399 at 407.

[7] Relying on the decision of the Court of Appeal in R v Abraham and Pugh- Sylva CA253/05 CA254/05 30 August 2005, Judge Kelly referred to the power that the police officer could have invoked under s 114 Land Transport Act 1998 to stop the appellant’s vehicle. Applying that to the facts of the appellant’s case, Judge Kelly found that the police officers could legitimately have invoked s 114 Land Transport Act to stop his vehicle on the second occasion, due to their valid concern about his manner of driving. This was a factor in favour of the subsequent search under s 18(2) Misuse of Drugs Act being reasonable. The Judge then considered whether, at the time of search of the vehicle, there were adequate grounds for a search under s 18(2) Misuse of Drugs Act. She was satisfied that the evidence of what the officers observed in the driver’s floor well of the car, coupled with the appellant’s obvious agitation, provided ample grounds for a reasonable belief that there were drugs in his car. In those circumstances the invocation of the search powers under s 18(2) Misuse of Drugs Act was reasonable, even if the search was unlawful.

[8] Judge Kelly found however that the appellant could not be guilty of obstructing the officer in the execution of her duty at the time he refused to exit his vehicle because the officer was acting without lawful authority, even if acting reasonably. Accordingly the Judge dismissed the charge of obstruction.

[9] In relation to the remaining charge of possession of the knife in a public place, the Judge simply found that the item located on the front passenger seat of the appellant’s vehicle was a “knife”. Because the search of the vehicle had been reasonable, even if unlawful, the Judge found the charge of possession of a knife in a public place was proved beyond reasonable doubt.

The appeal

[10] Two principle grounds of appeal were advanced: first, that the search of the appellant’s vehicle was unlawful and unreasonable and accordingly the evidence relating to the knife should have been ruled inadmissible; and secondly, that in any event the item was not a knife. A further ground emerged during submissions relating to whether the knife was in a “public place” when it was in the appellant’s private vehicle.

Discussion

[11] I find no fault with Judge Kelly’s reasoning in relation to the second stopping of the appellant’s vehicle and the search of it under s 18(2) Misuse of Drugs Act. Although, as the Judge found, neither the stopping under s 314B Crimes Act or the subsequent search under s 18(2) Misuse of Drugs Act could be construed as lawful, the police did have a legitimate power to stop the vehicle under s 114 Land Transport Act because of the erratic and dangerous driving they observed. Having stopped the vehicle for that reason the police then had grounds for a reasonable belief that an offence contrary to the Misuse of Drugs Act had been or was being committed on the basis of their observations of the appellant trying to hide the glass vile containing clear liquid visible in the floor well of his car. On the basis of those circumstances I am satisfied that Judge Kelly was correct to determine that the search of the vehicle for drugs under s 18(2) Misuse of Drugs Act, was reasonable. In reaching this conclusion, I note that there is no suggestion that the police were acting in bad faith when they stopped the car and subsequently searched it, or that they were inappropriate in the manner in which they conducted the search, nor is

there any indication that the search was carried out otherwise than in accordance with standard police practice.

[12] Whilst the search of the appellant’s vehicle was for illicit substances under s 18(2) Misuse of Drugs Act and was not focussed on other than drugs (and no power to search for weapons under s 202B Crimes Act had been invoked) the decision of the Court of Appeal in R v Jefferies [1994] 1 NZLR 290 is authority for the proposition that other evidence discovered in the course of a reasonable search can be adduced in evidence. The situation in Jefferies was the opposite to the present – in that case the appellant’s vehicle was stopped and searched for the presence of firearms. None were found but a search of the boot revealed cannabis with a street value of $30,000. At p298 (line 39) Cooke P said:

The proposition is that, if a police officer has reasonable cause to suspect that the occupants of a particular vehicle are escaping from an armed robbery in which they have been involved, the officer is lawfully entitled to stop the vehicle and search it for weapons or the stolen property. The officer’s appointment under the Police Act 1958 must carry with it a power so manifestly necessary. If the search happens to result in the discovery of illegal drugs, there is no reason why that discovery cannot be given in evidence on a drug charge.

[13] Judge Kelly’s conclusions in relation to the admissibility of the evidence of the knife is clearly in line with the reasoning of the Court of Appeal in Jefferies.

[14] The only remaining issues for determination are whether the appellant had lawful excuse for being in possession of the knife and whether he had possession of it in a public place. As to the former, the appellant did not give evidence to explain why he had possession of the knife and the inference of unlawfulness was therefore open to the Judge, given the circumstances in which the knife was found. In relation to the latter, Cooke P in Jefferies stated that “the lesser reasonable expectation of privacy when driving on a public road put motor vehicles in a special category” (at p297). In R v Firman and Grilli CA351/04 16 December 2004 the Court of Appeal, after referring to the recognition in Jefferies that a “citizen’s immunities from state incursion into a home and from bodily intrusion ... are of greater force than the rights of users of motor vehicles on a public road”, observed that “the informed ordinary New Zealander would be likely to react with little enthusiasm for the

privacy right of those who use motor vehicles on the highway to transport methamphetamine”. While the knife transported by the appellant in his car does not fall into the same category of seriousness as the methamphetamine found in the car in Firman, the same approach applies. Furthermore, two High Court decisions have interpreted the definition of “public place”, as defined in s 2(2) Summary Offences Act 1981 to include “any ... vehicle, which is in a public place” as including a private vehicle on a public road: see Andrews v Police (1998) 3 CRNZ 692 and Police v Tito (1994) 11 CRNZ 609.

Conclusion

[15] The appeal against conviction is dismissed.

Solicitors:

Luke, Cunningham & Clere, Wellington, for Respondent

Delivered at 4.30pm on Wednesday 29 March 2006.