WEDGE v NEW ZEALAND POLICE [2023] NZHC 2773

WEDGE v NEW ZEALAND POLICE [2023] NZHC 2773 [4 October 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2023-463-34[2023] NZHC 2773BETWEEN CAITLYN WEDGEAppellantAND NEW ZEALAND POLICERespondentHearing: 2 October 2023Appearances: A Spense for AppellantT T Taane for RespondentJudgment: 4 October 2023JUDGMENT OF LANG J[on appeal against conviction]This judgment was delivered by Justice LangOn 4 October 2023 at 4.00pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Pollett Legal Ltd, TaurangaLaw Aid International, Mount Maunganui[1] Following a Judge-alone trial in the District Court, Ms Wedge was found guiltyby Judge W Lawson of being in possession of cannabis for the purpose of sale.1 Sheappeals against conviction that the basis that the police obtained the evidence againsther by means of an unlawful search of her motor vehicle. She says the evidence wastherefore improperly obtained and the appropriate response would have been for theJudge to exclude the evidence under s 30(4) of the Evidence Act 2006. In that event,she should have been acquitted.Background[2] At 3.45 am on 15 June 2023, a police patrol vehicle conducted a routine stopof a vehicle Ms Wedge was driving in Papamoa. She initially provided falseinformation regarding her name and address. When the police learned Ms Wedge'strue identity, they discovered she was in breach of her bail conditions by driving atthat time of night and was also driving whilst disqualified. The latter meant that thepolice were required to impound Ms Wedge's vehicle for 28 days under s 96(1) of theLand Transport Act 1998.[3] Before the vehicle was towed away to where it was to be stored, the policeconducted an inventory search of her vehicle. Inside a cookie container in the frontpassenger side of the vehicle they found a quantity of cannabis bud material. Theythen exercised their powers to conduct a warrantless search under s 20 of the Searchand Surveillance Act 2012 (SSA). This resulted in the discovery of approximately30 more grams of cannabis bud material, a set of scales that contained cannabis residueand several plastic bags. One of the plastic bags contained approximately one gramof cannabis. The police also found a "tick book" of the type commonly associatedwith the sale of drugs.The Judge's decision[4] At the beginning of the trial the Judge conducted an evidentiary hearing todetermine the admissibility of the evidence the police had found in Ms Wedge'svehicle. In an oral ruling given at the end of the hearing the Judge reviewed recentdecisions of the Supreme Court and Court of Appeal relating to the powers of the1 New Zealand Police v Wedge [2023] NZDC 11027.police to conduct an inventory search.2 He then held that the police were lawfullyentitled to conduct an inventory search of Ms Wedge's vehicle. The Judge's reasonsare encapsulated in the following paragraphs of his ruling:[11] Constable Fifield was specifically asked why he looked into what wasreferred to as the cookie container. He said because he knew that what was inthere was not cookies. He was then asked what he suspected was in there andhe said something other than cookies. He said that he did not specificallyknow what it was that was contained within the cookie container.[12] In circumstances where something unknown is contained in an itemI consider that the police have an obligation to ensure that property is properlyaccounted for as part of the inventory search. Where the police are unsureabout the contents of a receptacle and they consider that it must containsomething other than what is on the obvious packaging of the container, Iconsider that it is appropriate for them to look into that receptacle as part ofthe obligation to inventory the contents of the vehicle.[13] In my view the action taken in this case by Constable Fifield, whilstnot particularly well documented, was sufficient to identify that he had someconcerns about the content of it, not being consistent with the packaging andtherefore, there was a basis to look into it to inventory the contents as part ofthe general inventory of the vehicle. I consider that that is entirely in keepingwith the bailment obligations of the police in the circumstances and so I findthat the search of the cookie container was permissible as part of the inventorysearch. It follows logically that the subsequent discovery of cannabis properlyengages the search under the Misuse of Drugs Act so I find that the search islawful.The appeal[5] On Ms Wedge's behalf Ms Spence submits that, assuming the police wereentitled to search Ms Wedge's vehicle for inventory purposes, this did not entitle themto open the cookie container in which they found the cannabis bud material. Even ifthe search of the cookie container was lawful, she contends the police should not haveexercised their warrantless powers of search after they found the cannabis bud materialin the cookie container. The police should at that stage have obtained a search warrant.This would have entitled them to search the vehicle at any time during the 28-dayperiod during which it was going to be impounded.[6] Ms Spence therefore submits that all the evidence the police found inMs Wedge's vehicle was improperly obtained. She also contends that exclusion of theevidence was the only proportionate response in terms of s 30(4) of the Evidence Act.2 At [6]-[10].The power to conduct an inventory search[7] Recent appellate authority has established that, when the police impound avehicle under s 96(1) of the Land Transport Act, they have the power to search it tomake an inventory of its contents. The power arises either as part of their duty atcommon law to protect property of which they are bailee or as a necessary incident oftheir obligation to impound vehicles under s 96(1) of the Land Transport Act.[8] The development of this line of authority began with the Supreme Court'sjudgment in R v Ngan.3 That case and subsequent authorities were reviewed recentlyby Isac J in Gardner v New Zealand Police, and it is not necessary to repeat thatexercise here.4 It is sufficient to refer to the following observations made by theCourt of Appeal in Casey v R:5[16] The obligation under ss 96(1) and 96(4) to impound a vehicle andreturn personal property in the vehicle to its owner renders the police baileesof the vehicle and its contents. Prior to the SSA this circumstance wasrecognised as imposing an obligation to take reasonable steps to secure theproperty, which requires an inventory. In Tuato v R, this Court considered thesearch of a vehicle impounded under s 96(1)(b) because the driver's licencewas suspended. On the basis of R v Ngan, the police were regarded as baileesand the Court considered that:Implicit in s 96(4) is that the police must secure and safeguard personalproperty in an impounded vehicle. If that is not done the police will not beable to release that property to its owner on request, as required by the sub-section. Here, the car was to be towed by a contractor, first to the policestation, and from there to the contractor's impoundment yard for storage. Inthat situation, we consider the s 96(4) powers may have entitled the police togo through the car in order to make an inventory of the personal property init.[9] In Casey the Court of Appeal further observed:[18] We do not accept that the SSA affects the recognised common lawduty on a bailee to take an inventory of bailed goods for the purposes ofkeeping them safe pending their return to the true owner. It is evident fromcases decided by this Court since the SSA came into force that this dutycontinues to be recognised. For example, in R v Holdem, the policeimpounded the car of a suspended driver and found a backpack containingdigital scales, which led to a search of the vehicle generally. This Courtcommented that:3 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 28.4 Gardner v New Zealand Police [2022] NZHC 1258 at [56]-[69].5 Casey v R [2021] NZCA 29 (footnotes omitted) .[22] it is also well-established that the police are entitled to search avehicle they have impounded in order to make an inventory of the personalproperty in it for the benefit of the owner or owners of the property who areentitled to possession of it under s 96(4). The police are entitled to searchsuch property without a warrant, provided they do so reasonably and for thepurposes of preserving property and identifying its owner. [10] In the present case, Constable Fifield said he searched the vehicle to ensure itwas safe because it was going to be stored by a third party. He said that valuable itemsin the vehicle also needed to be identified and recorded. It was during the inventorysearch undertaken for these purposes that he came across the container referred to asthe cookie container.[11] Ms Spence relies on a passage from Ngan in which the Supreme Courtobserved that there may be no basis to justify the police opening a container ofharmless appearance "on the entirely speculative basis that it may possibly containcash or valuables".6 She says that the police needed to justify their belief that thecookie container may have contained cash or valuables that needed to be included inthe inventory they were compiling.[12] Like the Judge, however, I consider the constable was entitled to open thecontainer once he came to the view that it did not contain items consistent with itslabelling. He said that he did not know what was in the container before he opened itand I accept that he could not be expected to know what the container held withoutopening it. However, the constable was not cross-examined as to why he came to theview that it did not contain cookies. It is also not difficult to see how a container ofthat type might be used to store items of value to Ms Wedge.[13] There is no suggestion in the present case that the police stopped Ms Wedgebecause they believed she might be involved in drug-related activity or that theconstable opened the container in the expectation or hope that it contained drugs orother illicit material. I therefore see no basis for disturbing the Judge's conclusion thatit was in keeping with the bailment obligations of the police for the constable to searchthe container once he concluded it was being used to store items other than cookies.6 Ngan v R, above n 3, at [29].The warrantless search[14] Ms Spence next argues that the police could not establish the groundsnecessary to permit them to undertake a warrantless search under s 20 of the SSA.Section 20 provides as follows:20 Warrantless search of places and vehicles in relation to someMisuse of Drugs Act 1975 offencesA constable may enter and search a place or vehicle without a warrantif he or she has reasonable grounds—(a) to believe that it is not practicable to obtain a warrant and thatin or on the place or vehicle there is—(i) a controlled drug specified or described in Schedule1 of the Misuse of Drugs Act 1975; or(ii) a controlled drug specified or described in Part 1 ofSchedule 2 of the Misuse of Drugs Act 1975; or(iii) a controlled drug specified or described in Part 1 ofSchedule 3 of the Misuse of Drugs Act 1975; or(iv) a precursor substance specified or described in Part3 of Schedule 4 of the Misuse of Drugs Act 1975; and(b) to suspect that in or on the place or vehicle an offence againstthe Misuse of Drugs Act 1975 has been committed, or is beingcommitted, or is about to be committed, in respect of thatcontrolled drug or precursor substance; and(c) to believe that, if the entry and search is not carried outimmediately, evidential material relating to the suspectedoffence will be destroyed, concealed, altered, or damaged.[15] Ms Spence acknowledges that it would not have been practicable for the policeto obtain a search warrant given the fact that they found the cannabis bud in thecontainer at approximately 4 am. However, she submits that the police could easilyhave arranged for the vehicle to be towed to an area where it could be stored securely.They could then have obtained a search warrant to search the vehicle at their leisureover the next 28 days. Ms Spence therefore submits there was no basis on which thepolice could reasonably have believed that evidential material would be destroyed orconcealed if they did not complete the search of the vehicle immediately using theirpowers under s 20.[16] As Mr Taane points out for the respondent, the answer to this submission liesin the fact that the police did not intend to take the vehicle back to the police stationwhere they could ensure the vehicle and its contents would remain secure. Rather,they were arranging for the vehicle to be stored by a towage firm that would be giventhe keys to the vehicle. Persons other than police officers would therefore have theability to look inside the vehicle. This created the obvious risk that any evidentialmaterial inside the vehicle would be lost. The police could not entrust the security ofwhatever evidential material might be inside the vehicle to the towage firm. It followsthat I am satisfied that they were entitled to exercise their warrantless powers of searchunder s 20 of the SSA.[17] Even if this were not the case, the police would undoubtedly have had thepower to continue their inventory search to ensure they located any items of valuebelonging to Ms Wedge and/or any items that might be a danger to the towage firm.This would inevitably have led to the discovery of the other drug-related items that thepolice found when they exercised their power of warrantless search. It follows that,even if the warrantless search was unlawful, the police could lawfully have obtainedthe evidence by other means.7 There is no suggestion the police were acting in badfaith or that they were deliberately breaching Ms Wedge's right to be free fromunreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act1990. It follows that exclusion of the evidence would not be proportionate to anyimpropriety arising out of the warrantless search. The balancing exercise the Court isrequired to take under s 30(2)(b) of the Evidence Act would therefore result in theevidence being declared admissible.Result[18] The appeal against conviction is dismissed.____________________________Lang J7 See Best v R [2023] NZCA 101 at [25], n 9.