WILD v NEW ZEALAND POLICE [2017] NZCA 420

WILD v NEW ZEALAND POLICE [2017] NZCA 420 [21 September 2017]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA361/2017[2017] NZCA 420BETWEEN DAVID WILLIAM WILDApplicantAND NEW ZEALAND POLICERespondentHearing: 5 September 2017Court: French, Williams and Woolford JJCounsel: J M Hudson for ApplicantJ E Mildenhall for RespondentJudgment: 21 September 2017 at 10.00 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal is declined.B Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublicly available database until final disposition of the trial. Publicationin law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)Introduction[1] David William Wild faces one charge of unlawful possession of a sawn-offshotgun and one charge of unlawful possession of two shotgun cartridges.1 His casehas been set down for a two hour defended hearing in the District Court at Manukauon 28 September 2017.[2] The police found the sawn-off shotgun in the boot of Mr Wild's car when itwas searched without a warrant. The two shotgun cartridges were found in Mr Wild'sjacket when he was searched after his arrest for possession of the sawn-off shotgun.The admissibility of that evidence is challenged. Mr Wild says the statutory criteriafor a warrantless search had not been met.[3] In a decision dated 22 March 2017, Judge Hikaka ruled the search of Mr Wild'scar lawful and the evidence properly obtained.2 He also ruled that, if he was wrong,exclusion of the evidence would in any event be disproportionate to any impropriety.3[4] On appeal to the High Court, Wylie J upheld Judge Hikaka's rulings in adecision dated 19 June 2017.4 Mr Wild now applies for leave to bring a second appealagainst Wylie J's determination of the appeal from Judge Hikaka's pre-trial evidentialdecision.Leave to appeal[5] Section 223(3) of the Criminal Procedure Act 2011 provides that this Courtmust not grant leave for a second appeal unless it is satisfied the appeal involves amatter of general or public importance, or a miscarriage of justice may have occurredor may occur unless the appeal is heard. The test is a high one.5 This Court has1 Arms Act 1983, s 45(1).2 Police v Wild [2017] NZDC 6035 [District Court decision].3 Evidence Act 2006, s 30(2)(b).4 Wild v Police [2017] NZHC 1344 [High Court decision].5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.previously described a second appeal of a pre-trial admissibility ruling as"exceptional".6Facts[6] At about 10.45 am on 11 November 2016, two police officers in a markedpatrol vehicle observed a blue Holden Commodore motor vehicle, registrationGQZ723, heading south on Porchester Road, Takanini, Auckland. The police officershad received an intelligence briefing by way of an email the previous day stating thatDaniel Kipa, who had warrants for his arrest outstanding and who was believed to bein possession of firearms, had been seen in the vehicle. It was also stated that Mr Kipahad made threats to shoot at the police if stopped. The police officers were not able toidentify who was in the vehicle, but, believing that Mr Kipa was in the vehicle on thebasis of the intelligence briefing from the day before, they informed policecommunications and requested the assistance of air support and more units in order toconduct a high risk vehicle stop.[7] Before other police units were on the scene, the vehicle pulled over suddenly.The police officers therefore positioned the patrol vehicle behind theHolden Commodore and activated the flashing lights. One of the police officers armedhimself with a rifle from the boot of the patrol vehicle before ordering the driver andfront passenger out of the vehicle. The driver was Mr Wild. He was also the registeredowner of the vehicle. The passenger in the vehicle was Robert Kaihau. Afterremoving Mr Wild and Mr Kaihau, the police officers moved forward to clear thevehicle to ensure there were no other occupants. The police officers opened the bootof the vehicle, which was noted to be full of clothing and other items of property.While looking through the boot to ascertain whether there was anyone hiding in theboot, one of the police officers found a sawn-off shotgun. Mr Wild was then arrestedfor unlawful possession of the sawn-off shotgun and was searched in accordance withnormal post-arrest procedures. Two shotgun cartridges were found in Mr Wild'sjacket.6 Zhang v Auckland Council [2016] NZCA 332 at [11].District Court decision[8] After setting out the facts, Judge Hikaka referred to s 7 of the Search andSurveillance Act 2012, which was accepted by counsel as the section against whichthe police officers' actions had to be judged. It provides:Entry without warrant to arrest person unlawfully at largeA constable may enter a place or vehicle without warrant to search for andarrest a person if the constable has reasonable grounds—(a) to suspect that a person is unlawfully at large; and(b) to believe that the person is there.[9] Judge Hikaka said he was satisfied that the information upon which the policeofficers were acting was reliable. They were therefore justified, first, in stopping thevehicle and, secondly, in searching for Mr Kipa in that vehicle.7[10] Although it was obvious that Mr Kipa was not in the front or rear seats of thevehicle, Judge Hikaka accepted as reasonable the police officers' belief that someonecould be hiding in the boot. It was therefore appropriate for one of the police officersto check if anyone was concealed beneath the clothing in the boot.8[11] Judge Hikaka then went on to consider the factors set out in s 30(3) of theEvidence Act 2006, to which a court may have regard in determining whetherimproperly obtained evidence should nonetheless be admitted.9 First, Judge Hikakawas of the view the initial search of Mr Wild's car was a less serious intrusion ofMr Wild's privacy than had it been a search of his person.10 Secondly, the search ofthe vehicle was neither reckless nor done in bad faith.11 Thirdly, the evidence obtainedwas a sawn-off shotgun, which was designed for covert and illegal intent.12 Fourthly,possession of such a weapon was a moderately serious offence.13 Fifthly, there wereno other investigatory techniques not involving a breach of rights known to beavailable.14 Sixthly, there were no other remedies but to exclude the evidence of the7 District Court decision, above n 2, at [11].8 At [12].9 At [15].10 At [20].11 At [21].12 At [22].13 At [23].14 At [24].sawn-off shotgun and the cartridges.15 Seventhly, there was an aspect of avoidingapprehended physical danger to the police and others.16 Eighthly, and finally, therewas a degree of urgency in ensuring that the sawn-off shotgun was retained.17[12] After reviewing these factors, Judge Hikaka was satisfied it would bedisproportionate to exclude the evidence of finding the sawn-off shotgun andcartridges, even if he had found that it had been obtained improperly.18High Court decision[13] At the outset of his decision, Wylie J also set out the facts of the case andsummarised Judge Hikaka's decision.19 Justice Wylie then enunciated the principlesof the Search and Surveillance Act and referred to case law interpreting it.20 He thenset out the defence position namely that although the police officers had reasonablegrounds to suspect that Mr Kipa was unlawfully at large because they had been toldthat there were warrants out for his arrest, they did not have reasonable grounds tobelieve that Mr Kipa was in the boot of Mr Wild's car. As a result, there was no lawfulbasis to invoke the warrantless power of search under s 7 of the Search andSurveillance Act.21[14] Justice Wylie concluded, however, that there were, from an objectiveperspective, reasonable grounds for the police officers to believe that Mr Kipa was inthe vehicle. He noted the following 11 factors:22(a) the police officers had received an intelligence alert by email, statingthat Mr Kipa was believed to be driving the vehicle and was evadingthe police;(b) the first police officer saw the vehicle pass and noted its registrationnumber, but did not observe the driver;15 At [25].16 At [26].17 At [27].18 At [28].19 High Court decision, above n 4, at [5]–[17].20 At [24]–[27].21 At [28].22 At [30].(c) the second police officer gave evidence that police communicationsconfirmed that the alerts were still active for the vehicle and Mr Kipa;(d) the second police officer explained that she had to take the informationas being reliable and treat the situation with caution;(e) it transpired that Mr Kipa was not driving the vehicle, nor was he apassenger in the vehicle;(f) both officers considered that the boot was large enough for a person tohide in it and they could not discount that possibility;(g) whether or not Mr Kipa was hiding in the boot could not be ascertainedunless the boot was opened and inspected;(h) it was a high risk search without the benefit of assistance from otherunits;(i) it was police policy to search and clear the vehicle in the circumstancesthat had arisen due to the risk that somebody might emerge from theboot with a weapon at any stage;(j) when the boot was opened, it was found to be filled with clothing andthe police officers had no alternative but to rifle through that clothingto see whether or not Mr Kipa was hiding under it; and(k) the first police officer went through the clothing carefully, as he did notknow whether anyone was hiding under the clothing.[15] Justice Wylie concluded that when the objective circumstances wereconsidered, the police officers had reasonable grounds to believe Mr Kipa was in thevehicle and if they searched the vehicle, including the boot, they might locate him.23The search was therefore lawful under s 7 of the Search and Surveillance Act.2423 At [31].24 At [33].[16] Justice Wylie disagreed with the defence submission the police officers had tobelieve specifically that Mr Kipa was in the boot of the car. In the Judge's view, it wasenough that they believed he was in the vehicle, part of which was the boot.25[17] Finally, having reached that conclusion, Wylie J considered it was unnecessaryfor him to go on and deal with s 30 of the Evidence Act. However, he did, for therecord, state that he agreed with Judge Hikaka's assessment of the s 30 factors and hisfinding that it would be disproportionate to exclude the evidence even if it wasimproperly obtained.26Decision[18] In support of Mr Wild's application for leave to bring a second appeal,Mr Hudson submits Wylie J erred by effectively replacing the requirement for a beliefwith the lower requirement for suspicion. It is the defence case that the 11 factorslisted by Wylie J amount to no more than a suspicion that Mr Kipa was in the vehicle.They cannot amount to a reasonable belief. Mr Hudson also submits Wylie J erred byendorsing Judge Hikaka's finding that the factors in s 30(3) of the Evidence Actfavoured admission of the evidence, even if it had been improperly obtained.[19] We are, however, not required to embark on a detailed analysis of the evidence,or reach a definitive view on whether or not that evidence is capable of amounting toa reasonable belief that Mr Kipa was in the vehicle, because such an exercise isessentially factual and does not involve a matter of general or public importance. MrWild challenges the way in which well-established concepts were applied to theparticular factual circumstances of his case. There is no broader applicationwarranting a second appeal.[20] Nor are we of the view a miscarriage of justice may have occurred or mayoccur unless the appeal is heard. We do not wish to express a view on the issue of thelawfulness of the search because we are satisfied from our own review of the factorsset out in s 30(3) of the Evidence Act that the evidence should be admitted regardless.Assuming the search was unlawful, the impropriety was the breach of the right of Mr25 At [32].26 At [34].Wild to be secure against the unreasonable search of his property.27 Any such breachmust be viewed against the fact Mr Kipa had been seen in the vehicle a day prior andwas believed to be in possession of firearms, which he said he would use if stoppedby the police. There was therefore an aspect of avoiding physical danger to the policeand public. Other factors identified by Judge Hikaka, such as the seriousness of theoffence of possession of a sawn-off shotgun and the lack of remedies other thanexclusion, also support admission of the evidence. Accordingly, we are satisfiedexclusion of the evidence would be disproportionate to any impropriety.[21] We also note that if convicted of the two offences following the defendedhearing Mr Wild will have a right of appeal against conviction.Result[22] The application for leave to bring a second appeal is declined. The statutorytest for leave to appeal under s 223(3) of the Criminal Procedure Act is not met.[23] For fair trial reasons we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent27 New Zealand Bill of Rights Act 1990, s 21.