SPEIGHT v POLICE [2019] NZHC 1919

SPEIGHT v POLICE [2019] NZHC 1919 [8 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-131[2019] NZHC 1919BETWEEN FLOYD JOHN SPEIGHTAppellantAND NEW ZEALAND POLICERespondentHearing: 6 August 2019Appearances: C Mitchell for the AppellantH Macdonald for the RespondentJudgment: 8 August 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 8 August 2019 at 11.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor AucklandCounsel: C Mitchell, AucklandIntroduction[1] This is an appeal against a pre-trial ruling regarding the admissibility ofevidence obtained from a warrantless search of the appellant's vehicle by the Policeunder s 29 of the Search and Surveillance Act 2012 (SSA). The appellant,Floyd Speight, appeals the District Court Judge's decision that the evidence isadmissible.1[2] Mr Speight is charged with:(a) possession of a knife in a public place;(b) possession of a Class C controlled drug (cannabis);(c) possession of a pipe for consumption of methamphetamine;(d) possession of methamphetamine; and(e) failure to answer District Court bail.[3] The basis of the appeal is that the search was unlawful and in breach of s 21 ofthe New Zealand Bill of Rights Act 1990 (NZBORA). Therefore, Mr Speight submitsthe evidence was improperly obtained and should be excluded under s 30 of theEvidence Act 2000. The Police oppose leave to appeal and the appeal in substance.Background[4] Mr Speight and his associate were in Mr Speight's vehicle parked in a car parkin the Henderson area. Mr Speight's associate removed a lighting unit from the soffitadjacent to an Internet cafe and fled in Mr Speight's vehicle. The event was witnessedby a member of the public who called the Police.[5] Sergeant Burrell was notified and was provided with a description ofMr Speight's associate. The sergeant arrived at a nearby gas station where Mr Speight1 Police v Speight [2019] NZDC 3147 [Decision on appeal].and his associate were located. The associate was arrested and dealt with by anotherconstable. Sergeant Burrell then spoke with Mr Speight, who said he did not knowwho the other person (his associate) was. But he said he knew where the light wasand pointed to an item in a nearby bush.[6] Sergeant Burrell considered the associated cabling (also stolen property) mightbe in Mr Speight's vehicle. He invoked the search powers under ss 29 and 110 of theSSA. He was uniformed and identified himself. Sergeant Burrell explained the reasonfor the search and gave Mr Speight his rights as he was detained pursuant to the SSA.No further evidence related to the theft was found. But the sergeant found drugs, drug-related paraphernalia and a knife.District Court decision[7] The pre-trial issue to be determined was whether the search undertaken waslawful and reasonable in the circumstances.2 The District Court Judge held the searchwas lawful, its execution not unreasonable and the evidence obtained admissible.3[8] The Judge's reasons were as follows.[9] First, there was lawful authority for the warrantless search. The Judge foundthat the sergeant had reasonable grounds to believe there was stolen property in thevehicle. While Mr Speight was (initially) cooperative, Sergeant Burrell had reason tobe sceptical given Mr Speight's account of events. For example, Mr Speight claimedhe did not know who the other person (his associate) was, despite that person havingbeen a passenger in Mr Speight's vehicle. The sergeant had properly exercised hissearch powers under s 29 of the SSA.[10] Whilst there were other investigative methods available, such as locking up thecar, accompanying Mr Speight to the Internet cafe and seeing whether the light foundin the bush was the light in question, the Judge noted that "policing is a dynamicexercise. Circumstances change and develop as events progress."4 The sergeant had2 At [2].3 At [23]–[24].4 At [17].evidence of a theft. He did not have more detail about the item stolen. But there wasMr Speight, who claimed not to know his passenger whom he had driven from thescene of the theft. The Judge observed that "The sergeant was entitled to view thatclaim with some scepticism."5 The Judge concluded that:[19] he [did not] know if any other items related to that theft would befound in the car. Objectively, there was [sic] empirically reasonable groundsto believe that there was stolen property in the car, given the recency of theoffence and the acknowledgment of involvement. The sergeant was notobliged to accept the defendant's account. [11] Secondly, as to the reasonableness of execution, the Judge observed that thesergeant had "complied fully with the provisions of s 131(1) of the [Search andSurveillance] Act in the exercise of that search power".6Leave to appeal[12] The appellant appeals under s 215 of the Criminal Procedure Act 2011. Thatsection provides in relevant part:215 Right of appeal by prosecutor or defendant against certain pre-trial evidential decisions in Judge-alone case(2) The defendant or the prosecutor may, with the leave of the first appealcourt, appeal to that court against a decision that is one of thefollowing:(a) making or refusing to make an order under section 79 (as toadmissibility of evidence): [13] Mr Mitchell, for Mr Speight, did not file an application for leave to appeal nordo his written submissions address the question of leave. At the hearing, Mr Mitchellmade an oral application for leave. It was a bare application without any supportingsubmissions other than an assertion that there would be a miscarriage of justice if leavewas not granted. Mr Mitchell did not make any submissions as to why the Courtshould extend time for the filing of an application for leave to appeal.75 At [18].6 At [22].7 The decision of the District Court Judge is dated 21 February 2019. Section 220(2) of the CriminalProcedure Act 2011 provides that a notice of application for leave to appeal must be filed within20 working days after the date of the decision to which the appeal relates. Section 220(3) provides[14] Without intending to suggest the Court condones such a failure to file anapplication, I will nevertheless put the above matters to one side and consider the leaveapplication on its merits. But first I record the respondent's opposition.[15] Ms Macdonald submits that leave to appeal should be refused. Mr Speight hasfailed to advance any grounds of appeal upon which the District Court Judge'sdecision could be impugned. Ms Macdonald submits that the submissions filed onbehalf of Mr Speight amount to no more than a reiteration of the submissions madebefore the District Court Judge and disagreement with the Judge's ruling.[16] In R v Leonard, the Court of Appeal identified a non-exhaustive list ofconsiderations in determining leave applications.8 In Hohipa v R, the Court of Appealconfirmed that those factors continue to apply to pre-trial appeals under the CriminalProcedure Act.9[17] One of the factors favouring leave is where the application involves theadmissibility of evidence that is important to one of the parties. That is the case here.The evidence in question is the sole basis for the charges. The Crown accepts that the: evidence is critical to the prosecution case, and if ruled inadmissible, willresult in the charges against Mr Speight being withdrawn (with the exceptionof the charge of failing to answer bail).[18] A further factor favouring leave is that the proposed grounds of appeal arearguable while one of the considerations for refusing leave is that the proposed appealis without merit. Having regard to these two factors, I will proceed to consider themerits of the appeal and then return to the issue of leave.Search and seizure principles[19] Section 29 of the SSA provides that a constable may search a vehicle withouta warrant where he or she has reasonable grounds to believe that any stolen propertyis in or on the vehicle. Section 110 then provides:that the first appeal court may at any time extend the time allowed for filing a notice of applicationfor leave to appeal.8 R v Leonard [2007] NZCA 452 at [13].9 Hohipa v R [2015] NZCA 73, [2018] 2 NZLR 1 at [27].110 Search powersEvery search power authorises the person exercising it—(a) to enter and search the place, vehicle, or other thing that theperson is authorised to enter and search, and any item or itemsfound in that place or vehicle or thing, at any time that isreasonable:(d) to seize anything that is the subject of the search or anythingelse that may be lawfully seized: [20] The SSA defines "search power" to include "every power, conferred under thisAct to enter and search (without warrant) any place, vehicle, or other thing".10Section 118 then confers powers of detention incidental to powers to search places andvehicles. That section permits the detention of any person who is in the vehicle at thecommencement of the search.11Submissions[21] Mr Mitchell submits the evidence was obtained unlawfully. In particular, hesays:(a) the Judge erred in finding there were objectively reasonable grounds tobelieve there was stolen property in Mr Speight's vehicle;(b) the Judge erred in misapplying the statutory test for s 29 of the SSA,which is whether objectively there was stolen property;(c) given his cooperation with the Police, Mr Speight should have beenexempt from suspicion;(d) the Police should have taken a different investigative approach, namelyto make enquiries of the owner of the light, eliminating any need tosearch Mr Speight's vehicle; and10 Search and Surveillance Act 2012, s 3(1).11 Section 118(1)(a).(e) Mr Speight's detention during the search was unlawful.[22] In essence, Mr Mitchell says that once the light was found in the bush, the casewas solved. He submits that Sergeant Burrell searched Mr Speight's vehicle "withouta warrant on the pretence that they were looking for a piece of light wiring". And thatthis was a breach of Mr Speight's right to be free from unreasonable search and seizureunder s 21 of the NZBORA. Mr Mitchell further submits the evidence cannot be savedunder s 30 of the Evidence Act.[23] Ms Macdonald submits the appeal should be dismissed as the search waslawful and the evidence was not improperly obtained. If the Court were to determinethat the evidence was improperly obtained, she says, on balance, the evidence shouldnot be excluded under s 30 of the Evidence Act.Discussion[24] I address each of the appellant's submissions in turn.[25] First, did Sergeant Burrell have objectively reasonable grounds to believe therewas stolen property in Mr Speight's vehicle? If not, then he breached s 29 of the SSAand the warrantless search would have been unlawful (and in breach of s 21 of theNZBORA). Mr Mitchell says Sergeant Burrell had no reasonable grounds to believethere was stolen property in Mr Speight's vehicle because "only one light was reportedmissing that morning in Henderson", and that light had been found. Mr Speightpointed it out to Sergeant Burrell. So, he says, the case was closed.[26] However, as the Judge noted, Mr Speight was seen driving the culprit who hadtaken the light. Despite this, Mr Speight denied knowing the culprit. There was thusreason for Sergeant Burrell to be sceptical of Mr Speight's account. Further, as to thereasonableness of Sergeant Burrell's belief, he did not know whether the light in thebush was in fact the light in question. The information he had been given was that theculprit had "broken the wires and then got into the defendant's vehicle".12 On these12 Decision on appeal, above n 1, at [6].issues, Sergeant Burrell said, when asked why he believed there were stolen items inMr Speight's car:Well, there was [sic] two reasons. Although he had, the defendant had showedme a light behind the petrol station, I was unaware of what light I was lookingfor. The chances are it may have been that light that he showed me that wasstolen, or not. The second reason being is I was looking for parts of that light,which I told the defendant at the time, on [sic] particular a wire.[27] On the basis of the above evidence I find that the Judge was correct to concludethat Sergeant Burrell had reasonable grounds to believe there was stolen property inthe vehicle in terms of s 29 of the SSA.[28] Additionally, the Judge was correct to distinguish R v Anderson.13 In that case:[31] Neither constable had any knowledge of any property being stolenon the night and nor did they have in mind any stolen property which mightbe in or on the Honda vehicle. They had nothing to relate the Honda vehicleto any stolen property. In those circumstances there could be no reasonablebelief that there may be stolen property in or on the Honda vehicle.[29] Secondly, Mr Mitchell says the Judge misapplied the statutory test under s 29.He says the test in R v Timutimu is whether objectively there was stolen property inthe vehicle.14 He says that the Judge's comment that Sergeant Burrell "did not knowif any other items related to that theft would be found in the car"15 contradicts hisfinding that the s 29 test was satisfied. However, what the Court said in R v Timutimuis that:[41] The essence of the power is a reasonable basis for belief that there isproperty stolen or obtained by dishonesty inside the vehicle. The test appearsto be objective, focused not so much on the actual belief of individualConstables, but, rather whether there existed empirically reasonable groundsfor a belief: R v Laugalis (1993) 10 CRNZ 350 at 354.[30] In other words, the test is whether the belief that there is stolen property in thevehicle is objectively reasonable. And this is the test applied by the Judge:[22] The fact that there was not further evidence relating to the theftfound within the vehicle does [not] detract from the reasonableness of thatbelief or render the search unlawful or unreasonable.13 R v Anderson (2005) 21 CRNZ 393 (CA).14 R v Timutimu [2006] DCR 38 (HC).15 Decision on appeal, above n 1, at [19].[31] That is the correct approach. Furthermore, for the reasons discussed at [27]above, Sergeant Burrell's belief was objectively reasonable.[32] Thirdly, as to the submission that Mr Speight's cooperation ought to haveexempted him from suspicion, I agree with the Judge that there was reason forSergeant Burrell to be sceptical of Mr Speight's account. Further investigation wasnot unreasonable.[33] Fourthly, as to alternative investigative methods, Sergeant Burrell acceptedthat there were alternative methods available to him. One such alternative, assubmitted by Mr Mitchell, was to lock up the car, accompany Mr Speight to theInternet cafe (which was nearby) and check whether the light obtained from the bushwas the light that was taken from the cafe. Mr Mitchell says that if the sergeant haddone so, he would have discovered that the wire was still attached to the building, thuseliminating the need to search Mr Speight's vehicle.[34] However, Mr Mitchell has not provided any authority for the proposition thata warrantless search under s 29 of the SSA cannot be conducted until all other avenuesof enquiry are exhausted. Section 29 simply requires that the constable conductingthe search has reasonable grounds for his or her belief. The availability of otherinvestigative approaches does not render the belief unreasonable.[35] Finally, was Mr Speight's detention during the search unlawful? There isevidence that Mr Speight became argumentative when Sergeant Burrell tried to searchthe vehicle. The sergeant was simply exercising his power under s 118. There is noevidence that the detention was in excess of the powers conferred by s 118 of the SSA.[36] For all the above reasons, the search was lawfully carried out under s 29 of theSSA.[37] I now turn briefly to s 21 of the NZBORA. That section protects againstunreasonable search and seizure. It does not prevent a lawful search carried out inaccordance with s 29 of the SSA and related provisions such as s 118. Mr Mitchellhas not advanced any arguments to suggest that, what I have found to be a lawfulsearch, was otherwise unreasonable. I do not see any reason to disagree with theDistrict Court Judge on that issue. Accordingly, there was no breach of s 21 ofNZBORA. Nor has Mr Mitchell identified any evidence that the evidence wasobtained unfairly. For the purposes of s 30 of the Evidence Act, it therefore cannot besaid that the evidence was improperly obtained.[38] Accordingly, the evidence seized in the warrantless search of Mr Speight'svehicle is admissible.Conclusion[39] I return to the application for leave to appeal. Although the applicationinvolved the admissibility of evidence that was important to one of the parties, thegrounds of appeal lacked merit. I therefore refuse leave to appeal. As is apparent,even had I granted leave, I would dismiss the appeal on the merits.___________________________________Gordon J