GILLIES v R [2016] NZCA 289

GILLIES v R [2016] NZCA 289 [27 June 2016]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 ZEALANDCA85/2016[2016] NZCA 289BETWEEN JOSEPH AAMA GILLIESAppellantAND THE QUEENRespondentHearing: 30 May 2016Court: Ellen France P, Clifford and Katz JJCounsel: N R Rout and M E Rout for AppellantM J Lillico for RespondentJudgment: 27 June 2016 at 10 amJUDGMENT OF THE COURTA Leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France P)Introduction[1] The appellant is to face trial on a number of charges arising out of two separatesearches (the first one without a warrant) undertaken by police of his vehicle. Thecharges include possession of offensive weapons, possession of methamphetamine,possession of cannabis and possession of drug utensils. Judge E Smith ruled theevidence obtained from the searches was admissible as evidence at the trial.1 Theappellant seeks leave to appeal from that decision.[2] The application for leave raises the following issues:(a) Was the Judge correct to conclude the police who conducted the firstsearch had reasonable grounds to suspect the presence of weapons inthe vehicle under s 28 of the Search and Surveillance Act 2012?(b) If the search was lawful, was it nonetheless unreasonable because ofthe absence of any urgency and the availability of other investigatorytechniques?(c) If the evidence was improperly obtained, should it have been excludedunder s 30 of the Evidence Act 2006?(d) Should the Judge have either provided defence counsel with anunredacted version of the search warrant application or adjourned thepre-trial hearing and appointed counsel assisting to review theapplication?[3] We deal with each issue in turn after setting out the background.1 R v Gillies [2016] NZDC 1328 [the admissibility decision].Facts[4] There is no dispute as to the narrative of events as set out by Judge Smith andwe largely adopt her description.2[5] In the early hours of the morning of 12 October 2014 Sergeant Kingston wasdispatched to 94 Olliviers Road in Christchurch. He was told a Māori man wearing ablack hoodie and black pants had been seen trying car door handles.[6] On his way to Olliviers Road, Sergeant Kingston saw a white Holden vehicleahead of him turn into the street and park outside 94 Olliviers Road.Sergeant Kingston parked behind the vehicle and spoke to a Māori man wearing a bluehoodie who was on the footpath nearby. The man gave Sergeant Kingston his detailsas Shannon Morrell and produced his driver's licence. Sergeant Kingston knew fromgeneral police intelligence reports that Mr Morrell was a gang member with access toweapons. Sergeant Kingston had had some dealings with Mr Morrell previously. MrMorrell denied trying door handles and said he had only just arrived at the address inthe Holden vehicle.[7] At about the same time Senior Constable Wheatley arrived with his dog.Senior Constable Wheatley had dealt with Mr Morrell on earlier occasions and wasaware of his membership of a gang and association with weapons. He appears to havegiven Sergeant Kingston more detailed information about Mr Morrell's associationwith firearms.[8] Sergeant Kingston approached and spoke to the appellant who had remainedseated in the driver's seat of the Holden vehicle. The appellant gave his details as"Adam Rutene". Sergeant Kingston's evidence was that the appellant "seemed verynervous".[9] The vehicle did not have a current warrant of fitness and the registration wasexpired. Sergeant Kingston went back to his car and conducted a number of checkson his police mobility device. That showed that Adam Rutene was an alias used by2 At [9]–[36].the appellant. The information also indicated that the appellant had a suspendedlicence and there was also an alert that he was associated with the Highway 61 gang.There was also a photograph of Joseph Gillies which the officer considered matchedthe appellant.[10] Sergeant Kingston told Senior Constable Wheatley that the appellant had givenfalse details and asked Senior Constable Wheatley to remain at the scene. Theappellant initially repeated he was Adam Rutene but then admitted his correct name.He said his licence had been suspended but that he had some paper work from policeat home saying there had been a mistake and his suspension had been lifted.Sergeant Kingston advised the appellant he would be summonsed to appear in Courtfor driving while suspended, his car would be impounded and that the impounding ofthe vehicle for 28 days was mandatory.[11] Sergeant Kingston said that, when he went back to the appellant's vehicle andhanded him the summons and details of the tow company, the appellant became veryreluctant to get out of the vehicle as he was asked to do. He appeared more agitatedand asked repeatedly if his car had to be towed.[12] Mr Morrell meanwhile had telephoned an associate to come and pick up thetwo men. When the associate arrived in her vehicle, the appellant got out of the Holdenvehicle leaving the driver's door open. At this point Sergeant Kingston noticed thathe was wearing a stab or bulletproof vest. When asked why he was dressed in thisway, the appellant responded it was to protect him from "stray police bullets".[13] The appellant and Mr Morrell got into the associate's vehicle and left the area.[14] At this point Sergeant Kingston spoke with Senior Constable Wheatley. Theydiscussed what they had seen and their knowledge of Mr Morrell and his gangassociation. As Judge Smith said:[25] Sergeant Kingston's evidence was that the culmination of thesematters and observations raised significant concerns but the tipping point wasthe [appellant] wearing a bulletproof vest, and his comments regarding policeand bullets (even if flippant) resulted in an overall suspicion that there werelikely offensive weapons in the vehicle, so Sergeant Kingston proceeded toundertake a search of the car under s 28 of the Search and Surveillance Act2012, and then did so.[15] When the officers were standing outside of the vehicle, they first shone theirtorches into the vehicle. Initially, Sergeant Kingston saw nothing suspicious in thedriver's footwell and seat but then, while still outside the vehicle, he shone his torchinto the centre console. He saw that was slightly open due to an item protruding fromit. At first, the officer thought this might be the butt of a gun and he went into thevehicle through the driver's door to inspect the item. When he opened the centreconsole fully he found an ASP (extendable) baton.[16] Senior Constable Wheatley searched the front passenger's footwell and founda knife in a scabbard. After arranging for the vehicle to be towed, both officersreturned to the Christchurch Central Police Station.[17] The second search took place after Detective Constable Petrea Bayne appliedunder s 6 of the Search and Surveillance Act for a warrant to search the Holden vehicle.The warrant was executed on 16 October 2014 at the premises of the towing company.Judge Smith described what was found within the vehicle as follows:3Two sandwich bags containing cannabis; a small round container containingseveral small empty point bags; a further point bag of a white crystalsubstance; a set of small grey scales; a car key; cigarettes; a bulbous glass drugutensil and a straw cut and fashioned.The warrantless search[18] Section 28 of the Search and Surveillance Act provides:28 Stopping and searching vehicles without warrant if offenceagainst section 202A of the Crimes Act 1961 suspected(1) A constable who has reasonable grounds to suspect that thecircumstances in subsection (2) exist in relation to a vehiclemay search the vehicle.(2) The circumstances are that—(a) a person travelling in the vehicle or who has alightedfrom it is committing an offence againstsection 202A(4)(a) of the Crimes Act 1961 (which3 The admissibility decision, above n 1, at [35].relates to possession of knives, offensive weapons,and disabling substances); and(b) the vehicle contains a knife, offensive weapon, ordisabling substance.[19] Judge Smith concluded that there were reasonable grounds to suspect on thebasis of the cumulative factors relied on by Sergeant Kingston, namely:4(a) The time of night (3 am);(b) Suspicion Mr Morrell and/or Mr Gillies were involved in criminalactivity – that is the very close description the person interfering withthe motor vehicle to that of Mr Morrell, who was in the same vehicleas the defendant;(c) Mr Gillies being particularly nervous so his demeanour suggestedoddity to the sergeant and that demeanour getting progressivelyworse;(d) Mr Gillies giving false details;(e) Mr Gillies' resistance and unusual reluctance to leave the vehicle andan increasing agitation when explained that the vehicle would have tobe impounded;(f) Mr Gillies' link and flagging as an associate of Highway 61 – a knowngang;(g) Mr Morrell being a very prominent gang member (and being togetherwith Mr Gillies at 3 am in the morning in suspicious circumstances)who had alerts as having access to weapons);(h) When Mr Gillies (eventually) got out of the car he had on a stab/bulletproof vest and commented it was protection from police stray bullets;(i) Senior Constable Wheatley and Sergeant Kingston discussing allevents, and Senior Constable Wheatley's previous dealings withMr Morrell.[20] The appellant's submissions raise two issues in relation to the warrantlesssearch of the vehicle. The first issue is whether there were reasonable grounds tosuspect. Secondly, if the search was lawful was it nonetheless unreasonable becauseof the absence of any urgency and the availability of other investigatory techniques?4 The admissibility decision, above n 1, at [48].Reasonable grounds to suspect?[21] In developing the submissions on the first issue, Ms Rout for the appellant saysthe present case is indistinguishable from two other cases in which it was determinedthat a warrantless search was unlawful.[22] The first of these cases is this Court's decision in Rimine v R.5 The appellantin that case was stopped at a blood alcohol checkpoint. The police officer who dealtwith the appellant was advised there was a "flag" indicating the appellant in that casewas wanted for an interview with respect to an incident involving threatening a policeofficer with a firearm. It was also known that the appellant was related to a knownsenior gang member in the local area. The police undertook a search of the vehicleunder s 60 of the Arms Act 1983. The appellant, Mr Rimine, became aggressive andyelled out that he did not have a gun. He began to reach into the glovebox and thengrabbed a puppy from the passenger seat. The officers were concerned about thepossible presence of weapons. A search was undertaken which disclosed drug utensilsand cash. Subsequently, following a more detailed search of the vehicle, drugparaphernalia and an imitation pistol were located. A strip search of the appellantyielded drug utensils and methamphetamine.[23] This Court said:6Mr Rimine's nervousness and refusal to exit the car in circumstances wherehe was not obliged to do so are not strong factors on which to base aconclusion that arms were in the car. The uncle/nephew relationship mighthave justified a concern that Mr Rimine might have access to firearms but notthat he was, at the relevant time, in possession of them. The imprecise "flag",without identification of the date of the alleged incident, did not provide abasis for concluding Mr Rimine was about to engage in similar conduct. Thecombination gave some basis for concern but, in our view, it fell short of thereasonable suspicion standard.[24] In Tweeddale v Police, police were advised the appellant was seen in hisvehicle with his partner and had said "I'm going to kill her".7 The appellant's partnerhad facial injuries and the appellant had driven off in a "wild" manner with her in the5 Rimine v R [2010] NZCA 462.6 At [22].7 Tweeddale v Police [2015] NZHC 1298 at [4].car.8 He hit two fences and a vehicle. He had previous convictions for violentoffending. Police had knowledge he had earlier possessed firearms and was presidentof the local Hells Angels chapter. When the vehicle was stopped at a roadblock, theappellant's partner was in a vehicle behind the appellant's car with "moderate toserious" injuries to her face.9 She denied any assault and said she had fallen over. Thepolice took control of the appellant's car, had a quick look and saw what seemed to bea bag of cannabis leaf. Section 20 of the Search and Surveillance Act was invoked.[25] In that case, Kós J observed that the police did not have reasonable grounds tojustify a warrantless search. The Judge referred to Rimine in particular commentingthat it was not suggested the appellant's previous possession of firearms would sufficeas grounds to suspect.10[26] As Judge Smith found, the present case is "not on all fours" with those twocases.11 The distinguishing feature is that the appellant in the present case was wearinga stab or bulletproof vest. We accept his comment about that can be put to one side asprobably flippant. But, largely for the reasons given by Judge Smith, we agree thisparticular combination of circumstances provided reasonable grounds to suspect. AsJudge Smith said:[55] It is clearly uncommon for persons to be driving a car with a stab vestin New Zealand, let alone at 3 am in the morning, combined with anotherperson identified as a suspect in the commission of a crime, acting in anevasive, agitated and nervous fashion and with historic gang affiliations. It is reasonable for the sergeant to have concluded, as he did, that it would beunlikely that someone would be fashioned in a stab/bullet proof vest unlessthey were expecting trouble. It is reasonable to assess that pre-arming oneselfwith protective clothing to this degree might also suggest a possibility onemight pre-arm oneself with an offensive weapon. [56] The defendant wearing a stab/bullet proof vest was a matter of highrelevance to take into account and proper to be concerned if it was indicativeof secreted weapons within the car. More importantly, the vest indicated thatweapons might contemporaneously be in the vehicle.8 At [5].9 At [11].10 At [28].11 The admissibility decision, above n 1, at [62].Lawful but unreasonable?[27] The Crown accepts a lawful search may in some circumstances beunreasonable because of the manner in which the search is undertaken although thosecases are likely to be rare.12 The appellant says that the absence of urgency meant thatthe search, even if lawful, was unreasonable.[28] We do not consider the search was unreasonable. We agree with Judge Smiththat the critical factor in the present case was the concern that the presence of weaponspresented a risk to public safety. The relevant circumstances in this respect are, first,the car was to be towed away by a third party and, secondly, the initial search wasconfined to the shining of the torch into the car.[29] We add that the latter fact would have been highly relevant should it have beennecessary to consider admissibility under s 30 of the Evidence Act. As Mr Lillico forthe Crown submits, the expectation of privacy of the impounded vehicle was low andthe initial intrusion minimal. The evidence is real, highly probative and central to theCrown case. Other investigative techniques would have disclosed the weapons andthere was a risk to public safety.The process for the warrant[30] The appellant submits that the Judge should either have provided defencecounsel with an unredacted version of the search warrant application or appointedcounsel assisting to review that application. In developing the submissions on thispoint, the concern advanced on the appellant's behalf is, first, as to the extent to whichthis search was predicated on the warrantless search. Secondly, there was a concernthat the age of the appellant's previous drug convictions was not provided to theissuing officer.[31] The first concern falls away because we have found the first search to be bothlawful and reasonable. In any event, as the Crown submits, Judge Smith was entitled12 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [24].to accept Detective Constable Bayne's evidence that the warrantless search was notthe trigger for the search warrant application.[32] On the second issue, the application correctly stated that the appellant had"relevant convictions [for] possession of opiates, possession of class A controlleddrug, possession of a pipe, possession for supply of morphine, possession for supplyof cannabis and possession of cannabis". The application should have made it clearthat the most recent of these convictions was in 2005. Judge Smith, correctly, in ourview concluded there was nonetheless sufficient information to establish reasonablegrounds on the basis of the other material in the unredacted application whichincluded, as Judge Smith put it, "covert human intelligence".13[33] On the question of an appointment of counsel assisting, Judge Smith said shewas "well able" to address the challenge to the issue of the warrant without theassistance of counsel.14 The Judge made it plain that if it was appropriate to haveappointed counsel assisting she would have done so and adjourned the pre-trialapplication. Her assessment was that in the circumstances this was not required. Weagree.[34] This Court in R v Mills said the Judge may appoint counsel assisting where heor she does not consider that the Court can justly deal with the challenge to the validityof the search warrant without the assistance of counsel assisting to whom access to theunredacted application for the warrant can be provided.15 No such issues arose here,particularly where this was not a case of a marginally sufficient warrant.Result[35] Leave to appeal is granted but the appeal is dismissed. As a result evidencearising from the two searches of the appellant's vehicle is admissible at trial.[36] 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 on13 At [89].14 At [85].15 R v Mills [2009] NZCA 468 at [9].the internet or other publicly available database until final disposition of trial.Publication in law report or law digest is permitted.Solicitors:Better Lawyers Ltd, Christchurch for AppellantCrown Law Office, Wellington for Respondent