GRIGG v NEW ZEALAND POLICE [2021] NZHC 3611

GRIGG v NEW ZEALAND POLICE [2021] NZHC 3611 [22 December 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-085-613[2021] NZHC 3611BETWEEN MATTHEW PHILIP GRIGGAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2021 (via VMR)Appearances: B Dawson for AppellantA McCluskey for RespondentJudgment: 22 December 2021JUDGMENT OF ISAC JIntroduction[1] One evening Mr Grigg was driving his motor vehicle on Kent Terrace,Wellington. There is no doubt he was lawfully pulled over by two police officerspursuant to s 114 of the Land Transport Act 1998 (LTA), and subjected to a breathalcohol screening process.[2] Due in part to Mr Grigg's behaviour, information about him on the PoliceNational Intelligence Application, and Mr Grigg's answers to questions, the officersformed the view Mr Grigg may be under the influence of methamphetamine and thatthey had reasonable grounds to suspect Mr Grigg had illicit substances in his vehicle.[3] Police then instituted a warrantless search pursuant to s 20 of the Search andSurveillance Act 2012. They located a small amount of methamphetamine and a glasspipe for smoking it.[4] As a result, Mr Grigg has been charged with:(a) possession of methamphetamine;(b) possession of utensils for the consumption of methamphetamine.1[5] The issue for determination is whether the search of Mr Grigg's motor vehiclewas unlawful and, if it was, whether the evidence uncovered by that search ought tobe excluded.The background in further detail[6] At 11.25 pm on 9 March 2020, Mr Grigg was driving a Ford motor vehiclesouth on Kent Terrace in Wellington.[7] He was observed by two police officers in a patrol car, Police Constable SarahWing, and Sergeant Dean Burger. The officers had noticed Mr Grigg stop quite shortof a red traffic light, some distance back from the intersection. Constable Wingchecked the vehicle's number plate through the Police Identification System, whichidentified two alerts in relation to Mr Grigg:(a) An alert for a drug supplier; and(b) A firearms alert.[8] Sergeant Burger was also able to determine that Mr Grigg's most recent drugsrelated conviction related to methamphetamine in 2015.[9] As a result of all this, a decision was made by Sergeant Burger to pull thevehicle over pursuant to s 114 of the Land Transport Act. That provision confers apower on enforcement officers to require a driver to stop and provide particulars suchas the driver's full name, address, date of birth and occupation. Subsection 114(5)further provides that while an enforcement office may require a driver to remain1 Mr Grigg is also charged with resisting police, but that additional charge is not subject to thecurrent appeal.stopped for as long as is reasonably necessary to establish the identity of the driver,the period of detention must not exceed 15 minutes.[10] Sergeant Burger spoke to Mr Grigg and asked for his particulars. Mr Griggidentified himself as required by law.[11] The officers then required the appellant to undertake a passive breath test,which he also passed.[12] Sergeant Burger observed Mr Grigg's behaviour and appearance. He notedwhat the Sergeant described as signs of recent methamphetamine use, includinghaving restricted pupils. Mr Grigg was pale and sweaty, and fidgeting a lot, unable tokeep still in the car. He was also described by the Sergeant as being wide-eyed andhaving a dry mouth. He was licking his lips while the police officer was speaking tohim.[13] All of this led Sergeant Burger to begin considering "whether additional drugoffences had been committed". The Sergeant had not been trained to undertake acompulsory impairment test and at the time was unaware that Constable Wing wasqualified to do so.[14] At this point during the Police stop it seems to be a common point between theappellant and the respondent that the Police power to detain Mr Grigg under the LandTransport Act, or any other enactment, had come to an end.[15] Concerned, however, by the signs of recent methamphetamine use,Sergeant Burger continued to speak to the appellant. He asked Mr Grigg if he had anyillegal drugs in the car. Mr Grigg's response was: "fuck off, mate. You are pissing meoff".[16] Mr Grigg was then asked to step out of the car. Sergeant Burger's explanationfor this request was "the safety risk" Mr Grigg presented if he remained in the car, andthe alerts on the appellant's name.[17] While Mr Grigg complied with the request, the way he did so sparked furthersuspicion for the Sergeant. Mr Grigg got out of the vehicle quickly blocking theSergeant's view into the driver's map pocket of the vehicle door. In short, Mr Grigggot out of the vehicle in a way designed to prevent the Police officers from seeinginside the vehicle.[18] The conversation outside the vehicle then continued. The following exchangeoccurred:Sergeant Burger Have you had any alcohol or prescription meds today?Mr Grigg No.Sergeant Burger Any illegal drugs?Mr Grigg Not today.Sergeant Burger When was the last time?Mr Grigg Saturday.Sergeant Burger What drug?Mr Grigg None of your fucking business.[19] During this exchange Mr Grigg was observed by the Sergeant to becomeprogressively more agitated. He placed his hands in his pockets despite the Sergeantasking him repeatedly not to do so.[20] Sergeant Burger's cumulative assessment of the appellant's driving, hisobservations of Mr Grigg's "physical symptoms", his admissions of recent drug use,and the behaviour he exhibited on exiting the vehicle was that there would becontrolled drugs in the vehicle or on the defendant. Accordingly, the Sergeant decidedto invoke a warrantless search power under s 20 of the Search and Surveillance Actfor drugs.[21] Sergeant Burger advised the appellant that he was being detained for thepurpose of a search. Mr Grigg's behaviour appears to have deteriorated rapidly at thispoint. He tried to walk away from the Police officer and put his hands in his pockets.Sergeant Burger grabbed hold of Mr Grigg's wrist to stop him walking away, butMr Grigg pushed the officer. A scuffle then ensued involving both men on the groundand the intervention of Constable Wing in order to apply handcuffs to Mr Grigg.[22] The defendant was then given his rights and a search of both the appellant andhis vehicle followed. The search uncovered a small quantity (0.2 of a gram) ofmethamphetamine, as well as a methamphetamine pipe.[23] Mr Grigg was arrested and subsequently charged with possession ofmethamphetamine and utensils.Judgment under appeal[24] Mr Grigg challenged the admissibility of the evidence from the search on thebasis it had been unlawfully obtained. The matter came before Judge Phillips inJuly 2021. The court heard evidence from Sergeant Burger and Constable Wing, andsubsequently appears to have received written submissions on behalf of the appellantand the respondent.[25] In a written decision of 22 September 2021,2 the Judge dismissed Mr Grigg'schallenge. Having outlined the relevant facts,3 the Judge rejected the appellant'ssubmission that he had been unlawfully detained after he had passed the passive breathscreening test and provided his particulars, such that the questioning of the appellantnecessary for the invocation of the search power had not occurred in breach of theappellant's right to be free from arbitrary arrest or detention. The Judge concluded:4 there was no arbitrary detention of the defendant at any time, and that anydetention only arose once the warrantless search provisions had been invokedand 'was thus entirely lawful'.2 New Zealand Police v Grigg [2021] NZDC 18857.3 At [6]–[19].4 At [53].[26] Finally, the Judge concluded that even if he was wrong on the first issue, hewould have held that the evidence should not be excluded under s 30 of the EvidenceAct 2006.5The issue[27] On behalf of Mr Grigg, Mr Dawson submits that:Mr Grigg was arbitrarily detained as soon as he passed the passive breath testand no further action under the Land Transport Act was to be undertaken.Sergeant Burger had no lawful power to require Mr Grigg to exit his vehicle.[28] This must amount to a detention, and Mr Grigg should have been advised ofhis right under s 23 of the NZBORA, including the right to remain silent, before beingsubjected to further questioning which, in turn, was crucial to triggering thewarrantless power of search under s 20 of the Search and Surveillance Act.[29] Moreover, Mr Dawson submits the District Court was wrong to conclude thatSergeant Burger had formed the required belief under s 20 of that Act prior toMr Grigg exiting his vehicle.6 That factual conclusion was not supported by theevidence; Sergeant Burger testified that it was only after he observed the manner inwhich Mr Grigg got out of the vehicle, and asked further questions, that he formed therequisite belief:Q. So with all the stuff you've just outlined, what conclusion did youcome to about the defendant?A. My cumulative assessment of all the factors, his driving, myobservations of his physical symptoms, his admissions to the recentdrug use and his behaviour in exiting the vehicle and trying to preventme from looking inside of it led [sic] me to believe that there wouldbe controlled drugs in the vehicle or on the defendant.[30] Mr Grigg places particular emphasis on the recent decision of Tahapehi vPolice,7 where a vehicle was stopped for a genuine LTA purpose — in that case, theservice of a demerit point suspension notice. Having served the notice, and thereforeexhausted any lawful justification to keep the appellant's vehicle stopped under s 114,5 At [55]–[58].6 At [46].7 Tahapehi v Police [2018] NZHC 2666.the Court was required to determine whether the car and occupants were detained afterthe legitimate purpose was spent, and whether that gave rise to any impropriety.[31] As Mr Dawson noted, the Court concluded that once the details relevant to thedemerit points notice had been obtained, the appellant and her associate were, as amatter of law, free to leave.8[32] Justice Davidson concluded that continued detention beyond that point wouldhave been unlawful. And that was the conclusion the Court reached:9[44] There is no evidence of what (if anything) the constable said to theoccupants of the car as he returned to the patrol car to check their details. Thismakes it harder to determine whether there was a continued detention, butthere is no evidence that a direction was given to stay where they were. Thefact that the appellant and her associate stayed parked up suggests theybelieved they were still being detained. The legal position in this country(contra some jurisdictions) is that someone is not detained simply becausethey think they are being detained. The question is whether, objectively, thebelief that they are being detained is a reasonable one.[45] The Police did not disabuse the occupants of the car of their belief thatthey were still being detained and my conclusion is that it was reasonable forthem to believe they were still under detention. The detention between thedetails of the driver being ascertained and the subsequent discovery of theknife on the back seat was, in my view, unlawful.[33] In relation to whether exclusion of the evidence is a proportionate response ins 30(3) of the Act, Mr Dawson submits:(a) The breach involved the unlawful search of both a motor vehicle andMr Grigg personally. The rights breached were "the most fundamentalprotections in a criminal process." Those rights assume greaterimportance — and thus need for protection — when incriminatingquestions immediately follow questioning under s 114, to which noright to silence attaches. The breaches were therefore serious.(b) The impropriety was deliberate.(c) The evidence obtained was vital to establishing the charges.8 At [43].9 At [44]–[45].(d) The charges are, however, relatively minor.(e) There were no other investigatory techniques available.(f) There were no alternative remedies to exclusion of the evidence thatcould adequately vindicate Mr Grigg's right.(g) The impropriety was in no way necessary to avoid apprehendedphysical danger to police or others.(h) There was no urgency that attached in obtaining the improperlyobtained evidence.[34] Ms McCluskey for the respondent argued, first, that the Judge was right to findthat Mr Grigg was not detained after completion of the breath test and before thecommencement of the warrantless search. It is lawful for an investigating officer toask questions from any person, if they do not suggest it is compulsory for the personquestioned to answer.10 Mr Grigg did not give evidence so there is little informationabout Mr Grigg's perception of the questioning.[35] Further, even if there had been an arbitrary detention it was of the most fleetingnature and lasted only between completion of the s 114 LTA procedure, and thecommencement of the warrantless search, at which time Mr Grigg was clearlylawfully detained once again. It followed that exclusion of the evidence would not beproportionate to the illegality. Ms McCluskey also relied on Tahapehi, whereNicholas Davidson J also concluded that exclusion of the evidence following such abrief arbitrary detention would be disproportionate.Approach on appeal[36] Leave is required to appeal against pre-trial rulings.11 Leave was not opposedand, in any event, would have been granted given the centrality of the evidence to theprosecution case.10 Practice Note – Police Questioning [2007] 3 NZLR 297, cl 1.11 Criminal Procedure Act 2011, s 215(2)(a).[37] First appeals against pre-trial decisions are general appeals.12 This Court isentitled to arrive at its own assessment of the merits of the case,13 but may give weightto the reasoning of the lower court where appropriate.14Consideration[38] There are two issues I need to determine:(a) First, whether Mr Grigg was arbitrarily detained in breach of s 23 of theNew Zealand Bill of Rights Act 1990?(b) And two, if so, should the evidence of the warrantless search beexcluded?[39] I have found that Mr Grigg was arbitrarily detained but that the evidenceshould not be excluded under s 30 of the Evidence Act.Detention[40] There can be no issue taken with the officers' power to initially stop Mr Grigg'svehicle, and nor is there. However, the power under s 114 of the LTA to stop someoneis not absolute; it only extends as long as is necessary to obtain the particulars outlinedin s 114(3)(b) or "to complete the exercise of any other power conferred on anenforcement officer" by the LTA. There is established authority that the s 114 powercannot be used for purposes beyond road policing.15 The effect of this is that onceMr Grigg passed the passive breath test — and no action under LTA was taken —Sergeant Burger had no lawful authority to require Mr Grigg to exit his vehicle.Indeed, Mr Grigg was free to leave upon passing the breath test.[41] As was held in Roper v Police:1612 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49]–[53].13 Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [5].14 At [16].15 See R v Jeffries [1994] 1 NZLR 290 (CA) (relating to s 114's predecessor) and McGarrett v R[2017] NZCA 204 at [18].16 Roper v Police [1984] 1 NZLR 48, (1983) 1 CRNZ 91 at 94.Once the driver has stopped and has supplied the information thereaftersought, that obligation to stop (and remain stopped) has been exhausted andthere is no authority under that section for the constable or traffic officer tomake any further demands on the driver at that time.[42] At issue in this case is therefore the period between the breath test and thewarrantless search, and whether Mr Grigg was detained.[43] As noted, the Crown submits Mr Grigg was not detained. It says Mr Grigg wasnot 'required' to step out of the car, but that Sergeant Burger asked him to step out andhe did. And in any event Sergeant Burger asking Mr Grigg to get out of the car was nomore than a "temporary constraint" on his liberty. I do not accept the Crown'ssubmission.[44] The real question here is whether Mr Grigg had a reasonably held belief thathe was not free to leave.17 That will often depend on the police's actions. Here,Mr Grigg was pulled over under a compulsory procedure. There is no doubt at thecommencement of his dealings with the officers that he was, in fact, detained. He thenundertook a breath test and was then asked to exit his vehicle. In essence, the Crownis saying Mr Grigg ought to have appreciated that he was not required to leave hisvehicle, and that he was free to go once he had completed the breath screening process.[45] Given Mr Grigg had been detained at the start of his engagement with theofficers, I consider any reasonable person would have stepped out of the vehicle aftercompleting a breath test and still understood they were detained. While it is not alwaysnecessary to do so, it is relevant in this case — bearing in mind the proximity betweenthe breath test and asking Mr Grigg to exit his car — that at no point did the officerssuggest to Mr Grigg he was free to leave. And his actions in staying with the officers,despite being obviously upset at having to do so, rather suggests he also believed hewas not free to leave.[46] I therefore find there was an unlawful detention of Mr Grigg after the breathtest and before the warrantless search. Without a lawful basis to detain Mr Grigg, thatdetention was also arbitrary. The questioning that followed the unlawful detention17 See R v Goodwin (No 2) [1993] 2 NZLR 390, (1993) 9 CRNZ 394 (CA); Everitt v Attorney-General [2002] 1 NZLR 82 (CA) at 7, approving R v M [1995] 1 NZLR 242, at 245.elicited answers to questions that were necessary to meet the requirements for thewarrantless search that followed.Exclusion[47] The key question in this case is whether, as Mr Dawson submits, the evidenceof the search ought to be excluded following the balancing exercise required by s 30(3)of the Evidence Act.[48] I have concluded that it should not be. Exclusion of the evidence would bedisproportionate to the impropriety, taking into account the need for an effective andcredible system of justice.18[49] While the right to be free of unlawful detention is fundamental, the intrusionhere was minor. Mr Grigg appears to have drawn himself to the attention of Police asa result of his driving. Once pulled over, he was observed to behave in a mannerassessed by a senior police officer as consistent with the recent use ofmethamphetamine, for which he had previously been convicted. It seems highly likelythat had officers wished to detain Mr Grigg for the purpose of an impairment test, theycould have done so, and I did not take Mr Dawson to suggest that would have beenimpermissible.[50] The period of detention was the short span of time between completion of theLTA procedures, and the commencement of the warrantless search. And in assessingthe significance of that period I have regard to the fact that detention for an impairmenttest is the relevant counterfactual.[51] There was no bad faith on the part of Police, and nor were their actions reckless.As Sergeant Burger's evidence indicates, their request for Mr Grigg to leave the car— marking the start of the unlawful detention — was due to safety concerns given theindications Mr Grigg was in charge of a vehicle while under the influence of drugs.18 Evidence Act, s 30(2)(b).[52] The evidence obtained is fundamental to the prosecution, and while the chargesare relatively minor, that can cut both ways. Overall, the balance of factors in my viewweighs in favour of admission of the evidence.Conclusion and result[53] For these reasons, while I consider the Judge was wrong to conclude that therewas no arbitrary detention, I agree with his assessment that exclusion of the evidencewould be disproportionate.[54] The appeal is therefore dismissed.Isac JSolicitors:Saint Ivo Chambers, Wellington for AppellantLuke Cunningham Clere, Wellington for Respondent