MCMAHON v R [2017] NZCA 311

MCMAHON v R [2017] NZCA 311 [21 July 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. PUBLICAITON INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA182/2017[2017] NZCA 311BETWEEN PETREA JANE MCMAHONAppellantAND THE QUEENRespondentHearing: 12 July 2017Court: Harrison, French and Brown JJCounsel: R M Mansfield for AppellantP D Marshall for RespondentJudgment: 21 July 2017 at 12.30 pmJUDGMENT OF THE COURTA The application for 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 or otherpublicly available database until final disposition of trial. Publication in lawreport or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Ms McMahon faces trial in the District Court on charges of possession forsupply of a Class A drug (methamphetamine), possession of a utensil and possessionof a Class B drug (gamma butyrolactone (GBL)).[2] The Crown case depends on evidence of items found as a result of thewarrantless search of a car Ms McMahon was driving. In a pre-trial rulingJudge Thomas rejected Ms McMahon's contention that the police had no legal basisto invoke s 20 of the Search and Surveillance Act 2012 in searching the car and ruledthe evidence admissible.1[3] Ms McMahon now wishes to appeal that ruling, contending that the search wasunlawful, the evidence improperly obtained as a result, and that its exclusion wouldbe a proportionate response to the impropriety committed by the police in obtainingit. Per s 217(2)(b) of the Criminal Procedure Act 2011 she requires leave to do so.The Crown not opposing, we grant Ms McMahon leave to appeal against the pre-trialruling.Factual background[4] At 11.55 am on 8 July 2016 Constables Groves and Devlin were on duty in anunmarked police car. They observed a silver Audi station wagon pass through a redtraffic light into an intersection, causing another car to swerve to avoid a collision.The officers activated their car's lights and siren and pulled over the Audi.[5] Constable Groves approached the vehicle and obtained the details of bothMs McMahon and her passenger, Mr Hoffhamer. He returned to the police car andchecked the police National Intelligence Application (NIA) listings for the two ofthem. Those listings indicated that both had some prior history of drug use.1 New Zealand Police v McMahon [2017] NZDC 4996.[6] In the case of Ms McMahon, she had methamphetamine-related convictions in2007 and 2010. She had additional NIA listings in 2013. The first of those was anotation that a clan lab was found in a vehicle registered to Ms McMahon, althoughshe was not recorded as an offender. The second listed her as one of two offenders inrespect of a clan lab found in another vehicle. The check also showed that she waswanted for the service of the suspension of her driver's licence because of excessdemerit points.[7] Constable Groves returned to the Audi and completed all the necessarypaperwork in relation to the issue of the suspended driver's licence. Some discussionensued about who should drive the car and it was agreed that Mr Hoffhamer would.[8] Ms McMahon and Mr Hoffhamer then got out of the car and each walkedaround to the opposite sides of the vehicle thereby swapping seats. At that timeConstable Groves was standing somewhere near the back left passenger's door. In thecourse of the seating change he observed a tourniquet in the pocket of the frontpassenger's door which he described as green and white medical issue.[9] Constable Groves asked Ms McMahon and Mr Hoffhamer what the tourniquetwas for. Neither of them answered. When he asked again Mr Hoffhamer said he usedit for bundling wires. However it was not being used for that purpose at the time andthere were no wires visible or subsequently found in the vehicle.[10] Constable Groves invoked s 20 of the Search and Surveillance Act 2012 andcarried out a warrantless search for controlled drugs in the vehicle with the assistanceof Constable Devlin.2 Inside the car Constable Devlin found Ms McMahon's handbagwhich contained:(a) digital scales, on which there was methamphetamine residue;2 Search and Surveillance Act 2012, s 110(b). This Court in Alamoti v R [2016] NZCA 402considered that there did not need to be an explicit request for assistance for s 110(b) to beengaged; a request for assistance could be implicit in the presence of all officers working togetherat the scene. We consider that such a request was implicit in the circumstances here.(b) two plastic zip lock bags, holding a total of 2.8 grams ofmethamphetamine;(c) a small white container holding 14.1 grams of methamphetamine;(d) a glass pipe that had been used to smoke methamphetamine, which alsohad Ms McMahon's DNA on the mouth-piece;(e) a glass bottle containing 2.4 grams of GBL;(f) a cut straw commonly used to divide methamphetamine, whichcontained methamphetamine residue; and(g) $1,760 in cash.In a brown paper bag in the car he found alcohol wipes, 20 syringes still packaged anda tourniquet similar to the one that was found in the door.[11] Ms McMahon admitted that the various items were hers.The District Court decision[12] Section 20 of the Search and Surveillance Act provides the power to searchwithout warrant for controlled drugs: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 Part 3of 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.[13] Ms McMahon challenged the validity of the search claiming that the first twolimbs of s 20 were not satisfied: the police did not have reasonable grounds to believethat there would be controlled drugs in the vehicle, or reasonable grounds to suspectthat a drugs offence had been, was being, or would be committed in the vehicle inrespect of such controlled drugs. The police applied under s 110 of the CriminalProcedure Act to determine the admissibility of the evidence of the search.[14] Judge Thomas considered that, while Constable Groves was entitled on thebasis of his experience to consider the possibility that the tourniquet could be used byillicit drug users, this of itself did not amount to reasonable grounds to believe.3However, Ms McMahon's 2007 and 2010 convictions established a pattern whichincreased the likelihood of an association with methamphetamine use. While theunproven allegations in the two NIA notations had obvious limitations, when put withMs McMahon's previous convictions they did provide reasonable grounds for thepolice to believe that there was a continuing association with methamphetamine.4[15] Furthermore, the unconvincing non-spontaneous explanation for the tourniquetleft Constable Groves with reasonable grounds to believe that it was for the use ofillicit drugs. If there was drugs paraphernalia in the car, then he had reasonablegrounds to believe that there would also be controlled drugs in the car.5[16] The Judge also concluded that the police had reasonable grounds to suspectthat a drug offence had been, was being or would be committed in respect of those3 New Zealand Police v McMahon, above n 1, at [14].4 At [16].5 At [19].controlled drugs.6 There being nothing about the manner in which the search wasconducted to render it unreasonable, the evidence was not improperly obtained andwas therefore admissible.The appeal[17] In challenging the Judge's conclusion, Mr Mansfield for Ms McMahonsubmitted that Ms McMahon's three historic drug convictions and the NIA notationsfailed to establish any relevant pattern of drug use or an association with drugs. Thoseconvictions were said to be too historic or not relevant to the officer's reasonable beliefat the time of the proposed search, and the Judge was accordingly wrong to placeweight on them.[18] The sighting of the tourniquet in the sleeve of the passenger's door was said tobe insufficient because, as Constable Groves conceded in cross-examination, there area number of legitimate medical uses for a tourniquet which will commonly be seen inany first aid kit.[19] Mr Mansfield further submitted that the Judge was wrong to place weight onMr Hoffhamer's apparently unreliable explanation that the medical tourniquet was forbundling wires. The response was at best neutral and alone it was insufficient forConstable Groves to form an objective and credible basis for thinking that a search ofthe vehicle would discover controlled drugs.[20] For the respondent Mr Marshall contended that four features stood out,justifying the finding of a reasonable belief that methamphetamine would be in thevehicle:(a) The available information established Ms McMahon had a substantialand relatively longstanding connection to methamphetamine-relatedoffending. In addition to her convictions, she had two more recentlinks, in 2013, to its clandestine manufacture in vehicles, one of whichconnected her to a clan lab located in a vehicle registered in her name.6 At [20].(b) Mr Hoffhamer also had a history of illicit drug use.(c) The tourniquet, which is an item closely connected with theconsumption of methamphetamine, was in an unravelled state,consistent with it having been recently used.(d) Mr Hoffhamer's explanation for the presence of a tourniquet wasunconvincing and non-spontaneous.[21] While the focus of Mr Mansfield's submissions was directed to these variousfactors in isolation, the critical point advanced by Mr Marshall, which we accept, wasthat these several factors in combination meant the requirements of s 20 were satisfied.Contrary to Mr Mansfield's submission that the search fell on the wrong side of theline, in our view the several factors when considered cumulatively amply justified theJudge's conclusion that the search was lawful. Hence the evidence obtained wasproperly admissible.[22] In those circumstances we do not need to consider the application of s 30 ofthe Evidence Act 2006.Result[23] The application for leave to appeal is granted.[24] The appeal is dismissed.[25] 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 Respondent