MOORE V R [2017] NZCA 577

MOORE V R [2017] NZCA 577 [8 December 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 ZEALANDCA565/2017[2017] NZCA 577BETWEEN SHAUN MICHAEL MOOREAppellantAND THE QUEENRespondentHearing: 25 October 2017Court: Kós P, Harrison and Gilbert JJCounsel: A M Ives for AppellantA M McClintock and A L McConachy for RespondentJudgment: 8 December 2017 at 3 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Publication of the judgment and any part of the proceedings (includingthe result) in news media or on the internet or other publicly availabledatabase is prohibited until final disposition of the trial. Publication in lawreport or law digest is permitted.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] Shaun Moore faces trial in the District Court at Auckland on a range of chargesincluding possession of methamphetamine for supply; possession of associatedsubstances, materials and utensils; unlawful possession of firearms and ammunition;and unlawfully taking a motor vehicle.[2] The evidence to support these charges was obtained following a police searchof Mr Moore's person and motor vehicle on the roadside one evening. On a Crownapplication for a pre-trial ruling on admissibility, Judge Mary-Elizabeth Sharp foundthat the search was unlawful but in terms of the statutory balancing test in s 30 of theEvidence Act 2006 its exclusion would be disproportionate to the impropriety.1The Judge separately ruled that a summary of the facts relating to Mr Moore's 2008convictions for possessing methamphetamine and associated offences was admissibleas propensity evidence at his trial.2 Both rulings were delivered orally and werecomprehensively reasoned.[3] The Crown did not oppose Mr Moore's application for leave to appeal bothrulings, which is granted accordingly under s 217(2)(b) of the Criminal Procedure Act2011.Facts[4] Judge Sharp heard extensive evidence on the admissibility of the searchevidence over two days in September 2017. Her factual findings, which are not indispute, are summarised as follows.[5] On the evening of 26 November 2016 Mr Moore was stopped by a routinepolice patrol for driving a motor vehicle in a dangerous manner. The officers' searchof the National Intelligence Application (NIA) disclosed that the vehicle wasunregistered. So, one officer, Constable Didsbury, decided to "blue sticker" the car toallow the owner 24 hours to register it in his or her name before the vehicle would be1 R v Moore [2017] NZDC 20059 [Ruling 1].2 R v Moore [2017] NZDC 20230 [Ruling 2].impounded.3 Mr Moore had by then left the vehicle to question the officers about thereason for stopping him.[6] At the same time the other officer, Constable Brain, looked around the outsideof the vehicle. He observed what seemed to be a combat knife protruding from a bagin the backseat. After conferring, the officers decided to invoke their powers to searchthe vehicle under s 28 of the Search and Surveillance Act 2012. The Judge found thatthe search was unlawful — the officers failed before searching the vehicle to enquireof Mr Moore whether he had a reasonable excuse for possessing the knife.4The Crown does not contest the Judge's finding of unlawfulness.[7] Constable Brain and another officer started searching Mr Moore. At this pointhe became agitated and aggressive. He had to be restrained by the officers, who thenfound a methamphetamine pipe and a firearm tucked within his clothing.Constable Brain arrested Mr Moore, handcuffed him and placed him in the back seatof the police car.[8] Constable Didsbury searched the vehicle and found a glass straw and a pointbag containing a white crystalline substance. In the rear of the vehicle she found thecombat knife and, inside the backpack, two zip-lock bags containing 15 rounds ofammunition.5[9] Mr Moore then attempted to drive away in the police vehicle. As a result,the officers decided it was unsuitable to continue the roadside search. The vehicle wasremoved to a police station. A further search located drug equipment within the backseat and boot which had been found to be used for manufacturing methamphetamine.[10] The Judge found that the search at the police station was also unlawful becauseit was a second search for which the police should have sought a warrant.6Ms McClintock for the Crown challenges this finding on the ground that whathappened at the police station was in fact a continuation of the search initiated at the3 Riling 1, above n 1, at [5]–[7].4 At [40]–[42], applying Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835 at [64] and [67].5 At [27].6 At [53]–[57].roadside. The police did not require a warrant given that they had already found afirearm in Mr Moore's unlawful possession. However, this finding is notdeterminative given that the search process was tainted by the original unlawfulness.DecisionAdmissibility[11] The only issue on appeal is whether Judge Sharp erred in undertaking thestatutory balancing test and determining that the unlawfully obtained evidence wasnevertheless admissible.7 The Judge found that the rights breached were notinsignificant or "at the lowest possible end of the scale".8 However, the breaches werethe result of recklessness, at most, rather than of bad faith. Also, the evidence obtainedshowed serious offending. Exclusion, the Judge concluded, would be disproportionateto the breach of Mr Moore's rights.9[12] Ms Ives, for Mr Moore, challenges this finding on a number of grounds. First,she submits the Judge erred by restricting her inquiry to the right to be free fromunreasonable search and seizure.10 She failed to take into account that Mr Moore wassubject to an arbitrary detention. That state of affairs followed necessarily fromthe Judge's finding that the police officers "effectively boxed [Mr Moore's vehicle]in";11 and that Constable Brain was motivated by curiosity in looking around the carto see whether he could observe anything of interest to the police;12 and that theofficer's intention from the outset was to search the vehicle.13 Ms Ives submits that,contrary to the officer's evidence, his purpose was not merely to inspect the car'swarrant of fitness in the light of its apparent age and condition.14[13] We do not accept Ms Ives' submission. It does not matter whether Mr Moore'svehicle was boxed in or Constable Brain was looking for something to justify a search.7 Evidence Act 2006, s 30(2)(b) and (3).8 Ruling 1, above n 1, at [71].9 At [71].10 At [60]–[61].11 At [6].12 At [21].13 At [43].14 At [7].What matters is that the police were entitled to detain Mr Moore's vehicle unless anduntil the owner registered it or they earlier decided to release it. And they were entitledto detain Mr Moore for a reasonable period until they decided whether to charge himwith dangerous driving and/or driving in an unregistered vehicle. He did not then haveany relevant rights other than to be free from unlawful search.[14] In addition we endorse the Judge's finding that the search of the interior wasnot a serious breach of Mr Moore's rights due to a relatively low expectation ofprivacy in a vehicle which he did not own.15 The Judge found, however, that the searchof Mr Moore's person was "a serious intrusion and his right to be free fromunreasonable search and seizure was an important one, gathering with it an expectationof privacy".16 She took this factor into specific account when evaluating whetherexclusion of the evidence would be disproportionate to the impropriety.17[15] Second, Ms Ives submits the Judge failed to give sufficient weight to the natureof the improprieties. In particular, her evaluation did not allow properly for her findingthat the police acted recklessly. She emphasises the Judge's finding thatConstable Brain had formed an intention to search the vehicle, or was at least lookingfor signs of offending to justify such a search, before he sighted any knife.[16] We do not accept this submission. The Judge was right to find that the policedid not act in bad faith in failing to ask Mr Moore whether he had a reasonable excusefor possessing the knife. We agree with Ms McClintock that the Judge may haveoverstated her observation of recklessness. In context she found that the officers didnot apparently understand their statutory obligation; she referred to their oversightbefore describing their actions as being "[a]t most" reckless, which Ms Ives had in factconceded at first instance.18 In our judgment the failure to offer Mr Moore anopportunity to explain his reason for possessing the knife was, at most, careless.[17] Third, Ms Ives submits that the Judge overstated the seriousness of theoffending. She accepts that, while the allegations of drug offending are aggravated by15 At [61].16 At [61].17 At [71].18 At [62].the discovery of the firearm and the ammunition, the likely outcome was a sentenceof medium severity. We do not need to refer further to this submission other than torecite our satisfaction that the offending was very serious given Parliament's strongcondemnation of all methamphetamine related activities.[18] Fourth, Ms Ives submits the Judge failed to give any weight to her finding thatthe search at the police station was unlawful. She says the breach was significant.The vehicle was secure at the police station. The police could have adopted the furtherinvestigatory technique of applying for a second warrant. Added to the originatingbreaches, this factor justified exclusion of the evidence.[19] We do not agree. Arguably the Judge erred in her reasoning. It would havebeen open to her to find, as Ms McClintock submits, that the search undertaken at thepolice station was in fact a continuation of the original search. In any event, if awarrant had been sought to search the vehicle at the police station, execution wouldinevitably have yielded what the police found.[20] It follows that we are satisfied the Judge did not err in ruling the evidenceobtained from the police search to be admissible at trial.Propensity[21] In July 2006 Mr Moore occupied a semi-rural residential property inHobsonville. He set up a clandestine methamphetamine laboratory there. He wasfound guilty following a trial before Gendall J in the High Court at Auckland in 2008and convicted of manufacturing methamphetamine and possessing materials andequipment for that purpose. Mr Moore was sentenced to five years and nine months'imprisonment.19 His appeal against his convictions was unsuccessful.20[22] Judge Sharp noted there was little contest that the facts giving rise to theconvictions were propensity evidence — that is, Mr Moore's propensity to possessitems used to manufacture methamphetamine and to carry out the manufacturing.2119 Moore v R HC Auckland CRI-2006-090-7969, 23 May 2008.20 R v Moore [2009] NZCA 78.21 Ruling 2, above n 2, at [7].She was satisfied that the previous convictions were relevant to the wider issue whichwill arise at trial of whether Mr Moore manufactured methamphetamine using theitems located in the boot of the car rather than the more confined issue of whetherhe knew the items were present.22 She was satisfied that the probative value of theearlier convictions was high and that any "prejudicial effect is interconnected withits relevance".23[23] Ms McClintock advises that at trial the Crown will be seeking to lead evidenceof the facts underpinning the convictions rather than limiting the evidence to theconvictions themselves. In particular the Crown will focus on the following facts:when offending in 2006, Mr Moore was present throughout the manufacturing processwhich occurred over a period of five to six hours; some methamphetamine had beenmanufactured and some was in Mr Moore's possession alongside equipment,precursors and materials intended for future use; what was found was consistent witha large-scale manufacture, lending support for a conclusion of commerciality; andMr Moore was found not because he was an "innocent dupe" but rather because hewas cleaning up after manufacturing. These details are derived from the summary offacts and the inferences drawn by Gendall J during sentencing in 2008.24[24] Ms Ives submits that the Judge erred in accepting the Crown's formulation ofa wider issue for trial. The focus of the defence remains on the narrower mens reaelement of the offence of possession, namely knowledge of the items found in thepolice search. In her submission, the issue of whether Mr Moore had used the itemsto manufacture methamphetamine is of secondary importance having regard to theevidence. Accordingly, she submits, the facts relating to Mr Moore's offending in2006 do no more than suggest a propensity to commit the crime alleged. It is of suchgenerality as to be of low probative value.25[25] We do not accept this submission. In our judgment Ms Ives has sought toartificially restrict the scope of the issues arising for trial. We agree withMs McClintock that the relevant issue in dispute extends wider than mere possession.22 At [9] and [14].23 At [26].24 Moore v R, above n 19.25 Rei v R [2012] NZCA 398 at [48].It extends to whether the items located in the boot were used by Mr Moore — asopposed to another party — to manufacture methamphetamine. Ms McClintockpoints to the discovery of Mr Moore's fingerprints on two of the items found the boot,a receipt found in his backpack linking him to purchase of those items, andsurveillance footage from the retailer showing Mr Moore purchasing some of theitems. The Crown's case at trial will be that Mr Moore purchased the chemicals in theboot, subsequently used them to manufacture methamphetamine and was transportingitems used in that process when his vehicle was stopped.[26] Viewed in this light, we are satisfied that Judge Sharp was correct in findingthat the extent of the similarity between the 2006 and 2016 offending, its unusualnessand the commonality of features together reinforce the probative value of thepropensity evidence. Mr Moore's previous convictions show, as the Judge found, thatin 2016 he knew how to manufacture methamphetamine and was in possession ofequipment for that very purpose.26 The linkage is strong and reduces, Mr Moore'sability to advance an innocent explanation for his presence in the vehicle transportingequipment which had been used recently to manufacture methamphetamine.Similarly, he will have difficulty in explaining away the presence of his fingerprintsand his purchase of incriminating items. The facts of his 2006 offending tend to showMr Moore's propensity to involve himself actively in manufacturingmethamphetamine for commercial gain in 2016.27[27] Ms Ives submits that admission of evidence of the earlier convictions will leadthe jury to adopt an impermissible reasoning process. It will encourage the jury'sacceptance that Mr Moore is guilty on this occasion because he has been guilty before.Its admission of the evidence will cause him unfair prejudice which outweighs anyprobative value it might have.28[28] Submissions of this type are frequently raised but rarely successful.The evidence of Mr Moore's previous convictions is likely to be prejudicial toMr Moore's defence at trial. But that is because of the inherently probative strength26 Ruling 2, above n 2, at [15].27 Evidence Act, s 40(1)(a).28 Section 43(1).of the propensity evidence in the context of this case and not because of anyillegitimate unfairness. We assume the trial Judge will direct the jury appropriately onthe use to be made of the propensity evidence to mitigate any risk of unfair prejudiceto Mr Moore.Result[29] The application for leave to appeal is granted.[30] The appeal is dismissed.[31] To protect Mr Moore's fair trial rights, we make an order prohibitingpublication of the judgment and any part of the proceedings (including the result) innews media or on the internet or any other publicly available database until finaldisposition of trial. Publication in law report or law digest is permitted.Solicitors:Crown Solicitor, Auckland for Respondent