RIHIA v R [2016] NZCA 200

RIHIA v R [2016] NZCA 200 [16 May 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 ZEALANDCA107/2016[2016] NZCA 200BETWEEN YVETTE ANNE RIHIAAppellantAND THE QUEENRespondentHearing: 4 May 2016Court: Kós, Courtney and Gilbert JJCounsel: R Stevens and J Owers for AppellantK Laurenson for RespondentJudgment: 16 May 2016 at 4.00 pmJUDGMENT OF THE COURTA Leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Kós J)[1] One evening in July 2015 the police received an anonymous tip that synthetic cannabis was being packaged in a Tauranga motel unit. They were given the unit number. They were told that there was a purple car outside. The informant said the activity would all be over in an hour.[2] The police went to the motel. They saw the purple car. It was outside the nominated unit. As they approached, a nearby car horn blew. A warning signal, the police thought. An officer familiar with synthetic cannabis could smell that odour coming from the unit. The officers knocked at the door. The door was opened. The smell of synthetic cannabis was now overpowering. Inside the room were Ms Rihia and two associates. So too were shopping bags and other containers of a loose green substance. These could clearly be seen from the doorway.[3] Detective Sergeant Curragh announced that a search was going to be undertaken under s 77 of the Psychoactive Substances Act 2013. That was unlawful— as the Crown concedes. Motel rooms are a private premises that cannot be searched under s 77. The search proceeded.[4] In the course of the search the police found 11 kg of synthetic cannabis, snaplock bags, scales and measuring spoons. Ms Rihia and her associates were arrested and charged with possession for supply contrary to s 70(1)(c) of the Psychoactive Substances Act.[5] In a pre-trial decision Judge Wolff in the Tauranga District Court found the search was unlawful. But he admitted the evidence under s 30 of the Evidence Act.1Ms Rihia seeks leave to appeal that decision.District Court decision[6] Section 77 states:77 Warrantless power to enter and search(1) A constable may enter and search a place (except private premises), vehicle, or other thing without a warrant if the constable has reasonable grounds—1 R v Rihia [2016] NZDC 2075.(a) to believe that it is not practicable to obtain a warrant; and(b) to believe that there is a psychoactive substance in or on the place, vehicle, or other thing; and(c) to suspect that in or on the place, vehicle, or other thing an offence against any of sections 25, 26, and 70 has been, is being, or is about to be committed in respect of that substance; and(d) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.(2) The provisions of Part 4 (except subpart 3) of the Search and Surveillance Act 2012 apply.[7] The Judge said that s 77 would have applied were the motel room not private premises. But the Crown conceded the search was unauthorised because the motel room was private premises and not able to be searched under s 77.2[8] The Judge therefore considered s 30 of the Evidence Act and the factors listed in subs (3). He found:(a) The seriousness of the breach and the expectation of privacy were lower than they would be at a genuine private address or a motel rented for the purposes of someone staying overnight because the occupants were temporary visitors for an illegal purpose.(b) The police officers had made a genuine mistake about the extent of their powers. They were not deliberate, reckless, or acting in bad faith. The police only decided to carry out the warrantless search when they saw the purple car and smelt the cannabis.(c) The evidential value of the real evidence obtained was high.(d) The offence was serious. Under the Act, the offence is a seriousoffence of its type, attracting a maximum penalty of two years'imprisonment. The Judge referred to the purpose of the Act, which he2 This depends on the definition of "private premises" and "non-private premises" in s 3(1) of theSearch and Surveillance Act 2012.said is to prevent a "significant blight on the community". The Judgesaid the length of the penalty and the nature of the charge was a neutral factor.(e) Other investigatory techniques were available but limited by the urgency of the situation and the fact there was only a limited evidential foundation for a search warrant. The Judge did not reach a concluded view on whether powers under the Search and Surveillance Act 2012 could have been invoked.(f) There were no other real remedies except exclusion.(g) There was a real possibility of physical danger to the police. This was a neutral factor.(h) There was urgency, as the evidence would have been lost if the police had not acted then and there.[9] Overall, the Judge did not consider it was a proportionate response to the illegality to rule the evidence inadmissible.Appeal[10] The appeal focuses on points (a), (b) and (d) above. Ms Rihia says the Judge was wrong in his s 30 balancing for three reasons:(a) the Judge erred in finding the expectation of privacy was lower because the motel room was being used by temporary visitors for an illegal purpose;(b) the Judge overstated the seriousness of the offending; and(c) the Judge should have found the police were deliberately or recklessly acting improperly.Degree of expectation of privacy[11] For Ms Rihia Mr Stevens says the Judge erred in finding the expectation of privacy was lower because the motel room was being used by temporary visitors for an illegal purpose. This was inconsistent with this Court's decision in Nouri v R.3Mr Stevens submits the illegality of the use of the motel room should have no bearing on her privacy interest. Rather, Ms Rihia had an expectation of privacy similar to that attaching to a private residence.[12] Ms Laurenson submitted that the appellant may have had some privacy interest in the motel unit, but it was significantly less than she would have had in her own home. She intended to be there only for a brief period, not overnight, and the unit had been booked by someone else. She was not a motel guest in the usual way.Discussion[13] This issue arises because s 30(3)(a) requires the Judge to have regard to the importance of any right breached and the seriousness of the intrusion on it.[14] We will accept for the purposes of this appeal that the Judge may have been wrong to suggest the expectation of privacy was lower because Ms Rihia was in the motel for an illegal purpose. In Nouri the police had entered a hotel room after a tip-off by motel staff who detected the smell of cannabis when delivering room service ordered by the defendant. This Court followed its earlier decision in R v Williams4 and went on to state:5Thus, while the legality of the appellants' activity in the hotel room andconsequence breach of any licence terms should have no bearing on whether there was a legitimate privacy interest, the extent of that interest was qualified by the contractual nature of the arrangement.[15] The legality or illegality of the activity conducted at the premises may be said not to affect the nature of the right of privacy associated with the premises themselves. To put that another way, whatever the rights of privacy Ms Rihia enjoyed at the motel unit it could be said they were the same whether or not she3 Nouri v R [2012] NZCA 35.4 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.5 Nouri v R, above n 3, at [28].bought 11 kg of synthetic cannabis along with her. On the other hand, this Court has said in a number of cases that there is no confidence in an iniquity.6 On that approach it might also be argued that the expectation of privacy in private premises may be affected by the nature of the activities being conducted there. This point was not fully argued before us, and we reserve it for consideration on another occasion. Ultimately it makes no difference to the outcome in this appeal.[16] In any event, however, we consider the expectation of privacy at a hotel room or motel unit must necessarily be distinctly less than at a private residential address. First, that is the conclusion of this Court in Williams and in Nouri.7 Secondly, the right of occupation conferred is temporary only. A single night, with a bare licencevested in the person who booked the unit and limited invitees' rights for otherspresent.8 (We do not however agree with Ms Laurenson's submission that it wasmaterial that Ms Rihia was not the person who had booked the motel unit. In Nourino distinction was drawn between the relevant interests of the licensee of a hotel room, and his invitee.)9 Thirdly, in the ordinary course a visit from the motelier over some issue or other was always possible. A far more likely event than an evening visit from a landlord of residential premises, for instance. And occupants of a motel unit open to the street would reasonably expect the motelier, staff, occupants of other units and visitors to pass by the door at about 8:30 pm, might notice an unusual smell coming from one of the units if the occupants were creating that effect, and make inquiries. The door was there for all to see and to knock upon if they wished.[17] Nothing precluded the police knocking on the motel unit door. As the Supreme Court said in Tararo v R:10Members of the public, including police officers, may go to the door of private premises in order to make inquiry of an occupier for any reasonablepurpose. Police officers may avail themselves of this licence for law enforcement purposes. But they cannot invoke the licence to do anything that by law requires a warrant.6 R v Harris [2000] 2 NZLR 524 (CA) at [101], R v Cox (2004) 21 CRNZ 1 (CA) at [33]–[35], R v Javid [2007] NZCA 232 at [45].7 R v Williams, above n 4, at [124], R v Nouri, above n 3, at [26]–[29].8 At [29].9 At [31].10 Tararo v R [2011] NZSC 157, [2012] 1 NZLR 145 at [14].And no one compelled Ms Rihia and her colleagues to answer the knock and open the door, thus disclosing their unlawful conduct to public gaze.Seriousness of offending[18] Secondly, Mr Stevens submits the Judge overstated the seriousness of theoffending. The maximum sentence available is two years' imprisonment.Parliament thus clearly signalled that supply offending for psychoactive substances is to be regarded as significantly less serious than equivalent conduct under the Misuse of Drugs Act 1975. This favoured exclusion.[19] Ms Laurenson submits that given the offence is punishable by imprisonment, it cannot be categorised as minor. The Judge's categorisation of seriousness ofoffending as a neutral factor in the balancing exercise was correct.Discussion[20] We do not think the Judge overstated the seriousness of the offending. Heconsidered it to be a "neutral factor".[21] As the Supreme Court recognised in Hamed v R, the seriousness of the offending is a factor that may cut both ways.11 As Tipping J explained:12 while the public has heightened interest in seeing a determination on themerits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the stakes for the accused are high.More recently, the Supreme Court has referred to the observations in Hamed andsuggested that "seriousness" does not have primacy in the s 30 balancing assessment.13[22] In our view it would be going too far to say this offending, which was on a commercial scale, was so minor as to be a factor tending against admissibility. However the relevant maximum penalty prescribed by Parliament is just one-quarter11 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [230].12 At [239]. See also at [65] per Elias CJ and at [187] per Blanchard J.13 Wilson v R [2015] NZSC 189 at [88(b)].that for possession for supply of a Class C drug (for example cannabis).14 In these circumstances we agree with the Judge that the seriousness of the offending was neutral, neither tending towards admissibility despite illegality of the search, nor against it.Deliberate or reckless impropriety?[23] Thirdly, Mr Stevens submits the Judge should have found the police were deliberately or recklessly acting improperly. The police officers admitted they only had a quick read of s 77 and should have done more digging. The police wereinadequately trained as to the extent of their powers. This "institutional carelessness" should be disincentivised.[24] Ms Laurenson submits that the police acted in good faith, under real time pressure, and wrongly interpreted their search powers in a relatively new area of thelaw. She submits that the Judge's conclusion that the officers acted mistakenly(rather than maliciously or deliberately) was correct.Discussion[25] The three police officers gave evidence at the pre-trial hearing. We have reviewed their evidence.[26] The ranking officer was Detective Sergeant Curragh. She had not invoked s 77 before. She had a "quick read" of the section on a print-out at the police station before leaving for the crime scene. She discussed it with Detective Middlemiss. Shedid not appreciate that a motel unit would constitute "private premises", and so s 77would be inapplicable. But it appears they discussed the possibility that it might not. Given urgency, they had no way to resolve the issue before heading out the door. It did not occur to her to invoke s 117 of the Search and Surveillance Act 2012 to secure the room while waiting for a search warrant. She had had training on the Search and Surveillance Act 2012. But not on differences between that Act and the Psychoactive Substances Act.14 Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(c).[27] Detective Middlemiss was the other detective attending. He has a law degree and had practised as a lawyer for four years. He checked ss 70 and 77 of the Psychoactive Substances Act before leaving the police station. He appreciated itexcepted "private premises". He went on:We were a bit iffy about what that meant specifically and we made a call, or [Detective Sergeant Curragh] made a call, after some discussion that a motel was not a private premise.[28] Detective Middlemiss acknowledged in evidence that with the benefit of hindsight it would have been better to use s 117 of the Search and Surveillance Act. Obtaining a search warrant before entry was not a possibility given the information they had as to the short period of time the defendants would be present. Detective Middlemiss acknowledged that he was not a 100 per cent sure that the motel unitwould be outside the definition of "private premises". There was insufficient time todo further research. There was no commentary on s 77 on the Westlaw site (and still is not).[29] Senior Constable Cording, a dog handler, was the third officer attending. He was there to add man and dog-power. He also knew the smell of synthetic cannabis. He was not involved otherwise in planning the search, and his evidence adds nothing to the other officers.[30] We do not consider the police were reckless in this instance. The police officers were faced with a limited time frame, on a Saturday night. They went tosome effort to determine whether a motel unit constituted "private premises" bychecking the provision in Westlaw. This did not illuminate their discussion particularly, and they had no other real option given timing to make sure of the point. A decision was made that a power existed, where there was doubt. The error was a knowing one, but in our view it is not so improper and unreasonable as to constitute recklessness requiring summary exclusion.[31] As to Mr Stevens' submission that "institutional carelessness" and inadequatetraining of police officers should be disincentivised by excluding the evidence, a similar submission was recently rejected by this Court in Young v R:15We also do not accept that the Judge's approach creates inappropriateincentives for the police. The conduct of the two officers resulted in a finding that the search was unlawful and in breach of s 21 of the New Zealand Bill of Rights Act. In those circumstances the Judge had closely to assess the particular facts of the case in determining whether to admit the evidence under s 30(2)(b) of the Evidence Act. This is what hedid. It seems to us that Ms Kennedy's submission rests on the propositionthat where a police officer fails to obtain the necessary authority for a search because of an incorrect view of the law, the evidence should be inadmissible as this will create the necessary incentive for the police to get the law right. Such an approach is inconsistent with the scheme of s 30.The scheme of the Act permits some measure of error. Repeated or reckless error or deliberate impropriety can expect to be weighed in favour of exclusion. But this was not such a case.[32] We do not consider, therefore, that the Judge erred in not finding reckless or deliberate impropriety.Standing back — considering s 30 afresh[33] We start by noting that Mr Stevens acknowledges that the police actions described in [2] above were each lawful.16 The unlawful acts were those stated in [3] and [4]. That is important, because the offending had been legitimately observed by the police when they had, quite lawfully, knocked at the door and it had been opened to them.[34] The sole respect in which the Judge has been shown to have erred is in his assessment of the importance of the right breached by impropriety — s 30(3)(a). We accept that Ms Rihia had a privacy interest at stake, although (as a temporary invitee in a motel unit) we consider it distinctly less than applicable in the case of a private house. That privacy interest was infringed at the point the police physically entered the unit without a warrant (or otherwise without invoking s 117). Given the15 Young v R [2016] NZCA 107 at [25].16 That must be correct in light of the Supreme Court's decision in Tararo v R, above n 9.diminished privacy interest concerned, the seriousness of the intrusion was less than it would have been had a private home been involved. Nonetheless, viewed overall the infringement favours exclusion. Turning to the other two findings challenged, the seriousness of the offence — s 30(3)(d) — is we agree a neutral consideration. And this was not a case of reckless error or deliberate impropriety — s 30(3)(b).[35] But we agree with the Judge there are three significant factors here favouring admissibility: the location of real evidence (which was visible in any event on a lawful basis) — s 30(3)(c); the ability to have achieved the same result by lawful securing of an intended search site under s 117 of the Search and Surveillance Act —s 30(3)(e), to which we will return — and the obvious issue of urgency which meant that a search warrant could not have been obtained before the police attended the premises — s 30(3)(h). None of these factors are contested by Ms Rihia.[36] Returning briefly to s 30(3)(e), in R v Kueh this Court was concerned with an unlawful search of a motor vehicle, ostensibly under s 18(2) of the Misuse of Drugs Act 1975. However the officer could instead have relied on the powers in ss 317A and 317AA of the Crimes Act 1961 to arrest Mr Kueh and then search his vehicle. Admitting the evidence under s 30, this Court said:17There was no additional restraint on Mr Kueh compared with what would have been the case if the correct power were relied on. Nor was there any other prejudice to him because the wrong power was relied on.The same applies in this case, because s 117 of the Search and Surveillance Act 2012 would have applied here. Having lawfully observed the presence of the synthetic cannabis in the motel unit (the facts described in [2] not being challenged as unlawful), the scene could have been secured under s 117 and a warrant then obtained. The operative error in this case was the police failure to consider that course of action.[37] We consider ultimately that the balance under s 30 comes down clearly in favour of admission of this evidence. A credible system of justice does not require its exclusion in a context where the evidence is real, the error as to power was one17 R v Kueh [2013] NZCA 616 at [50].made in good faith in the context of urgency, and lawful but uninvoked powers to secure the same evidence in fact existed.[38] However we observe that to ensure that this does not become a repeated rights infringement, risking summary exclusion, the police should ensure that its detective force is properly informed of the limits to search rights of private premises (including hotel and motel units) under s 77 of the Psychoactive Substances Act.Result[39] Leave to appeal is granted.[40] The appeal is dismissed.[41] For fair trial reasons, an order is made prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in a law report or law digest is permitted.Solicitors:Public Defence Service, Tauranga for AppellantCrown Law Office, Wellington for Respondent