R v T CA132/96 [1996] NZCA 300; (1996) 3 HRNZ 77 (6 June 1996)

Last Updated: 20 November 2014

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.132/96}

ORDER PROHIBITING THE QUEEN

PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL TRIAL

v

_T

Coram: Eichelbaum CJ Gault J

Heron J

Hearing: 21 May 1996 (at Christchurch) Counsel: D N Bunce for Appellant

J H M Eaton for Crown

_{Judgment: 6 June 1996}

_{JUDGMENT OF THE COURT DELIVERED BY GAULT J}

This is an application for leave to appeal from a pre-trial ruling under s 344A Crimes Act 1961 that evidence may be given of the seizure from the applicant and subsequent analysis of morphine sulphate as well as evidence of questions to the applicant relating to her possession of the morphine sulphate tablets and her answers.

The applicant is charged with possession for supply of the Class B controlled drug morphine. The evidence in question relates to events at the time of, and subsequent to, the execution by the police of a search warrant at premises in Christchurch. On arrival one member of the police squad Detective Bermingham

sought entry by pushing the buzzer at the entrance which was scanned by a video camera enabling him to be seen from inside. Other members of the police squad remained out of view until the door was open. It happened that the applicant who was inside recognised the detective seeking entry and when the police had gained entry it appeared to Detective Constable Scoles who was to search the applicant that she had concealed something in her mouth. The accounts of just what occurred differ to some extent.

Detective Constable Scoles said in a deposition statement, taken as evidence on the application without cross-examination, that she asked the applicant what was in her mouth and asked her to open it which she did disclosing an object. The detective then said:

I then restrained her arm from behind and told her to spit the object out.

She said - No let go.

At this stage Detective Bermingham returned to the room to assist me. Approximately 30 seconds later she pushed the object out between her

teeth to the bed.

Detective Bermingham, also in a deposition statement accepted for the purpose of the application, said:

Detective Scoles turned to the defendant and said in hearing of the defendant, "What's that in your mouth?

The defendant turned her head, attempted to speak, but it was obvious there was something in her mouth.

Detective Scoles then grabbed the defendant by her hands from behind and instructed her to spit out what was in her mouth.

The defendant refused, stating she had nothing in her mouth, but it was obvious to me that there was.

It was obvious the defendant was attempting to swallow a large item but was having difficulty.

I then grabbed the defendant by the neck from behind and pushed her head forward making it even more difficult for her to swallow.

The defendant struggled furiously but was restrained by Detective

Scoles holding her arms.

The defendant then fell face first onto the bed with Detective Scoles still holding her hands.

I instructed the defendant several times to spit the item out of her mouth and I told her she wouldn't be able to swallow it now she was lying face down on the bed.

She was tired and spat out a large roll of Gladwrap out of her mouth. She was unable to spit the whole item out of her mouth and she was

^{saying, "Take it, take it".}

I then grabbed the Gladwrap which was half out of her mouth and pulled it out.

The applicant gave evidence before the Judge. She denied having been asked to open her mouth and having done so initially. The material parts of her evidence were:

She asked me what was in my mouth. I said, I just shook my head and she pulled my arms behind my back and threw me on the bed. I started struggling and she just pulled harder and broke my watch and I started choking.

She called in another detective to come into the room, that detective was Dave Bermingham. Dave Bermingham, he put his hands round the side of my neck and it kept going further down my throat and I kept choking. I was trying to spit it out but he kept telling me to spit it out, they were both struggling with me.

...

While being restrained, the packing in my mouth was going further down my throat. I decided to try and spit it out but each time they were hanging on to me around my neck and my arms I just couldn't breathe. The package was eventually expelled from my mouth, I managed to push it forward to my mouth at one stage, I kept saying

take the package, take the package and a hand I don't know whose came around the side and took it.

The Crown wishes to lead evidence of the contents of the package (17 morphine sulphate tablets) and of the questions and answers relating to that. The objection was that the package was obtained in breach of the applicant's rights under s

21 of the New Zealand Bill of Rights Act 1990 by unlawful means amounting to unreasonable search and seizure and that all the evidence relating to it should be excluded. The unlawfulness relied upon was contravention of s 18A(1) of the Misuse of Drugs Act 1975 which reads:

Notwithstanding anything in section 57A of the Police Act 1958 or any other enactment or rule of law to the contrary, no member of the Police shall conduct an internal search of any part of the body of any person nor, except in accordance with subsection (2) of this section, shall he cause any other person to conduct such a search:

Provided that, with the consent of the person concerned, a member of the Police may search that person's mouth.

The District Court Judge determined that there was no search of the applicant's mouth; that the seizure of the package was not unreasonable and that even if the removal of the package constituted search of the mouth the applicant in requesting removal of the package consented to it. In the course of his ruling the Judge said that because of the acceptance without cross-examination of the deposition statements of the two detectives he accorded little or no weight to any inconsistent assertions made by the applicant.

The appeal was brought on four grounds which in logical sequence were that the Judge should not have preferred the evidence of the detectives in the circumstances; that it was wrong to separate search and seizure finding that there was the latter but not the former and therefore no breach of s 18A(1); that therefore a breach of the applicant's rights under s 21 of the Bill of Rights Act should have been

found, and that because of the breach of rights and in the exercise of the Court's supervisory and disciplinary responsibilities in relation to the police the evidence should have been excluded.

While we do not consider that the outcome turns on any differences in the accounts of the witnesses, we have no doubt it was open to the Judge to construe the absence of any call for cross-examination of the police witnesses as acceptance of the evidence in their statements. The circumstances prevailing at the time the application was heard may have meant that the procedure to be followed was not clearly appreciated. The application was made orally immediately before the trial was to commence and while the jury panel was waiting. This understandably gave rise to some impatience on the part of the Judge.

In the absence of any specific directions the Crown should have presented the evidence in support of the application for the order that the evidence be admitted followed by any evidence by or for the accused as respondent. As a matter of efficient practice, to enable the Judge properly to consider the evidence as it is given and appropriately confine cross-examination, it is important on applications such as this to have specified the competing grounds for and against admissibility before any evidence is given.

The conventional procedure, which is no different than for the trial itself, necessarily underlies the well established rules such as that contrary evidence which is to be called should be put to witnesses in cross-examination and that it can be inferred from the absence of cross-examination that evidence is not challenged.

We do not accept the contention that after hearing the evidence given before the Judge by the respondent the Crown then had a responsibility as applicant to call witnesses to address any evidence of the respondent not accepted. The Crown's

evidence on the application was taken to be that in the deposition statements of the two detectives. After the respondent had given evidence the only circumstances in which further evidence could be given from Crown witnesses would be within the usual criteria for allowing evidence in rebuttal.

Doubtless in an effort to expedite the matter it was decided to accept the deposition statements as the Crown evidence even though the two detectives were present (to give evidence at the trial). In agreeing to that course counsel for the respondent necessarily accepted the consequences of forgoing the opportunity to cross-examine.

In the course of the hearing it became apparent that the primary issue on the appeal is whether there was a breach of s 18A(1) of the Misuse of Drugs Act. That section prohibits an internal search by the police of any part of the body. It is apparent from the proviso that the prohibition extends to any internal search of a person's mouth without consent.

Some indication of what constitutes an internal search is given by subsection (2) which refers to a nominated medical practitioner conducting (if the arrested person permits - subsec (3)):

... an internal examination of any part of the suspect's body by means of an X-ray machine or other similar device, or by means of a manual or visual examination (whether or not facilitated by any instrument or device) through any body orifice.

Relevant for present purposes it may be said that the prohibition in subsec (1) is of a manual or visual examination of the interior of the mouth. Plainly that should not be construed as prohibiting the viewing of what can be seen by normal observation of the face and when the mouth is open as for speech. For example it would be absurd to

suggest that a police officer is prohibited from noting that a person has a front tooth missing or a gold filling. A practical approach to the construction of the section is called for. The purpose of the section is to prevent invasion of the body contrary to accepted standards of dignity, bodily integrity and privacy. Probing within the mouth with a finger or other instrument or forcing or holding open the mouth so as to conduct a visual examination of the interior are what seem to be contemplated.

In accordance with the authority of the search warrant the detectives were entitled to search the person of the applicant but were prohibited from conducting an internal search of her mouth. They did not do that. One held her arms and, knowing she was holding an object in her mouth, the other pushed her head forward by holding her neck to prevent her swallowing. As a result, and because of her struggling, she fell onto the bed and partially expelled the package. At her insistence it then was removed.

Mr Bunce argued that there is an internal search where (as here) there is a search, however conducted, for what is internally concealed. That would mean that to ask someone to speak to ascertain whether they have or have not something in their mouth (even a tooth) would be prohibited. That cannot have been intended. In R v Hughes [1994] 1 WLR 876 the Court of Appeal was required to consider whether there was an "intimate search" within s 118(1) of the Police and Criminal Evidence Act

1984 which is defined as “a search which consists of the physical examination of a person's body orifices”. It was held that there was no such intimate search by a policeman who had seen a person take something from his pocket and put it in his mouth then holding him by his jaw and the outside of his nostrils so as to force him to breathe through his mouth and spit out the object (a cellophane wrapper containing cannabis resin). On the approach contended for by Mr Bunce the physical search of what was internally concealed would have been an intimate search. In R v Hughes the similar argument - that any attempt to discover and reveal the contents of a body orifice is an intimate search - was rejected. It was held the statute contemplated

physical intrusion into the body orifice. That the New Zealand section, because of the part of subsec (2) referred to, might extend to visual as well as physical intrusion makes no difference. It is the intrusion into the mouth that the section is intended to prevent.

We are satisfied that although there was undoubtedly a search of the person as the warrant authorised there was not an internal search which s 18A(1) renders unlawful.

It does not follow from what we have said that physical acts by members of the police designed to force a suspect to reveal and release the contents of the mouth may not be unlawful on other grounds such as unreasonable search and seizure contrary to s

21 of the Bill of Rights Act or because what is done goes beyond what is reasonably necessary to carry out any authorised search; Crowley v Murphy (1981) 34 ALR

496,521, R v Pratt [1994] 3 NZLR 21.

It should not need emphasising that there are dangers in interfering with a person's breathing and a real risk of choking when a person with an object in the mouth is subjected to physical treatment. There should not be disregarded the Report of the Police Complaints Authority on the Investigation into the death of Emmanuel Papadopoulos in Wellington on 30 December 1989. The importance of detecting and prosecuting drug offending must be balanced against the safety and dignity of all persons, including those suspected of offending.

In the present case Mr Bunce acknowledged that if it were held that there had not been an unlawful internal search there were no grounds on which he could reasonably advance an argument that nonetheless there was a breach of s 21 of the Bill of Rights Act by unreasonable search and seizure.

Accordingly, although for somewhat different reasons from those given by the

Judge, we are satisfied that he was right to allow the evidence to be given.

Leave to appeal is granted but the appeal is dismissed.

Solicitors

Kinsman Barker, Christchurch, for Appellant

Crown Solicitor, Christchurch, for Crown.