The Queen v Potae [2000] NZCA 152; [2000] 3 NZLR 375 (7 August 2000)

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The Queen v Potae [2000] NZCA 152 (7 August 2000); [2000] 3 NZLR 375

Last Updated: 8 December 2011

NO PUBLICATION UNTIL AFTER TRIAL
IN THE COURT OF APPEAL OF NEW ZEALAND	CA136/00

THE QUEEN

V

STEPHEN MICHAEL POTAE

Hearing:	20 July 2000
Coram:	Tipping J Baragwanath J Panckhurst J
Appearances:	J P Takas for Appellant J C Pike for Crown
Judgment:	7 August 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] Stephen Michael Potae applies for leave to appeal against a ruling of the District Court declaring certain evidence admissible at his forthcoming trial on a charge of cultivation of cannabis. Two matters are in issue. The first relates to a search warrant and the second to admissions made by Mr Potae.
[2] Between 29 June and 2 July 1999 a tandem axle trailer loaded with 22 sheets of galvanised iron and two axle assemblies was stolen from a property in Lawrence. On 29 July 1999 the stolen trailer was located at a rural property in the Manuka Gorge, parked out of sight of the road and with a quantity of recently cut firewood at its rear. A local farmer, Mr Thompson, informed the police that this firewood had been cut, split and stacked by Mr Potae and another person. The sheets of iron and the axle assemblies were not with the trailer. On 30 September 1999 the police applied for and obtained a search warrant on the basis of a belief that a search of the addresses of the two men would reveal these items.
[3] On 4 October 1999 the police executed the search warrant at Mr Potae's property. Mr Potae's partner, Ms Foster, was present at the time of the search but Mr Potae was not. In the course of the search the police located approximately 273 cannabis plants, mostly in a car parked on a section next to Mr Potae's driveway. 55 cannabis seedlings were found in a garage on the property and 2.5 grams of cannabis leaf material was located on top of the refrigerator inside the house.
[4] Ms Foster admitted owning the car in which the cannabis was located but stated that it had not gone for about a year. She denied any knowledge of the cannabis. Mr Potae was interviewed twice by the police and admitted responsibility for all the cannabis.
[5] He has challenged the validity of the search warrant executed at his property. He has also challenged the admissibility of his statements to the police on the basis that they were made under an inducement likely to cause an untrue admission of guilt to be made. On an application to the District Court under s344A of the Crimes Act 1961, the Court ruled that the warrant was valid and that the evidence was admissible.

Search warrant - affidavit in support

[6] The applicant's first ground for his application is that at the time the search warrant was issued the police did not have the necessary reasonable grounds of belief to support the issue of a warrant pursuant to s198 of the Summary Proceedings Act 1957.
[7] It is the applicant's submission that the affidavit in support of the warrant application, which relied solely on the information supplied by Mr Thompson, provided an insufficient foundation to support the required reasonable belief. It is submitted that further enquiries should have been made by the police before the application for a warrant was made or, in the alternative, that the Judicial Officer granting the warrant should have adjourned the application to enable those enquiries to be made. In particular it is said that other people had been cutting firewood in the vicinity of the stolen trailer and that there was no direct evidence that the applicant had any connection with the trailer.
[8] The inference which was drawn by the police was that as the trailer in question was located in a remote rural area directly alongside where Mr Potae had been observed cutting firewood, Mr Potae must have a connection with the trailer. The District Court held:

On the face of it that in my view presents as a perfectly reasonable inference to have drawn and I do not accept that the situation necessarily called for any further questioning of Mr Thompson. There was nothing to indicate, for instance, that Mr Thompson might be unreliable and in the circumstances I am satisfied that the Constable was entitled to proceed on the information he had received.

We agree. The inference drawn by the police was a logical and common-sense one on the information before them and was indeed acted on by Constable Schwartfeger immediately upon looking at the file on 30 September 1999. There were reasonable grounds for believing as well as suspecting that the axles and iron would be found at Mr Potae's property, to refer to the distinction between belief and suspicion made by Mr Takas.

Search warrant - information too old?

[9] The validity of the warrant is also challenged on the basis that the information on which the application for the warrant was based had become too stale at the time it was relied on. The trailer was located and Mr Thompson interviewed on 29 July 1999. The application for the search warrant was not made until 30 September 1999. In support of this ground of appeal the applicant has placed emphasis on the decision of this Court in R v McColl (CA135/99, 29 July 1999).
[10] McColl can however be distinguished on its facts from the present case. In McColl, not only was the information relied on in support of the warrant application almost three months old but the detective's affidavit was held to be misleading in that it did not disclose this fact to the Judicial Officer. The detective's affidavit in that case was also found to be incomplete in other respects and the Court noted that the activity in question, namely drug dealing, would not necessarily have carried on indefinitely. The Court also pointed out that, even had the affidavit been accurate, nowhere was the delay in acting on the information received adequately explained, whether by reference to further enquiries, pressure of work, or otherwise.
[11] By contrast, in the present case there is no suggestion that Constable Schwartfeger's affidavit was misleading in any way. His affidavit clearly stated the date on which the information was received. In the present case we are also concerned with possession of stolen property in circumstances where there was reason to suppose that those who stole the trailer could still be in possession of the items it contained. Thus it cannot be said that the information in the present case would necessarily have degraded in the way that occurred in McColl. In addition, the District Court Judge found that Constable Schwartfeger had provided a reasonable explanation for the delay in acting on the information, in that he had not received the file until 25 August 1999 and, because of staffing shortages, had not examined the file until 30 September. As we noted earlier, immediately upon looking at the file the Constable acted to obtain a search warrant.
[12] For these reasons we consider the District Court was correct in holding the search warrant in the present case to be valid. This ground of the intended appeal cannot succeed. The delay did not vitiate the constable's grounds for belief at the time of the application that the stolen goods were at the address.

Reasonableness of search

[13] The applicant's second ground for his application relates to the reasonableness of the search conducted by the police on 4 October 1999 pursuant to the search warrant. It has been submitted that it was unreasonable for the police to search Mr Potae's house given that they were searching for roofing iron and axle assemblies. The District Court Judge dealt with this argument as follows:

The depositions disclose that the exterior of the property was searched first. The cannabis plants were located in the car and it was only then that the house was searched. Given that sequence I do not find any unreasonableness. The search of course that later occurred was in reliance on s18(2) of the Misuse of Drugs Act 1975.

We agree. The outside search was undoubtedly reasonable. What was then found gave perfectly reasonable grounds to search the inside of the house. There is no merit in this point.

Inducement - s20 Evidence Act 1908

[14] The third ground concerns admissions made by Mr Potae. Counsel argued they should be ruled inadmissible because they followed what was said to have been a clear and unequivocal statement by the constable that, if Mr Potae did not accept responsibility, his partner, Ms Foster, would also be charged. This, submitted Mr Takas, was an inducement within the meaning of s20 of the Evidence Act 1908 which provides:

20 CONFESSION AFTER PROMISE, THREAT, OR OTHER INDUCEMENT-

A confession tendered in evidence in any criminal proceeding shall not be rejected on the ground that a promise or threat or any other inducement (not being the exercise of violence or force or other form of compulsion) has been held out to or exercised upon the person confessing, if the Judge or other presiding officer is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made.

[15] We will consider first whether the constable's words or conduct amounted to an inducement. We will then refer to the second aspect of the section; that is, whether if there was an inducement it was likely to cause an untrue admission of guilt to be made.
[16] Mr Takas relied heavily on the decision of this Court in R v Peacock (CA429/95, 7 November 1995). In that case the police found drugs and drug related paraphernalia at a rural property occupied by Mr Peacock and a young woman. She was absent at the time of the search. Mr Peacock was taken to the police station for interview. The young woman arrived there separately and was interviewed by another officer in a different room. Both Mr Peacock and a lawyer who had been called to the station to advise him, knew that the police were considering the possibility of charging her. She was distressed and crying, and Mr Peacock was very concerned about her. He had previously denied any involvement and had been advised to say nothing. Following further discussion, and the obtaining of advice by the lawyer from a senior practitioner as to the options, Mr Peacock instructed the lawyer to tell the interviewing detective he would make a statement admitting responsibility if the young woman was not charged. The detective obtained approval from a superior to proceed on that basis. Mr Peacock made his confessional statement and was charged. The young woman was not and left the police station.
[17] The High Court held the agreement was an inducement. It was the reason why the statement was given and it was operating on Mr Peacock's mind when he made his admissions. This was despite the fact that the proposal had emanated solely from Mr Peacock. The High Court held, following R v Paul (CA107/95, 11 August 1995) that, once the police agreed to a proposition of this kind, they were holding it out to the suspect, even though he may have been the first to mention it. This Court upheld the view of the High Court Judge and endorsed R v Paul in its conclusion that it is not determinative how such a proposal as this arose or who initiated it.
[18] In the present case the District Court Judge dealt with Mr Takas' argument based on Peacock in this way:

In my view Peacock can be distinguished on its facts. The situation that existed at the police station in Peacock is quite different. It was plainly a stressful situation from the respondent's perspective with a need to make some urgent decision so as to prevent his girlfriend from being charged. In the present case the time frame was quite different with matters proceeding in a far more leisurely fashion. There is no suggestion of Ms Foster being distressed or expressing concern about the possibility of being charged. She was not even at the police station. It is also apparent that not only did the accused initiate the first contact with the police on 5 October 1999, but he went there specifically for the purpose of admitting responsibility for the cannabis after having taken legal advice. Admittedly, after he rang his lawyer in the course of that interview it is obvious that he changed his mind but he then had time to consider his position overnight. He obviously took advantage of further legal advice and, having received that advice, he made the decision the following day to make a confession to the police. Rather than a case of there being an inducement the circumstances suggest that the position the accused found himself in was entirely self induced. I am therefore not prepared to find that there was any inducement.

The Judge then went on to say that if he had been of the contrary conclusion, he would have had difficulty accepting that the circumstances were likely to have caused an untrue admission of guilt to be made.

[19] Mr Takas argued that although there were factual differences between the present case and Peacock, those differences did not touch on the essence of the decisions in Peacock and Paul which was that never mind how the proposal arose or from whom it emanated, there was an inducement to Y if the police agreed that X should not be charged if Y confessed. It is necessary to consider whether a proposition in that form correctly represents the law and, if not, what the correct position is.

The concept of inducement

[20] It is desirable to return to s20. The word "inducement" is coupled with the words "promise or threat". The composite phrase is "a promise or threat or any other inducement". Promises and threats are apt to incline suspects to accept guilt when they are not guilty. That is the rationale for being careful about admitting confessions which have resulted from promises and threats. The same rationale must apply to "other inducements". In broad terms therefore an inducement may be anything which might logically incline a suspect falsely to admit guilt. This matches the second aspect of the section which directs the Court not to reject the confession if the means by which it was obtained were not in fact likely to cause an untrue admission of guilt to be made. At the first step the Court has to consider whether what is asserted as an inducement was logically capable of inclining a suspect to make a false confession. At the second step the Court must consider whether, although so capable, the inducement was actually ("in fact") likely to do so.
[21] In the course of the first enquiry, ie. whether there has been an inducement at all, it is important to bear in mind that, to qualify under s20, the matter claimed as an inducement must have been held out to or exercised upon the person confessing by another person. Whether that has to be by a person in authority, as at common law, needs no present discussion because the constable clearly was such a person.
[22] The District Court Judge considered there had been no inducement on the basis of his view that Peacock's case could be distinguished on the facts. That approach is understandable in the light of the way the point appears to have been presented to him. It should also be noted that in each of the cases of Peacock and Paul a form of deal had been struck, to the effect that a partner would not be charged if the person concerned confessed. The essential enquiry in the present case is whether the constable held out to Mr Potae or exercised upon him anything logically capable of inclining him to make a false admission. To determine that, reference must be made again to the relevant facts as the Judge found them.

Background circumstances

[23] Mr Potae came into the police station at 9.10am on the morning following the search. There had been no prior communication between him and the police, but clearly he had spoken to his lawyer. His lawyer had advised him to come in and say that the cannabis was all his. The constable did not simply act on that admission. He said that was fine, as long as the cannabis did all belong to Mr Potae. He made it clear to Mr Potae that he should not admit anything if it was not true. Mr Potae was then cautioned and advised of his rights. He repeated what his lawyer had advised him, namely "to go in and say the cannabis was his". Mr Potae then rang his lawyer again and, having done so, this time he told the constable he did not wish to say anything, and no longer wished to admit the cannabis was his. Thereafter he had no comment to various questions the constable put to him. He was arrested at 10.07am and then bailed. Later the constable told Mr Potae that, as neither he nor his partner were admitting liability for the cannabis, he, the constable, had no option but to charge them both, that being the Judge's rendering of the constable's evidence that he had no choice but to arrest Ms Foster the following day. As far as the constable was concerned the matter was left on that basis.
[24] After having taken further legal advice, Mr Potae made contact with the police again later the same day. He indicated to the constable that he wished to come into the station and make a statement admitting the cannabis was all his. Mr Potae said that he did not want his partner involved as the cannabis had nothing to do with her. An arrangement was therefore made that he would call at the station at 9am the following morning. He did so, and was again advised of his rights. He made a statement, which the constable recorded in his notebook, in which he admitted responsibility for cultivating the cannabis. When the statement had been completed the constable asked him whether there was anything further he wished to say. He replied to the effect that he was only making the statement, after refraining from doing so the day before, "because you're going to arrest Villane [his partner] and it has nothing to do with her". The constable then asked Mr Potae whether he was making the statement of his own free will. He replied "not really, only because you are going to arrest Villane, otherwise I would've made a statement yesterday". Mr Potae then read through the notes which the constable had taken recording the statement, and signed them as a true and correct record.
[25] It is in the light of this somewhat strange sequence of events that the Court must determine whether any of the admissions which Mr Potae made were the subject of inducement. It is necessary to identify the various admissions and examine the circumstances in which each was made.

The various admissions

[26] The first admission occurred on the morning following the search. Mr Potae arrived at the police station and told the constable his lawyer had advised him to come in and say the cannabis was his. While that way of putting it might suggest what Mr Potae was saying was not correct, and indeed the constable to an extent reacted in that way, what is clear beyond argument is that, to the extent this amounted to an admission, it was in no way made as a result of any inducement held out by or exercised upon Mr Potae by any other person, whether the police or anyone else. It would be ridiculous to suggest that the legal advice Mr Potae had received amounted to an inducement in terms of s20. Indeed Mr Takas, who was the provider of that advice, understandably did not so submit. There is therefore no basis for excluding from evidence what Mr Potae said to the constable shortly after 9.10am on the morning after the search.
[27] What happened thereafter up to 10.07am did not involve any admission, rather an attempted retraction of the earlier admission. There is no basis on which the evidence of these events and this exchange between Mr Potae and the constable should be ruled inadmissible. The constable then indicated to Mr Potae that as neither he nor his partner had admitted responsibility for the cannabis, there was, as the Judge put it, no option but to charge them both. This was no doubt intended simply as a statement of the course of action which the constable proposed to follow. The question is whether, even if not intended to induce Mr Potae to admit guilt, the constable's statement amounted to an inducement if it might have had that effect. We consider that in the light of Paul and Peacock, and indeed the terms of s20 itself, the focus must be on the effect of the alleged inducement on the person confessing, rather than on the purpose of the person responsible for the inducement.
[28] As earlier noted, s20 involves two concepts. The first is whether an inducement has occurred; the second is whether, if so, the inducement was likely to cause an untrue admission of guilt. The second enquiry focuses on the likely effect of the inducement and presupposes that there may be an inducement whose effect is not likely to cause an untrue admission of guilt to be made. The section therefore contemplates what might be called an innocuous inducement, but an inducement nevertheless. Conceptually therefore the section envisages something being an inducement without it necessarily having the effect of inducing a false admission. That is why we said earlier that the section envisages as an inducement anything logically capable of causing a false admission. The safeguard against wholesale rejection of evidence on account of inducement lies in the fact that the Judge is required not to rule the confession out if satisfied that, despite the capacity of the inducement to cause a false admission to be made, it was not in fact likely to have that effect.
[29] It follows also that the concepts of the inducement being held out or exercised upon the person confessing, are to be viewed from the point of view of the effect of the inducement rather than the purpose of the person said to have given it.

Inducement - this case

[30] We return to the constable's indication that both Mr Potae and his partner would be charged. That statement was capable of having the effect of inclining Mr Potae falsely to accept full responsibility. Thus it was an inducement in terms of s20. It was held out by the constable but we are of the view that it was not in fact likely to cause Mr Potae to make an untrue admission of guilt. We say that because Mr Potae had already admitted guilt without there being any sort of inducement to do so. The words he used, ie. that he had been told by his lawyer to accept responsibility were capable of meaning that he had been advised to admit guilt either because he was guilty, or so as to protect his partner. It will be open to Mr Potae at trial to give evidence on this issue if he wishes. But one thing is clear, there was at that stage nothing amounting to an inducement. Both for that reason, and because of the neutrality of the constable's observation that he had no option but to charge both, we consider that observation was in fact most unlikely to have caused an untrue admission.
[31] We come next to the events later the same day. It is at this point that Mr Potae indicated he did not want his partner involved as the cannabis had nothing to do with her. His observation that the cannabis had nothing to do with her, inevitably meant he was again saying it was all his. To this point there can be no suggestion that Mr Potae was making this further admission on the basis of some proposition or arrangement that Ms Foster not be charged. That may have been in Mr Potae's mind, but nothing had been said or done by the constable to suggest that the police would go along with the idea of not charging Ms Foster, if Mr Potae took full responsibility. In other words, nothing had been said or done by the constable which was capable of amounting to any further inducement held out to or exercised upon Mr Potae.
[32] Events then moved to 9am the following morning. Mr Potae was again reminded of his rights. He made his statement admitting full responsibility and endorsed it as true. The constable asked Mr Potae whether there was anything further he wanted to say. It was at this point Mr Potae claimed he had only made the statement because he thought the police were going to arrest his partner when the cannabis had nothing to do with her. This was of course a reference to the constable's indication the day before that he saw himself as having no option but to charge both of them. We have already indicated that whereas this was an inducement, it was, in terms of s20, an innocuous one which should not lead to the rejection of any admission to which it may have led.
[33] It may be open to the view that at this point Mr Potae was in effect asserting that what the constable had said the day before had caused him to make a false statement in order to protect his partner from arrest. In other words that he was asserting, notwithstanding the objective unlikelihood of what the constable had said causing an untrue admission, that he was now making an untrue admission. If that were to be his stance, the proposition inherent in this assertion cannot be accepted uncritically. Mr Potae was saying both that his partner had nothing to do with the cannabis, and that his own admission of responsibility was untrue and not the product of an entirely free will. In reality, if Ms Foster had nothing to do with the cannabis, the only person who could have been responsible was Mr Potae. It must also be noted that at no stage did Mr Potae assert he had no involvement at all with the cannabis himself. His crucial point seems to have been his anxiety to shield his partner. Thus if the earlier inducement was still operating at this final stage, we continue to be of the view that it is in fact unlikely to have caused Mr Potae to have made an untrue admission of his own guilt, whatever Ms Foster's involvement may or may not have been.

Conclusion - orders

[34] For these reasons we reach the same result as the Judge in the District Court, but not by the same process of reasoning. We cannot agree that there was no inducement, but we do agree that the inducement involved was not likely to have caused Mr Potae to make an untrue admission of guilt. We grant leave to appeal on the inducement point, but not on the warrant point. For the reasons given we dismiss the appeal on the inducement point.

Solicitors
Tony Horder, Dunedin, for Appellant
Crown Law Office, Wellington