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Last Updated: 13 December 2014
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLCLY
ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW
REPORT OR LAW
DIGEST PERMITTED
IN THE COURT OF APPEAL OF NEW ZEALAND CA222/01
THE QUEEN
V
CARWYN BYNON-POWELL Hearing: 31 October 2001
Coram: Tipping J McGrath J
Young William J
Appearances: M J Levett and K Maxwell for the Appellant
J C Pike and M J Ruffin for the Crown
Judgment: 12 November 2001
JUDGMENT OF THE COURT DELIVERED BY McGRATH J
Introduction
[1] This appeal concerns the rights of travellers arriving in New Zealand during the time that they are required to remain in a customs controlled area, pending decisions by customs officers concerning the exercise of their statutory powers. Over this period customs officers will gather information and make judgments on whether to apply their powers, including powers of personal search of particular travellers. The appeal itself is against an order made in the District Court on 3
July 2001, under s344A of the Crimes Act 1961, holding evidence of customs
officers disclosed in depositions to be admissible at the
trial of the appellant
on a charge of importing a class B controlled drug into New Zealand. As a
result of a personal search of
the appellant by customs officers, following his
arrival at Auckland International Airport having travelled from London, 45
ecstasy
tablets were found concealed in one of the appellant’s
shoes.
[2] The basis for the challenge to admissibility of evidence of the
search was that it was unreasonable under s21 of the New
Zealand Bill of Rights
Act 1990 because it resulted from unlawful and unfair questioning of the
appellant without advising him of
his rights, including his right to
counsel and to refrain from making a statement to Customs Officers.
The facts
[3] On 31 December 1999 the appellant, who is a New Zealand citizen,
arrived in New Zealand landing at Auckland Airport after
flying from London.
After completing immigration formalities he went to collect his luggage
from the customs hall in
the international terminal.
[4] At 10.20am Customs Officer Anthony spoke to Customs Officer Dalton,
who was working with a narcotics detector dog, in the
customs hall. Ms Anthony
had been observing passengers who had arrived on the appellant’s flight
and considering whether
they fitted what she referred to in her
evidence to the District Court as “an operational profile”. Ms
Anthony
told Ms Dalton that the appellant was giving the impression he was
avoiding her and the dog, and asked Ms Dalton to take the dog
around the
appellant. Ms Dalton did so with a resulting positive indication from the dog
in relation to the appellant’s luggage.
Ms Dalton reported the indication
to Ms Anthony who approached the appellant.
[5] At Ms Anthony’s request the appellant accompanied her to the customs search area where, at 10.35am, she commenced searching his luggage. During the search Ms Anthony asked the appellant a number of questions about his luggage and his customs declaration form. She also asked him if he had used
drugs at all. This was standard practice when a narcotics detector dog had
given a positive indication. The appellant admitted
to using cannabis,
that he had smoked a joint recently, and that he had used cocaine. In
response to a further question whether
he had any items on him that Ms Anthony
needed to be aware of he replied no. Nothing was found by the officer in the
course of this
search of his luggage other than some pills in a cannister which
were immediately tested with a result indicating they were not illicit
drugs.
[6] Under s149(2) of the Customs and Excise Act 1996 a customs officer
who has reasonable cause to suspect an arriving traveller
has hidden on or about
his person dutiable, uncustomed, prohibited or forfeited goods or related
evidence may cause that person to
be detained and searched. Ms Anthony served a
notice on the appellant which advised him, in capital letters, he was being
detained
for personal search under s149. The form went on to inform the
appellant of his rights. It said he had the right to be taken before
and
processed by a justice or community magistrate before being searched. He also
had the right to instruct and consult a lawyer
without delay and the right
to refrain from making a statement. The form included a provision for the
recipient to elect
to be searched without being taken before those
officials.
[7] Ms Anthony gave evidence that she went through the notice
with the appellant pointing out the references to his
rights. The appellant
indicated he did not wish to speak to a lawyer. Having read through the notice
he signed it indicating his
consent to the search proceeding.
[8] In her evidence in chief Ms Anthony said that the matters on which she relied as providing the basis for her reasonable cause to suspect the appellant had hidden prohibited goods on or with him were his avoidance of the drug dog while in the Customs Hall, the dog’s positive indication in relation to his baggage, the appellant’s general body language while in the search area, and his admissions to using cannabis and cocaine. She also referred to what she described as the appellant’s drug profile. She had been aware from his travel and arrival documents that the appellant was aged between 20 and 30, was travelling from a particular part of London and was a chef by occupation. In cross-
examination she accepted that the two ultimate reasons for the decision to
search, which she had noted down at the time, were the
dog’s indications
and the appellant’s admissions to using drugs. She also accepted when
pressed it was the admissions
which were crucial. Ms Anthony then searched the
appellant’s luggage again. It was also x-rayed, in each case with no
significant
result.
[9] The search of the appellant was conducted by Customs Officer Brown
who was the assistant team leader on duty overseeing
what was happening in the
customs hall. He commenced the search at around 11.20am. Before doing so Mr
Brown also reiterated to
the appellant that he had a right to consult a lawyer
and not to make a statement. The appellant reiterated he did not wish to
exercise
either right. Soon after the search commenced Mr Brown located a bag
of 45 ecstasy tablets in the appellant’s right shoe.
He was then
cautioned and given a Bill of Rights Act warning. The appellant responded that
he still did not wish to contact a lawyer.
He wished the search to continue.
At about 11.40am he changed his mind and having been given a list of lawyers he
successfully
made a call to a lawyer and spoke to him in private.
[10] The appellant was thereafter interviewed by a senior drugs
investigator Customs Officer Mitchell. That interview
was interrupted at a point
when the appellant tried to make contact with the lawyer he had earlier spoken
to but without success.
The appellant decided he did not wish to try to contact
another lawyer, and wished to continue with Mr Mitchell’s interview,
which
was being videotaped. The appellant was recorded on videotape as saying that
he had bought the 45 ecstasy tablets in London
for £4.50 each, that he was
going to take them for himself, give some to friends and may have sold a few but
they were mainly
for himself. This interview commenced at about 2.02pm and was
concluded by 2.18pm. The appellant then indicated he wished
to see
the interview and it was shown to him.
[11] The appellant was taken to the Auckland Airport police station at
about
2.45pm and there charged under s6(1)(a) and (2) of the Misuse of Drugs
Act
1975 with importing a class B controlled drug. In due course he was
committed for trial on that charge.
District Court judgment on pre trial application
[12] The Judge’s conclusion as to the admissibility of the evidence
of the search rested on the view that customs officer
Anthony did have
reasonable cause to decide that the appellant should be searched because
of:
4. His admissions to use of cannabis and cocaine; and
5. The impression of nervousness during the baggage search.
[13] In the Judge’s view there was no unfairness in the
questioning of the appellant prior to deciding he should
be searched, which
resulted in admissions of drug use. That questioning involved no denial of
rights as the appellant had not been
detained and his right to counsel had not
arisen at that point. The several grounds listed by the Judge, including the
admissions
of drug use, in her view were factors which properly gave the officer
reasonable cause to suspect the appellant of having prohibited
drugs concealed
on his person at the time the officer decided he should be detained and
searched. For these reasons the Judge held
the evidence of the search and its
outcome to be admissible at the trial.
Argument on appeal
[14] Mr Levett’s argument for the appellant was that the admissions of his use of drugs were unfairly obtained. Without them there was no legal basis for the decision to detain and search him. As a result the search was unreasonable and in breach of s21 of the New Zealand Bill of Rights Act 1990. Mr Levett placed emphasis on the circumstances of arriving travellers while in the customs controlled area. Such travellers were within a secure zone, with no-where to go if they wished to refrain from answering questions put to them by customs
officers. It was unfair in those circumstances for questions to be put to
them, the purpose of which was to gather information that
might provide grounds
for a personal search, without making it clear whether the travellers were bound
to answer those questions.
[15] The argument then focussed on the statutory power of customs
officers under s145 of the Act to question recent arrivals as
to their
possession of certain customs controlled goods including goods the importation
of which is prohibited. It was Mr Levett’s
submission that this power,
which is reinforced by the provision in s185 of an offence of failing to answer
questions, did not authorise
the questioning which led to the admissions.
Accordingly there was no obligation to answer those questions. The appellant
was not made aware of this. Mr Levett referred to provisions concerning
questioning procedure in the manual of the Department of
Customs which he said
supported his submission. These indicated that if questioning which had
proceeded under a statutory power
was continued outside of the scope of that
power the person concerned was to be advised there was no longer an obligation
to answer
questions. Mr Levett argued this passage supported his proposition
that fairness required that the procedure followed should ensure
an arriving
traveller was informed which questions he or she was not required to
answer.
[16] In response Mr Pike for the Crown argued that the process of
questioning embarked on prior to the decision to search the
appellant was
authorised by s145 which should be interpreted broadly and purposively. He
accepted the questioning took place in
a secure area from which an arriving
traveller could not depart without clearance. That did not, however, amount to
a detention
which invoked rights to counsel under s23 of the Bill of Rights.
That was because the nature of inquiries of arriving travellers
in the course of
clearing customs could not be equated to police interviews of a person detained
because of a suspected crime. He
submitted that once it was appreciated that
rights under s23 arise only where the person was detained for personal search,
as under
s149(2) of the Customs and Excise Act, the argument that the crucial
questioning was unfair also fell away. The search itself was
based on a
reasonable cause to suspect the appellant for the reasons correctly held by the
Judge to be sufficient.
Statutory customs control
[17] It is a long and well recognised aspect of customs regulation that
those who arrive at a country’s border, and who
are entitled or seek
permission to enter, must establish that the belongings they have with them may
lawfully be brought into the
country. Reflecting this aspect of the public
interest, and as indicated by its long title, it is a purpose of the Customs and
Excise
Act 1996 to “provide for the administration and enforcement of
customs controls at the border.”
[18] The Act imposes duties on arriving travellers which are
central to the statutory scheme of customs control over
what is brought into
New Zealand. First s27 requires that those arriving must forthwith report to a
customs officer (or a police
station). Secondly s28 requires that if arriving
by craft, which includes an aircraft, they must comply with directions to go to
a customs controlled area. Their respective obligation under each section is to
remain at the place of reporting, or customs controlled
area:
for such reasonable time as Customs may require for the purposes of enabling
any Customs officer to exercise in relation to that person
any power under this
Act (s27(2), s28(3)(b)).
A third duty of the arriving traveller, under s29, is to make his or her
baggage available for examination by a customs officer.
[19] Part XII of the Act provides for “Powers of Customs Officers”. The provisions in Part XII, relevant to this appeal, are ss145, 148, 149 and 185. Section 145 empowers a customs officer to question an arriving traveller not only as to whether that person “has” but whether he or she “has had” in his or her possession goods which it is prohibited to import into New Zealand. In respect of questions concerning past possession s145 is expressed more broadly than the equivalent provision in the Customs Act 1966. Section 212 of that Act empowered questioning of any person within forty-eight hours of landing from an aircraft, ship or boat “as to whether he has or within the said period of forty- eight hours has had in his possession...any restricted goods”. The scope of the questioning that is authorised by s145 in relation to past possession of illicit
drugs which are prohibited goods is an issue that is raised by the appellant
in this appeal.
[20] Correlative to the power to question under s145 is the offence of
failing to answer questions created by s185 of the 1996
Act. Section 185
insofar as it creates an offence provides:
185. Failure to answer question - (1) Every person commits an offence who, when required under this Act to answer any questions put to that person,-
(a) Without reasonable excuse, fails or refuses to answer it; or
(b) Gives an incorrect answer.
The section then goes on to provide for a further defence and for
penalties.
[21] It is implicit in s145 that an officer may require a person being
questioned in terms of that section to answer those questions
and thereby invoke
s185. Such a requirement must however, in our view, be explicitly conveyed to
the questioned person before a
failure or refusal to answer will constitute an
offence under s185.
[22] Section 145 of the 1996 Act is also directly linked to one of the provisions for detention of persons under that Act. In general terms s148 provides that where a customs officer is not satisfied that the answer to a question put to a person under s145 is correct, or the officer has not been given an answer to such a question, the officer may detain that person if having reasonable cause to suspect that an offence against the Act has been, is being, or is about to be committed. A person may not be detained pursuant to s148 for more than four hours (s148(3)). The detention must be for one of certain purposes set out in s148(2) of the Act. In this respect s148 has been appropriately described by Potter J as a holding section which enables detention while further inquiries are made, or while the attendance of another customs officer are being obtained: R v Boateng (1999) 5
HRNZ 450 at p459, a case of internal concealment of drugs by a
traveller.
[23] The general power to cause arriving or departing persons to be detained and searched is s149 which so far as is relevant to this appeal provides:
149. Searching of persons - (1) Subsection (2) of this section applies to a person who-
(a) Is on board a craft that has arrived in or that is departing from
New Zealand; or
(b) Is in the process of disembarking from or embarking onto a craft described in paragraph (a) of this subsection; or
(c) Having entered into New Zealand at a Customs place, remains in that Customs place.
(2) A Customs officer or a member of the Police who has reasonable cause to suspect that a person to whom this subsection applies has hidden on or about his or her person-
(a) Any dutiable, uncustomed, prohibited, or forfeited goods; or
(b) Evidence relating to any such goods; or
(c) Any thing that is or might be evidence of the contravention or possible contravention of this Act,-
may cause that person to be detained and searched.
...
...
(5) Reasonable force may be used if it is necessary to detain and search the person.
(6) A person detained pursuant to subsection (2) or subsection (3) or subsection (4) of this section shall be informed of his or her right to be taken, before being searched, before an officer nominated for that purpose by the Chief Executive, or before a Justice of the Peace [or Community Magistrate].
(7) Where the person so detained asks to be taken before a nominated officer or a Justice of the Peace [or Community Magistrate] in accordance with subsection (6) of this section, the Customs officer or member of the Police, as the case may be, must take the person forthwith before a nominated officer, or before a Justice of the Peace [or Community Magistrate], as the case may be.
...
The section goes on to set out the basis on which the Justice of the Peace or
other officer, is to determine whether the detained
person is to be searched or
to be released. By contrast with s148 the power of detention under s149 turns
solely on whether the
Customs officer concerned has reasonable cause to suspect
the person has goods hidden on his or her person. There is no further
requirement.
Decision
[24] The principal question in this appeal concerns whether the manner in which the appellant was processed by the customs officers, from the time he arrived in the customs hall until the time he was searched, involved them exceeding their lawful authority or exercising their powers unfairly. As indicated, at this time
the appellant was obliged by law to remain in the customs controlled area. Mr
Levett placed particular emphasis on the questioning
of the appellant which, he
said, was both unauthorised and unfair. It also resulted in customs
officer Anthony receiving
information which was crucial to her conclusion that
she had reasonable cause to suspect the appellant had drugs hidden on his person
and her decision that he should be detained and search.
[25] It is convenient at this stage to consider s145 of the 1996 Act. As
mentioned questions asked under it may cover whether
the person questioned
“has or has had” prohibited goods in his or her possession and, as
noted, s145 is in relation to
past possession expressed in wider terms than was
s212 of the 1966 Act. The scope of authorised questions under s145 is, however,
restricted by the context and language of s145(2), paragraph (a) of which is
concerned with dutiable, prohibited, uncustomed, or
forfeited goods and
paragraph (b) with matters of nature, origin, value and intended destination.
Questions concerning the traveller’s
past possession of such goods while
he or she has been travelling, and even during the period immediately prior to
travel to New
Zealand, will fall within the scope of the coercive power, to the
extent that they reasonably relate to the possibility that
the traveller
is bringing prohibited goods into New Zealand, but more general questions
about past drug possession and use,
which have no such relationship will not.
To that extent the terms of the section restrict the scope of the questions
which an arriving
traveller may be compelled to answer under s145.
[26] While the scope of s145 is directly connected to the power
of customs officers to detain arriving travellers for
holding purposes under
s148, there is no such express link between s145 and the power to detain and
search travellers under s149.
Nor does s149 specify the circumstances which may
properly give rise to a reasonable cause to suspect an arriving traveller has
goods such as prohibited goods on or about his or her person.
[27] It is, in our view, implicit in the statutory scheme of customs control that customs officers, in making the assessments required of them under s149, may routinely ask questions of arriving travellers for the purpose of making decisions
as to how they should discharge their responsibilities. It is equally
implicit that they may have regard to information in arrival
and travel
documents, the demeanour of travellers and indications given by dogs trained in
narcotic detection. A power to use dogs
as an aid to searching is indeed
expressly conferred by s172. At this stage of the process the Act is not
prescriptive as to the
manner in which customs officers gather information in
order to make operational decisions, but a degree of intrusion into the private
affairs of passengers as well as delay in their passage is plainly contemplated.
Within the scope of these implicit powers, as Potter
J pointed out in R v
Boateng at p460 it is also contemplated as a matter of sound administration,
that:
Customs officers experienced in questioning under the Act and trained in
the profiles developed by the Customs Service
based on
international intelligence, will develop their line of questioning to
incorporate standard questions, and also
questions specific to the situation, to
elicit information regarding prohibited goods.
[28] Often questioning will be undertaken informally rather than pursuant
to s145 or other coercive statutory powers and in that
case no legal duty to
answer will arise. It is one of life’s realities, however, as Chilwell J
pointed out in R v Lee [1978] 1 NZLR 481, 486 that:
A customs officer who fails to obtain co-operation from an innocent person,
who has nothing to lose by co-operation, is entitled to
become
suspicious.
[29] Whether at this initial stage in the process customs officers act in a manner that is outside of their powers or unreasonable is a question that a Court called on to do so must address having regard to the facts of the case and the terms of the legislation. In the present case the questions on the appellant’s use of drugs were in accordance with a departmental practice which in our view is not objectionable. There is no suggestion the appellant was prejudiced in any way because he was not told he was under no legal obligation to answer customs officer Anthony’s questions. In our view in all the circumstances those questions cannot possibly be considered unlawful or unfair.
[30] It follows that we agree with the Judge that the appellant’s
admissions as to past use of cannabis and cocaine
were legitimately
taken into account by Customs Officer Anthony in forming her opinion she had
reasonable cause to suspect
the appellant had illegal drugs hidden on or about
his person and on that basis deciding he should be detained and searched under
s149. We also agree with the Judge that this was only one of several factors
properly forming the basis of the appellant’s
reasonable cause to suspect.
That question was for the Judge to decide, even though the officer, in
cross-examination was inclined
to accept counsel’s proposition that the
admissions were an essential factor. It follows that we must uphold the
Judge’s
decision to admit the evidence of the admissions.
[31] As a result there is no foundation for the second stage
of Mr Levett’s argument concerning the unreasonableness
of the search on
Bill of Rights principles and we need not consider it. We would however
make one final additional point
in relation to the rights of persons
in the position of the appellant. Although the appellant was asked
questions at
a time when he was obliged to remain in the customs hall, it was
only at the point it was decided that he should be searched that
the appellant
was “detained” under the Customs and Excise Act in terms of s23(1)
of the New Zealand Bill of Rights Act:
R v Simmons [1988] 2 SCR 495,
521. It is clear from the evidence that he was at that time immediately and
fully informed of his rights and in particular his
right to counsel under s23 of
the Bill of Rights Act and to have his situation referred to and processed by a
Justice of the Peace
or other officer under s149(6), (7) and (8) of the Customs
and Excise Act. No question of breach of his rights from the time he
was
detained arises in this case.
[32] The appeal is accordingly dismissed.
Solicitors
Crown Law Office, Wellington, for Crown
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