THE QUEEN v RACHEL ANNE IHAKA [2002] NZCA 134 (17 June 2002)

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 71/02

THE QUEEN

V

RACHEL ANNE IHAKA

Hearing:	30 May 2002
Coram:	Keith J Blanchard J Anderson J
Appearances:	D La Hood for Appellant S P France for Crown
Judgment:	17 June 2002

judgment of the court DELIVERED BY ANDERSON J

[1] This is an application for leave to appeal against a decision of the District Court, on a pre-trial application pursuant to s344A of the Crimes Act 1961, that inculpatory evidence relating to a search of the appellant is admissible.

[2] The appellant has been committed for trial on a count of possessing cannabis oil for supply, on the basis of the following facts.On 19 May 2001 Ms Ihaka was intercepted by a Corrections Officer, Ms R Sayer, who was working as a member of a vehicle checkpoint team in the vehicle park area of Wellington Prison.Material provided to this Court by the Crown, at the Court's request, shows that the vehicle park is part of the land declared to be a prison by a notice pursuant to the Penal Institutions Act 1954.Mr M Kelly, a narcotics dog handler for the Department of Corrections, observed his dog strongly indicating the presence of a narcotic on Ms Ihaka and he reported this to Ms Sayer.In light of that information Ms Sayer asked the appellant to follow her into the staff area and there she told the appellant about the drug indication.Ms Ihaka denied having any drugs and consented to a rub-down search.A Corrections Officer may carry out such a search in accordance with ss21L and 21G of the Penal Institutions Act.Of particular relevance in this case is subs (3) of s21L which provides:

(3)Subject to section 21G of this Act, where any officer has reasonable grounds to suspect that any person who wishes to enter an institution, or who is in an institution, has in his or her possession any unauthorised item, the officer may, with that person's consent, conduct a rub-down search of that person.

[3] Finding nothing with the rub-down search, Ms Sayer decided to detain the appellant for the purposes of a strip search which she intended would be carried out by a member of the Police.She told the appellant that she was detaining her under s21H of the Penal Institutions Act and informed her that she was not obliged to say anything, that anything she did say might be given in evidence and that she had the right to consult and instruct a lawyer without delay and in private, and the right to refrain from making a statement.

[4] Section 21H provides that authority conferred by the Act to search any person includes the authority to detain that person for the purposes of the search.

[5] The appellant was detained by Ms Sayer while arrangements were made to telephone the Police requesting the despatch to the prison of a police officer to conduct the strip search.After at least 35 minutes of detention, pending the arrival of a police officer, the appellant capitulated.She acknowledged that she was carrying something, whereupon she was escorted to the female changing area.She then produced a package which she had been concealing intimately.The package contained three capsules of cannabis oil. A short time later a police constable arrived at the prison and took an inculpatory statement from the appellant.

Objection to admissibility

[6] The application pursuant to s344A of the Crimes Act was brought by the Crown in respect of the evidence of the dog handler and of Ms Sayer.The District Court's determination was therefore confined to that evidence.We have difficulty understanding why the defence did not put in issue the admissibility of the statement taken by the police constable.That was so closely and relevantly connected with Ms Sayer's evidence as to indicate that if the one is inadmissible so must be the other.No doubt appropriate cognisance of this indication will be taken by the parties.But we see no basis for excluding the evidence of the dog handler, which relates to events before anything to which objection might properly be taken occurred.To the extent the application relates to that evidence leave to appeal is not warranted.

[7] The grounds of objection to the evidence are that the appellant was arbitrarily detained contrary to her rights affirmed by ss22 and 23 of the New Zealand Bill of Rights Act ("Bill of Rights").The confession to Ms Sayers and the production of the contraband was the direct product of the arbitrary detention.

[8] The Crown accepts that s21H of the Penal Institution Act, which Ms Sayer invoked to detain the appellant, did not authorise the detention in the circumstances.It is restricted to the purposes of an authorised search under the particular Act.The consensual rub-down search had been completed and there was no other search under that Act to which Ms Ihaka could lawfully have been subjected.

[9] The Crown's response is that by virtue of s8 of that Act Ms Sayer, as a Corrections Officer, had "...all the powers, authority, protection, and privileges of a constable."Among the powers and authority of a constable are those relating to a warrantless search under s18(3) of the Misuse of Drugs Act 1975, relevant provisions of which are:

Where any member of the Police has reasonable ground for believing that any person is in possession of any controlled drug... and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he may search and detain that person for the purpose of search and may take possession of any controlled drug found...

[10] The power of warrantless search is constrained by s18(4) which relevantly provides:

Every member of the Police exercising the power... conferred by subs (3) of this section shall identify himself to every person searched... and shall also tell those persons that the search is being made pursuant to the authority of that subsection...

[11] Ms Sayer clearly had reasonable ground for believing that the appellant was in possession of a controlled drug because of the information received from the dog handler on duty.Therefore, pursuant to s8 of the Penal Institutions Act and s18 of the Misuse of Drugs Act, she could herself have carried out a strip search of the appellant.She did not need to wait for a police officer. It seems she waited because written instructions to Corrections Officers incorporated in their training materials state that:

Strip searches of persons other than inmates may only be carried out by Police pursuant to s18 of the Misuse of Drugs Act 1975.Officers may be asked to assist Police.

[12] It is uncontested that Ms Sayer did not comply with subs (4) of s18 of the Misuse of Drugs Act.The appellant's detention was therefore no more authorised by that Act than it was by the Penal Institutions Act.It was an unlawful detention.

The District Court decision

[13] The District Court expressed its reasons for holding that the impugned evidence was admissible in the following terms:

[25]The issue is whether the detention, which was lawful, became unreasonable, either because the prison officer did not conduct the search herself, as she had the power to do, or because she detained the accused for approximately 35 minutes without a search being conducted.Whether the search was unreasonable is a question of fact in the circumstances of each case.Here the accused was told that the police were to be phoned to come to the prison to carry out the search.She would have realised that it would take some time for them to arrive.She had been advised of her rights but declined to speak to a lawyer.Against that background, the detention was not unreasonable.Nor was it in breach of her rights.

[26]Had the prison officer carried out the search herself she would have been required to identify herself to the accused and to explain that the search was under the provisions of s 18(4) of the Misuse of Drugs Act.As she did not conduct the search herself, it was not necessary for her to do that.If there had been a search, any failure on the part of the searcher to comply with those requirements would have invalidated the search.That is not relevant here.

[27]For the reasons given, I find that the officer was within her powers in detaining the accused for the purposes of search.The detention was lawful and it was not unreasonable in the circumstances.

[28]The Crown's application under s 344A is therefore granted.The evidence of Michael John Kelly and Rachel Sayer as to the discovery of the cannabis oil capsules and their production as exhibits is admissible at trial.

Arguments on appeal

[14] The tenor of the appellant's arguments is apparent from the discussion thus far.For the Crown, it was submitted that Ms Sayer's status as a person with the powers and authority of a member of the Police, by virtue of s8 of the Penal Institutions Act, authorised her to detain pursuant to s18 of the Misuse of Drugs Act for the purpose of a search by a police constable pursuant to the Misuse of Drugs Act.Further, subs (4) of s18 contemplates the conducting of a search rather than detention for the purposes of a search and therefore may not, it was submitted, strictly apply in a case like the present.It was submitted that, in any event, the appellant knew who was detaining her and why, was given the appropriate warnings and advice pursuant to the Bill of Rights Act and could not be said to have been prejudiced by non-compliance with s18(4).

Discussion

[15] With respect, the learned District Court Judge has conflated the right not to be arbitrarily detained, affirmed by s22 of the Bill of Rights Act, and the right to be secure against unreasonable search or seizure, affirmed by s21 of that Act.This case is not about an unreasonable search, there being no challenge to the rub-down process.It is about being detained for more than 35 minutes after the rub-down search produced nothing of interest.The relevant issue, which was whether the detention was arbitrary, was entirely displaced by the Judge's assumption that the detention was lawful.

[16] In our view the detention was both unlawful and arbitrary, contrary to the appellant's right under s22 of the Bill of Rights.

[17] We accept that a person might not be arbitrarily detained if a power of search under the Misuse of Drugs Act has become justified and considerations of humanity and respect for the inherent dignity of the person involve organisational arrangements which might take some time.An obvious example would be a delay motivated by a reasonable concern that a strip search be carried out by an officer of the same gender as the subject; or that a search be carried out in a dignified and private manner, rather than, for example, the way it was carried out in the case of R v Pratt [1994] 3 NZLR 21.But no such considerations applied here.The appellant was simply detained on the expectation that a member of Police would attend the prison, decide there were reasonable grounds for searching the appellant, and conduct a search accordingly.

[18] The appellant submitted to the detention because she was advised, wrongly, that Ms Sayer had power to detain her pursuant to s21H of the Penal Institutions Act.If Ms Sayer had been purporting to detain pursuant to s18(3) of the Misuse of Drugs Act, she would have been obliged by the terms of subs (4) to tell the appellant that she was going to be searched pursuant to the authority of that statutory provision.But no such statement of authority was made.The appellant was entitled to leave the prison but was prevented from doing so, and in the course of her detention she produced the self-incriminating evidence.

[19] Because, for the reasons stated, the detention of the appellant was in breach of the appellant's rights affirmed by the Bill of Rights, the question arises how the breach of rights should be considered in terms of the principles elucidated by the recent decision of this Court in R v Shaheed (CA 476/00, 28 March 2002).

[20] The factors which inform the balancing are:

(1) The introduction of illicit drugs into penal institutions is a serious matter but in the particular case the quantity of drugs was small and they were not of the most serious type;

(2) The arbitrary detention was not of a fleeting nature but sustained for over half an hour;

(3) The legislature insists with mandatory language that persons being detained for warrantless drug searches be told of the authority for the proposed search but that was not done in this case;

(4) The appellant submitted to the arbitrary detention because she was misled by the Corrections Officer about the authority for the detention.

(5) The case demonstrates, irrespective of the question of admissibility, that Correction Officers have the same powers and authority of members of the Police to conduct warrantless searches in accordance with s18(3) and (4) of the Misuse of Drugs Act.Corrections Officers will no doubt feel confident of exercising such powers in an appropriate way, particularly if they are properly trained in this respect.Therefore considerations of deterrence do not carry as much weight in this case as they otherwise might.

[21] On balance, we have no doubt that the evidence we have mentioned should be ruled inadmissible in order to vindicate the rights which were breached.The evidence of Constable Sum warrants the same rejection.

[22] For the above reasons leave is granted to appeal against the ruling of the District Court and the appeal is allowed to the extent that the evidence of Corrections Officer Sayer is indicated to be inadmissible.

Solicitors

Sladden Cochrane & Co, Wellington for Appellant

Crown Law Office, Wellington for Crown