THE QUEEN v ARTHUR THOMAS PICKERY [2002] NZCA 150 (26 June 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca92/02

THE QUEEN

V

ARTHUR THOMAS PICKERY

Hearing:	18 June 2002
Coram:	Anderson J Williams J Paterson J
Appearances:	N G Cooke for Appellant K J Raftery for Crown
Judgment:	26 June 2002

judgment of the court DELIVERED BY WILLIAMS J

Issues

[1] On 28 February 2001 the Police uplifted three sacks of cannabis plant material from the rear of a station-wagon which was being towed by a utility vehicle of which the appellant, Mr Pickery, was the driver.This led to the appellant being charged with possession of cannabis for sale, contrary to the Misuse of Drugs Act 1975 s 6(1)(f).The issue in this appeal is whether evidence relating to the cannabis is admissible having regard to the circumstances in which the vehicle was stopped, the search undertaken and the cannabis discovered.

Facts

[2] At about 12:25pm on 28 February 2001 Constable Carr was driving east through Waitakaruru on State Highway 25 when he noticed the utility towing the station-wagon travelling past him in the opposite direction.He turned around and stopped the two vehicles by using flashing lights and, briefly, the siren. In evidence given on an application brought pursuant to the Crimes Act 1961 s 344A for an order declaring admissible the evidence which he later discovered, Constable Carr said that he stopped the Mr Pickery's vehicle as a "random roadside vehicle check" and because "the vehicle was in distress, being towed, and I thought it would pay off to have them checked out and [see] whether they were roadworthy".

[3] Constable Carr stopped about 5m behind the towed station-wagon and, as he walked from his car towards the utility, he noticed in the rear of the station-wagon three open sacks containing what appeared to be plant material. When he arrived at the driver's door of the utility, he asked the driver, Mr Pickery, what was in the sacks and was told it was "rubbish" or similar words. Constable Carr looked at the material again, decided from his lengthy service in the Police and being involved in a number of drug operations that it appeared to be cannabis, and immediately advised Mr Pickery that he intended to carry out a search under the Misuse of Drugs Act 1975 s 18(2) (3) for possession and use of cannabis.Constable Carr inspected the sacks more closely, confirmed they contained cannabis and removed them from the rear of the station-wagon.He arrested Mr Pickery at the roadside.He then searched both vehicles but found nothing further.Although it was clear that he both cautioned Mr Pickery and advised him of his rights under the New Zealand Bill of Rights Act 1990 at the Ngatea Police Station, the evidence was equivocal as to whether he also undertook that exercise earlier.He said that "as soon as we got the cannabis out he got the cautionary rights and that was done on several occasions".Just what his "cautionary rights" may have been was unclear but no issue was made of those matters on appeal.

[4] The Land Transport Act 1998 ss 113 and 114 give officers power to enforce the provisions of that Act, amongst others, and in particular to check driver identity, vehicle ownership, brakes and warrants of fitness.In evidence on the s 344A application, Constable Carr :

* Said that when he was walking between Mr Pickery's vehicle and that being towed he noticed the latter "was on one length of rope" which he felt needed to be checked.It seems he did nothing in that respect.

* Was unable to recall whether either vehicle had a current warrant of fitness.

* Checked the vehicles' ownership and found neither was registered in Mr Pickery's name.It seems likely that he carried out that check where the vehicles were stopped rather than at the police station but the evidence was ambiguous in that respect and he accepted that ownership was of no concern to him.

Constable Carr accepted that the reason he did nothing further than deal with those three matters to exercise his powers under ss 113 and 114 because, as he acknowledged in cross-examination, he was "side-tracked by the cannabis".

[5] He said that he was concerned to uplift the cannabis at that time because he was on his own, Mr Pickery had another person with him, backup was at least 20 minutes away by radio, in any case he had no list of lawyers with him in the car and although he had a cellphone, it was toll-barred.He said his "concerns were for my safety and anyone else in removing the defendant and the evidence from the scene".

[6] At the Police Station Mr Pickery made a statement acknowledging possession of the three sacks of cannabis plant, claiming to have found them.He said that he was intending to smoke it.The Police allege there were 17.9kg of cannabis in the three bags.

[7] As a result of those matters, Mr Pickery was charged with possession of the cannabis for the purpose of sale, as we mentioned earlier.

Section 344A decision

[8] A Crown application pursuant to s 344A was heard in the Hamilton District Court on 7 March 2002.In an oral judgment, the District Court Judge, after summarising the facts, held (pp 3-4) :

... such interest as the constable had in relation to road safety, if any, was subsumed by his seeing the bags of cannabis in the tow vehicle and he took none of the steps which he was authorised to take by ss 113 and 114 of the Land Transport Act 1998.

[9] After reviewing authority, the Judge held that Constable Carr had (p 6) "no ulterior motive" and that he stopped Mr Pickery's vehicle for road transport purposes before concluding (pp 6-7) :

I am satisfied that the search was legal, not having been preceded by a stopping not related to the enforcement of the relevant transport legislation, but preceded by a stopping genuinely related to that legislation.No argument was addressed to me that the Constable did not carry out his obligations pursuant to s18 of the Misuse of Drugs Act 1975, nor that the manner of his search was unreasonable.

[10] Turning to whether the search was nevertheless unreasonable, the Judge noted the failure to advise Mr Pickery of his rights before undertaking the search but held it was open to Mr Pickery to have driven or walked away. However, assuming that Mr Pickery was "detained under an enactment", namely the Misuse of Drugs Act 1975, though not arrested he noted (p 8) that his"detention was of limited duration while the vehicles were searched". Then, after noting the position about the constable's telephone, lawyer list and the fact that even advising Mr Pickery of his right to legal advice would not have prevented the search without warrant being effected, the Judge noted that Mr Pickery was informed of his rights at the police station.In concluding that the application should be granted, the Judge held (p 9) :

It seems to me that, where there has been a breach of the provisions of the Bill of Rights Act, the Courts are required to scrutinise the consequences to the defendant of the failure to give such advice.The consequences of failure are weighed in the balance with the seriousness of the offending and, in this particular instance, the failure to give the advice, in my view, at that particular time was inconsequential because the giving of the advice would not have achieved anything for the defendant other than that he was given it.

Submissions

[11] For the appellant, Mr Cooke acknowledged that in the constable's mind his initial decision to stop the cars was a proper one but, he submitted, the stopping was not in fact pursuant to the Land Transport Act 1998 but on suspicion that Mr Pickery's vehicles contained cannabis.That being the case Mr Cooke submitted that the constable had no reasonable ground for believing that an offence against the Misuse of Drugs Act 1975 had been committed but merely suspected that such was the case.That, in its turn, Mr Cooke submitted, was insufficient to justify the search pursuant to s 18(2) (3).It followed, so Mr Cooke submitted, that the stopping was not lawful and accordingly the search was not within s 18(2).The New Zealand Bill of Rights Act 1990 ss 21 and 23 were thereby breached and the evidence should be excluded.

[12] We were assisted of course by the Crown's written submissions but need not refer to them in detail.They are reflected in our reasons.

Discussion and decision

[13] The first hurdles faced by Mr Pickery are the Judge's findings that the constable stopped Mr Pickery's vehicle pursuant to his powers under the Land Transport Act 1998 and that he had no ulterior or other motive in so doing. Although exercise of the ss 113 and 114 powers does not require any breach of the Land Transport Act 1998 or the other statutes listed in s 113(a) as a pre-requisite to the power to stop and does not even require belief or suspicion of such a breach (Attorney-General v Jones (CA7/01 13 August 2001) p 8)in fact, as earlier noted, the constable was held to have had such a purpose when he stopped the two vehicles on this occasion.There was no basis on which Mr Cooke could undermine the Judge's factual finding in that regard.

[14] Mr Cooke submitted that as the constable was walking from the Police vehicle parked some 5m behind the station-wagon and noticed the three open sacks of green plant material in the rear of the vehicle, it was incumbent on him to take further steps pursuant to ss 113 and 114 before he embarked on a search without warrant pursuant to the Misuse of Drugs Act 1975.However, again with respect to counsel, there is no basis either in statute or precedent for requiring the taking of that additional step.

[15] Here, what happened was that the constable lawfully stopped Mr Pickery's vehicle pursuant to his powers under the Land Transport Act 1998 ss 113 and 114.On his way to check the matters for which those sections provide, he noticed the green plant material sticking out of the three open bags in the back of the station-wagon vehicle he passed, deduced from his considerable experience as a police officer that it was cannabis and accordingly the occupants of the towing vehicle may have been in possession of the same.The Court's view is that at that point the constable had reasonable ground to believe that the towed vehicle may contain a controlled drug and that an offence against the Misuse of Drugs Act 1975 either had been committed in respect of the cannabis or was suspected of having been committed.In terms of s 18(2) that gave him power to enter and search the towed vehicle as if he were authorised so to do by a search warrant issued under the Summary Proceedings Act 1957 s 198 and also gave him power pursuant to s 18(3) to detain Mr Pickery for the purpose of the search and to take possession of the controlled drug. The Court sees no reason to differ from the view the Judge took that the constable was, in his own words, "side-tracked by the cannabis" and after noticing the material in the rear of the station-wagon made what appears to have been little effort to continue with the enquiries for which the Land Transport Act 1998 s 114(3) provides.

[16] In addition, the constable gave evidence that he was concerned to take possession of the cannabis at the roadside lest Mr Pickery and his companion drive away with it and did so in circumstances where there was no practical opportunity for him to obtain a search warrant or assistance.

[17] To put it another way, once the constable had lawfully stopped Mr Pickery's vehicle, the creation of the reasonable grounds for belief required by s 18(2) (3) arose simply as the constable walked past the towed vehicle where the cannabis plant lay unsecreted.In that sense, quite irrespective of the stopping, the creation of reasonable grounds for belief, the search of the vehicles and the uplifting of the cannabis were no different in principle from the constable passing Mr Pickery's stopped vehicle in the street, noticing cannabis, and searching it.To characterise as a search the constable's happening to see the cannabis while walking by, would lack reality.

[18] In those circumstances, no basis has been made out to disturb the District Court Judge's findings.

[19] It therefore becomes unnecessary to discuss questions of detention and whether the search without warrant was reasonably necessary.The remarks of this Court in R v Laugalis ((1993) 10 CRNZ 350, 355-356) are apposite and the decision of this Court in R v T (CA301/01 10 December 2001 para [11] p 5) is distinguishable because the drugs in that case were secreted and there the search of the vehicle was on a "suspicion based on no more than a hunch".

[20] It follows that in our view the District Court Judge was correct in the conclusions he reached and the evidence given by the constable of stopping Mr Pickery's vehicles, searching them and taking possession of the cannabis was admissible.

[21] The appeal is accordingly dismissed.

Solicitors

Nigel G Cooke, Auckland, for Appellant

Crown Solicitor, Auckland