R v I CA96/02 [2002] NZCA 360 (29 August 2002)

Last Updated: 22 July 2018

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA96/02 CA104/02

THE QUEEN

V

[S J I]
[L K G]

Hearing:	26 August 2002
Coram:	Blanchard J Robertson J Panckhurst J
Appearances:	B R Green for [I] J Aickin for [G] B J Horsley for Crown
Judgment:	29 August 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Introduction

[1] These are applications for leave to appeal against pre-trial rulings made in the District Court at Christchurch declaring admissible certain evidence at the forthcoming trial of Mr [I], Mr [G] and another person on charges of possession of the Class C drug cannabis for sale and of possession of a firearm.
[2] The charges arise from the execution by police on 29 June 2001 of a search warrant authorising them to search “premises on the third floor” of a building in Bedford Street, Christchurch where it was suspected that a “tinnie house” was being operated by Mr [G] and members of the Black Power gang.

Facts - [I]

[3] When the police arrived at the third floor of the building they found that it consisted of one large area occupied as a residential apartment. Access could be obtained by a staircase or a lift, in both cases from the ground floor foyer of the building. At the third floor the lift opened directly into the apartment although the main portion of it was screened off from the lift.
[4] The police initially gained access to the third floor via the staircase. They were admitted to the apartment by the other defendant, Ms Anderson. They spent about 10 minutes searching the apartment. They found no one else on the floor but did locate cannabis and a firearm and other evidence of the operation of a tinnie house.
[5] After 10 minutes one of the policemen, Detective Constable King, returned downstairs to the foyer with Ms Anderson. He saw there Mr [I] and another man who were coming out of the lift. (In his evidence Mr [I] said that they were actually coming from the fourth floor.) The detective formed the view, from their general appearance only, that they were gang members and concluded that they must have some connection with the tinnie house. He identified himself and informed them that he was executing a search warrant and that he wished to search them under s18(1) of the Misuse of Drugs Act 1975:

18 Search and seizure

(1) Where a search warrant is issued under section 198 of the Summary Proceedings Act 1957 in respect of an offence which has been or is suspected to have been committed against this Act or which is believed to be intended to be so committed, any constable executing the warrant or any of his assistants may search any person found in or on the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place which may be entered and searched under the authority of the warrant.
[6] Detective King was joined by Detective Constable Shaw. The District Court Judge found that the two men were cautioned and given Bill of Rights advice. Mr [I] was asked to turn out his pockets. The police evidence was that he produced a wallet containing $400 in $20 bills. It does not appear that the money was counted by the police.
[7] Despite expressing a wish to leave, Mr [I] was required to accompany Detective Shaw upstairs to the third floor. The District Court Judge then found:

Once there, Mr [I] saw a leather jacket bearing a Black Power patch lying on the floor. He said it was his and asked if it could be lifted from the floor.

[8] Mr [I] was searched more fully by Detective Shaw in the presence of Detective McDaniel. During this process he stated that he had got the money doing some kind of work, possibly carving. After he had been searched for the second time the wallet was returned to him. Again, the money was apparently not counted.
[9] Mr [I] was kept at the apartment for about 40 minutes after this search, during which time he made several potentially incriminating statements to Detective McDaniel. He was then taken to a police station, interviewed and arrested, at which time he was found to be in possession of only $175, obviously not all of which was in $20 bills.

Judge’s ruling – [I]

[10] Section 18(1) permits a search of any person found in or on the “premises” covered by the warrant. The Crown had conceded that Mr [I] was not so found, but the Judge did not think that concession was well made. He stated his view as follows:

[29] Premises is not defined by either the Summary Proceedings Act 1957 or the Misuse of Drugs Act 1975. The term is therefore to be given its ordinary meaning.

[30] One primary meaning is house or building with grounds and appurtenances (Concise Oxford Dictionary, 7^th Edition).

[31] The lift is unquestionably appurtenant to the third floor. Indeed, it opens directly into the general living area on that floor. It is a vital and integral part of the third floor, the occupation of which cannot be enjoyed without it. It is part of the premises.

[32] It follows that [I], seen leaving the lift, was found on the premises and the search of his person was authorised by s18(1) Misuse of Drugs Act 1975.

[33] If I am wrong in this analysis and the search of [I]’s person was unlawful, then the search was certainly not unreasonable. He was seen leaving the lift that serves the suspected tinnie house on the third floor. His general appearance gave the impression that he was a gang member. He was detained and asked to turn out his pockets. He did so and counted through the money in his wallet. The property was then returned to him.

[34] Up to that point his detention and search was reasonable and the evidence of the money found in his wallet is admissible.

[11] The Judge also took the view that it was within the terms of the authorisation in s18(1) (or alternatively not unreasonable) for the police to require Mr [I] to go to the third floor. The search in the foyer – turning out his pockets – had been cursory and Detective Shaw wanted to conduct a more thorough search out of the public gaze. Mr [I] could hardly be expected to submit to such a search of his person in public.
[12] It followed then, the Judge said, that when Mr [I] arrived at the third floor and the exchange took place about his jacket he was not either unlawfully or unreasonably detained. Nor was he so detained when the further search took place and he gave his explanation about the $400.
[13] The Judge accordingly ruled admissible all the evidence relating to events up to that point. But he found that the subsequent 40 minute detention was unlawful and excluded the statements made to Detective McDaniel.

Facts – [G]

[14] At the time when the foregoing events occurred there was already a warrant outstanding for Mr [G]’s arrest on an unrelated matter. As a result of information received from two apparently reliable sources, Detective Shaw was made aware that the Black Power gang was hostile to Mr [G] because he had fled after the police discovery of the tinnie house instead of taking the rap for it. Detective Shaw thought that Mr [G]’s life might be in danger.
[15] Through Mr [G]’s family this concern was relayed to him. He telephone Detective Shaw who told him that it was in his interests to surrender to the police before the gang found him. The detective told him he would be safer in protective custody. The detective repeated this view to Mr [G]’s mother. Eventually, on 22 August 2001, Mr [G] went to the police station in the company of his mother. Mr [G], who was 22 years of age, readily agreed to Detective Shaw’s request to make a statement on videotape. His mother left. He gave a 30 minute videotaped interview in which, after being cautioned and given Bill of Rights advice, he freely made admissions about his involvement in the tinnie house, including saying things about the participation of Black Power members, including Mr [I]. It emerged that Mr [I] had in fact been a resident of the apartment.
[16] The presence in the apartment of the firearm was discussed in the interview. Afterwards, Detective Shaw told him he would not be charged in relation to it. But later the Crown Solicitor decided to include him as a co-accused in the possession of firearms charge.

Judge’s ruling – [G]

[17] The admissibility of the videotape was challenged on the basis that it had been induced by representations (a) that he would get police protection if he made a statement and (b) that, if he did so, the police would not charge him with a firearms offence.
[18] Having heard from both Mr [G] and Detective Shaw, the Judge found that although Mr [G] had surrendered himself because of a fear for his safety which had been instilled by a Detective Shaw, the detective genuinely believed him to be in danger and no trickery was involved. He had not been told that the offer of protection was dependant on his making a statement, although he may have received that impression. He had wanted to cooperate with the police and had been willing to tell them everything he knew. No pressure had been brought to bear on him. The Judge concluded:

His motive of self-preservation in turning himself in and cooperating with the police cannot now be converted into an unfair inducement to make a statement.

His surrender to the police was free and voluntary and motivated by self-interest. So too was his statement.

[19] The Judge accepted Detective Shaw’s evidence that he had not offered an inducement by saying there would be no firearms charge. In any event, in evidence Mr [G] himself had said that the statement to that effect he alleged the detective had made had been really only a very small factor. Thus, the Judge said, if the statement were made, he was not induced by it.

Argument and decision – [I]

[20] Mr Green, for Mr [I], said that the Crown had been right in the District Court to concede that he had been unlawfully detained throughout, against his expressed desire to leave. He had not been found in the area authorised to be searched. The lift was not part of the third floor premises. In the circumstances it had not been reasonable to detain and search him. Everything followed from an unlawful and unreasonable act. Furthermore, there had been a breach of r9 of the Judges’ Rules in that no contemporaneous record had been made of the questioning of Mr [I].
[21] In response, Mr Horsley supported the view taken by the Judge, saying that in the circumstances the lift must be regarded as part of the premises or, at least, that it was reasonable for the police officers to believe that to be the case. The lift in this relatively small building serviced the apartment and opened directly into it. Police found the two men exiting that lift.
[22] In our view, the warrant envisaged a search of the third floor only and it cannot be said that in the circumstances the lift was part of the third floor. We do not need to decide whether it could be so regarded when stationary at the third floor or if it would then retain that status when thereafter descending to the ground floor and becoming stationary on that floor. The evidence was plain that, as the police officers appreciated, the lift was not coming from the third floor with the two men. They had not been found during the 10 minute search of that floor. If they had been present, the police said, they would have been so found. Therefore they must have come from another floor (Mr [I] said it was the fourth.) There was no evidence that it stopped on the third floor while they were in it – assuming that could have made a difference. The lift is not shown to have been an appurtenance of the third floor premises when it was conveying the men – again, assuming that it would have functioned as such if they had got in at and descended from that floor. The detention in the foyer was accordingly not authorised by the terms of the warrant.
[23] Nor was the detention reasonable in the circumstances. The police knew that the men had not come down from the premises. They could not therefore conclude that the lift was being used to exit the premises. They had no reasonable grounds to believe that the men were in possession of drugs and could not have invoked s18(3) of the Misuse of Drugs Act. It was not reasonable for them to try and rely on s18(1) in these circumstances.
[24] As Mr Green submitted, if, as we hold, the detention and search in the foyer were unlawful and unreasonable, it must follow that the taking of Mr [I] to the third floor and the further searching of him there were also unlawful and unreasonable. The evidence linking him with the jacket and the evidence of the finding of the money in his wallet were therefore obtained in breach of s21 of the New Zealand Bill of Rights Act 1990.
[25] It is then necessary to determine whether the evidence so obtained should be excluded. The starting point is of course the breach of Mr [I]’s rights. His right to be secure against unreasonable search and seizure is an important right. There was an invasion of his person when he was searched after being taken to the third floor. It would seem that the police acted in good faith but, once there has been a finding that they acted unreasonably, that can be no more than a neutral factor.
[26] The evidence obtained as a result of the breach of the right is in part real evidence (the money in the wallet) and in part an inculpatory statement. In connection with the former, it counts against admissibility that there is conflicting evidence about the amount of money which was found. In connection with the latter, it counts against admissibility that a contemporaneous record was not made of what was said and there is a conflict of evidence about that. (We would not go so far as saying, however, that there was a breach of r9 – a short exchange while Mr [I] was being searched is not the equivalent of a formal police interview or a series of questions and answers, to which that Rule is really directed.)
[27] The evidence may possibly be crucial to obtaining a conviction – depending upon the ultimate attitude of Mr [G] towards giving evidence against Mr [I]. But even if it is crucial evidence, the public interest in convicting Mr [I] of the offences with which he is charged cannot be at a very high level given the relatively less serious nature of those offences.
[28] In our view, the balance is clearly in favour of vindicating the breach of the s21 right by excluding the evidence. It will not in the circumstances be a disproportionate response to that breach.

Detective Long’s evidence

[29] The Crown wishes to call evidence from Detective Sergeant Long of the Christchurch CIB who is a detective with long experience and presently a supervisor in the drug squad. He is intended to give evidence as an expert concerning cannabis and its sale but the Crown also wishes him to give expert evidence about the usual method of operation of tinnie houses in Christchurch. Included in his brief of evidence are passages about his experience in relation to gang participation in tinnie houses: that prospective members and associates are normally required to man them for more senior gang members and they are given a quantity of “tinnies” to sell and some for their own use or sale, in respect of which they can retain the proceeds. Some of this evidence is particularised to Black Power.
[30] On objection being taken to the evidence about the involvement of gangs, the Judge’s ruling was that, given the evidence connecting Mr [I] not only to the tinnie house, but also to the patched jacket found therein, Detective Long’s evidence was relevant and admissible.
[31] We take a different view and consider that, in the circumstances as they presently stand, Detective Long should not be permitted to give the evidence in question. It might be different if there were to be evidence admissible against Mr [I] of his participation in the operation of this particular tinnie house as, for example, would be the case if Mr [G] were to give evidence along similar lines to what he said when being interviewed on videotape. But in our view there is a distinct danger in the present circumstances that the jury would treat evidence given by an expert about the practices of gangs in general and Black Power in particular in relation to tinnie houses as being in itself probative of Mr [I]’s alleged conduct in this instance in the Bedford Street premises. Evidence by an expert of a tendency of a particular group of people to commit crimes of the type charged might thus be regarded by the jury as sufficiently proving the commission of the crime charged against Mr [I], instead of merely being expert testimony intended to explain and support other evidence of the events in question. Therefore we consider that the evidence, although from a properly qualified witness and of probative value, would be unduly prejudicial.

Argument and decision – [G]

[32] Mrs Aickin had necessarily to concede that she was attempting to challenge factual findings of the Judge. Nevertheless, she laid stress on the effect which there must have been on Mr [G]’s mind when he came into the police station under the impression that he was in considerable danger from Black Power, having been told of that danger by Detective Shaw. Mrs Aickin pointed to evidence from the detective that he had elected not to tell Mr [G] that he would be asked to give an interview until he arrived at the police station. Mrs Aickin said that this amounted to setting him up to make a statement and that he could have made an untrue admission.
[33] It is clear from his ruling that the Judge gave these matters careful consideration. He had the advantage of observing Mr [G] giving evidence at some length. He made specific findings that there was no element of trickery involved when the detective told Mr [G] that he was in danger. (There was in fact no evidence at all indicating that the danger did not exist or had been exaggerated.) The Judge also found that, whatever his impression may have been, Mr [G] was not told that the offer for protection was dependant upon his making a statement; and that during the course of the interview no pressure was brought to bear upon him. The Judge was clearly of the view that there had been no inducement of an improper kind and, having read the evidence, including the transcript of the videotape, we find no reason to differ from the view taken by the Judge.

The [G] interview – gang references

[34] Mr [I] sought to have excised from the videotaped interview of Mr [G] the references which the latter had made to Black Power involvement, in particular the references to Mr [I] himself. The Judge commented that if Mr [G]’s utterances concerning the involvement of others were relevant to his own culpability, the jury should hear them notwithstanding that they were inadmissible against Mr [I]. Potential prejudice to Mr [I] at the joint trial could be cured by judicial direction. Any ruling would be premature. The question of editing the tape could be left in the hands of the Crown and the trial Judge.
[35] This question was raised with us but Mr Green realistically accepted that any ruling before the editing process has been completed would be premature.

Result

[36] Leave to appeal is granted to Mr [I] and his appeal is in part allowed. The evidence of the finding of the money in his wallet and what he said about the jacket is ruled inadmissible. The contested passages in the evidence of Detective Long should not, as the state of the evidence now exists, be given but this ruling can be reviewed by the trial Judge.
[37] Leave to appeal is refused to Mr [G]. It will be for the trial Judge to settle, if necessary, remaining questions about editing of the videotape.

Solicitors
Crown Law Office, Wellington