R v Magan CA252/03 [2003] NZCA 379 (29 September 2003)

Last Updated: 1 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA252/03

THE QUEEN

v

KRISHNA VIJAY RAMASH MAGAN

Hearing: 17 September 2003 Coram: McGrath J
Hammond J Ronald Young J

Appearances: D L Stevens QC for the Appellant
G J Burston and M Weeks for the Crown Judgment: 17 September 2003
Reasons: 29 September 2003

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] This is an appeal against a pre-trial ruling of a District Court Judge that evidence obtained from a search of a bag which contained controlled drugs, was admissible at the trial of the appellant on a charge of possession of a Class B drug (metaphetamine) for supply. The search had been undertaken after the police had

R V KRISHNA VIJAY RAMASH MAGAN CA CA252/03 [17 September 2003]

entered the appellant’s home, without a search warrant, but in circumstances in which they said they had concerns for the safety of the occupants.

[2] As the trial was scheduled to commence the following Monday, after hearing the appeal we conferred during the lunch adjournment. On returning to the Court we announced that the appeal had been dismissed and that written reasons for our judgment would follow.

Background facts

[3] On 14 September 2002 a neighbour observed a woman in some distress leaning out of the upper storey window of a residential property in Lyall Bay, Wellington. The police were called by the neighbour and on his arrival at the property with two other policemen, Sergeant Moyle observed a woman leaning out of an upstairs window holding a small bag. The woman, later identified to be the appellant’s wife, was also crying out. A man, later identified to be the appellant, could be seen next to her inside the house apparently himself trying to lean out of the window over the top of her. The appellant was also upset and it appeared to the Sergeant that he was trying to retrieve the bag from the woman.

[4] The three policemen entered the house, went up to the first floor, and separated the appellant from his wife who was still leaning out of the window on their arrival upstairs. The other two policemen took the appellant out of the room to the adjoining hallway to speak to him while the Sergeant attempted to speak to his wife. Initially she was too upset to respond to the Sergeant but eventually she was persuaded to move back inside from the window and she placed the bag, which she was still holding on a table in the room.

[5] The Sergeant opened the bag straight away and looked inside it. He saw a black plastic container with a red cap which he also opened. Inside were plastic bags of white powder which the Sergeant believed might be controlled drugs. The police case at the trial is that the powder is amphetamine and metaphetamine. Both are controlled drugs.
[6] The reason the Sergeant gave in his evidence to the District Court Judge for searching the bag was that he wished to ensure there was nothing dangerous contained in it. He said that he was not prepared to leave the bag on the table without looking inside it in case it held weapons. He also said that at the time he was concerned for the safety of all those present.

[7] In the meantime one of the other policemen, Constable Williamson, did a quick pat-down search of the appellant which, in his evidence, he said was standard procedure before interviewing those involved in a domestic situation of the kind the police believed they were attending. His purpose was to protect the security of the police at the outset. The constable found $1000 cash on the appellant which he handed back to him. Later a search warrant for the premises was obtained and in searching the property the police found a further $3000 cash in $20 notes along with a small pair of scales. The appellant was then charged.

The District Court’s ruling

[8] The appellant’s first contention at the pre-trial hearing was that the entry by the police onto the premises had been unlawful. The Judge accepted evidence from Sergeant Moyle and Constable Williamson that at the time of their arrival at the scene they believed that it was possible that the appellant’s wife might fall from or be pushed out of the window. They had responded to a call for assistance and believed they were attending a domestic dispute. The Judge held that in those circumstances it was reasonable for the officers to believe that the woman was in fear for her safety. The Judge was satisfied that the situation fell within s317(2) of the Crimes Act 1961, which authorises entry by the police on any premises to prevent the commission of any offence that is likely to cause immediate and serious injury to any person, and which it is believed on reasonable and probable grounds is about to be committed.

[9] The Judge went on, however, to find that the search was unlawful, there being no power under s317 to search the bag. While he accepted the police explanation that the reason for checking the bag was to ensure there was nothing dangerous inside it, on the Judge’s assessment of the officers’ explanations the
search was based on routine police precautions, rather than what was required in the particular situation at the time. For there to be a lawful search in those circumstances a warrant should have been obtained.

[10] The Judge went on to consider whether, although the search was unlawful, it was nevertheless reasonable. In hindsight the police officers had brought the situation at the house under control by the time the bag was searched, and there was no reason for them to assume that either of the occupants would have used a weapon had there been one inside the bag.

[11] Interventions by the police in domestic disputes, as in other confrontations involving heightened emotions, were however notoriously difficult. Where people were likely to be unpredictable steps often had to be taken to assert immediate control and that was the case here. The Court had to give reasonable weight to the judgment of police officers urgently securing the scene before they were really sure what was going on. Given the apparent danger to the woman that had led to their entry, the actions taken by the police to deal with the situation without applying strenuous force should not be the subject of over-careful examination. The Judge held that, in those circumstances, the search of the bag was reasonable. He also held that the quick pat-down search of the appellant by Constable Williamson was reasonable and that it had no bearing on the reasonableness of Sergeant Moyle’s search of the bag. For these reasons he admitted the police evidence concerning the contents of the bag.

Submissions on appeal

[12] In this Court the appellant has challenged the Judge’s finding as to the reasonableness of the search. There is no challenge to the finding as to the lawfulness of either the entry by the police or the pat-down search of the appellant.

[13] Mr Stevens QC, for the appellant, submitted that the search was unreasonable. It was an unlawful search and the unlawfulness lay in the absence of any power to search at all, rather than a mere technical failure, in the course of exercising a power. The search also involved an invasion of the right to privacy of
the appellant in respect of his home. The police could easily have acted lawfully in this case, as the parties had been separated and the situation brought under control by the time the bag was searched. Safety considerations did not compel an immediate search.

[14] Mr Burston for the Crown submitted that the lawfulness of the original entry onto the property is of significance because it diminishes the level of intrusion into the appellant’s right of privacy occasioned by the illegal search. He emphasises that there is no suggestion of bad faith on the part of the police. Mr Burston also argued that a warrant was not readily obtainable. Finally he says that as the bag may have contained something dangerous, it was reasonable for the police to examine it immediately. In the urgency of the moment that action was entirely appropriate, even though the Crown accepted that the Judge was right to hold that, with the benefit of hindsight, the search was unnecessary at the time.

Decision

[15] Under s21 of the New Zealand Bill of Rights Act 1990 everyone has the right to be secure against unreasonable search. It is common ground in the present case that the search by Sergeant Moyle of the bag found to contain controlled drugs was unlawful. That is the starting point for inquiry into whether or not the search is reasonable and it is certainly relevant to that question. Unlawfulness is not however in itself determinative of whether the right under the Bill of Rights to be secure against unreasonable search has been breached in a particular case. As Richardson J put it in R v Jefferies [1994] 1 NZLR 290, 304:

The focus on the section is on the particular case in question not on the generality of police and other official searches. The decision turns on the unique circumstances of the particular case. Reasonableness is a different and wider test than lawfulness. It is an elastic word. There is an element of flexibility in its application not inherent in notions of legality or regularity. The lawfulness or unlawfulness of the search will always be highly relevant but should not be determinative either way. A search may be legal but unreasonable. It may be illegal but reasonable. (at p304).

[16] A search will typically be unreasonable where it results in an intrusion on the freedom and dignity of an individual associated with privacy in circumstances where
that is not outweighed by other competing public interest values arising in the particular case. Usually those competing values include the state’s interest in the effective administration of criminal justice but they are not of course confined to that consideration.

[17] The overall assessment of the seriousness of the particular intrusion on privacy, relative to other state interests, always involves questions of fact and degree. Factors such as whether there was a power of search which was the subject of a technical breach, or whether there was no power of search at all, will often indicate the seriousness of the breach. If there is no reasonable basis at all for the official action that led to the search that may point strongly to unreasonableness: R v Thomas (2001) 19 CRNZ 392 CA, para [16]. At times however even a search for which there was no authorising power will not be classified as unreasonable because the weighing of the relevant public interest values indicates that the police have not acted unreasonably.

[18] Although an unlawful search taking place at a citizen’s home, in the exercise of governmental authority, is usually treated by the courts as a serious encroachment on protected rights two factors diminish that seriousness in this case. First the police entry onto the appellant’s property was lawful as it was authorised by statute. Secondly the entry took place in circumstances of compelling urgency involving reasonable concern over the safety of a person who appeared to be a party to a domestic dispute. The clear justification for the presence of the police on the property at the relevant time considerably lessens the degree of intrusion on the appellant’s privacy of the subsequent search, by comparison with other cases involving unlawful searches at a person’s home.

[19] While the effect of the Judge’s finding is that the search of the bag was unnecessary, as the volatile situation had been contained once the appellant’s wife was back inside the room and the bag had been placed on the table, the Judge recognised that this was a finding made in hindsight. This aspect was criticised by Mr Stevens who said that it was obviously unnecessary to search the bag at the time. We accept, however, that the finding concerned was open to the Judge in the context of a domestic dispute where the protagonists had just been separated. It is also
important to bear in mind that the unlawful search was confined to examining the bag. A search under warrant was executed later.

[20] As Mr Burston emphasised, from the police perspective the bag had been central to the dispute throughout and was clearly linked to the excited emotional state of the appellant and his wife. It was reasonable for the police to contemplate there might be something that was potentially dangerous inside it such as a knife. The Judge accepted that the bag was searched to ensure that was not the case. The motive for the search was accordingly driven by considerations of public safety and seen at the time as appropriate in that context. The police concern that the bag might contain something dangerous is an important consideration in assessing whether, in the urgency of the moment, the conduct of Sergeant Moyle was reasonable. It further diminishes the significance otherwise attaching to non-compliance with the search laws: R v Grayson & Taylor [1997] 1 NZLR 399, 407.

[21] These are the principal considerations which characterise the unlawful search in this case and they indicate that it is not a case involving a highly serious intrusion on the appellant’s privacy. Furthermore, the countervailing public interest, to some extent already taken into account, is an important one. It is the need for the police to be able to protect the public by promptly and effectively intervening in situations of confrontation including, as in this case, domestic disputes. We agree with the Judge that it is appropriate that some margin of appreciation be allowed to the police as to what is necessary to contain such situations before their actions are found by the courts to be unreasonable. In this case the unlawful action did not involve application of strenuous force, where difficult judgments over what is reasonable often arise. It rather involved and was confined to searching the particular object which had been the focus of the dispute immediately after it had been contained. The District Court Judge found the search should have been the subject of a warrant but that the police had made their judgment before they were really sure what was going on.

[22] Our overall assessment of whether the search of the bag breached the standard of reasonableness under the Bill of Rights is that it did not. As we have said the intrusion on privacy of the search was not of a highly serious kind and it is
justified by the public interest purpose of public safety which motivated it. There was no urgency attaching to the search, which should have been the subject of a warrant, but in the context of the circumstances confronting the police the decision of Sergeant Moyle to satisfy himself nothing dangerous was in the bag was of a kind that the courts should recognise as a reasonable exercise of judgment even though it lacked legal authority.

[23] In summary we agree with the finding of the Judge that the search in this case was reasonable. The evidence of what was discovered during the search was accordingly held admissible at the appellant’s trial. For these reasons the appeal was dismissed.

Solicitors:

Crown Solicitors, Wellington