THE QUEEN v JULIAN POI POI [2003] NZCA 39 (4 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA286/02

THE QUEEN

V

JULIAN POI POI

Hearing:

20 February 2003

Coram:

Glazebrook J

Hammond J

Gendall J

Appearances:

A V Sharko for Appellant

B J Horsley for Respondent

Judgment:

4 March 2003

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1]	The appellant is awaiting trial on a charge of possession of the Class C drug cannabis for the purpose of sale.He appeals against a judgment of the District Court given at Napier on 14 August 2002 on an application pursuant to s344A of the Crimes Act 1961.The Judge ruled that evidence of search and seizure of cannabis plant from a motor vehicle in which the appellant was travelling, was admissible.
[2]	The essential facts are that the Napier police had information to the effect that the appellant and another intended to travel to some area north of Napier to obtain cannabis plant, and to return with it to the Hawkes Bay.An associate of the appellant made arrangements to rent a motor vehicle and the police believed that it might be the vehicle to be used in the operation.The police did not then have sufficient information to enable them to believe that an application for a search warrant could properly be made. This was because they could not then state that there were reasonable grounds for believing that drugs could be found in any particular vehicle.Until the objective of the trip north had been met and drugs acquired, there was no evidential basis upon which the police believed they could act to obtain a search warrant.
[3]	Police observation points, however, were set up at Whirinaki, north of Napier, and also on the Napier/Taupo Highway, because it was not known from which direction the vehicle might be coming.On the afternoon of 21 December 2001 the rental vehicle was observed being driven south at Whirinaki towards Napier by a woman with the appellant as her passenger.The vehicle was stopped, it is said by the police, pursuant to s314B of the Crimes Act 1961, and a search of the appellant and the car, in the exercise of their powers under s18(2) and (3) of the Misuse of Drugs Act 1975, took place.
[4]	Thereafter there is some dispute as to the precise facts.The Judge found as a fact that a detective (Detective Hampton) advised Mr Poipoi that cannabis had been found in the car at the roadside.The appellant said that it was his and that he had about a pound of it, and was going to sell it.The appellant was arrested and the car was taken back to the Napier Police Station.At the police station the appellant was interviewed by the same detective, and there was evidence given that another police officer (Detective Cahill) then undertook a search of the vehicle, and recovered the cannabis.
[5]	The Judge found as a fact that the cannabis was found or at least discovered in the car at Whirinaki.He ruled that evidence of that search and discovery was admissible.The Judge concluded that the police acted properly under s18(2).He accepted they had information upon which they were able to rely from an informant, but it was insufficient to justify obtaining a warrant in relation to any one vehicle.If the police had applied for a search warrant based upon such speculation it would have been, the Judge said, surprising if it had been granted.The Judge found that the exercise of the power under s18(2) was lawful and not unreasonable.The Judge said that the later method of recovery of the cannabis at the Police Station was not part of the search and, if, as a matter of evidence, anything else was discovered for the first time during the course of examination of the vehicle at the Police Station, then that might be the subject of further argument.
[6]	Mr Sharko argued on behalf of the appellantthat the search on the roadside at Whirinaki pursuant to s18(2) whilst not unlawful, was nevertheless unreasonable.He said there was ample time and opportunity for the police to have applied for, and obtained, a search warrant.Although he accepted that the police had sufficient grounds to stop and search the vehicle, he said they acted unreasonably.Further, Mr Sharko submitted that the evidence at the voir dire was to the effect that the cannabis was found in the car at the Police Station and not at Whirinaki.Of course the Judge made a contrary finding of fact.Mr Sharko says that the cannabis found at the Napier Police Station should not be admitted as evidence against the appellant.However, the Judge specifically ruled that the recovery of the cannabis at the Police Station was that which had been found as discovered by a different detective at Whirinaki.Mr Sharko relied upon the authority of R v Laugalis (1993) 10 CRNZ 350 (CA), to support his proposition that whilst the vehicle and the appellant were in police custody, the police could have obtained a search warrant and, therefore, further search of it at the Police Station was unnecessary and unreasonable.The difficulty confronting Mr Sharko is that the Judge did not find that it was the search of the vehicle at the Police Station that discovered the cannabis, but rather that there had been recovery of cannabis found or observed earlier by another police officer.The Judge specifically ruled that he was not making any finding in relation to examination of the car at the Police Station.
[7]	It is quite clear that the stopping of the vehicle and any search of it at Whirinaki was lawful in terms of s18 of the Misuse of Drugs Act 1975, and it was not unreasonable.The police could not have obtained a warrant.Section 198 Summary Proceedings Act 1957 only allows for a warrant for the search of a motor vehicle and a warrant could not be obtained for ongoing monitoring of a vehicle, in respect of an event which had not occurred.Reasonable grounds did not then exist to believe cannabis was in the vehicle.The police gave consideration to obtaining a warrant and their actions in deciding not to do so were entirely reasonable.Similarly, before they were able to exercise their powers under s18(2) it was essential that they, at the very least, could see the appellant in the car which was rented and being driven by a female associate.
[8]	The secondary issue regarding any “search” at the Police Station that uncovered the cannabis is really peripheral, although the Judge did consider it and resolved the matter as a finding of fact.He held that the examination at the police station followed upon an observation and search at Whirinaki and was a continuation of the same search earlier commenced.The evidence then before the Judge entitled him to make that finding of fact.Indeed the written statement being taken from the appellant by Detective Hampton, who had information that cannabis was found in the car at the roadside, was being taken and recorded at the same time as another police officer was looking at the vehicle at the police station.In that statement Detective Hampton asked the appellant: “How did you come into possession of the cannabis in the car?”That detective had to have prior knowledge of the cannabis in the car in order to pose that question.Accordingly we do not accept Mr Sharko’s submission that there was no evidential basis for the Judge to make as finding of fact that the cannabis had been located, seen or observed at Whirinaki.
[9]	Insofar as this appeal is concerned the Judge did not err in his ruling that the search without a warrant, pursuant to s18 of the Misuse of Drugs Act 1975, was lawful and reasonable.Later recovery of that cannabis discovered at the roadside likewise can properly be led in the evidence and the Judge, given his findings of fact, did not err in his ruling.Leave to appeal is granted but the appeal dismissed.

Solicitors:

Crown Law Office, Wellington