THE QUEEN v JUSTIN RANGITEAORERE RAKI [2003] NZCA 64 (27 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 392/02

CA 393/02

THE QUEEN

v

JUSTIN RANGITEAORERE RAKI

ROBERT LUCKMAN

Hearing: 24 March 2003

Coram: AndersonJ

BaragwanathJ

Gendall J

Appearances: P Mabey QC for Appellants

S P France for Crown

Judgment: 27 March 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]	The appellants, who are to face trial on charges under the Misuse of Drugs Act 1975, seek leave to appeal against a pre-trial ruling that evidence of a police search of them and the vehicle they were travelling in at the relevant time is inadmissible.
[2]	On an application pursuant to s344A of the Crimes Act 1961, a District Court Judge found that three police officers in an unmarked police car at Rotorua had their attention drawn to a red Commodore car because of its speed and the way it negotiated a roundabout intersection.The police vehicle followed and eventually caught up with the Commodore which stopped when the police activated a siren and flashing lights.Just prior to the stop one of the police officers, Detective Sergeant McLeod, remarked that the Commodore was from Kawerau and associated with the Mongrel Mob.He remained in the vehicle to do radio checks while two constables approached the vehicle to speak to the occupants.One of the constables, with the co-operation of the car occupants, checked the chassis number and warrant of fitness.He asked the occupants if he could inspect the boot but was not permitted to do so.
[3]	In the meantime, Detective Sergeant McLeod had formed the opinion that he had seen the Commodore in Kawerau in the course of executing a search warrant.When the police request to inspect the boot was refused Detective Sergeant McLeod telephoned an informant.That person had previously given reliable information which had resulted in numerous arrests, including some Mongrel Mob members in the Bay of Plenty, for serious drug charges.
[4]	As a result of his conversation with the informant Detective Sergeant McLeod decided that he was entitled to exercise his powers of search pursuant to ss18(2) and (3) of the Misuse of Drugs Act which provide as follows:

2)Where any member of the Police has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in the Schedule 1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.

(3)Where any member of the Police has reasonable ground for believing that any person is in possession of any controlled drug specified or described in the Schedule 1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act 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. Nothing in this subsection shall limit the provisions of subsections (1) and (2) of this section or authorise any member of the Police to enter and search any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place otherwise than in accordance with the provisions of those subsections.

[5]	Detective Sergeant McLeod acknowledged, and it was accepted on behalf of the respondent, that until the conversation with the informant the police did not have reasonable ground for believing that the vehicle had in it a controlled drug, nor that an offence against the Act had been or it was suspected of having been committed in respect of that drug.The issue then was whether such reasonable ground for belief existed in fact after Detective Sergeant McLeod discussed certain matters with the informant.
[6]	Relying on the warrantless search provisions of the Misuse of Drugs Act the police searched the Commodore and found, in the boot, a pound of cannabis and a set of scales.Mr Raki was searched at the roadside but nothing relevant was found on him.The appellants were then escorted to the Police Station where a search of Mr Luckman produced a small quantity of methamphetamine, ten empty point bags, $440 in cash and a pipe for consuming methamphetamine.They were subsequently charged with possessing the Class B controlled methamphetamine for the purpose of supply or other dealing, having in their possession a set of digital scales, twelve plastic point bags and $440 in cash, capable of being used in the commission of an offence against the Misuse of Drugs Act, possession of the Class C controlled drug cannabis for the purpose sale and knowingly permitting the Commodore car to be used for the purpose of committing offences against the Misuse of Drugs Act.
[7]	Before determining the s344A application the District Court Judge was provided with an affidavit sworn by Detective Sergeant McLeod which the Judge read in the presence of the detective sergeant and a court taker.The reasons for the Judge’s decision that the evidence in issue is admissible include a reference to the affidavit.He remarked:

The affidavit confirmed and expanded on the evidence given in Court concerning the telephone conversation with the informant.The additional evidence, while painting a fuller picture of the informant and the information given, does not in any substantial way change or enhance the evidence given in Court.R v McNicol [1995] 1 NZLR 576 appears to allow for reception of such information.

[8]

For the purposes of the appeal the members of this Court were provided, in open Court and in the presence of the appellant’s counsel, with a copy of Detective Sergeant McLeod’s affidavit.The policy which constrains the appellants and their learned counsel from also having access to that affidavit places Mr Mabey in the invidious but unavoidable position of having to argue blind on the sole issue of this appeal, which is whether Detective Sergeant McLeod did in fact have reasonable ground for the belief necessary to support a lawful warrantless search.

[9]

In arguing that there was a sufficient evidential basis for a reasonable belief Mr France acknowledges the difficulty of the appellant’s position.His written submissions on the matter are acutely on point and warrant iteration.

It is recognised that there is always an unsatisfactory aspect to these situations.They do not meet general expectations of publicity.They are comparatively rare, especially in the case of warrantless searches.That they occur at all is a recognition that at times the public interest requires that some aspects of a proceeding be confidential.The Judges become the sole watchdog.

It is submitted that it is important, in this context, to also remember that the proceedings are a collateral challenge.Their focus is the important issue of privacy interests, and the various safeguards Parliament and society have set up surrounding those interests.However, what is not at stake is the guilt or innocence of the person; the trial is not being conducted on the basis of confidential material and a trial, if it occurs, will satisfy all the requirements of public justice.

[10]

Mr Mabey submitted that if in fact the affidavit material goes no further than painting a fuller picture of the informant and does not in any substantial way change or enhance the evidence given in Court then, in effect, there is only evidence of a subjective belief on the part of Detective Sergeant McLeod that there may have been drugs in the Commodore rather than that there were in fact reasonable grounds for believing drugs were present and that an offence against the Act was suspected of having been committed.He points out, quite correctly, that a mere subjective belief by a police officer in that behalf does not meet the legislative tests for such an intrusion on privacy.

Discussion

[11]	After receiving a copy of Detective McLeod’s affidavit the Court reserved its decision so that its members could scrutinise with appropriate care and deliberation the material said to have justified the warrantless search.Courts are always keenly aware of the difficulties presented to the subject who cannot, for policy reasons, examine and therefore cannot effectively challenge, the claimed legitimacy of a search.Counsel for an appellant cannot properly be compromised in his or her duties to the client by being made privy, on an exclusive, confidential basis, to the challenged material.There may be a case for considering the appointment of an amicus in appropriate cases but that idea needs to be developed in a more formal way than the present proceeding contemplated.In the circumstances the Court must itself scrutinise the material which is said to justify an encroachment on privacy rights.
[12]	We have examined with great care the material in this case and conclude, without any reservation, that objectively reasonable grounds for the necessary belief did exist following Detective Sergeant McLeod’s discussion with the informant. Accordingly on the only ground upon which the appeal was advanced it must fail.
[13]	We say in conclusion, however, with reference to a remark made by the Judge about “random stopping” of motor vehicles (such not being relevant to the matters in issue on this appeal but warranting notice) that we would not wish it to be thought that enforcement officers may act arbitrarily in the exercise of their statutory powers.Attention is, in any event, drawn to ss314A-D of the Crimes Act 1961, adverted to by this Court in R v Koroheke CA193/00, 7 September 2000.
[14]	We think it right to grant leave to appeal in this case where appellate review of the basis for a warrantless search provides an additional layer of protection for the subject who must be denied access to material affecting his or her privacy rights.But for the reasons given in this judgment the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington