TOREA v R [2004] NZCA 203 (30 August 2004)

Court of Appeal of New Zealand

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TOREA v R [2004] NZCA 203 (30 August 2004)

Last Updated: 13 September 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/04

THE QUEEN



v



ANDRINA WENDY TOREA

Hearing: 19 August 2004

Coram: Anderson P
Baragwanath J
Ronald Young J

Appearances: T Sutcliffe for Appellant
B J Horsley for Crown

Judgment: 30 August 2004

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]	The appellant awaits trial in the District Court at Hamilton on an indictment that includes counts that on 11 September 2003 she had in her possession cannabis for sale (Misuse of Drugs Act 1975 s 6(1)(f)) and that on or before that date she sold cannabis to a person or persons unknown (s 6(1)(e)).
[2]	The Crown’s case on both counts depends on the evidence of a police officer challenged by the appellant but admitted by Judge Maze in the judgment of 16 March 2004 now under appeal. The evidence before the District Court was limited to the constable’s written proof of evidence and his notebook entry.

The evidence

[3]	On 11 September 2003 at 9 pm the constable went to an address to speak to someone other than the appellant on an unrelated matter. As he pulled into the driveway behind other vehicles he saw a man running up the driveway ahead of him to the front door and noticed other people sitting in one of the parked vehicles. He saw the man knock on the door and wait, holding something in his left hand. The man entered the front door, which contained a number of glass panels so the officer was able to see the man’s actions. He saw an exchange between the man and someone inside.
[4]	As the officer reached the steps of the front door the man left. The officer stopped him and took possession of a tinfoil of cannabis.
[5]	The officer went up to the door himself, knocked on it and it was answered by the appellant. He told her that he was conducting a search of her address pursuant to s 18(2) of the Misuse of Drugs Act. Other people were present and he had them all move into the living room where he gave them a conventional Bill of Rights warning. The appellant confirmed that she was the occupier of the property. The officer asked whether she would like to give him the other tinfoils of cannabis. She said there was no more there. He asked for and searched her wallet, which contained two $20 bills and two tinfoils of cannabis. She said they belonged to her and were for her personal use only. She went to her bedroom, returning with two further tinfoils of cannabis which she said were all that were left from the tinfoils that she was selling. The constable made a quick search of her bedroom and found $80 in the form of two $10 and three $20 bills.
[6]	The constable took her to the North Hamilton Police Station. En route the appellant said that the tinfoils she had given the officer were all that were left from an ounce of cannabis that she had bought about a week before. She said that she tried to recover some of the money used by selling the tinfoils of cannabis as she had no money to buy food.

The decision of the District Court

[7]	It was submitted to the District Court that the search of the house was based on an unlawful and unreasonable search of the man, namely obtaining cannabis from his pocket unlawfully and whatever hearsay statement he might have given as to the source of the cannabis. These, it was submitted, could provide grounds only for suspicion and not belief that a sale of cannabis had occurred. Accordingly s 18(2) was not satisfied in relation to the house search which was therefore unlawful, so the evidence resulting from it must be excluded.
[8]	That argument was rejected. Insofar as the officer’s belief depended on the transaction with the male the Judge considered that, even if it entailed an unreasonable and unlawful search, this Court in R v Bruhms (1994) 11 CRNZ 656 decided that an accused cannot complain of breach of a third party’s rights as grounds for her own Bill of Rights challenge.
[9]	The Judge was further satisfied that, even if the evidence of the cannabis tinfoil found in the man’s possession were excluded, the officer had reasonable grounds rather than mere suspicion to find that sale of cannabis occurred in the house. Section 18(2) is accordingly satisfied and the evidence should be admitted.

Further evidence on appeal

[10]	We admitted by consent the constable’s job sheet of 16 September 2003. It contained the following passage

Upon arrival parked my vehicle in the driveway behind a number of civilian vehicles.
As I was pulling in I noticed what appeared to be a male running up to the front door of [the property].
I noted that this person knocked on the door and waited. I could see that he was holding something in his left hand.
This action indicated to me that he was about to purchase a tinfoil of cannabis from the occupants of the address.
I exited my vehicle as he went inside the address. The person closed the door.
I was able to see that person’s actions through the glass in the front door. I saw what appeared to be an exchange. As I reached the steps of the front door a male person exited the address. I noticed that the pocket in his top was slightly bulging. I asked the male what was in his pocket and he stated "nothing" and patted his top. I heard the sound of a rustling noise. I then asked the male again what was in his pocket and he again said "nothing" and felt around inside his pockets. Again I heard the rustling noise. He pulled his hand out with nothing in it. I then asked him for a third time what was in his pocket. He put his hands in his pants pocket and turned them out but said nothing. I then reached in and pulled out a tinfoil. I asked the male where he had got the tinfoil. The male said nothing. I then asked him if he had purchased the tinfoil from that address and he nodded.

Submissions on appeal

[11]	Mr Sutcliffe for the appellant repeated the submission to the District Court that

a) the rights of the unknown man were violated by an unlawful search;
b) such violation required exclusion of that material from consideration whether the officer could reasonably have formed the opinion required by 18(2) and the evidence remaining did not provide reasonable grounds for belief;
c) in any event no considerations of urgency justified recourse to s 18(2) rather than securing a warrant: R v Laugalis (1993) 10 CRNZ 350;
d) the learned judge failed to carry out the balancing exercise required by Shaheed;
e) exclusion of the evidence is required to control excessive use or abuse of police power.

[12]	The Crown responded

a) the appellant has no standing to raise issues of breaches vis-à-vis the unknown male;
b) there were reasonable grounds for the constable’s belief;
c) there had been no challenge in the District Court to whether considerations of urgency justified recourse to s 18(2) rather than securing a warrant. If there had the constable would have given evidence on the point;
d) the appeal should be dismissed.

Discussion

[13]	Section 18 provides

18 Search and seizure
...

(2) Where any member of the Police has reasonable ground for believing that there is in or on any building...premises or place any [cannabis] and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he... may enter and search the building... premises, or place and any person found therein or thereon as if authorised to do so by a search warrant...
(3) Where any member of the Police has reasonable ground for believing that any person is in possession of any [cannabis] 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...

[14]	The test of reasonable ground for belief which we have emphasised is one of fact. In relation to the unknown male the entry in the job sheet

His actions indicated to me that he was about to purchase a tinfoil of cannabis from the occupants of the address

is what is conveniently called in the US a conclusory assertion. It gives no reasons and so does not advance the Crown case. But we consider that the evidence summarised in para [3] permitted even if it did not require a conclusion by the Judge that the constable had reasonable grounds for belief that he was witnessing a cannabis transaction. The elements of the man’s running to the property, holding something in his hand apparently in preparation for the exchange that immediately followed his entry, his departure following the exchange are to be taken together. There are no doubt other logical options although none was suggested; one can think of a travel agent delivering urgently required tickets in exchange for a cheque and having to attend another immediate commitment. But the Judge was entitled to bring to her decision the common sense that is expected of a jury; she may well have considered any other option was unrealistic.

[15]

We do not therefore reach the question of the scope and application of R v Bruhns. In R v Pointon CA227/98, 22 February 1999 this Court recognised limits to the simple proposition that breach of the Bill of Rights in relation to one person does not of itself constitute breach of the rights of another. This is not the occasion to consider the Court’s response to a case of such serious breach of rights vis-à-vis the former that the general interests protected by the Bill of Rights or the common law would be threatened if the evidence were admitted.

[16]

The admission by the man that he had bought the tinfoil from the appellant’s address provided reasonable grounds for belief in terms of s18(2) to justifying entry and search of the building. While we accept the Crown’s objection to the appellant’s challenge to recourse to s18 and in view of our upholding the reasonableness of the search we need not determine the point it is difficult to see how the constable could reasonably have been expected to defer entry to the premises until a warrant was available. By then there was every chance that the man would have warned the occupiers to get rid of the evidence.

Result

[17]	The appeal is dismissed.

Solicitors:
Till Henderson King, Hamilton for Appellant
Crown Law Office, Wellington