R v Machirus [2007] NZCA 120 (4 April 2007)

Last Updated: 12 February 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST

_PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA359/06 [2007] NZCA 120

THE QUEEN

v

PETER LLOYD MACHIRUS

Hearing: 8 March 2007

Court: Hammond, O’Regan and Arnold JJ Counsel: Appellant in Person

B M Stanaway for Crown

Judgment: 4 April 2007 at 11.30 am

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted, but the appeal is dismissed.

B Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly accessible database until final disposition of trial.

_{Publication in law report or law digest permitted.}

R V MACHIRUS CA CA359/06 4 April 2007

REASONS OF THE COURT

_{(Given by Hammond J)}

Table of Contents

_{Para No}

Introduction [1] Background [3] The objections in the District Court [9] The grounds of appeal [12] What consent was given? [18] Did Ann Pelenato consent? [27] A right to an informed consent? [30] Conclusion [32]

Introduction

[1] Mr Machirus faces a substantial number of charges for receiving and conspiring to receive in relation to an alleged large-scale burglary and receiving ring in Christchurch. His trial commenced on 9 October 2006. It was aborted near the close of the Crown case due to Mr Machirus’ ill health. The re-trial has been rescheduled to commence on 30 July 2007.

[2] On 25 September 2006 Judge MacAskill, in a pre-trial ruling, held that certain evidence relating to incriminating items identified after searches of a house and garage, was admissible at Mr Machirus’ trial. Mr Machirus now applies for leave to appeal against that ruling.

Background

[3] Mr Gary Morell was the owner of a property at 512 Worcester Street, Christchurch. Nardia Pelenato and the appellant were the tenants of that property.

[4] The police were looking for a male M ori youth who was in possession of a knife, and who was said to have threatened someone with it. Sergeant Leach thought the description of this person sounded very much like a young person he knew as Tony Pelenato. The sergeant had previously arrested Mr Pelenato in relation to an incident involving knives and threats to kill. He was aware that Mr Pelenato was bailed to reside at 512 Worcester Street. So the sergeant went to that address.

[5] The Judge found that, on arrival, Sergeant Leach approached the front door of the residence. He spoke to Ms Ann Pelenato, the 17-year-old sister of Mr Pelenato. She told him that Mr Pelenato was not there, but agreed he could look around the house and property. Subsequently he did so.

[6] Senior Constable Greenland had also been despatched to this address, with his police dog. He said he also went up to the door, spoke to Ann Pelenato, was given permission to look through the house for a man with a knife, did a “quick cursory check” with his dog, and then left when he did not locate such a man.

[7] Later in the morning, Detective Bracegirdle arrived at the premises in response to a call from Sergeant Leach about a suspicious car he had observed on the property. Detective Bracegirdle spoke with Ann Pelenato. He asked if he could look at the Toyota car, and any others there might be. She agreed.

[8] Whilst he was in the garage looking at another car, Detective Bracegirdle saw a number of items of property which he thought might be of interest to the burglary squad. He thereupon contacted Detective Sergeant Fisher, who came to the property, took a look at the items in the garage, and then left the property and arranged for a search warrant. That search, under warrant, turned up incriminating evidence of stolen goods, implicating Mr Machirus.

The objections in the District Court

[9] In the District Court the defendants other than Mr Machirus were legally represented by experienced counsel. He therefore received, albeit indirectly, the benefit of their arguments.

[10] The District Court Judge helpfully summarised the arguments put to him, and his response to them, as follows:

[32] I will now review the main elements of the defence arguments, to ensure that I have responded to them:

(a) I recognise that evidence obtained unfairly may, at common law, be excluded in the Court’s discretion – R v Grayson and Taylor [1997]

1 NZLR 399. Furthermore, everyone has the right to be secure against unreasonable search or seizure under the New Zealand Bill

of Rights Act 1990.

(b) I accept the defence submission that the police have an implied licence to enter private property for legitimate reasons and to approach a door to speak with the occupier. Such a licence does not permit the police to enter to gather evidence.

(c) I reject the defence submission that, once Sergeant Leach had ascertained that Tony Pelenato was not on the property, the following search was unlawful and that the circumstances of the search and the process adopted in carrying it out were unreasonable. In my judgment, Detective Bracegirdle properly sought and obtained consent to look at any vehicles on the property, including in the garage. The additional information obtained concerning whiteware, appliances and the like was obtained incidentally to the consensual search. The police are not required to close their eyes to other evidence discovered incidentally to the search.

(d) While the consent obtained by Detective Bracegirdle did not extend to property other than motor vehicles, there was no further active search for other kinds of property except under the search warrant. While Detective Fisher carried out a brief examination, I do not consider that this amounted to a search of any real significance as it yielded little information additional to that already discovered by Detective Bracegirdle incidentally to the authorised search. In this respect, Detective Sergeant Fisher acted entirely reasonably.

(e) The defence submits that the initial search was unreasonable because the police only suspected that Tony Pelenato was on the property. I find that it was not unreasonable for Sergeant Leach to seek consent to the initial search of the house and property, nor was it unreasonable for him to carry out the search.

(f) I reject the submission that the consent given by Ms Pelenato was not a genuine consent. I reject her evidence to the extent that it suggests that she felt unable to refuse consent.

(g) It is submitted by the defence that the inference to be drawn from the circumstances is that the consent for the search was sought and obtained for a reason unrelated to the police’s real reason and that the consent was therefore not valid. I reject that submission. I accept the evidence of Sergeant Leach as to the true reason for his visit to the property. The police did not act in bad faith in this respect.

(h) While Ms Pelenato may not have been a legal “occupier” of the property, I am satisfied that she was a de facto occupier in the sense that she resided there and that this status was sufficient for her to give legally effective consents to the searches carried out by the police.

[11] None of the legally represented defendants have appealed against those holdings, but Mr Machirus has, in person. We make no criticism of that; he is absolutely entitled to lodge his own appeal, as he has done.

The grounds of appeal

[12] Mr Machirus filed a nine-page Notice of Appeal, and lengthy and discursive submissions.

[13] He also made quite improper observations as to what he claims to be the “biased” and “partial” stance of Judge MacAskill. Regrettably, this suggestion is too often made by litigants in person who fail to appreciate, as here, that because a trial Judge holds against the submissions made to him or her, that does not amount to partiality. That kind of florid language is quite unnecessary, and should not have been used in this case. There is no basis in the hearing record for those kinds of observations.

[14] It was only after a number of questions from the Bench that we were finally able to get a simple statement from Mr Machirus as to exactly what he was complaining about. As we apprehend it, he has three points.

[15] The first is that, he says, it was not a matter of the policemen going sequentially to the door of the house and each getting a consent to search, as the police had claimed. He says, for reasons we will come to shortly, that the approach was effectively made more-or-less jointly by the police officers, and that the permission given to them to search was on the very limited basis of the house only. The search which turned up the incriminating evidence, he now says, was outside the permission given.

[16] Secondly, Mr Machirus again argues, as he did in the District Court, that Ms Ann Pelenato did not have the ability to give the consents relied upon, because she was not an occupier of the Worcester Street property.

[17] Thirdly, Mr Machirus “strongly submitted” that there was a duty on “the police seeking consent to advise [Ann Pelenato] of her right to refuse consent”.

What consent was given?

[18] The first point to be noted here is that this appeal point has, with all due respect to Mr Machirus, the appearance of having been cobbled together for this appeal. The argument does not appear to have been run in the District Court. It is not mentioned at all by the District Court Judge in the way in which Mr Machirus now puts it. Neither was it put as such, in the Notice of Appeal. However, we are entirely conscious of the Court’s obligation to ensure that there has not been a miscarriage of justice, and we allowed Mr Machirus to develop his point orally.

[19] Mr Machirus’ argument, to succeed, necessarily turns on two propositions. First, that Sergeant Leach, Senior Constable Greenland and possibly a third officer effectively arrived more-or-less together at the door of the house. Second, that the only consent which was given by Ms Pelenato was a joint consent to them to search only “the house, the interior”.

[20] Senior Constable Greenland agreed with this geographical limitation, at least as it applied to him. But it was never put to Senior Constable Greenland that Sergeant Leach got “his” consent at the same time as him. Sergeant Leach’s evidence was that when he made his own separate inquiry, he was given permission to “look around” (which could reasonably be taken to have included the garage).

[21] The difficulty with the appellant’s proposition is that the two officers who are critical to this issue both gave evidence, both were cross-examined, and the Judge accepted their evidence that they each separately asked for and received a consent to search, but in different terms. Any suggestion that the three officers arrived together did not rise above an assertion by counsel and was not accepted by the Judge. It

followed that the two officers acted in terms of their individual consents: Senior Constable Greenland in fact only looked around the house; Sergeant Leach also went to the garage.

[22] What Mr Machirus invites us to do is to substitute a different factual finding, namely that (at least) both men (or even the three officers) must have gone to the door more or less together; that Ms Pelenato’s evidence should be read in a much narrower way; and that the (single) consent given was narrower than the broader consent Sergeant Leach said he was given.

[23] This is entirely problematic on appeal. Mr Machirus has to persuade us on appeal, on a point like this, that the Judge was plainly wrong. He can only do so (as he attempted to do) by saying that the officers were present together and that the limitation on their ability to search the property, together, was of the character that applied to Senior Constable Greenland.

[24] As against that, as Mr Stanaway said for the Crown, the police had adopted, and rightly so, a classic “belts and braces” approach to getting consents for what at the time were warrantless searches. Each of the officers was engaged in a somewhat different task, and each sought and obtained a consent which was relevant to that officer’s particular task.

[25] In the result, we are not persuaded by this appeal point, which must fail because, on an evidential basis, it was open for the Judge to find as he did.

[26] That said, we had some difficulty with the proposition, discussed by the Judge in [6] of his judgment, that Sergeant Leach could appropriately go as far as he did in searching a small car – a Toyota Echo – parked in the driveway of what turned out to be 512 Worcester Street. Effectively what was happening here was that a car belonging to an unknown person was parked on the driveway adjacent to the house. Whilst it was entirely reasonable for the sergeant to peer through the window or the windscreen to get sticker details or the like to confirm an owner (and hence address), we would not have regarded his subsequent “search” of the vehicle as “trifling”. Permission to search the house “and around” could not have extended to a search of

this unknown vehicle. In the end this does not have particular application in this case because there is no charge relating to the vehicle, and what transpired elsewhere had no connection to this incident, but we would not wish to be taken as having endorsed what happened in this particular instance.

Could Ann Pelenato consent?

[27] It is elementary that valid consent for a search of property may be given by an occupier of the property where his or her conduct, and the circumstances which pertain at that time, have reasonably led the police officer or officers to conclude that the person had authority to give consent (R v Bradley (1997) 15 CRNZ 363 at 369 (CA)). An occupier purportedly exercising authority can be taken at face value, unless something out of the ordinary is apparent.

[28] The Judge directly rejected Ms Pelenato’s evidence that she did not live at the address. There was an ample evidential basis for this finding. Ms Pelenato in fact described 512 Worcester Street as her home in her evidence-in-chief. She gave that to Detective Bracegirdle as her home address. Evidence adduced at the aborted trial showed that she had been a customer/subscriber with Telecom for that address for a phone from 12 July 2002. Her mother and stepfather resided there, and she had been entrusted with babysitting a younger sibling during the day. Ms Pelenato did not herself raise any concerns with the police about her ability to give consent.

[29] There is nothing in this appeal point. It is accordingly dismissed.

A right to an informed consent?

[30] Mr Machirus argued, in his written submissions, that the police were under a duty to “tell [Ann Pelenato] of a right of refusal” and the “possible consequences of a search”.

[31] The law is that there is no such formal obligation. See R v Gebremichael CA194/06 6 July 2006 at [27] and R v Hjelmstrom (2003) 20 CRNZ 208 at [14] (CA). This appeal point too, is dismissed.

Conclusion

[32] Leave to appeal is granted, but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington