R v Climie [2007] NZCA 490 (9 November 2007)

Last Updated: 2 January 2015

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA433/07 [2007] NZCA 490

THE QUEEN

v

CLAUDINE TAPITA CLIMIE

Hearing: 5 November 2007

Court: Wilson, Ronald Young and Venning JJ Counsel: C Stevenson for Appellant

A Markham for Crown

Judgment: 9 November 2007 at 11am

_{JUDGMENT OF THE COURT}

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

2. Not to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law

_{report or law digest permitted.}

R V CLAUDINE TAPITA CLIMIE CA CA433/07 9 November 2007

REASONS OF THE COURT

_{(Given by Venning J)}

Introduction

[1] On 12 October 2006 Sergeant Hessell and another police officer were directed to the appellant’s home in Levin. They had received a report of a disturbance. A neighbour also told the police they had heard women screaming at the address.

[2] When the police officers arrived at the property Sergeant Hessell stood by the kitchen window and listened. He overheard the appellant and another female having a conversation about “hiding the drugs” before the police arrived. Sergeant Hessell then looked in through the window and saw one of the women pick up a pink handbag from a kitchen bench and hide it under a mattress on a bed in the living room.

[3] Sergeant Hessell then knocked on the door. When the appellant answered, he informed her that he was invoking the power to search the property under s 18(2) of the Misuse of Drugs Act 1975. The appellant’s handbag was found under the mattress. It contained $1,300 in cash and pill containers containing cannabis oil with a street value of between $3,420 and $6,840.

[4] The appellant was arrested and charged with possession of the cannabis oil for supply. She challenged the admissibility of the evidence of the contents of the handbag on the basis that the search was illegal. In the District Court, Judge Garland accepted that as Sergeant Hessell did not have reasonable grounds to believe the search would locate a specific category of drug to which s 18(2) of the Misuse of Drugs Act applied, the search was unlawful and the evidence was therefore “improperly obtained” pursuant to s 30(5)(a) of the Evidence Act 2006. Nevertheless, having regard to the balancing test mandated by s 30(2)(b) of the Evidence Act and the factors identified in s 30(3), the Judge concluded that

exclusion of the evidence would be disproportionate to the impropriety by the police in this case. The appellant seeks leave to appeal that decision.

Preliminary matters

[5] Sergeant Hessell had reason to believe there were illegal drugs on the premises but the Crown concedes that he did not have reasonable grounds for identifying which particular controlled drugs were there and therefore no reasonable grounds for believing that they were drugs to which s 18(2) applied. In light of the authorities of Hill v Attorney-General (1990) 6 CRNZ 219 and R v Taylor CA384/05 3 May 2006 the Crown concedes that the search was unlawful. It is therefore unnecessary for us to consider the issue of the unlawfulness of the search save to note that we agree with the observation of this Court in the case of Taylor that:

[24] The approach of the Court in Hill involves a very strict and narrow view of the power conferred by s 18(2). However, the decision is clear in its terms and it was not suggested to us that it should be reconsidered. Any such reconsideration would not be appropriate for a divisional Court in any event.

[6] In light of the decision in R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 the Crown also conceded that as the search was unlawful it was also presumptively unreasonable. The Crown accepted that the appeal could proceed on the basis the search was also unreasonable.

[7] During the course of submissions there was some limited discussion with counsel as to the approach this Court should take to an appeal from a decision under s 30 of the Evidence Act 2006, in particular whether this Court should treat it as an appeal against an exercise of discretion or as an appeal against a judicial assessment. Counsel had not prepared to address us fully on that issue. We observe that both the exercise that s 30 requires the Judge to undertake and the wording of the section, particularly subs 30(2) and (4), are arguably consistent with the exercise of a discretion but in the absence of full submissions on the issue we take the matter no further. For the reasons that follow, the issue is not in any event determinative of this particular appeal.

[8] Mr Stevenson submitted that the Judge had erred in concluding that the public interest in an effective and credible system of justice outweighed the need to vindicate the breach in this case. He supported that by submitting that:

• there was strong public interest in confirming the privacy of citizens’ homes against intrusion by agents of the state;

• the Judge was wrong to categorise the breach by the police in this case as “not the most significant”;

• the Judge was wrong to conclude that the offending was so serious that the public interest outweighed the need to vindicate the breach.

The nature of the privacy interest and the seriousness of the intrusion

[9] The Judge accepted that the search of residential property and a woman’s handbag both invoked high expectations of privacy. As to the latter, reference can be made to the comments of the Supreme Court of the State of Montana in State of Montana v Hamilton 67 P 3d 871 (2003). We also accept Mr Stevenson’s submission that privacy in a citizen’s home is an important and closely guarded right. However, s 30(3)(a) requires the Court to also have regard to the seriousness of the intrusion of the right. In the present case the search was very limited both in scope and length of time, relevant in determining the seriousness of the intrusion of the right to privacy. When the police entered they effectively went straight to where they had seen the handbag hidden and searched its contents. The search only involved the main living room (specifically the mattress under which the handbag had been hidden and the bag), and then the refrigerator in the kitchen. This was not a general search of all rooms in the house, including bedrooms, wardrobes and cupboards, as is often the case. It was not a disruptive search. The evidence suggests that a sleeping child remained undisturbed by the police presence. The only extension of the search was a cursory search of the kitchen by the officers checking

the top and inside of the refrigerator. Sergeant Hessell explained that they looked into the refrigerator as drugs and cash are often hidden there. The search of the refrigerator followed confirmation that drugs had been found in the accused’s handbag. So, while we accept the nature of the privacy interest was high, the search was focused and limited and to that extent the seriousness of the intrusion was lessened.

The nature of the impropriety – was it more significant than the judge found?

[10] The police officers either had an implied authority to enter the appellant’s property or their entry on the property was otherwise justified by law given they were answering a 111 call regarding a disturbance at the property: R v Fraser [2005]

2 NZLR 109. When Sergeant Hessell heard the appellant and another woman saying words to the effect of “we should hide the drugs before the police arrive” and then saw one of them hide the handbag under the bed it was reasonable for him to draw the inference that the drugs referred to were illegal drugs and that they were in the handbag. The sergeant also said that, given his experience of drug offending in the Levin area, he expected to find cannabis or cannabis oil. He had a basis for suspecting he would find cannabis or cannabis oil. For those reasons he invoked s 18(2).

[11] There can be no question that if the reference had been to cannabis rather than drugs generally the search under s 18(2) would have been lawful. So while we accept Mr Stevenson’s submission that the search was illegal because the sergeant did not have evidence from which he could identify the exact type of illegal drugs on the property, we agree with the Judge’s assessment that in this case the objective evidence fell just to the side of the dividing line on that issue. The breach by the police officer in this case was not committed in bad faith or with reckless disregard of the appellant’s rights. Nor can it be described as grossly careless. The sergeant’s actions in enforcing s 18(2) in this case fall very much at the lower end of the continuum of culpability. We agree with the Judge’s assessment that it was not the most significant impropriety.

[12] The appellant was found with two pill containers filled with cannabis oil and, in addition, a container with four caps of cannabis oil, in total 85.5 grams of cannabis oil. The cannabis oil would have a street value of between $3,420 and $6,840. In addition the appellant had $1,300 in cash in her handbag made up of $10, $20 and

$50 notes. The clear inference is that the cash was the proceeds of drug sales. The appellant later gave an explanation that in part it was her benefit and that she had collected the other part for her father’s memorial. The Judge did not accept that explanation.

[13] Mr Stevenson submitted that the Judge was wrong to categorise the offending as so serious that the public interest in an effective and credible system of justice outweighed the need to vindicate the breach. But with respect to that submission that is not what the Judge said. While the Judge did categorise the offending as serious, that was in terms of this Court’s decision in Williams which categorised offending that might attract a start point of four years or more as serious.

[14] In making the submission that the offending was not serious enough to require admission of the evidence, Mr Stevenson referred to a number of decisions, including R v Maihi [2002] NZCA 205; (2002) 19 CRNZ 453. In Maihi this Court held that the vindication of Mr Maihi’s rights by exclusion of the evidence did not undermine the need to maintain a credible and effective system of criminal justice. Mr Stevenson submitted that the breach of rights in this case was more serious as it involved intrusion into a private home whereas in Maihi, it involved the search of a car. Also, he submitted the offending in Maihi was more serious. However, as Ms Markham pointed out, Maihi can be distinguished. In that case the information that members of the Black Power were likely to be armed was very general and the Court was properly concerned at the prospect of the police stopping and searching every suspected gang member behaving suspiciously solely on the basis of the very general tip off. In the present case, the evidence of drug offending was compelling. All that was missing was the identification of the precise illegal drugs that the appellant had hidden.

[15] Mr Stevenson also referred to the case of R v Hjelmstrom (2003) 20 CRNZ

208. In that case the accused faced charges of possession of cannabis for supply and cultivation of cannabis. The Court held the search of a shadehouse was illegal and ruled the evidence inadmissible. Blanchard J described the offending in that case (at [20]):

... whilst involving a fairly substantial cultivation and likely to attract a term of imprisonment of perhaps 2 to 4 years, is not of such seriousness as to be given particular weight because of any strong public interest in obtaining a conviction. In the balance, the public interest and the matters favouring admission of the evidence do not outweigh the breach of the appellant’s guaranteed right and the other considerations ...

[16] Importantly, the other considerations referred to in that case included that other investigative techniques could have been tried and the police were not lawfully on the property in the first instance.

[17] Also Hjelmstrom can be distinguished given the nature of the breach in that case. Further, in Williams this Court referred at [135] to Hjelmstrom as reflecting a “benign attitude” towards drug offending and made the point that drug offences are not victimless crimes. Potential individual victims exist and society at large suffers.

[18] The final case referred to by Mr Stevenson R v McMahon CA291/06

16 March 2007 is a further example of the balancing of the relevant factors but applied to the circumstances of that case. Each case must of course depend on its own facts.

[19] While the offending in this case could not be described as particularly serious, it certainly was commercial drug offending, albeit at a low level. On the basis of R v Wallace & Christie [1999] NZCA 89; [1999] 3 NZLR 159 (CA) and R v Corbett CA210/02 7 November 2002 the Judge considered that, taken at its highest, the offending could attract a starting point in the vicinity of four years’ imprisonment. As such it would be categorised as serious in terms of Williams. The Judge concluded therefore the offending was serious but not of the worst kind.

[20] More importantly, the Judge came to that view that the exclusion would be disproportionate to the impropriety, not on the basis the offending was very serious,

as Mr Stevenson submitted, but rather on a consideration of all the factors he was required to balance:

[32] In this case, while the privacy interest is strong, the illegality is not the most significant. I therefore assess the breach as moderate. By contrast, the public interest factors are very strong. Balancing all those factors, I am of the view that the public interest in an effective and credible system of justice outweighs the need to vindicate the breach. In my view exclusion of the evidence would be disproportionate to the impropriety in this instance.

[21] In referring to the public interest factors as very strong the Judge was not focusing solely on the seriousness of the crime. Nor was he suggesting the crime was “so serious” that that factor alone counterbalanced the breach. Under the public interest factors referred to in the judgment the Judge also identified a number of other factors. The Judge noted the nature and the quality of the evidence (finding that real evidence which was reliable and highly probative was obtained as a result of the search), the importance of the evidence to the Crown case (finding that the evidence was crucial to the Crown case) and that there were no alternative remedies available to vindicate the breach.

Conclusion

[22] In concluding that the exclusion would be disproportionate to the impropriety in this case the Judge properly took into account the extent of the illegality, the nature of the privacy interest, aggravating and mitigating factors, public interest factors including the seriousness of the crime, the nature and quality of the evidence, the importance of the evidence to the Crown case and whether there were alternative remedies to the exclusion of the evidence. In our view the Judge was entitled to assess the breach as moderate in this case and on a balancing of all relevant factors was correct to come to the view that public interest in an effective and credible system of justice outweighed the need to vindicate the breach so that exclusion of the evidence would be disproportionate to the impropriety. In doing so, he did not over- emphasise the seriousness of the offending. He referred to it as serious in terms of his assessment of the appropriate starting point and the comments of this Court in Williams. But the Judge accepted that the offending was, in his words, not of the worst kind.

Result

[23] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington