[1] Mr Rimine faces trial in the District Court on two charges, one of supply of methamphetamine and one of possession of methamphetamine for the purpose of supply. Mr Rimine challenged the admissibility of evidence obtained from a search of his motor vehicle. That evidence provided the basis for the charges against him. The Crown sought a pre-trial ruling under s 344A of the Crimes Act 1961. That application was heard by Judge Barry and he ruled that the search and seizure was lawful and that the evidence thereby obtained was admissible at Mr Rimine’s trial.[1] Mr Rimine now seeks leave to appeal against that decision.
[2] The application for leave was filed out of time but only by a small margin. The Crown accepts there was no resulting prejudice and in the circumstances we grant an extension of time. We heard submissions on the application for leave and the intended appeal together and this judgment deals with both.

Issues on appeal

[3] The search was carried out pursuant to the power of search conferred by s 60 of the Arms Act 1983. That section empowers a police officer to search, among other things, a vehicle, without warrant if he or she “has reasonable grounds to suspect” that a person is carrying or is in possession of a firearm. The first issue on appeal is whether the police officer who invoked this power of search, Senior Constable Todd, had such reasonable grounds to suspect.
[4] In the event that we determine that Senior Constable Todd did not have such reasonable grounds to suspect, then we will need to consider whether the evidence obtained as a result of the search and seizure should nevertheless be admissible under s 30 of the Evidence Act 2006. That is the second issue.

Was the search lawful?

[5] The determination of the first issue requires a careful consideration of the circumstances leading to the search and, in particular, the information that was known to Senior Constable Todd when he invoked the power of search under s 60.

Facts

[6] The vehicle being driven by Mr Rimine was stopped at an alcohol check point at around 10.20 pm on 26 November 2009. He passed a passive breath screening test, but his vehicle was pulled over because the rear tail lights were not working correctly. The police officer dealing with Mr Rimine, Constable Satherley, checked the vehicle and sought information about the appellant from the police communications system because Mr Rimine was not carrying a licence. Constable Satherley was told by the police communications operator that there was a “flag” on the police intelligence data-base in relation to Mr Rimine. This recorded that he was wanted to interview for an incident involving threatening a police officer with a firearm. The operator suggested that a search under s 60 should be considered if the officers were threatened.
[7] After this development, Senior Constable Todd became involved. He is a dog handler. His evidence was that he parked his police dog vehicle in front of Mr Rimine’s vehicle, armed himself with a pistol and approached Mr Rimine’s vehicle. Mr Rimine was at that stage engaged in a discussion with Constable Satherley and another police officer, Constable Te Moni, was in the immediate vicinity. Senior Constable Todd was told that there was an alert relating to Mr Rimine indicating that he was wanted to interview for threatening to shoot a police officer, but was not told that there had been a recommendation to consider a s 60 search if threatened.
[8] Senior Constable Todd then spoke to Mr Rimine who identified himself and told the senior constable that he was a relation of a man called “Porky” Rimine. Senior Constable Todd knew Porky Rimine as a senior member of a gang in the local area.
[9] Senior Constable Todd asked Mr Rimine for his ignition keys and asked him to get out of the car. Mr Rimine refused. Constable Todd said Mr Rimine was nervous and agitated. He thought he may be intoxicated by alcohol or some other drug. He asked another officer to fetch a sergeant, given the potential seriousness of the situation.
[10] After Mr Rimine refused to get out of the car, Senior Constable Todd advised him that the vehicle was going to be searched pursuant to s 60 of the Arms Act. At this point, Mr Rimine became aggressive and began yelling at the police officers. Senior Constable Todd said that he was about to give New Zealand Bill of Rights Act advice once Mr Rimine was out of the vehicle and formally invoke the statutory power under s 60, but was prevented from doing this by Mr Rimine’s actions. In particular Rimine screamed that he did not have a gun and began to reach into his glove box. The senior constable yelled at him not to open the glove box – he believed Mr Rimine was reaching for a weapon. Senior Constable Todd then brought the police pistol that he was holding from behind his body to the front in a “sole position”, which did not involve pointing at the accused but making it obvious that it was in his possession.
[11] Mr Rimine then grabbed at a puppy dog lying on the passenger seat. However, he appeared to reach down with his left hand between the seat and the console, and the senior constable again thought he may be trying to retrieve a weapon or something similar. Being night time, it was dark and difficult for the officer to see what was happening in the car. He again ordered Mr Rimine to make both hands visible and threatened to use pepper spray. At about this time, Detective Sergeant Murray arrived along with another constable and they began to pull Mr Rimine out of the car. Mr Rimine resisted and appeared to attempt to climb into the back seat. Senior Constable Todd then pepper sprayed Mr Rimine and Detective Sergeant Murray looked in the back of the car, locating an imitation firearm which was in a bag. A search undertaken at the scene further yielded a burner used to smoke methamphetamine, and a set of electronic scales. In addition a child’s bag was found by the driver seat, which contained about $39,000 in cash.
[12] The vehicle was then driven to the local police station where a more detailed search was conducted. This yielded other sets of electronic scales, empty gram and point bags, two cellphones and a second imitation pistol.
[13] After Mr Rimine was pulled from the car, Constable Satherley arrested him for obstruction and gave him Bill of Rights advice. A cursory body search (involving patting down) was undertaken but the police officers decided that they would not undertake a more detailed search, given that members of the public were gathering around the scene. Mr Rimine was taken to the Lower Hutt police station where he was subjected to a strip search. This yielded a number of items which were located between his genitals and buttocks. These included a silver cylinder lid and small point bag, a glass pipe, a silver cylinder corked container and two bags containing a crystalline substance, later found to be methamphetamine. There were 14 grams in one bag and four grams in the other.

District Court decision

[14] The Judge found that the search at the roadside was lawful in terms of s 60. He found that the police acted properly in interrupting the search given the circumstances at the roadside with members of the public gathering (some with cellphones), and that the search was properly relocated and resumed at the local police station.

Reasonable suspicion?

[15] The appeal is advanced on the basis that s 60 of the Arms Act was not legitimately invoked in the circumstances of this case. Mr Stevenson, counsel for Mr Rimine, argued that the information that had been conveyed to Senior Constable Todd prior to his invoking s 60 did not provide a sufficient foundation for the reasonable suspicion required by s 60. He rightly focused on the information known by the Senior Constable at the time of the invoking of the s 60 power. On the basis of the Judge’s findings, which we consider were properly founded in the evidence, Senior Constable Todd, as the decision making officer, knew:

(a) That the police intelligence records recorded that Mr Rimine was wanted to interview in relation to an incident of threatening a police officer with a firearm. As it turned out, this information was out of date because that incident had been dealt with and Mr Rimine had been convicted of a lesser offence. The existence of the “flag” in the police intelligence system was information provided to Senior Constable Todd by Constable Te Moni, who had heard the exchange between the operator and Constable Satherley. Senior Constable Todd said Constable Te Moni was distressed when providing this information. The senior constable said that he took the “flag” seriously because alerts of that kind are not placed on the police system unless there is “hard intelligence”.

(b) That Porky Rimine was the appellant’s uncle, that Porky Rimine was president of the Nomads gang, and that Porky Rimine and his associates were carriers of firearms to “tax” other criminals;

(c) That Mr Rimine had refused to exit the car when he asked him to do so, though at the time that occurred, Mr Rimine was within his rights to decline the request to get out of the car.

(d) That Mr Rimine appeared agitated and nervous.

[16] Mr Stevenson said that the Judge was wrong to find that this information was sufficient to found a reasonable suspicion. He pointed out that the information about the flag in the police intelligence system did not give any indication of the date on which the alleged incident involving threatening a police officer with a firearm had occurred, and therefore Senior Constable Todd could not have known whether it was current information or not. He was particularly critical of the language employed by Judge Barry in evaluating the evidence, particularly the reference to the fact that “Constable Todd had formed an apprehension that there was a possibility the accused was ... associated with firearms”. Mr Stevenson said that this significantly understated the requirement in s 60 that the officer invoking the power have reasonable grounds to suspect that there were arms in the vehicle.
[17] Mr Stevenson accepted that the “reasonable grounds to suspect” requirement in s 60 was a lesser standard than the “reasonable grounds to believe” standard applying to other searches, such as those under s 202B of the Crimes Act. He also accepted that the assessment of what constituted reasonable grounds to suspect involved a consideration of all relevant material whether derived from personal observation or inquiry or heresay reports.[2] But he said that the combination of the undated (and, as it turns out, inaccurate) flag in the police system, Mr Rimine’s agitation, his refusal to get out of the car and his relationship with Porky Rimine did not provide sufficient grounds to invoke the search power.
[18] Mr Stevenson also accepted that Mr Rimine’s behaviour after the officer told him he intended to invoke the power of search was confirmatory of the suspicion held by the officer, but said that this could not be taken into account because it was provoked by the unlawful exercise of the s 60 power, and could not be the foundation of the exercise of a power that had been exercised before the conduct occurred.
[19] For the Crown, Mr Ebersohn argued that the information known to Senior Constable Todd did provide sufficient basis for the invoking of the search power. He said that the combination of the flag in the police system, particularly given Senior Constable Todd’s understanding that these were based on hard intelligence, the conduct of Mr Rimine in refusing to get out the car, the relationship with Porky Rimine who was well known for an association with firearms, and Mr Rimine’s nervous and agitated behaviour were sufficient to found the reasonable grounds to suspect. He said that it was important to view the whole situation in light of the danger to both the public and to the police officers from firearms[3] and the urgency of the situation exhibited by Constable Te Moni’s apparent distress.
[20] We accept Mr Stevenson’s submission that events which occurred after the s 60 power was invoked cannot be used to justify the invoking of the power. We are satisfied that, at the point at which Senior Constable Todd informed Mr Rimine of the s 60 search and asked him to exit the car, s 60 was invoked. The legality of its invocation must be decided by reference to what the officer knew when he invoked the power. We therefore confine our consideration to the information known to Senior Constable Todd at the time he invoked the power.
[21] We do not, however, accept Mr Stevenson’s criticism of the Judge’s use of language, in a context in which the Judge was not applying the legal test. While we accept that the test is as stated in s 60 and should not be watered down by the use of alternative language, we do not think the Judge was making a legal finding when he referred to Senior Constable Todd having formed an impression that Mr Rimine might have a firearm in his vehicle. We note that the requirement that the officer have only a reasonable ground for suspicion that arms are in the vehicle is not a particularly exacting standard. It was set at this lower level than other search powers because of the obvious danger involved in possession and use of firearms. In our view the Judge was well aware of the legal test he had to apply. He stated it correctly at [31] of his decision.
[22] Looking at the matter in the round, and acknowledging the tension caused by concerns that firearms may be involved in any interaction with a police officer, we do not consider that the information available to Senior Constable Todd was sufficient to found the reasonable suspicion that s 60 requires. Mr Rimine’s nervousness and refusal to exit the car in circumstances where he was not obliged to do so are not strong factors on which to base a conclusion that arms were in the car. The uncle/nephew relationship might have justified a concern that Mr Rimine might have access to firearms but not that he was, at the relevant time, in possession of them. The imprecise “flag”, without identification of the date of the alleged incident, did not provide a basis for concluding Mr Rimine was about to engage in similar conduct. The combination gave some basis for concern but, in our view, it fell short of the reasonable suspicion standard.

Is the evidence admissible?

[23] We now turn to the second issue, namely whether the evidence should nevertheless be admitted. This involves consideration of the factors set out in s 30 of the Evidence Act.
[24] On the approach Judge Barry took on the case, it was not necessary for him to deal with the s 30 factors. We did, however, hear submissions from both counsel on s 30.
[25] The test to be applied in this context is set out in s 30(2)(b). The Court is required to determine whether or not the exclusion of the evidence is “proportionate to the impropriety”. This involves a balancing process giving appropriate weight to the impropriety and also taking account of the need for “an effective and credible system of justice”.
[26] Section 30(3) sets out a list of factors to which the Court may have regard when undertaking the balancing exercise. We will consider each of those factors in turn.

Importance of right breached by the impropriety and the seriousness of the intrusion on it

[27] The right breached in this case was the right not to be subject to unreasonable search and seizure. The inherent value protected by that right is that of privacy. That right has greater resonance in relation to a domestic dwelling than it does in relation to a car, but that is a relative assessment and the expectation of privacy is still important in relation to the motor vehicle. The intrusion on the right was the commencement of the s 60 search, but, as noted above, the finding that the officers breached this right was not clear cut.

Nature of the impropriety

[28] Under this factor the Court is required to consider whether the impropriety by which the evidence was obtained was deliberate, reckless or done in bad faith. There is no question of bad faith in this case and nor do we consider the actions of the officers to be reckless. As Judge Barry found, the situation developed quickly and there was obviously real concern on the part of the police officers about the possible presence of a firearm in the car. We would classify the impropriety as resulting from an error of judgement about the satisfaction of the “reasonable suspicion” test rather than as anything more serious. We note, however, that the “flag” in the police computer database was outdated and inaccurate: we were informed by counsel that Mr Rimine had been charged and convicted of an offence involving threatening a police officer, but not with a weapon.

The nature and quality of the improperly obtained evidence

[29] The evidence obtained in this case is obviously high quality physical evidence. It is highly probative and without it there is essentially no Crown case.

Seriousness of the offence

[30] The likelihood is that, if convicted, Mr Rimine will fall within band 2 of the sentencing guideline in R v Fatu.[4] It can therefore be classified as reasonably serious offending.

Other investigatory techniques

[31] There is no suggestion that other investigatory techniques were available to the police.

Alternative remedies

[32] There is no suggestion that any alternative remedy would be available in this case. The obvious remedy of significance to Mr Rimine is the exclusion of the evidence.

Whether the impropriety was necessary to avoid apprehended physical danger to the police or others

[33] The Judge found that the situation evolved quickly and that there were real concerns on the part of the police officers about the possibility of a firearm in the car. The event also happened at night. The officers were faced with a situation where it may have been necessary to order the vehicle off the road, given the problem with its tail lights, but before doing this they had an obvious concern that they would not be confronted with a firearm. Nevertheless, it could not be said that there was a proper basis for the officers to conclude that they were in imminent physical danger.

Urgency

[34] There was no specific urgency in relation to the search, but the reality was that if the Arms Act search had not been invoked Mr Rimine may have then been allowed to depart in the vehicle, without the evidence being detected. On the other hand, there was a possibility that the vehicle would be taken off the road because of its tail lights malfunctioning, but that was not a possibility that was explored in any depth before us.

Overall assessment – s 30

[35] Our overall assessment was that this was a case of police officers acting instinctively and misjudging the requirements for invoking a search under s 60. It was partly caused by the incorrect information in the police computer system which prompted the concern on the part of the officers present about the possibility of firearms in the car. However, the impropriety extended only to the point of invoking the power of search. Once that occurred, Mr Rimine’s reaction was then the catalyst for the action taken to remove him from the vehicle and the activities that followed at the roadside and the police station.
[36] We are satisfied, given the relatively minor impropriety and the lack of any bad faith, the difficult circumstances in which events unfolded, the seriousness of the offending and the importance of the evidence, that exclusion of the evidence would not be a proportionate response to the impropriety by which the evidence was obtained. In those circumstances we conclude that the challenge to admissibility of the evidence should fail, though for different reasons from those given by the District Court Judge.

Result

[37] We extend the time for the filing of the application for leave, we grant leave to appeal but we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Rimine DC Wellington CRI-2009-032-4901, 21 July 2010.
[2] Police v Cooper [1975] 1 NZLR 216 (CA) at 221.
[3] Citing R v Collins [2009] NZCA 388 at [26].
[4] R v Fatu [2006] 2 NZLR 72 (CA).

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/462.html