Tuato v R [2011] NZCA 278 (17 June 2011)

Last Updated: 22 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA637/2010 [2011] NZCA 278

BETWEEN SAKAIO IOANE TUATO Appellant

AND THE QUEEN Respondent

Hearing: 13 June 2011

Court: Wild, Keane and Miller JJ

Counsel: C W J Stevenson for the Appellant H Ebersohn for the Respondent

Judgment: 17 June 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Wild J)

[1] This is an appeal against a ruling by Judge Hubble in the Wellington District Court that evidence found when police searched a car is admissible in the appellant’s forthcoming trial.
[2] We uphold the Judge’s ruling, though our reasons for doing so differ from the Judge’s.
[3] In the early hours of 11 November 2009 Detective Ducey stopped a car being driven in Porirua by the appellant, for a random breath test. He passed the breath test. However, a police check revealed that the appellant’s driver’s licence was suspended. The appellant was evasive when asked who owned the car. He said it was a friend but could not, or would not, name the owner. A further police check established that the owner was simply one “Kingy”, with a Porirua address. The car had not been reported stolen.
[4] The appellant was arrested and charged with driving when his licence was suspended. Section 96(1)(b) of the Land Transport Act 1998 required the police to impound the car. Because the car was to be impounded, Detective Ducey sought the assistance of Constable Campbell, who was patrolling nearby.
[5] The critical finding of fact in the judgment is this:

[7] Constable Campbell said that when filling out the form for impoundment of the vehicle under s 96, he sought to check the name “Kingi” by looking in the glove box of the car for any paperwork that might be there. When he opened the glove box he found the Methamphetamine pipe and accordingly, invoked the powers under s 18(2) of the Misuse of Drugs Act [1975]. He found a small plastic bag containing Methamphetamine, a green SKS semi-automatic rifle; and 47 live rounds of ammunition. The accused’s DNA was found on the Methamphetamine pipe but there was no evidence connecting him to the firearm or ammunition other than possessions in the vehicle.

[6] The Judge considered that the only basis on which the search of the glove box could be regarded as legal was as a necessary incident of the car being impounded. He pointed out that there “was no urgent need to double check ownership of the vehicle and no evidence of any criminality relating to it”. [1] That is, there was no evidence that the car had been stolen or used to commit a crime.
[7] The Judge ruled that Constable Campbell’s evidence of finding the drugs, firearm and ammunition was admissible for two reasons. First, because those items would inevitably have been discovered when the police inspected the glove box and boot of the car in discharge of their duties under s 96(4) of the Land Transport Act to preserve and return personal property in an impounded vehicle. Section 96(4) provides:

Impoundment of vehicles

96 Vehicle seized and impounded for 28 days in certain circumstances

...

(4) Personal property (other than property attached to or used in connection with the operation of the vehicle) present in a motor vehicle at the time of the seizure and impoundment must be released on request to a person who produces satisfactory evidence to the effect that he or she was lawfully entitled to possession of the vehicle or personal property immediately before the vehicle was moved.

[8] Secondly, the Judge held that the police had a right to inspect the car for safety reasons on impounding it, to ensure that it could safely be towed away by a tow truck to the impounding yard. The Judge pointed out that, nowadays, vehicles impounded by the police sometimes contain potentially dangerous items such as whole “P labs” or loaded firearms. The Judge held that it followed that evidence of illegal activity, such as drugs found in the course of the legitimate safety inspection, could trigger the power of search without warrant in the Misuse of Drugs Act 1975.
[9] Constable Campbell gave evidence that he looked in the glove box of the car to see if he could find anything indicating who owned the car, and to make sure that it had not been unlawfully taken.[2]
[10] The Constable’s action in looking in the glove box of the car must be assessed against the following circumstances:

• (a) The appellant had told the police the car was not his.
• (b) Although the appellant claimed it was a friend’s car, he either could not or would not tell the police who the owner was. There was an element of evasiveness, or at least a lack of cooperation, on the appellant’s part. The following exchange occurred in the course of the cross-examination of Detective Ducey:[3]
  17. You didn’t press the point. Where does it say in your brief that you pressed the point. Give me a name, come on you can do better than that, things like that?
  1. I didn’t say I said that, I just said that he wouldn’t be drawn. When I asked him who the owner was, he was unable to give a name, stating only that it was a friend’s car. While talking to him, it was my understanding that that was all I was going to get, he wasn’t going to tell me.

Constable Campbell also said that before the appellant left the scene he asked him who the owner of the car was and “he couldn’t give me a straight answer”.[4]

(c) As the appellant was leaving the scene with Detective Ducey, Constable Campbell noticed that the appellant’s wallet was on the driver’s seat of the car. Constable Campbell explained what then happened:[5]

... and I said to him, just casually, I said ... “Hey your wallet’s on the seat.”, I went to open the door and he quickly moved towards me as if to stop me. I said oh, I think he said something like, “Stop,” or, “It’s all right I’ll get it,” and I said, “Oh it’s no trouble, I’ll grab it for you,” I opened the door and I gave him his wallet.

It emerged from the cross-examination of Constable Campbell about proposed amendments to his brief of evidence, was that this incident left him suspicious “that something wasn’t right about the car”.[6]

(d) The registered owner of the vehicle was simply “Kingy” – no first or second name.
(e) The police were aware that the registered owner of a car in Porirua is often not the actual owner. In answer to a question from the Judge, Constable Campbell explained:[7]

... in Porirua particularly I know that a lot of cars change hands without any update in registered owner, and often when we do make enquiries people often say, I don’t have the car anymore, it belongs to someone else.

[11] In those circumstances we consider it was reasonable for Constable Campbell to look in the glove box for any information that might indicate who the true owner of the vehicle was. We take that view for two reasons. First, in the circumstances we have outlined, it was reasonable for Constable Campbell to go behind the details he had obtained from police communications as to the registered owner. We accept that the police could have checked whether the registered owner was still the actual owner of the car by telephoning the registered owner or calling at his address in Porirua. But to look in the glove box for any information that might show who the actual owner was was a faster and easier check, and one much less demanding of police resources. As the judgment of the majority of the Supreme Court in R v Ngan points out, police duties in terms of protecting property are “necessarily limited by the extent of the resources available to the police and by the urgency of conflicting claims upon their services”.[8] The glove box search was also a confined and comparatively non-intrusive one, a point we will revert to.
[12] Secondly, we regard the search of the glove box search as within both the powers of the police under s 96(4) of the Land Transport Act and the general powers and duties the police have at common law to protect life and property. Implicit in s 96(4) is that the police must secure and safeguard personal property in an impounded vehicle. If that is not done the police will not be able to release that property to its owner on request, as required by the sub-section. Here, the car was to be towed by a contractor, first to the police station, and from there to the contractor’s impoundment yard for storage. In that situation, we consider the s 96(4) powers may have entitled the police to go through the car in order to make an inventory of the personal property in it.[9] In a situation – and this appeared not to be one – where the police were concerned about the security of the impoundment yard, the police may well have been justified in removing the personal property in the car for safe storage. Anything in the car indicating who owned the car would obviously be of particular interest to the police in ensuring that the personal property was returned to its owner.
[13] The common law powers and duties of the police as to property, in particular when they are acting as bailees, were comprehensively reviewed by the Supreme Court in Ngan. Mr Stevenson submitted those powers were limited to protecting property from “imminent criminal injury”.[10] We do not accept that. Mr Ngan crashed and overturned his car on the highway. After he was taken away to hospital in an ambulance, the police set about gathering up a large amount of money in bank notes of various denominations that was scattered about the crash scene. The issue in the case was about the reasonableness of the police looking in what appeared to be a soft sunglasses pouch that one of the police officers had placed, along with a large amount of money, in a satchel in the boot of his patrol car for safekeeping. Although there was no imminent danger of Mr Ngan’s wrecked vehicle causing further accident or being itself subject to criminal injury, the majority did see a danger of some passerby dishonestly taking some of the loose cash scattered around the accident scene.[11]
[14] The words fastened upon by Mr Stevenson need to be put in their context in [12] of the majority’s judgment in Ngan:

The common law duties are extensive. At their core is the duty which has been described as “an absolute and unconditional obligation” upon the police “to take all steps which appear to them to be necessary for keeping the peace, for preventing crime or for protecting property from criminal injury”: Glasbrook Brothers Ltd v Glamorgan County Council [1924] UKHL 3; [1925] AC 270 at 277 per Viscount Cave LC. It is for the police, however, to exercise their judgment as to the manner in which adequate response is made to reasonably apprehended “breaches of the peace”. The public law duty to afford protection to both persons and property from imminent criminal injury, which is undoubted, is necessarily limited by the extent of the resources available to the police and by the urgency of conflicting claims upon their services. The nature of the protection to be supplied must therefore primarily be left to the police to determine: Glasbrook Brothers at 285 per Viscount Finlay and 306–307 per Lord Blanesburgh.

[15] The Ngan majority then state that the lawfulness of the police search of the pouch is to be considered by the process outlined in R v Waterfield, namely:[12]

... whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

[16] Starting at [15] of the judgment, the majority then consider specifically the obligations of police as bailees. Their conclusion is:[13]

The police are of course held to the rather stricter Waterfield standard, by which any interference with private property rights requires affirmative justification. But provided they meet this standard when exercising their powers in pursuance of their common law duties, they, like the ordinary citizen, do not act unlawfully in taking possession of lost property or the property of an owner who is incapacitated and temporarily unable to look after it. They too, naturally, must do no more than is reasonable in the circumstances for the preservation of the property.

[17] The next section of the majority’s judgment deals with the requirements of the New Zealand Bill of Rights Act 1990, specifically s 21. This section includes the following, which we regard as particularly apt to this case:[14]

... Both the common law and s 21 require of the police officer that he or she should not act unreasonably in dealing with the property, that is, that the officer must act only for the purpose of its preservation, and that what is done with the property pending its restoration to the owner must be reasonably connected with that purpose. If it is necessary to conduct a search of the property in order to ascertain its ownership and/or its nature, that too must not be done unreasonably. An excessive search or one conducted for an ulterior purpose, in order, for example, to obtain evidence of criminal offending, would not be reasonable and indeed might also be unlawful. But if the police officer is genuinely acting for the predominant purpose of preservation of the property, the fact that he or she may suspect wrongdoing associated with the property will not in itself make the dealing with the property either unlawful or unreasonable at common law or under s 21.

[18] Thus, both under s 21 and at common law, the touchstone of whether Constable Campbell’s action in looking at the glove box is lawful is whether it was done reasonably to protect the car and its contents, including to ascertain their ownership. Measured against that touchstone, and for the two reasons we have given, we regard Constable Campbell’s action in looking in the glove box as lawful.
[19] The appellant accepts that the police were entitled to invoke their search powers under s 18(2) of the Misuse of Drugs Act 1975, once they found the methamphetamine pipe in the glove box. Constable Campbell found the plastic bag containing methamphetamine in the centre console of the car and the rifle and ammunition in the boot.
[20] We mentioned in [7] above that the Judge invoked the doctrine of inevitable discovery in ruling the evidence admissible. We do not consider that was open to the Judge, who had no evidence about Police impoundment procedure. But a somewhat similar path has led us to the same result as the Judge.
[21] We deliberately have not commented on Judge Hubble’s second basis for ruling the evidence admissible, namely that the police were entitled to inspect the vehicle for safety reasons before it was towed away. We have not dealt with that because, on his own account, Constable Campbell did not look in the glove box of the car in the course of a safety inspection. However, we point out that Judge Hubble’s second ground for admitting the evidence has the implicit support of this Court in R v Taui, where the Court said:[15]

[17] We accept that a motorist normally has an expectation of privacy when operating a vehicle on public thoroughfares, extending at least to a reasonable expectation that the motorist will maintain possession and custody of the vehicle (R v Nicolosi at 181), but the existence and the extent of that expectation depend on the circumstances. In [the] circumstance where the motorist has had a major accident and the car has become a traffic hazard, that obviously limits the extent of the privacy right. Mr Hewson accepted that it was inevitable in the circumstances of this case that the police would remove and secure the car, and that they might search it to the extent that there were legitimate safety concerns about its contents. It follows that any reasonable expectation of privacy as against the police was very limited, if it existed at all.

(Our emphasis.)

[22] If, contrary to our view, the evidence of the drugs, and firearm and ammunition was improperly obtained, we would have held, pursuant to s 30(2)(b) of the Evidence Act 2006, that its exclusion was disproportionate to the impropriety of the search. Accordingly, we would not have excluded the evidence pursuant to s 30(4). We would have balanced the relevant matters, as required by s 30(2)(b) and (3), in the following way:

• (a) While the right under s 21 of the Bill of Rights Act to be secure against unreasonable search and seizure is always important, an unreasonable search of a motor vehicle (and in this case only of the glove box[16]) is less intrusive than a search of a person or a home. The intrusion is still less when the motor vehicle is searched following an accident where there are legitimate concerns for the safety of its contents,[17] or where it has been, or is in the course of being, impounded.[18] Indeed, in Iwihora this Court commented that the intrusion into the appellant’s privacy in that impoundment situation was “very low down on the scale of seriousness”.[19] We have not overlooked what this Court said in R v Williams,[20] particularly at [63]–[74], to which Mr Stevenson drew our attention. We think our approach accords with Williams. In summary, Williams held that the strength of any privacy interest is a factor to be taken into account in what is now the s 30(2)(b) balancing process in the Evidence Act 2006. And the strength of that privacy interest will depend both on the strength of the accused’s links to the property and also the type of property being searched. The Court instanced that the privacy interest in a residential property exceeding that in a commercial property.[21]
• (b) The impropriety was minor. It was not suggested the Police acted in bad faith, or that this was deliberate or knowing “misconduct”.[22] Mr Stevenson submitted that the glove box was the most private part of a car. If that is correct, it is at least partly because it is the most likely place to find items that may indicate who the owner of the car is. We are simply unable to accept Mr Stevenson’s submission that the Police action in searching the glove box was “grossly careless” such that the evidence obtained would have been excluded under R v Williams.[23]
• (c) The evidence is reliable and highly probative. The prosecution hinges on it.
• (d) While the charges may not be “serious offending”, as defined in R v Williams,[24] they were certainly not trivial offences. The two firearms charges here carry maximum sentences of four years’ imprisonment.[25]
• (e) No other means of ascertaining who owned the car was readily open to the police. We have accepted that the police could have attempted to contact the registered owner by telephone or by calling at his address, but checking the glove box was an efficient and expedient way of attempting to confirm that the registered and true owners were the same person.

[23] For those reasons we uphold the Judge’s ruling that the evidence of Constable Campbell about the illicit drugs, firearm and ammunition he found in the appellant’s car is admissible in the appellant’s trial. We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for the Respondent

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[1] All at [25].
[2] Notes of Evidence 37/25. Also at 22/20.
[3] Notes of Evidence 14/7–14.
[4] Notes of Evidence 22/15.
[5] Notes of Evidence 20/8–12.
[6] Notes of evidence 29/1–3.
[7] Notes of Evidence 39/21–24.
[8] R v Ngan, [2007] NZSC 105, [2008] 2 NZLR 48, at [12].

[9] This was the view tentatively expressed by this Court in R v Iwihora at [17], citing Ngan CA220/06 1 December 2006.
[10] This wording appears in Ngan at [12].
[11] At [13].
[12] At [14]. The citation is from R v Waterfield [1964] 1 QB 164 at 170.
[13] At [20].
[14] At [22].
[15] R v Taui CA225/06 at [17].

[16] The search of the rest of the car was conducted after the Constable had invoked the search powers given by s 18(2) of the Misuse of Drugs Act. This is not contested, as pointed out in [19] above.
[17] R v Taui at [17].
[18] R v Iwihora [2007] NZCA 2 at [17].

[19] At [17]. The position in Iwihora was that the appellant had been stopped and arrested for driving while disqualilfied, and his vehicle seized. While awaiting the arrival of the tow truck, the police officer noticed what appeared to be two plastic point bags of methamphetamine in the pocket of the driver’s door (which had been left open) and invoked the search powers in s 18(2) of the Misuse of Drugs Act.
[20] R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.
[21] At [74].
[22] The term preferred in R v Williams at [116].
[23] R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [120].

[24] At [135]. “Serious offending” was defined as offending where the sentencing starting point was “likely to be in the vicinity of four years’ imprisonment and over”.
[25] Arms Act 1983, s 45(1)(b).