Maihi v R [2015] NZCA 438 (24 September 2015)

Last Updated: 30 September 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA551/2014 [2015] NZCA 438
BETWEEN	TYRONE RICHARD MAIHI Appellant
AND	THE QUEEN Respondent

Hearing:	20 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	R J Laybourn and R M Laybourn for Appellant J E L Carruthers for Respondent
Judgment:	24 September 2015 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] Following a jury trial in the Hamilton District Court in July 2014 the appellant, Tyrone Maihi, was found guilty of possessing methamphetamine for the purpose of supply and possessing utensils for the purpose of consuming methamphetamine. Mr Maihi was subsequently sentenced to three years and nine months’ imprisonment.^[1]
[2] Mr Maihi now appeals his convictions, but not his sentence.
[3] The charges Mr Maihi faced arose out of police searches of the car he was driving after he was arrested for driving while disqualified. During these searches police found methamphetamine and methamphetamine pipes. Mr Maihi, prior to trial, unsuccessfully challenged before Judge Clark the admissibility of that evidence on the grounds that his arrest and the subsequent searches were unlawful, and that exclusion was the proportionate remedy.^[2]
[4] Mr Maihi appeals on the grounds that his arrest was unlawful, and that Constable Archbold’s action in opening the driver’s door to put the paperwork on the driver’s seat was an unlawful search. The evidence obtained pursuant to the subsequent warrantless searches was therefore improperly obtained. Given the importance of the rights involved, exclusion of that evidence was the proportionate response.

Facts

[5] At approximately 11 pm on 23 September 2012 Mr Maihi was driving a motor vehicle belonging to his nephew. Constable Cairns, on patrol alone in a marked police vehicle, noticed the car and thought he recognised it as being associated with members of the Black Power gang. He did a vehicle check and was advised by Police Communications that the car was registered to Blane Maihi, that it had been noted as frequenting the address of a gang associate and that it had been “green stickered”, indicating that it was not safe to be on the road.
[6] Constable Cairns pulled in behind the car, which Mr Maihi had parked outside some local shops. Constable Cairns spoke with Mr Maihi, and obtained his details. Mr Maihi gave his name as Tyrone Maihi. Constable Cairns asked Mr Maihi for his driver’s licence, but Mr Maihi did not have it with him. Constable Cairns then conducted a “query person” check. Police communications advised Constable Cairns that Mr Maihi was a disqualified driver. Constable Cairns arrested Mr Maihi. Mr Maihi protested, saying that he did have a licence. The Constable checked again with communications. Communications confirmed that Mr Maihi was disqualified and, moreover, that there was an alert stating he would deny being disqualified. Constable Cairns then advised Mr Maihi a second time that he was under arrest, asked him to step out of the vehicle and handcuffed him. Constable Cairns placed Mr Maihi in the rear of his patrol car, and arranged for a tow truck to come and uplift Mr Maihi’s vehicle.
[7] By then, other police had arrived at the scene. When a person is arrested for driving while disqualified their vehicle must be seized and impounded. A formal written notice must be provided to the driver, the owner and the “storage provider” usually represented by the tow truck driver.^[3] Constable Cairns completed that paperwork, gave it to Constable Archbold to await the arrival of the tow truck driver and drove Mr Maihi to the police station.
[8] Constable Archbold’s evidence was that, because of the weather conditions (light rain) that night, he opened the driver’s door and went to place the copies of the paperwork which were to be given to the tow truck driver on the driver’s seat. Whilst he was doing that, he noticed a set of knuckle dusters in the centre console of the vehicle. The Constable then invoked the power of warrantless search then found in s 202B of the Crimes Act 1961 which, at that time, provided:

202B Powers in respect of crime against section 202A

(1) Where any constable has reasonable grounds for believing that any person is committing an offence against section 202A(4)(a) of this Act he may—

...

(b) Stop and search any vehicle in which that person is travelling or from which he has alighted if the constable has reasonable grounds for believing that the vehicle contains any knife, offensive weapon, or disabling substance, and may detain that vehicle for as long as is reasonably necessary to conduct that search;—

and in any such case the constable may take possession of any knife, offensive weapon, or disabling substance found.

Constable Archbold rang Constable Cairns, so that Mr Maihi could be advised that power of search was being invoked.

[9] Constable Archbold then proceeded to search the rest of the vehicle. He found a black camera bag, which he opened. Inside the bag was methamphetamine and pipes for smoking methamphetamine, and some cannabis. He then invoked the power of warrantless search then provided under s 18(2) of the Misuse of Drugs Act 1975 which, at that time, provided:

18 Search and seizure

...

(2) Where any constable has reasonable ground for believing that there is in or on any ... vehicle ... any controlled drug ... 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 ... vehicle ... as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.

As a result of that search, Constable Archbold located some more methamphetamine pipes.

[10] Back at the police station, Mr Maihi continued to maintain he had a driver’s licence. At some point he provided the name Tyrenne Maihi to Constable Cairns. A search of police records under that name showed that Mr Maihi did have a (learner’s) driver’s licence.
[11] The police obtained further search warrants, including for Mr Maihi’s cellphone records. Evidence obtained as a result of those searches formed the basis of the Crown’s case that, although the car Mr Maihi was driving belonged to his nephew, Mr Maihi was both supplying and in possession of the methamphetamine found in the car that evening. The jury returned guilty verdicts on that basis. Mr Maihi was found not guilty, however, on the charge of possessing an offensive weapon, namely the set of knuckle dusters. We infer that the jury were not satisfied beyond reasonable doubt that Mr Maihi knew that his nephew had the set of knuckle dusters in the car.

An unlawful arrest?

[12] Section 315 of the Crimes Act allows a constable to arrest a person without a warrant where the constable has good cause to suspect that person of having committed an offence punishable by imprisonment. Section 32(3) of the Land Transport Act 1988 provides that the maximum penalty for the offence of driving while disqualified is three months’ imprisonment. Mr Maihi’s challenge to the lawfulness of his arrest was, therefore, based on the proposition that Constable Cairns did not have good cause to suspect Mr Maihi of the offence of driving while disqualified.
[13] In argument before us, Mr Laybourn for Mr Maihi did not pursue that challenge. Mr Laybourn accepted that, in the circumstances and notwithstanding the incorrect information provided to him, Constable Cairns did have good cause when he arrested Mr Maihi for driving while disqualified.
[14] We acknowledge that, in other circumstances, a warrantless arrest could be unlawful because it was based upon wrong information in the possession of the police. The error involved would mean the police did not have “good cause”. Whilst Mr Maihi under the first name “Tyrenne” did hold a learner’s driver’s licence, that was not the name he gave to Constable Cairns. Under the name he gave Constable Cairns – “Tyrone” – Mr Maihi was shown as a disqualified driver. We were told that the police database can and does link aliases and other forms of a person’s name, so that a reference to one form will produce relevant information recorded under other forms of the name. But here that was not the case. No argument was advanced that, in some way, the police were at fault in not having linked the name Tyrenne Maihi to the name Tyrone Maihi. In these circumstances, we agree that Constable Cairns acted lawfully, that is, he had good cause to suspect that Mr Maihi had been driving while disqualified.

An unlawful search?

[15] But for Constable Archbold’s action in opening the front door of Mr Maihi’s car to put the impoundment documentation onto the driver’s seat, the Constable would not necessarily have noticed the set of knuckle dusters. Mr Laybourn accepted, correctly in our view, that in these circumstances, if that action was lawful then so were the subsequent warrantless searches. Therefore, the lawfulness of that action will be determinative of whether the evidence of the methamphetamine and associated paraphernalia was improperly obtained in terms of s 30 of the Evidence Act 2006.
[16] Constable Archbold’s action in opening the car door could be lawful in one of two ways:

(a) first, as a lawful search; or

(b) secondly, as the lawful exercise of a power necessarily or reasonably incidental to the powers the police have to seize and impound vehicles, and the obligations they incur when doing so, under the Land Transport Act.

[17] Judge Clark did not determine the lawfulness of the Constable’s action on the basis it constituted a search. Rather, she did so in line with the second approach, albeit in terms of what she described as the reasonableness of the police’s unlawful action in opening the car door.
[18] Mr Maihi does not challenge the Judge’s factual finding that when Constable Archbold opened the car door, he was not “searching” or “deliberately looking around”. Mr Maihi argues that the Constable’s action was, nevertheless, a search because in terms of the Supreme Court decision in Hamed v R that action invaded his reasonable expectation of privacy as regards the interior of the car he was driving.^[4] There being no lawful justification for a warrantless search at that point, that act was unlawful.
[19] In our view, given that accepted factual finding and the circumstances of this case, the two questions of whether there has been a search at all, and whether the police acted reasonably and within necessary or implied powers incidental to impoundment, very much come down to one and the same thing.
[20] In Hamed, the Supreme Court accepted the approach of the Supreme Court of Canada as to what constitutes a search by state agents. Blanchard J said:

[163] The Court of Appeal in R v Fraser^[5] left open whether the reasonable expectation of privacy is a test for what constitutes search or whether it is applied, once it has been established there was a search, to test its reasonableness. I am of the view that it influences both stages. I would affirm the statement of the Supreme Court of Canada in R v Wise:^[6]

If the police activity invades a reasonable expectation of privacy, then the activity is a search.

[21] Constable Archbold’s action undoubtedly constituted a police activity. It therefore constituted a search if it involved an invasion of Mr Maihi’s reasonable expectation of privacy. If the Constable’s action was, in the circumstances and having regard to the protection against unreasonable search and seizure provided by s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA), a reasonable exercise of police power at common law or properly incidental to the s 96 Land Transport Act obligation to seize and impound Mr Maihi’s motor vehicle, it would be neither a search (not being unreasonable) nor a trespass.
[22] In the District Court, the Judge found that the police’s actions were unlawful because they were not specifically authorised by the provisions of the Land Transport Act providing for impoundment.^[7] This Court has, however, previously found that the police necessarily have powers incidental to those explicitly given to them by those provisions in the Land Transport Act.
[23] In R v Gillies a constable smelt cannabis after he had unlocked and opened the driver’s door of a seized and impounded car at a storage yard.^[8] The issue was whether he had acted lawfully when he did so. This Court said:^[9]

Obviously it is implicit within those duties that the police must have all necessary powers to carry out those duties: see JF Burrows Statute Law in New Zealand (3rd ed, LexisNexis, Wellington, 2003) at 215; R v Kahu [1995] 2 NZLR 3 at 5–6 (CA). One of those powers must be the power to enter the vehicle so that it can be stored in an appropriate place. It follows that, in our view, the constables’ trying the key to see if it fitted, both in the door lock and the ignition, was lawful. Clearly, having identified the correct key, the police could then give it to the tow truck driver so that he could move the vehicle within his yard to the place where he wished to store it.

[24] The Court concluded that it was “entirely reasonable” to check that the key worked.^[10] Therefore the entry into the car was lawful.^[11]
[25] In Tuato v R a constable who was filling out impoundment documentation sought to check the name he had been given by the driver by looking in the glove box of the car for any paperwork that might be there.^[12] When he opened the glove box, he found methamphetamine, invoked his powers under s 18(2) of the Misuse of Drugs Act and found more methamphetamine, a rifle and ammunition. This Court, on an appeal against the District Court decision that the evidence had not been improperly obtained, agreed with that finding for two reasons. First, it was reasonable for the constable to go behind the details he had obtained from police communications as to the registered owner by looking in the glove box for information that might indicate who the true owner of the vehicle was.^[13] Secondly, the search of the glove box was 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.^[14]
[26] The Court concluded:

[18] Thus, both under s 21 [of NZBORA] and at common law, the touchstone of whether Constable Campbell’s actions 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.

[27] On the evening in question, Constable Archbold was the police officer who was to “cause a copy of the [seizure and impoundment] notice to be given to the storage provider who stores the motor vehicle”.^[15] Was it reasonable for Constable Archbold, in order to discharge that obligation, to open the door of the car so that he could place the notice on the driver’s seat and, in that way, cause it to be delivered to the storage provider?
[28] On balance, we tend to the view that the answer to that question is yes. We recognise that Constable Archbold appeared to be happy to wait until the storage provider arrived to tow the vehicle away. Accordingly, it could be said there was no necessity for the Constable to open the door of the car and that therefore it is not appropriate to imply a licence for him to do so. We are not attracted to that analysis, notwithstanding the importance of the rights protected by s 21 of NZBORA. We say that because s 96 of the Land Transport Act not only required the police to seize and impound the vehicle Mr Maihi was driving, but also to cause a copy of the formal notice of seizure to be given to the storage provider. Given that positive obligation, it is not unreasonable for the police to make sure the notice is so given by putting it on the driver’s seat of the car.
[29] The police evidence was that the standard form documentation provides for a copy of that notice to be given both to the tow truck driver and to the operator of the storage yard. Once the car is picked up with copies of the formal notice of seizure, that reduces the scope for argument as to whether the tow truck driver and the storage operator have received that notice. The fact that it was raining on the evening that Mr Maihi was stopped adds to the reasonableness of the Constable’s actions. That is, putting the notice on the driver’s seat meant that it would not get wet when the Constable spoke with the tow truck operator, as he necessarily would if he was still there when the tow truck arrived. On that basis the Constable’s action would not constitute a search or a trespass.
[30] It is not, however, necessary to reach a final conclusion on that point because we are satisfied that even if Constable Archbold’s actions were unlawful, exclusion of the evidence would be disproportionate under the s 30 balancing test.
[31] Whether characterised as an unlawful search or a trespass, the impropriety involved was minor. But for the Constable noticing the set of knuckle dusters, it would have been, in a temporal sense, fleeting. Given what the courts have found to be an obligation to (in good faith) complete an inventory to protect personal property in the vehicle,^[16] the police would at some point inevitably have found the knuckle dusters and could then have invoked the warrantless search powers as they did on the evening in question, or would have found the methamphetamine when completing that inventory. Given the obligation on the police to seize the vehicle, secure it and its contents and give the statutory notices, a reasonable expectation of privacy in these circumstances is a relatively low one. This was, moreover, not Mr Maihi’s car, but that of his nephew. Mr Maihi could be argued to have a lower expectation of privacy as regards the interior of the vehicle for that reason also, particularly given that it had been green stickered. The police were acting in good faith, and the improperly obtained evidence was important, indeed essential, for the prosecution of serious criminal activity.
[32] We acknowledge that there was no question of physical danger or urgency here. Other investigatory techniques, such as obtaining formal warrants, were in theory available but until the knuckle dusters were seen, there would have been no basis for any such warrant.
[33] We therefore conclude that, had we found this evidence to have been improperly obtained, exclusion of that evidence would be disproportionate to the impropriety involved.
[34] Mr Maihi’s appeal against his convictions is dismissed accordingly.

Solicitors:
Gavin Boot Law, Hamilton for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Maihi DC Hamilton CRI-2012-019-6233, 10 September 2014.

^[2] R v Maihi DC Hamilton CRI-2012-019-6233, 15 October 2013.

^[3] Land Transport Act 1998, s 96(1) and 96(2).

^[4] Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

^[5] R v Fraser [1997] 2 NZLR 442 (CA).

^[6] R v Wise [1992] 1 SCR 527 at 533.

^[7] R v Maihi, above n 2, at [38].

^[8] R v Gillies CA470/05, 4 April 2006.

^[9] At [12].

^[10] At [17].

^[11] At [18].

^[12] Tuato v R [2011] NZCA 278.

^[13] At [11].

^[14] At [12].

^[15] Land Transport Act, s 96(2)(d).

^[16] R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [28]–[29].