Kamo v Police HC Auckland CRI-2011-404-000044 [2011] NZHC 774 (13 July 2011)

Last Updated: 2 August 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-000044}

BETWEEN ANDREW MOANA KAMO Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 13 July 2011

Appearances: V Letele for Appellant

R Savage for Crown

Judgment: 13 July 2011

_{ORAL JUDGMENT OF VENNING J}

Solicitors: Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

Copy to: V Letele, Manukau, Auckland [e-mail]

KAMO V NEW ZEALAND POLICE HC AK CRI-2011-404-000044 13 July 2011

Introduction

[1] Following a defended hearing in the District Court the appellant was convicted by Judge Inglis of one charge of possession of cannabis for supply. The appellant had earlier also pleaded guilty to failing to comply with a lawful requirement, namely that he was forbidden from driving.

[2] On 26 January this year Judge Inglis sentenced the appellant on both charges. She declined the application for discharge without conviction and sentenced him to

90 hours of community work on the possession of cannabis for supply charge and convicted and discharged him on the other matter.

[3] He appeals against both conviction and sentence.

Background

[4] The basic facts of the offending are that on 30 December 2009 the appellant was driving a car in the Otahuhu area. He was stopped by a police patrol because his driving was somewhat erratic. At the time the appellant was forbidden to drive as he had previously been stopped on 11 June 2009 driving without a licence.

[5] The appellant gave a false name to the police officers. When the police check confirmed that the name did not match the registration and other details the police had and the police inquired further, the appellant gave his correct name. The police officers then asked him if they could search his car to which he agreed. They then looked in a bag in the back seat and discovered cannabis tinnies. The police officers then invoked s 18(2) of the Misuse of Drugs Act 1975 and carried out a full search of the car. They located a further snaplock bag in the centre console between the driver‟s seat and front passenger‟s seat. Another 20 tinnies were inside that bag. The total weight of the cannabis located was 40 grams. When spoken to at the time the appellant admitted that he sold the tinnies for $20 and said he sold approximately

30 or 40 a week. He was later interviewed by the police at the station when he said that he sold about half and smoked half himself. He said he used the money to pay his rent.

[6] At the hearing of the possession of cannabis for supply charge the appellant challenged the admissibility of the evidence of the cannabis found in the car. He challenged the purpose of the search. The appellant also challenged whether the consent to the search was a valid consent. A further ground of defence was that, as the cannabis material seized from the car had been destroyed by police before it had been analysed, there was insufficient evidence to satisfy the Judge beyond reasonable doubt that the material located by the officers was in fact cannabis. The Judge rejected all those points and found the appellant guilty.

Procedural matters

[7] In addition to the substantive grounds of appeal against conviction, Ms Letele has referred to other procedural issues that she says caused her some concern.

[8] The first is that the Judge, in her initial written decision issued after the hearing confirming her findings that the charge was proved, referred to the appellant facing a charge of giving false particulars to the police. The appellant did not face such a charge. The Judge realised that and withdrew and re-issued her decision to clarify that. The appellant has of course not been convicted of that offence.

[9] Ms Letele submitted that it was a matter of concern and if the Judge got that wrong then she may have got other facts wrong as well.

[10] I am not able to accept that there is any force or merit in that submission. The Judge‟s reserved decision followed some time after the earlier defended hearing. The appellant, by his own admission, had initially given the police false particulars. It was not unreasonable with the passage of time that when the Judge revisited the matter she might have considered he faced a charge to that effect. Indeed he could have. The appellant is not prejudiced by the Judge‟s misapprehension because, as I have said the Judge re-issued the decision confirming the correct position. The appellant was not convicted. The Judge‟s mistake on that matter does not impeach her findings on other issues.

[11] Next, Ms Letele submitted that she was concerned at the process that had followed after the hearing and before delivery of the judgment finding the charge proved.

[12] After the hearing concluded on 29 September 2010 the Judge called for further submissions.

[13] There was then a further appearance before the Court on 15 October attended by both the prosecutor and counsel for the appellant. Ms Letele appeared that day for the appellant. She had the impression, after that hearing, that the police might not be able to prove the case against the appellant. The Judge called for further written submissions which both the prosecutor and Ms Letele provided. Following the provision of those further written submissions the Judge issued the decision on

19 November 2010 confirming she found the charge proved.

[14] Given the discussion on 15 October Ms Letele was surprised by that finding. She was also concerned that the prosecutor referred in the further written submissions to inadmissible evidence or evidentiary material not produced at the hearing.

[15] However, the Judge does not refer to or take that further material into account in her written reserved decision. In any event, I understand it amounted to no more than certificates about which there could be little issue and about which the officer in issue, Constable Donaldson, had given prime evidence about at the hearing.

[16] Again, there is nothing in this point.

[17] The next issue raised as a matter of process also raises a substantive ground. [18] During the course of the hearing Ms Letele objected to the admissibility of

the evidence of the cannabis found in the car and also the admissibility of the appellant‟s statement to the police. Counsel submitted that the Judge erred by not dealing with that objection before hearing evidence relating to those issues. She

submitted that the Judge should have conducted a voir dire before returning to the full hearing.

[19] However, the practice the Judge adopted in this case is, as I understand it, common practice adopted by District Court Judges, in that the evidence which is objected to is heard in the context of the overall hearing and the Judge then deals with the objection either immediately at the end of hearing the evidence or in the course of the substantive decision.

[20] Given the exigencies faced by busy District Court Judges that is an entirely understandable practice. Indeed it is probably the only realistic way the matter could be dealt with.

[21] I cannot see that there is any prejudice or issue arising out of the way the

Judge dealt with the objection in this case.

Substantive appeal

_{[22] That then leaves the three substantive grounds of appeal. They are:}

the challenge to the purpose of the police search;

the consent issue; and

whether the Judge could be satisfied beyond reasonable doubt that the material seized was cannabis.

The purpose of the search

[23] On behalf of the appellant it was submitted that the police purpose in searching the car and in searching the chiller bag in the back was clearly directed at searching for drugs and as such it was not a lawful search because there was no basis for the police to embark on such a search.

[24] The evidence of the police officers, however, in particular Constable Donaldson, who conducted the search, was that he was searching the car for documents to confirm the appellant‟s identity.

[25] Ms Letele takes issue with that. She referred to a photograph of the bag and submitted that it would be unlikely documents would be found in such a bag.

[26] The Judge found in relation to this:

[20] While Constable Donaldson was questioned about the purpose for which the search took place, he was firm that the primary purpose at that time was to obtain some proof of identification. The reasonableness of this was bolstered by the fact that the defendant had initially given false details to the Police and had been pulled over because of the suspicious manner of his driving, which was taken to suggest that the defendant may have been trying to evade them. I accept that the primary purpose of the search at the time it was initially conducted was for documentation relevant to the defendant‟s identity and not, as contended for by the defence, a mere fishing expedition.

[27] Constable Donaldson was cross-examined about that. The constable accepted that he did not ask the appellant where he normally kept his documents or anything of that kind but, when challenged about the purpose of his search, he repeated:

Well you‟ve asked me what I said to him, that‟s I wanted to look through the car to primarily see if there was any documents that either confirmed who he was or – I didn‟t say that to him, I asked him if I could look through his vehicle.

And later, when challenged about the chiller bag and the likelihood of documents being in it:

Q. I put it to you that in the chiller bag, most likely, the documents

wouldn‟t be there, would it?

1. Possibly, yeah. It‟s a carry bag, it had a strap. It was the only bag that was in the vehicle, so, yeah, possibly.
   

[28] And further, in his evidence about the state of the vehicle he said:

The car was very, very tidy, there wasn‟t much in the vehicle itself, but immediately in the back on the footwell was a Codys bag. I opened up the Codys bag, that was my initial point of searching and inside was an ice cream container and inside that ice cream container I located numerous tinnies.

[29] The officer could have looked in the glove box as Ms Letele submitted but, given that the car was very tidy, and the only other object in the car immediately obvious to the officer was this bag, it cannot be said to have been unreasonable for him to have looked in that initially. I accept that given the background to the stopping of the vehicle and that the appellant had initially given a proven false name, the Judge was entitled to find that the purpose of the search was as the constable said, to confirm or verify the appellant‟s identity.

Was there valid consent to the search?

[30] The next principal challenge to the conviction is on the basis of consent.

[31] Ms Letele referred to the Court of Appeal decision in R v Rogers1 which requires that the consent should be informed in the sense that the person giving it understands what it is they are being asked to consent to and that they understand they have a choice whether to consent or not, and also a true or free consent in the sense that the person giving the consent does not have their will overborne. Counsel put in issue all three aspects of the consent.

[32] On the first issue, Ms Letele submitted that the appellant did not understand what it was that he was being asked to consent to.

[33] Ms Savage submitted that on the plain words used by Constable Donaldson that could not be so as it was apparent the officer was asking to search the car and that that was all that was required. The officer‟s evidence was:

“Do you mind if I look through your car?” that‟s what I said.

He repeated that when challenged in cross-examination. If that evidence was accepted there cannot be any issue as to what the appellant understood he was being asked to consent to. The Judge did accept that evidence. Further, the underlying purpose of looking through the car, even though not expressly stated, was to look for documents to verify identity because at that time it had been established the

_{appellant had provided false details to the police.}

1 R v Rogers CA65/06, 29 May 2006.

[34] The second issue is whether the appellant understood he had a choice to consent or not.

[35] It is clear from R v Hjelmstrom2 the Court of Appeal has rejected the proposition that a police officer is required to expressly advise a suspect of his or her right to refuse. The issue is whether or not the appellant in the circumstances understood whether he had a choice to consent or not. Again the best indicator in this case is the wording of the question the officer put to the appellant. The question “Do you mind if I look through your car?” offers two alternatives, one, „yes I do mind‟, or alternatively „no, I don‟t mind‟.

[36] The appellant‟s evidence that he did not understand that he had such a choice was not accepted by the District Court Judge. That was open to her. I will return to her findings on other issues shortly.

[37] The third issue is whether the consent was a true or free consent in the sense the appellant did not have his will overborne. Both officers gave evidence to the effect of the appellant‟s demeanour as being nervous. But apart from that, the officer‟s evidence was consistent with him immediately consenting or going along with the request that he agree to the search.

[38] The Judge heard the officer‟s evidence about this and she also heard the appellant‟s evidence. What she said about this issue of consent was:

[19] The defendant gave the strong impression that he was keen to emphasise that he did not know that he was entitled to decline Constable Donaldson‟s request. He also said that he felt pressurised into agreeing to the search. I am, however, satisfied that the defendant co-operated willingly with Constable Donaldson. Constable Donaldson struck me as an impressive, and straightforward, witness. He was clear that while the defendant appeared somewhat nervous he freely agreed to the search. I have no doubt that Constable Donaldson‟s request was couched in terms that communicated to the defendant that he had a right to choose between acceptance or rejection. While I accept that the defendant was nervous I am not satisfied on the evidence before me that this affected his ability to give an informed response to Constable Donaldson‟s request. Nor do I accept the defendant‟s version of events in relation to the Constable searching the boot. I preferred the Constable‟s evidence – he was direct and did not prevaricate.

2 R v Hjelmstrom CA85/03, 24 July 2003. (See also Wanoa v R [2010] NZCA 33 at [26].

The defendant‟s evidence was, by contrast, less forthcoming and at times he appeared to me to be somewhat evasive, and self-serving in his answers.

[39] While the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar3 have clarified the role of the Court on a rehearing appeal such as this, the Court also confirmed that where issues of credibility are important then the advantage of the Judge at first instance hearing that evidence remains. That is the position in the present case.

[40] On my review of the transcript of the evidence the findings the Judge made on the issue of consent were clearly open to her and indeed consistent with the overall evidence.

[41] I reject the challenge to the conviction on the basis that the appellant‟s rights in relation to the consent to the search were in some way breached or that the consent was not freely given.

Proof of cannabis

[42] That leaves the last substantive issue on the conviction appeal and whether or not the Judge was entitled to be satisfied beyond reasonable doubt that the substance seized by the police officers was in fact cannabis.

[43] The start point is that although there was no analysis of the cannabis the Court of Appeal have made it clear that proof of cannabis or cannabis oil can be confirmed other than by scientific analysis.4 The issue must be whether or not there was sufficient admissible evidence before the District Court Judge for her to be satisfied beyond reasonable doubt that the substance was cannabis.

[44] In this case the police relied on the evidence of Constable Donaldson as an expert. They accept that the other officer, Constable Freymark could not be

_{suggested to be an expert in this area.}

3 _{Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.}

4 R v Pope [2008] NZCA 284.

[45] Constable Donaldson gave evidence both as to factual matters relating to his dealings with the appellant, and also evidence which the police say was given as an expert witness. Again, as a matter of principle it has been accepted by the Court of Appeal in R v Williams & Ors5 that a witness can be both a fact and expert witness, at least to the extent of expressing an expert opinion.

[46] In terms of his expertise Constable Donaldson had four years‟ experience as a police officer, had a Bachelor of Science in Botany and had previously spent six years as a door supervisor in the UK and had advance drug training in that. He said he knew what THC was, namely that it was the illegal chemical found in the cannabis plant and that he had come across marijuana or cannabis once every two weeks.

[47] An expert is defined as a person with “specialised knowledge or skill based on training, study or experience”. The officer‟s experience qualified him sufficiently as an expert to the extent of being able to recognise cannabis when he saw it.

[48] Ms Letele sought to rely on the following passage of evidence to negate his expertise:

Q. And do you also accept that in cannabis plant there could be other various specimens, namely hemp, that is not illegal. Is that correct?

A. Um, I‟m not an expert on this, as you pointed out, I believe there still needs to be a reason for having hemp. I know it‟s used in clothing and stuff but you‟ve got to have a valid reason for having it in [your] possession.

Q. But it‟s not illegal in New Zealand is it?

A. No, I‟m not aware, I‟m sorry.

[49] But in re-examination he confirmed that in relation to the possibility the material was hemp:

Q. How likely was it the plant material was hemp? A. It wasn‟t hemp. It was ...

5 R v Williams & Ors CA63-66/65 CA92/05 CA 101/05, 9 December 2005.

... when we opened up the tinnies, it had head in it, cannabis head, and that‟s how tinnies are normally sold. Hemp‟s not [made] up of the actual head of the cannabis plant.

[50] In terms of s 25(1) of the Evidence Act 2006 the Judge was likely to obtain substantial help from that opinion evidence of the constable that the material was cannabis.

[51] But the short answer to this point is that, in any event, the appellant himself, both in his explanation to the police at the scene and later during the course of his

_{interview recorded on DVD, accepted variously that:}

the items were tinnies and contained weed;

that he smokes and sells it to the family and people on the street;

he bought the drugs from a mate;

he sells 30 to 40 tinnies a week;

he identified the material as cannabis and admitted selling cannabis to family and friends on the street.

[52] There was sufficient evidence before the Judge for her to be satisfied beyond reasonable doubt that the material located in the search was cannabis.

Result

[53] The appeal against conviction is dismissed.

The appeal against sentence

[54] The sentence appeal is advanced on the basis that there should have been a discharge without conviction.

[55] In support of that application the appellant swore an affidavit in the District Court expressing the view that a conviction would make it more difficult for him to travel to and possibly work in Australia and would make it more difficult for him to obtain employment.

[56] His evidence about that is entirely speculative. There was no substantive evidence put before the Court.

[57] The principles to apply in relation to a discharge without conviction under ss 106 and 107 have been settled by the Court of Appeal in R v Hughes.6 In this case, having regard to the gravity of the offending, the number of tinnies found, and the direct and indirect consequences of the conviction (about which there is no more evidence than the appellant‟s speculation) it is impossible to say that the established direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. It is important to bear in mind the purposes of sentencing,

_namely:

accountability;

responsibility;

denunciation; and deterrence.

[58] The appellant‟s offending in this case was not haphazard. He admitted to a history of it. There was no prospect of the appellant being granted a discharge without conviction.

[59] In terms of the conviction and discharge on the driving whilst forbidden to do so charge, the appellant was deliberately flouting the law. The fact he obtained a licence subsequently does not excuse that. Ms Letele submitted that parties are often offered diversion or discharge without conviction if they obtain a licence before sentence. But in the present case it was open to the Judge to convict and discharge.

_{It cannot be said that the consequences of a conviction for the relatively minor}

6 R v Hughes [2009] 3 NZLR 222.

charge of failure to comply with the lawful requirement are out of all proportion to the offending. No consequences have been identified.

Result

_{[60] The appeal against sentence is also dismissed.}

Venning J