R v Maney HC Rotorua CRI-2006-063-004598

[2008] NZHC 2533

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2006-063-004598

THE QUEEN

v

REX TE MEIHANA MANEY MELISSA SUE ADDISON RICHARD JAMES JOHNSTONE JACQUELINE TANIA MANEY

JACK TAIMATUA HAKARAIA PHILLIPS

Hearing:         13 and 14 August 2008

Counsel:         A J Gordon and T Bayley for Crown

C J Tennet for Accused

Judgment:      27 August 2008

JUDGMENT OF GENDALL J

[1]      The  accused  is  facing  trial  on  five  counts,  some  of  which  are  with  co- accused.  They also face separate individual counts in the indictment.  The charges arise out of the police operation code name “Operation Avalanche 2”.  The charges against the accused are that:

a)        On  5  May  2006,  he  had  possession  of  the  precursor  substance pseudoephedrine;

R V MANEY AND ORS HC ROT CRI-2006-063-004598  27 August 2008

b)Between  5  May  and  3  December  2006,  he  wilfully  attempted  to pervert the course of justice – by attempting to persuade another to accept responsibility for possession of the precursor substance;

c)       Between 24 October and 3 December 2006 he conspired with the co- accused Jack Phillips and Richard Johnstone to manufacture methamphetamine;

d)Between 2 December and 3 December 2006 he conspired with the co- accused Melissa Addison to supply methamphetamine;

e)       On 3 December 2006 he had possession of methamphetamine for the purpose of supply.

[2]      The accused challenges the admissibility a number of items of evidence in respect  of  each  count.    The  Court  has  heard  evidence  and  submissions  on  the Crown’s application pursuant to s 344A of the Crimes Act 1961.

[3]      Initially the accused also sought severance of the count of wilfully attempting to pervert the course of justice, but he did not pursue that application.   That was sensible because any alleged attempt to secure another to falsely provide an excuse or defence for an accused (as with a false alibi), must be relevant evidence for a jury to hear when considering the substantive charge.

Background facts

[4]      Between October and November 2006, the police intercepted a number of conversations and text messages passing between the accused Rex Maney and other alleged  co-offenders.    Before  the  interception  warrant  was  obtained,  evidence became available of the accused possessing a precursor substance.   This was the pseudoephedrine based product known as Contact NT, in granule form.   The discovery of that evidence arose in the following way.

[5]      The accused was a disqualified driver who was known to drive a particular type of vehicle, of distinctive appearance.   Early in 2006 the vehicle had been stopped and the police believed the driver was the accused who had absconded on foot to avoid arrest.  The vehicle was seen in Rotorua on the evening of 5 May 2006. It was dark, and by reason of the vehicle’s tinted windows a police officer who observed the vehicle could not see who the driver was.  The police officer however knew it to be a vehicle used by the accused.  He signalled the vehicle to stop but it sped off.  After a short pursuit by the officer, the vehicle pulled into a private address in Victory Road, Rotorua.  It was the address of an associate of the accused.  The police officer approached the vehicle, opened the door and saw the accused reaching into the central area of the vehicle.  He was arrested for driving whilst disqualified. The officer then saw the accused holding a glass “P” pipe.  On that basis, the police officer told him that the vehicle was to be searched pursuant to s 18(2) of the Misuse of Drugs Act 1975.

[6]      The vehicle was searched at the premises in Victory Road.   Located in the front portion of the vehicle was a large snaplock bag, with the accused’s name on it, wrapped in an Asian language newspaper.   This was accompanied by another snaplock bag containing 218.2 grams of Contact NT granules.   They are a pseudoephedrine based product and a precursor substance able to be used in the manufacture of methamphetamine.   From that evidence the accused was charged with possession of the precursor substance.

[7]      About seven weeks later, on 28 June 2006, a man named Andrew Moke- Amotawa and an associate were stopped by the police in Rotorua.  He was arrested pursuant to a warrant to arrest on unrelated matters.  That arrest is not contended to be unlawful.  Mr Moke-Amotawa was searched and a bag in his possession taken to the  police  station.    That  bag  was  searched  and  amongst  its  contents  was  a handwritten note.

[8]      The note purports to be addressed to a person known as “Babe”, and instructs him/her to get “Mooks” (the nickname of Mr Moke-Amotawa) to go to a named Rotorua lawyer to swear an affidavit in relation to:

Pills found in maroon  Ford  Futura  stationwagon  under  dash in front  of console inside plastic bag wrapped in Asian newspaper and plastic property bag found under seat with parts of R Maney initials on it puts contents into that bag and puts up under dash.  He will be at Spikes place.  Give this to him  to  read  and  go  to  lawyer  to  make  affidavit  before  tomorrow. [Instructions as to lawyer’s name and address].  He owns car and has since January of this year brought from a friend.  He doesn’t wish to name as of personal circumstances.  Dog (Contacts pills) (urgent Dog Heil) Seig fucken Heil).

[9]      A document examiner’s evidence identifies the writing on the note as being that of the accused Rex Maney.  The contents of the note, relating to specific facts of the night of 5 May 2006, also provide support for that conclusion.  They refer to the location and type of precursor substances recovered one month earlier and provide instructions that an affidavit be made to the effect that Mooks was the owner of the car in which the accused had been stopped in Victory Road on 5 May 2006, and that the precursor substances were not those of the accused.

[10]     Based upon the discovery of that communication, and the evidence that the handwriting is that of the accused, the charge of wilfully attempting to pervert the cause of justice was laid.

[11]     Mr Tennet submits the evidence of the note is inadmissible, saying that it had being “improperly obtained” and in breach of the rights of the accused.  I deal with this later at paras [24]–[34].

[12]     After those two events the interception warrant was obtained.   Intercepted communications led to the third count of conspiring to manufacture methamphetamine.

[13]     On 2 December 2006, the interception operation revealed an exchange of a series  of  text  messages  and  telephone  calls  between  the  accused  and  Melissa Addison.   From these, the police believed that the accused and Ms Addison were discussing  the  supply  of  methamphetamine  to   potential   buyers   in   Rotorua. Essentially the Crown alleges that the conversations were to the effect that a main supplier  of  methamphetamine  in  Taupo  had  been  imprisoned,  and  the  accused Mr Maney was told he would be able to sell methamphetamine that he had.   His alleged communication to Ms Addison was to the effect that he only had “one or

twos”, but it was agreed that he would supply in Taupo.  This evidence led to the fourth count, namely that the accused and Ms Addison conspired to supply methamphetamine.

[14]     The conversations then led to a meeting being arranged between Ms Addison and the accused.  He was to uplift Ms Addison from outside a well-known ice-cream parlour in Rotorua, so that they would travel together to Taupo, where the accused would sell the methamphetamine that he had.

[15]   At this stage I observe that Mr Tennet says that the text and phone communications do not clearly establish that sales of methamphetamine were to occur.  He says their meaning “may” only be that a meeting was to occur in order to set up some form of network.   But whatever counsel contends the intercepted messages may have meant, the issue is whether police officers had reasonable grounds to believe that some drug offending was to take place.

[16]     Detective Sergeant Morshead was the Officer-in-Charge of the Operation Avalanche investigation.  He heard the conversations and saw the text messages.  He then went with another officer to the vicinity of the ice-cream parlour in Rotorua and set up covert surveillance.  Whilst waiting there, he telephoned another member of the Rotorua CIB, Detective McLeod, and provided him with an outline of the investigation and intercepted communications over the previous two days and what was apparently occurring.   Detective McLeod was told by Detective Sergeant Morshead that the accused would be travelling to Taupo with a quantity of methamphetamine.  Detective McLeod was instructed to stop the vehicle pursuant to powers of the police under s 314B of the Crimes Act and s 18(2) and (3) of the Misuse Drugs Act 1975.  He was told that once Mr Maney had arrived at the ice- cream parlour and collected the waiting female, Detective McLeod would be advised of the timings and the type of vehicle that was being used.

[17]     The information gained from the intercepted messages as to the meeting turned out to be correct.   Mr Maney was seen to arrive in a vehicle and pick up Ms Addison.  Detective Sergeant Morshead then telephoned Detective McLeod and gave him a description of the motor vehicle.  In the meantime, Detective McLeod,

who was in unmarked car, sought the assistance of Constable Shiels, a police officer in uniform and driving a marked patrol car.  She was instructed to stop the vehicle in which Mr Maney, along with Ms Addison, was travelling.   Detective McLeod followed in the unmarked police car.  The vehicle in which Mr Maney was travelling was stopped some distance south of Rotorua on the highway towards Taupo by Constable Sheils.  Detective McLeod arrived moments later.

[18]     The accused was told that he and the vehicle were to be searched pursuant to s 18 of the Misuse of Drugs Act 1975.  Initially nothing was located in the car, nor from a “pat down” search of the accused undertaken by Detective McLeod.   That detective then determined that he needed to conduct a more thorough check or search of Mr Maney. The stopping of the car, although in a remote and rural area, nevertheless  was  on  State  Highway  5,  a  reasonably  busy  highway.    Detective McLeod considered that he needed to carefully check the accused and his body, but wished to do this away from the opportunity of any public view.  His evidence was that he took the accused 40 metres away from the highway into a bush or scrub area which  afforded  the  accused  sufficient  privacy from  any passers-by on  the  state highway.  Constable Shiels’ evidence was that she lost sight of Detective McLeod and the accused after they had departed into the bushes and scrub, and she did not see them until they later reappeared.

[19]     For his part, the accused’s evidence was that although taken to a bush or scrub area, he said he was still visible from the highway and contended that he was searched in public view and not at the distance away from the highway as contended by Detective McLeod.

[20]     The  accused  was  required  by Detective  McLeod  to  lower  his  jeans  and underpants to his knees, or just below that.  Nothing untoward was located.  He was then instructed to pull those items of clothing back up.   He was then required to remove his shoes and socks.    Inside one sock was located 4 grams of methamphetamine in a small tin.   There  was  also  $800  in  cash  located  on  the accused.

[21]     The Crown seeks to  adduce  evidence of  the  methamphetamine  and  cash located, not only in support of count 4 (namely conspiring to supply the Class A controlled drug on 2/3 December 2006), but also in respect of count 5 (namely having possession of methamphetamine for the purpose of supply on 3 December

2006).

[22]     Mr Tennet contends the evidence of the methamphetamine discovered in that search is inadmissible because:

a)        the police did not have reasonable grounds to stop the vehicle, and to conduct a s 18 search of the accused;

b)the  search  was  unreasonable,  in  any  event,  because  as  counsel contends it constituted “a strip search within view of the public”.

[23]     I turn now to deal with challenges to admissibility of the items of evidence arising out of each of the three searches.

Search of the accused’s motor vehicle on 5 May 2006 in Victory Road, Rotorua

[24]     Initially Mr Tennet advanced multiple grounds why the evidence of locating the precursor substance in the vehicle should be excluded.   These were that the stopping of the vehicle and the arrest of the accused was arbitrary and unlawful; the invoking of s 18 of the Misuse of Drugs Act 1975 was unjustified, the search of the accused in the vehicle was unlawful and unreasonable; a warrant should have been obtained for the search of the vehicle so the search of it without such a warrant was unreasonable; a report to the Commissioner of Police under s 18(6) had not been made.

[25]     These  contentions  were  refined  somewhat  in  oral  argument.    Mr  Tennet relied primarily on the proposition that the search of the vehicle was unreasonable because a search warrant could have been obtained but was not.  Therefore, he said it was unnecessary and unreasonable to conduct a search under s 18.

[26]     For completeness, and before dealing with that argument, I record that the evidence satisfies me that the police officer was entitled to stop the accused’s vehicle under s 114 of the Land Transport Act 1998.  The stopping was for legitimate Land Transport Act reasons, which were not contrived or conjured up as an excuse for an improper stopping.  The accused was known to be a disqualified driver, and known to be using that vehicle.   It was entirely proper for the vehicle to be stopped to ascertain the identity of the driver, given that he/she was hidden through tinted windows.

[27]     Once it was ascertained that the accused was the driver of the vehicle, his arrest was justified.   A search may well have been justified as an incidence of a lawful arrest.  However, the police officer purported to search the vehicle exercising his powers under s 18(2).  He was entitled to do so, because the presence of the “P” pipe in the possession of the accused, objectively viewed, provided sufficient and reasonable grounds for the police officer to form the required belief under s 18(2) or (3) so as to search the vehicle.  The arrest and search of the accused and the vehicle was neither arbitrary nor unlawful.

[28]     The accused’s argument comes down to whether the search of the vehicle was, nevertheless, unreasonable, because a search warrant could have been obtained and it was not.  Mr Tennet relies upon the authority of R v Laugalis (1993) 10 CRNZ

350 (CA) and R v Kappely [2001] 1 NZLR 7. I do not consider that either of those cases assist the accused. They are unique to their facts. Kappely was concerned with the issue of a search warrant without adequate evidential basis to justify it.  It further concerned the fact that there had been an error in respect of the address for which the warrant had been obtained.  The factual finding that it would have been practical and not unreasonable for two of the three officers to have remained near the premises whilst a warrant correctly identifying the address was obtained was one of the  reasons  that  the  search  was  held  to  be  unreasonable  and  the  evidence inadmissible.   In Laugalis the accused had been arrested unlawfully.   The vehicle was taken to the police station after it had been located in the street.  A warrant had been obtained to search the appellant’s home, but not the car.   The next day a detective searched the vehicle at the police station without warrant, claiming to have acted under s 18(2) of the Misuse of Drugs Act.  The Court of Appeal concluded that

the search did not arise from a lawful arrest, that the police had no right to take the vehicle to the station without the driver’s consent, and that a warrant could have readily been obtained (as one had been for the search of a dwelling).   That combination of factors led the Court to conclude that the search was unreasonable. The decision was fact specific, and was very different situation from the present.

[29]     Here, the accused drove the vehicle onto the property of an associate or friend.  The accused had been lawfully arrested.  It is probable that the common law powers of a search, following upon a lawful arrest, could have been exercised, but certainly the police were entitled to exercise the powers conveyed by s 18(2).  Was it an unreasonable exercise of that power to search it at Victory Road?  It appears from the evidence that at some time the vehicle was taken to the police station by someone but there is no evidence as to when.   Of course by then it had already been the subject of the search in Victory Road.

[30]     In my view it was not unreasonable for the police to search it at Victory Road, given the possibility that any items in it may have been removed by the accused’s  associate,  if  the  vehicle  had  been  left  there  and  not  searched  until  a warrant had later been obtained.  It was about 8pm.  The time involved in obtaining a warrant would have been considerable.  Mr Tennet argued that the vehicle was to be confiscated and towed away under the provisions of the Land Transport Act which provide for the impounding of motor vehicles of disqualified drivers.  He argued that this would have ensured that the vehicle was “secured” and that therefore the search conducted was unreasonable.  The provisions for impounding a motor vehicle of a disqualified driver are contained in s 96 of the Land Transport Act 1998.   They require a particular procedure to be undertaken including the giving of notice in an approved form setting out detailed particulars of the name and address of driver, year and make of vehicle, and registration plate details, the date and time of alleged offence, the time of seizure and the place to where the vehicle is to be impounded. The form must also outline a person’s rights of appeal against confiscation.   The time taken that night to locate forms, and to follow those procedures for confiscation in  relation  to  a  vehicle  on  private  premises  would  have  been  considerable. Moreover,  although  Mr Tennet  suggest  that  this  process  of  confiscating  and impounding was happening that evening, there is no direct evidence that this was

going on.   The vehicle was at a place where an associate of the accused could properly have accessed it.  It is speculative to say that no harm would have resulted in the police waiting, before searching, until the vehicle had been confiscated and towed away.  As the Court of Appeal said in R v Laugalis at p9:

The power is conferred under the Misuse of Drugs Act to enable the interception of drugs before they can be removed or disposed of … it would be absurd to require the Police to obtain a warrant if in the meantime the vehicle could simply be driven away.

[31]     I think it is too simplistic for counsel to submit that the vehicle was going to be impounded and therefore it was “secure”, so a warrant to search should have been obtained.  The circumstances of the search, in my view, were reasonable and, given what had been found on the accused while in the car, and his observed actions, it did not constitute an unreasonable use of the lawful powers of the officers in the circumstances that existed that night.

[32]     Even if I had been of  a different view  as  to  “reasonableness”,  a  proper application of the provisions of s 30 of the Evidence Act would unquestionably lead to the conclusion that excluding the evidence would be totally disproportionate to any impropriety arising from the manner in which it was obtained.  It was acquired through a lawful search at the premises to which the accused had driven, no doubt in order to evade apprehension by the pursuing officer.

[33]     Mr Tennet did not pursue with any vigour argument in relation to a report under s18(6).  The authority of R v Smith (1996) 13 CRNZ 481 (CA) makes it clear that those provisions are to ensure supervision at senior police level of the use of s 18(2) and (3) powers.  It does not go to the lawfulness of the search.  There is no evidence that s 18(6) was not complied with, but even if a failure to comply had occurred, it is inherently unlikely it would have any causal connection with the obtaining of evidence by a search made under s 18(2).  A search which was lawful at the time it was made could not somehow be retrospectively invalidated by a failure to comply with s 18(6).  Mr Tennet argued in his written submissions that the time had come for the R v Smith dicta to be re-examined given that, he said, this was not a “genuine search” under s 18.   Those submissions are not accepted and there is no substance to the point.

[34]     Challenges to the admissibility of the evidence of the precursor substances found on 5 May 2006 fail.  The evidence was lawfully obtained in the course of a reasonable search and is admissible.

The note obtained, and seized, on the search of Mr Moke-Amotawa

[35]     The arrest of Mr Moke-Amotawa by Sergeant Peers was lawful.  A warrant existed for his arrest.  After arrest he was lawfully searched, whether pursuant to the general common law powers of search, or s 18 of the Misuse of Drugs Act, or even because he consented.  Mr Tennet acknowledged, and accepted, the lawfulness of the arrest and search.  He said that s 57 of the Police Act entitled such a search, although that section relates only to search of a person who is about to be locked up in police custody.  But it is accepted that the arrest and search was lawful, and that is beyond doubt.   As I understood the argument, the issue is however that the seizure and retention  of the  note  was  unlawful  whether  under  the  Misuse  of  Drugs  Act  or otherwise.  Further, Mr Tennet’s argument was that it also represented a breach of the accused’s rights of privacy under the New Zealand Bill of Rights Act.

[36]     It is well understood that where a search is undertaken pursuant to s 18(3) of the  Misuse  of  Drugs  Act  1975  the  police  may  only  take  possession  “of  any controlled drug or precursor or substance” found.   But where a person has been lawfully arrested, and lawfully searched subsequent to that arrest, whether pursuant to common law powers or otherwise, the position is different.   The common law powers of search or arrest were summarised in R v Noble (2006) 22 CRNZ 442 by Winkelmann J as comprising of the power to search the accused and the accused’s immediate physical surroundings (for example, a car) if satisfied that it is necessary as a reasonable incidence of the arrest.  What can constitute a reason for such search, or seizure, depends upon the circumstances of the case, but includes the safety of the accused or others, the protection of evidence, or discovering evidence relating to the offending for which an accused is being arrested.  Of course the mere fact of arrest alone will not be sufficient, and whether or not a search is justified at common law depends on both the subjective reasons of the police for conducting the search and the objective reasonableness of those reasons.

[37]     As  Mr  Tennet  concedes  the  arrest  and  search  was  lawful,  I  turn  to  his contention that the police had no power to seize the contents and retain possession of the bag or Mr Moke-Amotawa.   I do not accept that submission.   The police are entitled to search the pockets or bag of a person they are arresting and to seize and retain such property as maybe necessary for the proof of the crime against the accused.  An arresting officer has a number of duties following upon a lawful arrest including reasonable measures to ensure the suspect does not destroy or dispose of evidence, and does not commit further crimes.  The list is not exhaustive; see R v Naylor [1979] CRIM LR 532.   So also, the police are entitled to hold and retain property as items of proof against an accused, subject always to the right of the accused that such property be restored to him or her if it is found that it is in no way connected with the charges made against him or her; Barnett v Campbell (1902) 21

NZLR 484 (CA).

[38]     Mr Tennet’s contention is that (leaving aside any breach of the accused’s rights for the moment), there was a breach of the rights of Mr Moke-Amotawa because  that  which  was  seized  was  not  returned  to  him,  and  the  note  was  not recorded on the property sheet containing items taken from him.  It was retained by the officer until he delivered it some time later to the officer dealing with the file relating to the accused. Mr Tennet says that was improper, and no power existed for the police to retain the note.

[39]     Of course entitlement to return of an item may depend upon ownership of it. It is far from clear that the note was the property of Mr Moke-Amotawa.   If as Mr Tennet says the search of the bag, and the seizure and retention of the note was unlawful and unreasonable, and that accordingly an infringement of the rights of Mr Moke-Amotawa occurred, the question arises whether such a situation gave the accused “standing” to challenge the admissibility of the evidence against him.  This question arises from the long established principle that breaches of the other people’s rights under the Bill of Rights cannot be relied upon by third parties (see R v Wilson [1994] 3 NZLR 257 (CA) at 259, cited in R v Williams [2007] 3 NZLR 207 (CA) at

227).   The question is traditionally phrased as whether a person has ‘standing’ to claim a breach of the Bill of Rights.   However, as the Court of Appeal stated in

Williams, the term ‘standing’ is rather inapt for this subject area. The Court went on to explain at [47] that:

It is more helpful to define the issue as whether or not a person is able to claim a personal remedy (that is the exclusion of evidence) under the Bill of Rights.   The purpose of that remedy is to provide vindication of an individual’s rights.  If that individual’s rights have not been breached then there is nothing to vindicate.

[40]     The  Court  of  Appeal  then  went  on  to  consider  the  position  under  the Evidence Act 2006.  The Court of Appeal said that it was arguable whether the new Evidence Act abolished any question of “standing” given that the issue in terms of s

30 was whether improperly obtained evidence includes evidence obtained in breach of any enactment or rule of law and it might not require that a defendant personally be the victim of any breach.

[41]     I turn to a consideration of these principles in the context of the present proceedings.

[42]     The obvious point is that, assuming a breach of the rights of Mr Moke- Amotawa, so that seizure and retention was unreasonable and not authorised by s 18, any breach is met by the consideration of what any remedy would be for him.  That could only be exclusion of the evidence in any charge brought against Mr Moke- Amotawa.   But he is not being charged with attempting to pervert the course of justice, or any other crime for which evidence of the note found in his possession could be admitted at trial.  It is not admissible against him in respect of any charge that he faces.  So even if there was unreasonable or unlawful seizure, there would be no adverse outcome to him arising out of that.

[43]     It may well be that the test of improperly obtained evidence will be met where there is a breach of third party rights, given that the obtaining of evidence in breach of the statutory rights of third parties usually will involve some element of fairness.  That is implicit from R v Williams at [77]. There the Court of Appeal said:

The new Evidence Act, codifying much of Shaheed (see below at paras [149] – [152]), provides for the possible exclusion of “improperly obtained evidence”.  As well as evidence obtained in breach of any enactment by a person to whom s 3 of the Bill of Rights Act applies (see s 30(5)(a) of the

Act) “improperly obtained evidence” is defined in s 30(5)(c) as evidence that was obtained “unfairly”.  This must encompass the common law jurisdiction to  exclude  evidence  on  that  ground.    It  seems  to  us,  therefore,  that  a defendant who wishes to raise the breach of a third party’s right would still, under the new Evidence Act, be able to argue that the evidence was obtained unfairly because it was obtained in breach of another person’s rights.

[44]     However, regard must also be had to the more recent comments of the Court of Appeal in R v Lethborg [2008] NZCA 236. There the Court said at [17]:

We think that s 30(5)(a) is not to be read down as confined only to breaches of the rights of the defendant.   That said, we do not wish to  give  any encouragement to arguments of the sort relied on by the appellant in this case nor to defence counsel trawling through the details of police investigations with a view to uncovering possible irregularities which did not involve the defendant.

[45]     I  accept  the  Crown’s  submission  that  the  police  have  an  overriding  or ongoing duty to detect criminal offending.  Where a search of a third party is lawful and reveals evidence in the form of an exhibit which indicates that a crime has been committed, they are not required to ignore that or turn a blind to it.  If the seizure turns out to be unlawful or unreasonable, that might lead to the evidence being “improperly  obtained”.    But  whether  it  is  to  be  admitted  in  evidence  in  the prosecution of a charge against another will depend upon its general admissibility, relevance and a proper application of the principles and considerations contained in s 30 of the Evidence Act.  A Judge must exclude improperly obtained evidence if he or  she  determines  that  its  exclusion  is  proportionate  to  any impropriety,  taking account the need for an effective and credible system of justice.

[46]     I am satisfied by a wide margin, that even if any right of Mr Moke-Amotawa was breached (and I am far from convinced that that was the case, for it can only be in respect of seizure and retention of the note, which whilst in his possession was arguably not his “property”), there is no justifiable basis to exclude evidence of the note, and its circumstances of it being found, in proceedings against the accused. Exclusion would not be proportionate to any impropriety in terms of s 30.

[47]     I turn therefore to deal with the accused’s reliance upon what Mr Tennet says was a separate breach of the accused’s rights, and not those of Mr Moke-Amotawa. Those rights he described as the right to privacy.   He argued that that right was

infringed through the search, seizure and retention of the note at the police station by Sergeant Peers, who did not exhibit the note on the property sheet of Mr Moke- Amotawa.   Obviously property to be used as exhibits in any charges against the accused could be held, or otherwise returned to him.  But he has not sought return of the note.  There is no evidence that it belonged to him.  Indeed the evidence points the other way.  That is, the note was addressed to a person named “Babe” and just happened to be in the position of Mr Moke-Amotawa.   Once the note had been delivered out of the possession and control of the accused to “Babe”, whoever he/she may be, it is difficult to see how the accused can assert that it remained his property and should have been returned to him because some alleged breach of his privacy. At the time of seizure how did the police know who was its author?  Here, the item located and seized was incriminatory of the accused in the sense of being capable of being construed as an admission of guilt, in a document found in the possession of a third party.  It will never be admissible against the third party but must be relevant admissible evidence against the person who makes the inculpatory statement.   Of course it could still be excluded as evidence “improperly” obtained but only after a proper application of s 30.

[48]     As I said, the issue of who owned the note (if anyone) is not clear.  Certainly it is not necessarily the case that it belonged with Mr Moke-Amotawa, although he was in possession of it.  It was addressed, and presumably, sent to another (“Babe”). Did it still belong to the accused?  He had given up possession of it when he sent it, with instructions to the recipient to ensure “Mooks” provided a false explanation for the accused’s alleged possession of precursor substances.  It was akin to an attempt to create a false alibi.  Once the communication was made, and delivered in writing, the accused relinquished any right of privacy that he might have had as the maker of the statement.  It was not intended to be kept private but sent to others.  It was not delivered in any circumstances of confidentiality or in which he could claim any right of privacy.  A communication by a person to another or others instructing them to commit (allegedly) a crime, does not carry with it any right of “privacy” attaching to the communication.  What happened here was not a communication protected by right of privacy, but a written instruction to assist in the commission of a crime, which eventually fell into the hands of the police.

[49]     If Mr Tennet’s submission was valid, it would mean that any communication by an alleged offender, to a co-offender, to others instructing them to commit crimes on behalf of the former would be, if discovered, excluded from being given in evidence on the grounds of privacy.  However generously interpreted, the NZ Bill of Rights Act does not afford that sort of protection to those who are intent upon committing crimes, and attempting to pervert the course of justice.

[50]     The evidence of the note, its content and circumstances in which it was found is admissible against the accused, not only in respect of the count of attempting to pervert the course of justice but also on the count of possession of the precursor substances.  No breach of privacy rights of the accused occurred so as to require the evidence to be excluded.  Nor, if a s 30 Evidence Act assessment was required in relation to “improperly obtained” evidence in breach of a right of Mr Moke- Amotawa, could it possibly be said that excluding the evidence and charges against the accused was proportionate to any breach.

[51]     Mr Tennet’s challenges to the admissibility of that evidence have no merit and fail.

Evidence of the methamphetamine located in the search near State Highway 5

[52]     Mr Tennet’s primary submissions in respect of this evidence were, first, that the stopping of the vehicle on State Highway 5 and subsequent search of accused on

3 December 2006 was unlawful because the police who undertook the stopping of the vehicle and the search did not have reasonable grounds to believe that an offence against the Misuse of Drugs Act had been, or was suspected of having been committed.

[53]     Secondly, Mr Tennet submitted that the search was unreasonable because it was a “strip search conducted in a public place”.   In support of this second submission, he relied upon the authority of R v Pratt (1994) 11 CRNZ 392 (CA).

[54]     The stopping by Constable Shiels of the vehicle in which the accused was travelling was made pursuant to s 314B of the Crimes Act 1961.   This gives a

general power to the police to stop a vehicle for the purpose of conducting a search under a statutory search power if a police officer is satisfied that grounds for exercising that statutory search power exist.  The statutory search power was s 18(2) and (3).  Constable Shiels had been told by Detective McLeod of the reasons why the vehicle  was  to  be  stopped.    Its  stopping  was  lawful.    The  real  contention  of Mr Tennet was that Detective McLeod himself did not have the requisite reasonable ground to form the belief required in terms of s 18(2) or (3).   I do not accept that submission.

[55]     The evidence is that there was information in the form of the intercepted communications and text messages.   Detective Sergeant Morshead had seen and heard them.  He personally conveyed the information to Detective McLeod when he sought his assistance.  Confirmation of the reliability of what the communications meant  arose  when  Detective  Sergeant  Morshead  observed  the  meeting  between Mr Maney  and  Ms  Addison,  as  they  had  earlier  planned  in  the  intercepted communications.  That information was also conveyed to Detective McLeod as were the particulars relating to the description of the motor vehicle and the intended journey of it from Rotorua to Taupo.   It was conveyed as events were happening. Having received all that information, Detective McLeod and Constable Shiels observed the vehicle travelling south on State Highway 5, leaving Rotorua on the apparent journey to Taupo.

[56]     Detective McLeod was advised and believed that some sort of transaction involving drugs was occurring, and that somebody would possibly be carrying drugs in the vehicle.  It was for that reason that Detective McLeod requested the assistance of Constable Shiels to stop the vehicle to enable him to invoke the power of search contained under s 18.

[57]     It is clear that the person who searches the car must have reasonable grounds for belief, R v Taylor (1993) 10 CRNZ 393, 395.  But s 18(2) does not require the officer who has reasonable grounds for belief to be the person who physically searches the vehicle or its occupants.  He or she must be physically present at the search so as to direct it.   In this case the officer conducting the search, Detective McLeod, in any event, had formed a belief on reasonable grounds from all the

information and directions received from Detective Sergeant Morshead, and from his own observations of the vehicle on the way to Taupo.  Some of the information was received at the time that Detective Sergeant Morshead was observing the activities. Detective Sergeant Morshead was the logical person to determine whether or not there was sufficient grounds for the vehicle to be stopped and a search undertaken and it was appropriate and indeed necessary for him to share that information with Detective McLeod when enlisting his assistance.

[58]     Hearsay the information may have been, but it was very reliable hearsay. Some of it was conveyed as events were occurring.  In R v Grace (1989) 1 NZLR

197, the Court said the knowledge of a fellow police officer, even though it may not have been communicated in its entirety to the officer conducting the search, may be added to the knowledge of the searching officer for the purposes of deciding whether there were reasonable grounds to suspect on the part of that officer.

[59]     I accept that the proper approach is that described in R v Debot [1986] 3 CTC (3D) 207 where the Ontario Court of Appeal in Canada said:

Frequently in modern times the particular police officer making an arrest or conducting a search is not the only officer concerned in the investigation out of which the search or arrest arose.   It seems to be unrealistic and incompatible with effective law enforcement and crime prevention when a police officer is requested by a superior or fellow officer to arrest or search a person suspected of the commission of the crime and to be fleeing from the scene to require that police officer to obtain from his or her superior or fellow officer sufficient information about the underlying facts to enable him or her to form an independent judgment that there are reasonable grounds upon which to arrest or search the suspect.

[60]     I have no doubt that the information conveyed to Detective McLeod was sufficient to give him reasonable grounds to form the belief in terms of s 18(2).  The stopping of the vehicle was lawful, as was the search of the accused.

[61]     So I turn to the issue of whether the search was unreasonable.   If it had unfairly infringed the accused’s right of privacy and dignity, it would have been unreasonable.    However,  I  accept  the  evidence  of  both  Constable  Shiels  and Detective McLeod to the effect that the accused was taken some 40 metres away from the road into an area of bush and scrub.  The accused described it as “mature”.

I do not accept the claim by the accused in evidence that it was only 20 metres or that he could be observed from the roadway.  Constable Shiels was unable to see the detective and the accused.   The search was conducted, of necessity, through the accused having to lower his pants and undergarments, but he was not subject to what is understood to be a full “strip” search.

[62]     The accused overstated and exaggerated in his evidence – for example, he said that prior to the search he asked the detective to permit him to contact a lawyer, but this was refused.   That assertion was not put to the detective in cross- examination.  I consider the accused made it up in the course of his evidence, and I do not believe the accused when he says that that occurred.

[63]     A search becomes unreasonable if the circumstances giving rise to it may lead to it being carried out in an unreasonable manner.  Both the subject matter, time, place and circumstance have to be considered, and the answer depends upon specific facts.

[64]     The type of search conducted in this case was far removed from that which occurred in R v Pratt.  There the appellant was in central Auckland city on a busy Parnell road when searched.  He could have been taken to any one of three nearby police stations.  He was subjected to a strip search where he was completely naked. The search was said to be a serious infringement of his privacy and dignity. Richardson J in delivering his judgment, at page 395, observed that:

It may also have been possible to search the appellant at a more private place near the scene ….

and further at page 396 that:

… to strip-search a citizen in a public street in the middle of the day when there are no law enforcement considerations necessitating that approach, and when the search could easily have been carried out in privacy elsewhere, must be unreasonable.

[65]     In the present case, the accused would have had to have been released and allowed  to  proceed  unhindered  on  his  way if  he  had  not  been  searched  at  the bush/scrub area.  He could not have been arrested.   There was strong evidence or

grounds to believe that he had drugs in his possession given that he had been heard to have said that he had “ones and twos”.   It had not been possible to fully or properly search him at the roadside.  The officer prudently took the accused into a secluded bush or scrub area.   It was away from general public gaze.   Indeed, any traffic that may have been passing on State Highway 5 would have been most unlikely to have been  able to observe the  accused  and  the  detective,  given  the distance (close to half the length of a football field) that they had retreated from the side of the roadway.  (It was the sort of area that a motorist, if caught short of a toilet stop, might have gone into in order to relieve him/herself without being observable). The evidence satisfies me the detective and accused were significantly shielded from public view.  That is why the detective took him there.

[66]     The search was conducted with sufficient privacy and dignity for the integrity of the accused not to be unreasonable.   It was not a full strip search, nor was it a search within view of the public in a built-up area.

[67]     I do not accept counsel’s submission that the manner of search, or the place at which it was undertaken, resulted in it being unreasonable.  The challenge on that basis to the evidence of methamphetamine located on the accused on 3 December

2006 is admissible.

Conclusion

[68]     To summarise:

a)       Evidence of the precursor substances found on search of the accused’s motor vehicle on 5 May 2006 in Victory Road, Rotorua is admissible;

b)Evidence of the circumstances of locating the note in the possession of  Mr Moke-Amotawa,  its  contents,  as  well  as  its  production  and identification of the maker of the note, is admissible;

c)        Evidence of the methamphetamine and money found in the possession of  the  accused  when  searched  adjacent  to  State  Highway  5  on

3 December 2006 is admissible.

“J W Gendall J”

Solicitors:

Gordon Pilditch, Rotorua

C J Tennet, Barrister, Wellington