Friday, December 14, 2007

The lawfulness of police helpfulness

Where do the police get their powers to be helpful?

In Ngan v R [2007] NZSC 105 (13 December 2007) the appellant was injured when his car overturned, and the police, after he had identified himself, arranged for him to be taken to hospital. Then, to clear up the accident scene, the police gathered items, including banknotes that had been scattered, and, in the course of inspecting the contents of a zipped pouch that appeared to be a sunglasses case, they discovered drugs. The purpose in taking possession of the items was to safeguard them for the owner, and the reason for opening the pouch was to make an inventory of items, also in the owner’s interests. The appellant had unsuccessfully objected to the admissibility at his trial of the evidence of the finding of the drugs.

Unsurprisingly, the Supreme Court unanimously held that the evidence was admissible. Four Judges held that there had been a search, when the pouch was unzipped, but McGrath J dissented on this point (para 101 – 117). Tipping J assumed that there had been a search, as the prosecution had not argued to the contrary, and held that the police conduct was not even prima facie unlawful as they were simply doing what any private citizen would have been entitled to do in undertaking the role of a bailee of necessity (para 44 - 54). However, in a joint judgment Elias CJ, Blanchard and Anderson JJ (delivered by Blanchard J) held that there was prima facie illegality because the police are bound by stricter standards than ordinary citizens (para 14, applying R v Waterfield [1964] 1 QB 164, 170). However, as Blanchard J put it, para 21:

“The difference in approach to Waterfield taken in these reasons from that taken in the reasons of Tipping J appears to turn on to what amounts to a prima facie unlawful interference with property. As we consider that the police conducted a search of the pouch, we take the view that prima facie there was such an interference. But it was justified in terms of Waterfield. However, the difference in approach has no practical significance because it has been overtaken by the requirements of the Bill of Rights Act.”

All five Judges agreed that pursuant to the Bill of Rights the search was reasonable and there was no reason to exclude the evidence (McGrath J indicated his agreement – if contrary to his view there was a search – at para 121). This reasonableness extended beyond the use of the information about the contents of the pouch for inventory purposes, to use as evidence of drug offending.

There was some discussion of North American authorities, as the appellant had sought to rely on them to support restriction of reasonableness to the making of an inventory. R v Caslake [1998] 1 SCR 51 was held (para 23) not to be authority for the proposition that an inventory search is unlawful because an inventory may be taken in the interests of the owner and not for police purposes. It was noted that subsequent Canadian cases have applied the Waterfield approach (R v Mann [2004] 3 SCR 59; R v Clayton and Farmer 2007 SCC 32). R v Colarusso [1994] 1 SCR 20 was also relied on by the appellant, but was distinguished (para 34) on the ground that in that case the police had an unlawful initial purpose, whereas here their purpose in carrying out the inventory was lawful. The New Zealand case R v Salmond [1992] 3 NZLR 8 (CA) was also relied on by the appellant, but was distinguished on similar grounds (para 36).

So, the answer to the question where the police get their powers to be helpful, depends on statute and common law. McGrath J was the only member of the Court who sought to go beyond that to a “residual third source of authority” (para 96), but one might respectfully wonder whether that is usefully distinct from the fundamental rule in a free society that everything is lawful except that which is prohibited by law.

At para 14 Blanchard J (with Elias CJ and Anderson J) put the central idea as follows:

“Notwithstanding that police officers may be expected to intervene in a case like the present, any interference with private liberty or property by the police is unlawful unless it can be justified either “by the text of the statute law, or by the principles of common law” [Entick v Carrington (1765) 19 How St Tr 1029 at p 1066]. An interference with property in the form of a search of the pouch occurred in this case. But was it unlawful? In order to determine whether a particular course of conduct was actually unlawful, it has been said in R v Waterfield to be relevant [[1964] 1 QB 164 at p 170. See also Hoffman v Thomas [1974] 1 WLR 374]:

“to consider 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.”

“There may be less justification for any use of such powers where the conduct is not in pursuance of an “absolute” duty and where the apprehended danger is to property rather than persons. Overall, as Cooke P stressed in Minto v Police, “[t]he citizen’s protection lies in the insistence of the law that the steps should be reasonable” [[1987] 1 NZLR 374 at p 378 (CA). Further relevant considerations include the immediacy and potential seriousness of the apprehended danger: Police v Amos [1977] 2 NZLR 564 at p 568 at pp 568 – 569].”

Since the police had decided, “reasonably and therefore lawfully” (para 15) to take on the obligations analogous to those of a bailee, for the benefit of the owner, and since they had done no more than was reasonably necessary to safeguard the property (para 20 – 21), there was no unlawfulness or unreasonableness in their discovery of the drugs.

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