A v Police HC Christchurch CRI 2005-409-128
[2005] NZHC 133
•21 October 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2005-409-000128
B A
Appellant
v
NEW ZEALAND POLICE
Respondent
CRI 2005-409-000129
C A
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 15 September 2005
Appearances: J P McCarthy and M B Chilton for Appellants
T J Gilbert for Respondent
Judgment: 21 October 2005
A V NEW ZEALAND POLICE HC CHCH CRI 2005-409-000128 21 October 2005
ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN
[1] Both Appellants appeal their conviction of obstructing a police officer in the execution of his duty under s23 of the Summary Proceedings Act 1981. They were convicted by Judge Saunders following a summary hearing on 7 June 2005.
[2] The appeal raises issues of practical importance in relation to the administration of the Children, Young Persons & Their Families Act 1989 (CYPF Act).
BACKGROUND
[3] Central to the charges laid against the Appellants is a 13 year old girl known as K. Her mother is apparently the sister of the female Appellant. She is from Napier, as is the male Appellant. At the relevant time the Appellants were living in Christchurch. Ms N and K lived together with the Appellants at 71 Shirley Road, Christchurch for about 18 months prior to the incident. In approximately the middle of June 2004 she returned to Napier to live with her eight and five year old children leaving K in the care of the female Appellant.
[4] K came to the notice of officers of the Department of Child, Youth and Family Services (the Department) because of untoward behaviour. There is no real issue as to the correctness of the Department’s concerns. On 25 June 2004 her mother and an officer of the Department reached an oral agreement pursuant to s139 of the CYPF Act which placed K in the care of the Chief Executive of the Department for a period not exceeding 28 days. It has the effect of a custody order, and once made the Department places the child with an approved caregiver. The Appellants are not approved caregivers.
[5] The agreement was communicated to the female Appellant by telephone at which time the social worker concerned, Jan Gillanders, was subject to serious and obscene verbal abuse from both Appellants. This was on 25 June 2004. The Department subsequently became aware that K was at the A ’s house at 71
Shirley Road, Christchurch. She had earlier been uplifted directly from Linwood High School and was placed in a home at 34 Stanmore Road by the Department. There was an altercation and a disagreement that led to her returning to the As’ property and spending the night there.
[6] The Department enlisted police assistance because they considered there would be difficulties in uplifting K from the Appellants’ house. So it proved. The first attendance was in the morning when the female Appellant agreed she would bring K to the police station later in the day. She did not.
[7] Later the social worker arrived with two police officers.
[8] The incident seems to have occurred at 9.30am on Wednesday, 30 June 2004. Sergeant Tenhove was assisting Ms Gillanders and had with him Constables Bayliss and Wiseman. The group went to the address and the constables went to the side of the house while the Departmental worker waited at the front of the property. After a few minutes the sergeant went to the front door as well. He saw the male Appellant standing in the doorway of the house holding onto a dog. He was swearing and abusive and said “better not try it”. Constable Bayliss warned the male Appellant he was obstructing the police. Essentially the male Appellant was using the dog in a threatening manner.
[9] Sergeant Tenhove walked down the driveway to the side of the house and passed an open window where the female Appellant and the missing girl poked their heads out of the window. When they saw him they retracted their heads and he thought the missing girl was going to run out of the house.
[10] He walked past the male Appellant, who was still in the doorway, and walked up the hallway to the first room on the left which was the lounge. He saw the female Appellant and the missing girl in the room. The female Appellant approached him screaming, and he told her that they were in the house without warrant under the CYPF Act but got no further because she started swinging her arms and trying to hit him. He pushed her away onto the sofa in the lounge. K tried to kick him and the
female Appellant came at him again. Constable Wiseman restrained the girl and the female Appellant was pushed away for a second time. The female Appellant was pinned by her right arm behind her back while she was on her stomach. She was screaming and yelling and struggling furiously. She refused to put her other arm behind her back so the constable simply held her on her stomach until she became tired and compliant. She struggled so hard to try and break free she actually had a bowel motion. When she became compliant she was handcuffed.
[11] Constable Bayliss gave similar evidence. He said that the male Appellant was abusive, saying he would set the dog on them, and eventually he was moved to say if they were not allowed in the house the male Appellant would be arrested for obstruction. The dog was a pit bull terrier or something similar.
[12] Sergeant Tenhove then arrived and entered the room as described above. There was a commotion in the house from the lounge and the male Appellant continued to become quite aggressive. Accordingly Constable Bayliss said he arrested the male Appellant and placed the dog out of the way in another bedroom. Both Appellants were placed in the patrol car and taken back to the police station.
[13] Clearly these events happened quickly. APPELLANTS’ SUBMISSIONS
[14] For the Appellants it was argued that the agreement under s139, to have any
legal effect, needed to be in writing. In any event, the mother of the child had no power to enter into such an agreement as the Appellants were the actual caregivers, although no legal basis for that status has been suggested.
[15] The Appellants submit that under s139 only a person having the physical care of a child can make a s139 agreement. This is because of the terminology used after the reference to parent or guardian is “other person having the care of a child”. Accordingly it is argued that it is limited to the classes of person responsible for the day to day care of the children. Further, it is argued that the sole purpose of the section is to provide brief respite care for persons who are unable or unwilling to
care for a child. The Appellants submit that while parents and guardians in most circumstances have certain rights over and above “other persons” caring for the children, it is not the purpose of s139 to give third party parents or guardians the right to unilaterally remove children from the care of other people who have the day to day care.
[16] Mr Chilton argued on behalf of the Appellants that such a proposition, limiting s139 to those who have physical care, is reflected in s5. That is because that section states that whenever possible whanau should participate in the making of decisions affecting the child. This should be with minimal State intervention (s13(b)(ii)). The Appellants it is said, as caregivers for K for approximately two months, had rights to be treated fairly by the Department and to be recognised as whanau under s5 and had the right to consult with the mother before State intervention. It is argued that if it was an emergency situation ss39 and 40 could have been used. It is said that s139 should not be used by the Department to circumvent other procedural protections set out in the Act.
[17] The Appellants interpret the decision of Heath J in Y v X [2003] 3 NZLR 261 as holding that a temporary care order can not exist if it was formed by a person other than the person having the physical care of the child.
[18] Next it is argued that the police failed to comply with the requirements of s105. If the police remain on private property without lawful authority they are acting unlawfully as trespassers not in execution of their duty (Mathews v Dwan [1949] NZLR 1037; Coster v Police (1993) 10 CRNZ 54).
[19] It was submitted that when the police remove a child pursuant to a s139 agreement their authority does not arise from s104. Nor does it absolve the police from making the necessary declarations under s105. It is submitted on behalf of the Appellants that the police must refer specifically to the statutory provisions they are relying on in carrying out their duties, and must also identify themselves. It is submitted that the failure to comply with s105 rendered the actions unlawful.
[20] In any event, it is argued as an alternative that the seizure of K amounted to unreasonable search and seizure in breach of s21 of the New Zealand Bill of Rights Act. This is because it involved a significant invasion of privacy, a written s139 agreement should have been produced, the State actions were contrary to the statutory scheme, there were no extreme circumstances warranting immediate removal, and the Department ignored other provisions within the Act affording the removal process with statutory protections for the Appellants. It is submitted that for this breach the appropriate remedy is the quashing of the convictions.
[21] Mr Chilton submitted that the breaches are not saved by s440 of the Act. They constituted a major departure from the principles of the Act that are designed to protect both the person having care of the child and the child’s best interests. While Perkins v Police [1988] 1 NZLR 257 perhaps offered the only cure for the s105 breach under s440, the case does not apply where there is no danger to the child necessitating immediate removal. The Appellants’ reaction to the State removing K was resistance to protect themselves and the unlawful nature of the search resulted in significant breaches of the right to privacy. It was submitted that s440 should not be allowed to push aside fundamental rights as that would amount to a miscarriage of justice.
CROWN SUBMISSIONS
[22] For the Crown Mr Gilbert submitted that agreements under s139 of the Act can be made orally. He submitted there was no requirement in the section that the agreements be in writing; and the general law recognises many agreements can be reached orally and s139 agreements should be no different. The agreements are temporary and it may be impracticable to reduce the agreement to writing due to time constraints such as applied here. The delay in reducing an agreement to writing may involve risk of harm to the child, and s146 of the Act requires that various other forms of agreement relating to custody etc are to be reduced to writing but not these. Mr Gilbert submitted it was significant that the drafters specifically excluded s139 from the provisions of s146.
[23] Next he submitted the police, particularly uniformed police, are not bound by s105(3) of the CYPF Act. He submitted the effect of ss104(3)(c) and 105(2) is that police can enter and search premises in order to find a child so that he or she can be placed into an appropriate custodial arrangement. In exercising such powers s105(3) applies specifically “with all necessary modifications”. That subsection requires social workers exercising powers of entry and search to produce evidence of identity and disclose a section under which the powers of search and entry are being exercised. Mr Gilbert submitted the section is tailored specifically for social workers who do not wear uniforms and are not readily identifiable as a subset of society. If they were to enter a person’s home in those circumstances it stands to reason they would be required to identify themselves and the power they were utilising as there is a genuine possibility they would not be recognised. He submitted entry into a home by an unrecognisable person not stating the purpose for the visit would naturally give cause for concern to any occupant. He said uniformed police are not in this category as they are readily identifiable, and he submitted it was not necessary to modify s105(3) to apply to the police for the purposes of this section to be met.
[24] Next Mr Gilbert argued that the police in fact did comply with the requirements of s105(3). He acknowledged the body of case law built up around s18 of the Misuse of Drugs Act and the previous s66A of the Transport Act 1962 which are provisions providing for police entry into and searches of private property in order to detect offences under those Acts. He accepted that those provisions had been construed strictly by the Courts (see Police v Cvitanovich (1986) 2 CRNZ 277 and Tait v Ministry of Transport (1991) 7 CRNZ 627).
[25] Mr Gilbert submitted that the Court should distinguish those cases and take a more flexible approach to the requirements under s105(3) of the CYPF Act. This is because it is not concerned with the detection of offences and location of evidence for the purposes of criminal proceedings and no-one’s liberty is at stake. It is a case dealing with child welfare legislation and a different and more flexible interpretation is appropriate.
[26] Next it is said the section is primarily designed to apply to social workers and not to police, so to apply principles developed in case law relating solely to police seeking to detect criminal offending is inappropriate in the context of legislation designed to protect the welfare of children. He pointed out that the Act (s6) has as its primary focus the welfare of children. That must be borne in mind in the interpretation of the Act and it is submitted that interpreting s105(3) in a strict way, as contended for by the Appellants, could have the effect of undermining the first and paramount consideration of the Act. Such an interpretation is less conducive to child welfare than the flexible approach contended for by the Crown.
[27] Finally, Mr Gilbert submitted that technical non-compliance does not make the police presence on the property unlawful. He relied on s440 of the Act and said it is effectively a reasonable compliance section. He submitted the police were executing a process under the Act, i.e. they were entering premises to give effect to the agreement entered under s139 of the Act. As such he said the process must not be “quashed, set aside, or held invalid by any Court by reason only of any defect, irregularity, omission or want of form unless the Court is satisfied that there has been a miscarriage of justice”. He submitted in this case there was clearly no miscarriage of justice occasioned by the failure to specifically state names or the section of the Act under which the police were acting. It is clear the Appellants knew the social worker, Ms Gillanders; the police officers were uniformed, and it is clear the Appellants were aware of the purpose of the visit. By adding their names and mentioning a specific section of the Act nothing would have changed. Accordingly he said there was no miscarriage of justice and said the District Court Judge’s decision should be upheld.
[28] In relation to the Bill of Rights argument Mr Gilbert’s response was that if the s139 agreement was valid the flow on effect of that renders the actions lawful and the Bill of Rights is effectively irrelevant. He said if the agreement is lawful there can be no unreasonable search or seizure.
DISCUSSION
[29] I do not accept the Appellants’ submissions that because they had temporary physical care of K that only they could reach agreement under s139 with the director. I am satisfied that given the effect is to transfer legal custody of the child, any such agreement must be with the person who for the time being has legal custody of the child or young person.
[30] The Appellants did not refer to Brookers ‘Family Law’ but at OC1.2.01 the learned authors note:
An agreement transfers legal custody (s 148), therefore to be effective it must be entered into with a person who has the legal custody of the child or young person. Section 139(1) refers to “any” parent (compare the use of the term “every parent” in s 140(1)), hence all parents and guardians are not required to give their consent. …
[31] I am also satisfied that such an agreement is not required to be in writing. Such agreements will require varying degrees of urgency and there will be practical difficulties, as here, where the person with legal custody is in another city. I do not think such agreements are limited to respite care as the Appellants submitted.
[32] In my view it is significant that s146 requires all agreements entered into under ss140, 141 or 142 to be in writing. The Legislature has specifically excluded s139 from that provision. It follows that the Legislature could not have intended it to be a requirement that a s139 agreement be in writing.
[33] Having concluded that it is necessary to say something of the facts before continuing. It is clear that the female Appellant had been made aware of the agreement. The child had been placed in care and absconded back to the Appellants’ property. The next morning there was agreement that K would be brought to the police station but that was not complied with.
[34] The police officers were briefed by Ms Gillanders so they were aware the Director General had custody. They were also correctly informed that the agreement reached was sufficient authority for the police to place the child in accordance with s104(2).
[35] On arrival it is clear that the Appellants were aggressive. The male Appellant was particularly so, threatening the police with a dog. The Appellants were not interested in listening; he was swearing and abusive and threatened the police saying “better not try it”. When Sgt Tenhove entered the house the female Appellant approached screaming and he told her that he was present under the CYPF Act without a warrant. He could go no further because the female Appellant attacked him, swinging her arms and trying to hit him.
[36] It is also apparent that Const Bayliss explained to the male Appellant that the police were present for the purposes of uplifting K and placing her back in CYPFS custody and that they were entitled to enter the premises without a warrant. At this stage the male Appellant said they were not allowed in and threatened him with the bull terrier dog and told them not to “try it”. The constable told Mr A that if he did not let the police enter the house he would be arrested for obstruction. This evidence has been confirmed by Const Wiseman.
[37] The appeal must be viewed against that factual background.
[38] Section 148 of the CYPF Act states as follows:
148 Effect of agreements
Where a child or young person is placed in the care of any person pursuant to an agreement under section 139 or section 140 or section 141 or section
142 of this Act, that person shall have, in respect of that child or young person, the same powers and responsibilities in all respects as if that child or
young person had been placed in the custody of that person pursuant to an order under section 101 of this Act.
[39] It follows therefore that the s139 agreement has the same effect as a custody order made by the Court pursuant to s101. It also follows that the statutory provisions dealing with the effect of custody orders must also apply to s139 agreements.
[40] Section 104, where relevant, states:
104 Effect of custody order
(1)Where the Court makes an order under section 101 of this Act placing a child or young person in the custody of any person,—
(a)that person has the role of providing day-to-day care for the child or young person as if a parenting order had been made under section 48(1) of the Care of Children Act 2004 giving that person the role of providing day-to-day care for the child or young person; and
(b)Except to the extent that they are preserved by the Court in any order made under section 121 of this Act, all the rights, powers, and duties of every other person having custody of the child or young person shall be suspended and shall have no effect; and
(c) for the purposes of section 92 of the Care of Children Act
2004,—
(i) the order constitutes an order about the role of providing day-to-day care for the child or young person; and
(ii) the person in whose custody the child or young person is placed is a person who, under the order,
has the role of providing day-to-day care for the child or young person.
(2)Any custody order shall be sufficient authority for any member of the Police or any Social Worker or any other person authorised in that behalf by the [chief executive] to place the child or young person to whom the order relates—
…
(3)Any person authorised by subsection (2) of this section to place any child or young person with any person or in any residence—
…
(c)May, for the purpose of exercising that authority, exercise the powers conferred by section 105(2) of this Act, and the provisions of subsections (2) and (3) of section 105 of this Act shall apply accordingly with all necessary modifications.
[41] It follows that the police, or any social worker, acting in accordance with s104(2) is given the powers conferred by s105(2) of the Act. That subsection and subs (3) apply with necessary modifications. Sections 105(2) and (3) read as follows:
105Living arrangements for child or young person placed in custody of Chief Executive
…
(2)For the purpose of removing any child or young person pursuant to subsection (1)(d) of this section, a Social Worker may enter and search any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises, or place, with or without assistance and by force if necessary.
(3)The Social Worker exercising any powers under subsection (2) of this section shall, on first entering any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises, or place, and, if requested, at any subsequent time—
(a) Produce evidence of identity; and
(b)Disclose that those powers are being exercised under subsection (2) of this section.
[42] It seems to me that it is implicit in the Appellants’ submissions that the police can only enter without a warrant pursuant to the CYPF Act in the emergency situation envisaged by s42. I do not accept that and consider that Mr Gilbert’s submissions are correct.
[43] Section 104(2) makes it clear that a custody order itself is sufficient authority for the police to place the child or young person and to exercise the power granted by s105(2). As I read it, effectively the custody order replaces any warrant under these particular sections. Accordingly I am satisfied that the police receive sufficient powers by virtue of the agreement, being effectively a custody order, to act under ss104 and 105.
[44] The next matter is whether or not the police are bound by s105(3). It is said that the police, like social workers, must produce proof of identity and disclose that they are exercising powers under subs (2) of the section. It seems to me significant that s104 grants both police and social workers powers under s105(2). It adds that subs (2) and (3) shall apply with necessary modifications.
[45] While the Crown’s submission that s105(3) is in place for the reason that social workers will not be readily identifiable from other members of the public has certain attractions, I do not consider that this legislation should be read down. The situation where the powers under the sections is being exercised is often likely to be fraught and difficult, with both caregivers and children being entitled to know what
power is being utilised. Furthermore, s104 does not require the police officers concerned to be in uniform. It is conceivable that police officers not in uniform, such as detectives, could on occasions be utilised for such requirements. I accept that is unlikely but it remains possible.
[46] I am also of the view that the police in exercising powers under this Act should independently ascertain the legislative base for the powers they are being requested to exercise to satisfy themselves of their right to act in the manner requested.
[47] Although they are not investigating criminal activity and gathering evidence that could lead to the loss of liberty, there is a right of entry onto private property. It does not seem to me to be particularly onerous for the police to ascertain the basis of the exercise of their power, to identify themselves and to advise of the relevant legislative provision they are acting under. I would consider that to be a necessary modification to s104(2) arising out of s105(3). A citizen whose rights to privacy are being interfered with is entitled to expect that.
[48] This seems to me to be best practice as well and does not interfere in any way with the working of the CYPF Act and the protection and promotion of the welfare of the child concerned.
[49] However, even accepting that, I am satisfied the matter is saved by s440 in the circumstances of this case. In Tyacke v Police [1985] 1 NZLR 371 Ongley J was dealing with s8 of the Children and Young Persons Act 1974. He held that strict compliance was necessary and it was not enough to simply state the power was being exercised in accordance with the Act. However, of significance, there was no equivalent section s440 of the CYPF Act 1989 which is effectively a reasonable compliance section. As the learned authors of Brookers ‘Family Law – Care and Protection of Children’ state at NT6.1.07, s440 could be used to distinguish Tyacke if the police omission is curable. In other words, if there is substantial compliance with s105(3), s440 validates the process despite the failure to mention the specific section of the Act relied on.
[50] In this case the female Appellant had been specifically told of the agreement the night before. There had been a visit in the morning by police officers when the female Appellant agreed to take K to the police station. She failed to do this. When the police arrived they were met with aggression, verbal abuse with violent and obscene language, and threatened with a pit bull terrier dog. The police advised that they were there to uplift the child who was in the custody of the Director and they were exercising their rights without warrant pursuant to the CYPF Act. The only omission was a specific reference to the section in the Act in question. The police were in uniform, and there was no suggestion other than they were police officers acting in the course of their duty. There has been no miscarriage of justice occasioned by the failure of the police to specifically state their names or the section under which they were acting. The Appellants knew the social worker involved, they knew of the s139 agreement, and they knew of the purpose of the visit. Earlier in the day they had been visited and agreed to take K to the police station but they failed to comply with what they had agreed to. The police officers were uniformed.
[51] In my view nothing would have changed had the police officers stated their names and added the subsection they were acting under. Simply put, there is no miscarriage of justice as the Crown submits.
[52] Furthermore, the aggressive attitude of the Appellants made it impossible for the police to enter into any further dialogue with them when fuller explanations could have been made. The evidence clearly establishes this.
[53] Given these findings, in particular that if a s139 agreement that is not in writing is still lawful, and that there was substantial compliance with s105(3), I am of the view that there has been no breach of s21 of the Bill of Rights Act. The police search and seizure was not unreasonable, nor unlawful, being based on a custody order which gave them those rights.
[54] It follows that the appeals against conviction fail and they are dismissed. I
could add the application of s440 is limited to the specific facts of this case. It
should not be thought it will operate in all cases when the police do not comply with s105(3).
[55] I am indebted to counsel for their full submissions in what is a difficult area.
Solicitors:
J McCarthy, Christchurch for Appellants
Raymond Donnelly & Co, Christchurch for Respondent
CC:Judge Saunders
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