Ashby v The Queen
[2013] NZCA 631
•16 December 2013 at 11 am
For a Court ready (fee required) version please follow this link
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA455/2013 [2013] NZCA 631
BETWEEN CHRISTOPHER MARK ASHBY
Appellant
AND
THE QUEEN Respondent
Hearing: 17 September 2013 (further submissions on 21 October 2013) Court:
Miller, Cooper and Lang JJ
Counsel:
M W Ryan for Appellant
B D Tantrum for RespondentJudgment:
16 December 2013 at 11 am
JUDGMENT OF THE COURT
A Leave to appeal is granted. B The appeal is dismissed.
COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial.
Publication in law report or law digest permitted.
ASHBY v R CA455/2013 [2013] NZCA 631 [16 December 2013]
REASONS OF THE COURT
(Given by Cooper J)
[1] The appellant, Mr Ashby, seeks leave to appeal against a decision of Judge Gibson in the District Court ruling admissible evidence obtained by police after they entered a residential property by force.1
[2] The case raises an important issue as to the extent of the police power of warrantless entry under s 14 of the Search and Surveillance Act 2012.
Background facts
[3] By consent, the pre-trial hearing proceeded on the basis of formal written statements prepared by Sergeant Welsh and Constables Hannah-Jones, Topia and Hohepa. Mr Ashby also gave evidence and he was cross-examined. After that, the Crown was allowed to call Constable Topia to give further evidence and he was also cross-examined.
[4] At about 11.00 pm on 24 November 2012, the police received a 111 call that
a “very distressed sounding male” had been crying out for help for the previous
25 minutes from inside a suburban garage in Three Kings, Auckland. About five minutes after the call was received the police arrived at the property. Constables Hohepa and Topia were the first to arrive. Shortly afterwards they were joined by Sergeant Welsh and Constable Hannah-Jones who came in a second police car.
[5] On arrival, the police could hear a male sounding very distressed and calling for help. This continued for “a good few minutes” until the police were able to enter the address.
[6] An initial attempt was made to enter the garage through its side door. However, the door was unable to be opened. Mr Ashby stated in evidence at the District Court hearing that he was not calling out, but did concede that he was
“probably ranting” as he was working on a motor vehicle engine at the time and was
1 R v Ashby DC Auckland CRI-2012-004-18837, 9 July 2013 [District Court judgment].
becoming frustrated. He maintained that he told the police to go around to the front door and meet him there. Constable Topia said that he did not hear that invitation. Judge Gibson preferred Constable Topia’s evidence.
[7] The police then purported to invoke their powers of warrantless entry under s 14 of the Search and Surveillance Act. An issue was raised in cross-examination of Constable Topia as to the method by which the police had gained entrance to the garage. In his written statement he said that Constable Hohepa “tried the handle on the main vehicle door and was able to open it”. In cross-examination, Mr Ryan asked Constable Topia how the police had opened the garage door. He responded “just grabbed the bottom of it and pulled it up”. Mr Ryan put to him that Mr Ashby had said that it would need two people to “wrench the garage door up” and the Constable replied “possibly”. Mr Ryan then put to the Constable that his written statement was incorrect:
Q. It was forced open, you didn’t use a handle did you, you wrenched it
open from underneath?
A. If you want to nitpick, yes.
Q. Well what I’m saying is that you said something different in your written statement to what you’re saying today?
A. If you want to say that, yes.
Q. Right. Because it wasn’t trying the handle on the main vehicle door and was able to open it was it? You actually had to reach down, grab the roller door from the bottom and then pull it up, correct?
A. That’s what you’re saying, yes.
Q. So you accept that? A. Yes.
[8] Mr Ashby’s evidence had been that it would have been necessary for the police to use “extreme force” to wrench the door open from the bottom, breaking “past the gearing on the motor, to force the door open”. There is no doubt in the circumstances that this was a case of forcible entry.
[9] All four police officers then entered the garage. Once inside they found
Mr Ashby in a highly agitated state. The evidence was that he was talking to
himself, sweating and fidgeting while pacing up and down the garage. He would not tell the police if he was all right or not and asked them to leave. The police asked him whether he was at home alone and Mr Ashby stated that he was. However, Constable Hannah-Jones, who was the acting night shift supervisor for the area, instructed Constable Topia to make sure nobody else was in danger inside the address.
[10] In his written statement Constable Topia explained that soon after they entered the garage Sergeant Welsh had attempted to explain to Mr Ashby why the police were at the address. According to Constable Topia, the Sergeant had explained that the police had a duty of care to make sure he was in no immediate danger and that anyone else inside the address was not in danger. Mr Ashby had responded that he was the only one there, but Sergeant Welsh told Constable Topia to make sure of this. On this basis, it appears that both Sergeant Welsh and Constable Hannah-Jones had instructed Constable Topia to search the house to make sure no one else was inside and in danger.
[11] Mr Topia was cross-examined about why the police had not left when asked to do so. Mr Topia responded by stating:
Because my supervisors wanted to make sure that the gentleman here was okay and that nobody else was in the house and if there was to make sure that they were okay.
[12] Constable Topia then proceeded to search the house, leaving the other police officers in the garage with Mr Ashby. First, he checked two small rooms in the garage area and confirmed that no one was present. He then went upstairs into the residential part of the building and checked one of the bedrooms and the lounge. Again, no one was present, but as he was about to leave the lounge area he noticed a glass pipe on a coffee table. He then searched the remainder of the upstairs area and located no one. He returned to the lounge and uplifted the pipe before returning to the garage to advise Sergeant Welsh and Constable Hannah-Jones what he had found. At that point, the police invoked their powers of search under the Search and Surveillance Act. Constable Hannah-Jones informed Mr Ashby of his rights under the New Zealand Bill of Rights Act 1990 and directed Constable Topia to continue searching the address.
[13] As a result of the search, various items were found which subsequently led to the appellant being charged with possession of methamphetamine for supply contrary to s 6(1)(f) of the Misuse of Drugs Act 1975. He was also charged with possession of the pipe for the purpose of smoking methamphetamine contrary to s 13(1)(a) of that Act.
The issue in the District Court
[14] The appellant contends on appeal to this Court that the police had no right to enter the property without a warrant and that, consequently, the evidence of what was found when the premises were searched was improperly obtained and should have been excluded under s 30 of the Evidence Act 2006.
[15] However, that was not the argument run in the District Court. Judge Gibson recorded a concession by Mr Ryan that the police were entitled to enter the property pursuant to s 14 of the Search and Surveillance Act because of the emergency call and the cries for help that the police had heard when outside the residence. In the circumstances, they had reasonable grounds to believe that there was a risk to the life or safety of a person that required an emergency response.2 The argument advanced in the District Court was that once the police had entered and been told by Mr Ashby that he was the person who they had heard and that he was alone in the house and
not in obvious need of medical assistance, they ought then to have left forthwith when asked to do so. It was argued that the search of the house that then ensued was unlawful.
[16] Having referred to the Crown’s submission that the police were entitled to
satisfy themselves that there was no one else in the property, the Judge said:
[7] The purpose of the search was not to look for illicit drugs or other paraphernalia or evidence of any other crime, but merely to satisfy the police officers present that there was no risk to the life or safety of any person requiring an emergency response. The situation is similar to the facts in R v Fraser [2005] 2 NZLR 109 (CA) where police following a 111 call, attended an address and entered a property because they suspected a domestic violence incident. When in the property they found drugs and cannabis paraphernalia. The Court held the police in that case were entitled to enter the house and, as they were responding to an emergency call and without a
2 These concessions are set out at [5] of the District Court judgment.
clear idea as to what was happening were entitled to continue with a search of the house.
[8] Once the police had satisfied themselves that there was no emergency requiring their intervention then their presence on the property could only be with the implied licence of the property owner or occupier, in this case the respondent. That licence could be revoked. However the circumstances facing the police at the time were such that they could not safely conclude, simply on the respondent’s word, that there was not an emergency requiring their assistance and they were entitled to satisfy themselves as to the position once they gained entry to the property. No explanation was given by the respondent as to why he was yelling for help, he was agitated and aggressive and in those circumstances it is not reasonable for the police to be forced to [accept] a bland assurance that everything was well. A 111 call had been initiated, which was sufficient urgency to compel the sending of four or five police officers to the address and the defendant’s own behaviour would have done little to reassure the police that there was not an emergency requiring their attention.
[9] Consequently the police were entitled to continue with a warrantless search of the property and the evidence is properly admissible against the defendant if not having been improperly obtained.
The issue in this Court
[17] Notwithstanding the concessions made in the District Court, the argument advanced on appeal is that the entry to the address was unlawful and unreasonable, and the subsequent search was unlawful. The contention is that the police had no power to enter the premises under s 14 of the Search and Surveillance Act. That section provides as follows:
14Warrantless entry to prevent offence or respond to risk to life or safety
(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b) there is risk to the life or safety of any person that requires an emergency response.
[18] It can readily be seen that the section does not confer a power of entry for the purpose of carrying out a search. Rather, it is a power to enter to prevent criminal offending, or to take action to avert a risk to life or personal safety.
[19] The section is plainly intended as the successor to s 317 of the Crimes Act
1961 which was repealed by the Search and Surveillance Act. Section 317(1) and
(2) were as follows:
317 Power to enter premises to arrest offender or prevent offence
(1) Where any constable is authorised by this Act or by any other enactment to arrest any person without warrant, that constable, and all persons whom he calls to his assistance, may enter on any premises, by force if necessary, to arrest that person if the constable—
(a) Has found that person committing any offence punishable by imprisonment and is freshly pursuing that person; or
(b) Has good cause to suspect that that person has committed any such offence on those premises.
(2) Any constable, and all persons whom he calls to his assistance, may enter on any premises, by force if necessary, to prevent the commission of any offence that would be likely to cause immediate and serious injury to any person or property, if he believes, on reasonable and probable grounds, that any such offence is about to be committed.
…
[20] It can be seen that in both subs (1) and (2) of s 317 the words “by force if necessary” accompany the power of entry conferred. Mr Ryan submits that the absence of the words “by force if necessary” in s 14 of the 2012 Act marks a crucial distinction between the old and the new statutory provisions. He claims that the absence of any provision for forced entry in s 14 of the new statute means that on the present facts the police were not entitled to enter in the way they did. He points out that the power to “take any action” in s 14(1)(b) is a power arising only once entry has been lawfully effected and submits that it could not justify the search of the premises which resulted in seizure of the evidence of offending under the Misuse of Drugs Act.
[21] In written submissions filed by the respondent, Mr Tantrum initially raised s 110 of the Search and Surveillance Act as a complete answer to Mr Ryan’s point. Section 110 of the Act relevantly provides:
110 Search powers
Every search power authorises the person exercising it—
…
(c) to use any force in respect of any property that is reasonable for the purposes of carrying out the search and any lawful seizure:
[22] That provision needs to be read in conjunction with the definition of “search power” in s 3(1). The relevant part of that definition is as follows:
search power, in relation to any provision in this Act, means—
…
(b) every power, conferred under this Act or an enactment set out in column 2 of the Schedule to which that provision is applied, to enter and search, or enter and inspect or examine (without warrant) any place, vehicle, or other thing, or to search a person
[23] At the outset of the hearing we expressed our doubts that s 110(c) had the effect for which Mr Tantrum had contended. It was our preliminary view, which we now confirm, that the reference in the definition of “search power” to powers conferred under the Act (or the other enactments in column 2 of the Schedule to the Act) is a reference to powers to both enter and search, or enter and inspect or examine. Thus, s 110(c) authorises the use of force for the purpose of carrying out a search and any lawful seizure. It does not apply to a power of entry only. Section 14 is not a search power and consequently s 110 would not authorise the use of force where s 14 powers are being exercised.
[24] Examples of relevant powers of entry and search in the Search and
Surveillance Act itself include:3
(a) Section 7 (power to enter a place or vehicle without a warrant to search for and arrest a person suspected of being unlawfully at large).
3 We are not concerned here with other statutes to which Pt 4 of the Search and Surveillance Act is applied by s 89(2) and the Schedule to the Act.
(b)Section 8 (power to enter a place or vehicle without a warrant and search for a person suspected of committing an offence).
(c) Sections 9 and 10 (in combination, these allow a constable to stop a vehicle without a warrant to arrest persons and search the vehicle if there are reasonable grounds to suspect that a person is unlawfully at large or has committed an offence punishable by imprisonment).
(d)Section 15 (power to enter and search a place without a warrant if there are reasonable grounds to suspect that an offence punishable by imprisonment for a term of 14 years or more has been committed, is being committed or is about to be committed and that evidential material relating to the offence is in that place and might become unavailable given delay associated with obtaining a warrant).
(e) Section 17 (power to enter and search a vehicle without a warrant if there are reasonable grounds to believe that evidential material relating to an offence punishable by imprisonment for a term of
14 years or more is in the vehicle).
(f) Section 18 (power to enter and search a place or vehicle without a warrant where there are reasonable grounds to suspect that a person in possession of arms has, amongst other things, breached the Arms Act
1983).
(g)Section 20 (power to enter and search a place or vehicle without a warrant if there are reasonable grounds to believe that it is not practicable to obtain a warrant and that there are controlled drugs of various categories in the place or vehicle).
[25] All of these powers are exercisable without a warrant, but the power of entry is always conferred for the purpose of search.
[26] Having expressed the preliminary view that s 110(c) would not answer the point now raised by the appellant, we afforded both counsel an opportunity to give further consideration to the issue of the proper interpretation of s 14 of the Act and both have filed further written submissions on that point. Before dealing directly with the issues raised it will be appropriate to refer to the genesis of the Search and Surveillance Act, and its legislative history.
A Law Commission Report
[27] In June 2007 the Law Commission (“the Commission”) published its Report 97, Search and Surveillance Powers.4 The Foreword to the Report noted that the reference that led to the Report arose from the perception that the law relating to search and seizure was outdated, and contained in dozens of statutes developed in a piecemeal fashion over a long period of time. The Commission expressed the view that the then state of the law was “quite simply, a mess”.5
[28] Chapter 5 of the Report dealt with warrantless powers of entry, search and seizure. As noted in [5.1] of that chapter, the general rule is that searches by law enforcement officers may only be undertaken pursuant to terms of a warrant issued by an independent officer acting judicially. The Commission referred to two exceptions. The first is where the subject of the search gives informed and voluntary consent to it. The second is where entry and search are authorised by a specific statutory provision or authorised at common law.
[29] At [5.43] the Commission addressed warrantless police entry onto private places in critical or urgent circumstances. One circumstance in which that could occur was recognised by s 317(2) of the Crimes Act, where there was an apprehension that a serious crime was about to be committed and the constable was authorised to enter “by force if necessary” to prevent the commission of that offence. The second situation in which warrantless entry could be authorised was discussed in Dehn v Attorney-General where the Commission quoted Tipping J’s conclusion
that:6
4 Law Commission Search and Surveillance Powers (NZLC R97, 2007).
5 At 14.
6 Dehn v Attorney-General [1988] 2 NZLR 564 (HC) at 580.
A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.
[30] The Commission also referred to this Court’s decision in R v Fraser in which it was held that s 317 is not a code defining in a complete way police rights of entry onto private property.7 Rather, it was to be seen as authorising police entry onto private property in circumstances where such entry would otherwise be unlawful.8
[31] That case concerned entry by the police after receipt of a 111 call from the appellant’s address. A male caller said he wanted the police, but the call was immediately terminated. The police communications centre rang the phone number but the call was not answered. A police car was despatched within two minutes and police entered the property. The Court observed:
[20] We are satisfied that the combination of the role and responsibility of the police and the exceptional nature of the 111 service warrant adoption in New Zealand of a carefully circumscribed application of the necessity principle at least until there is no good reason to fear that public safety may be at risk. This was recognised by the High Court (Tipping J) in Dehn v Attorney-General [1988] 2 NZLR 564 at p 580 in the following terms:
“A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.”
Tipping J left open the possibility of the application of the principle where property may be endangered. The case went on appeal, Dehn v Attorney- General [1989] 1 NZLR 320, but the issue under examination in the present appeal was not traversed in the judgment.
[32] In an earlier document, Preliminary Paper 50, the Commission had suggested that a new s 317(2) of the Crimes Act could be substituted in the following terms:9
(2) Any constable, and all persons whom he calls to his assistance, may enter on any premises, by force if necessary, to prevent immediate and serious injury to any person or property, if he believes on reasonable and probable grounds, that such injury is likely to occur.
[33] The Commission noted that this would extend the ambit of the law beyond crime prevention but it would still be limited to prevention of injury, and would therefore be narrower than the common law necessity power which included rendering assistance to those who had already suffered serious harm. In the end, the Commission decided that the relevant powers should be codified in a single provision with two limbs, one for crime prevention and one for emergency assistance
to people.10 The Commission also thought that permitting entry only where there
was a risk to life or to the safety of any person and the circumstances require an emergency response would necessarily mean that the factual scenario would be serious and there was no need to specify that potential damage or loss must be serious.
[34] The relevant recommendation which the Commission made was
Recommendation 5.7. The Recommendation was in the following form:
5.7Section 317(2) Crimes Act 1961 should be repealed and replaced with a provision that permits a police officer to:
enter a place without warrant if he or she has reasonable grounds to suspect that in that place:
- an offence is occurring or about to occur, which would be likely to cause injury to any person, or serious damage to or loss of any property; or
- there is a risk to the life or safety of any person that requires an emergency response;
take any action that the police officer has reasonable grounds to believe is necessary to prevent the offending from occurring or continuing, or to avert the emergency.
9 Law Commission Entry, Search and Seizure (NZLC PP50, 2002) at [21].
[35] It was envisaged that the new statutory power would be available only to police officers. The common law defence of necessity would be available to other citizens, including ambulance officers and fire officers as at present.11
[36] The Commission’s recommendation was not accompanied by a draft statutory provision. Nor, as Mr Tantrum pointed out, was there any discussion which suggested that the power recommended would not involve the use of force, if necessary. However, the Commission did refer to s 41 of the Crimes Act, in a footnote to [5.50]. Section 41 provides that:
Everyone is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.
[37] The Commission observed that s 41 is a defence rather than an empowering provision but in practice the effect of it might be very similar to the codified powers of entry envisaged. The observation is inconsistent with any suggestion that there was an intention that the new provisions contemplated would not allow for the use of force where that was necessary. Mr Ryan submitted that the contrast between what the Commission said in Entry, Search and Seizure and the recommendation made in Search and Surveillance Powers showed that the Commission had altered its view: while at one stage it had thought forcible entry should be allowed, by the time the final report was prepared it was of a different opinion.
[38] We reject that proposition. It would be remarkable for such a change to have occurred without discussion and as we have just said, it would be inconsistent with the Commission’s reference to s 41 of the Crimes Act.
The Parliamentary record
[39] Although the origins of what is now s 14 of the Search and Surveillance Act can be traced to cl 14 of the Search and Surveillance Powers Bill 2008, introduced into Parliament on 17 September 2008, that measure was not proceeded with.
[40] However, a new Bill, the Search and Surveillance Bill 2009, was introduced on 2 July 2009 and read for the first time on 4 August 2009. The explanatory note stated that the Bill implemented the government’s decisions on the legislative reform of search and surveillance powers. It was said that those decisions “were largely based on the Law Commission’s Report, Search and Surveillance Powers”.12
[41] Clause 14 of the Bill was almost identical to the provision that had been included as cl 14 of the Search and Surveillance Powers Bill. Insofar as this clause was concerned, the explanatory note made the simple statement that the clause “allows a constable to enter a place or vehicle without a warrant in some situations
of urgency and to take preventive action”.13
[42] The subsequent parliamentary processes did not result in any change to the wording of the provision which was therefore enacted as s 14 of the Search and Surveillance Act in the form in which it had originally been introduced.
[43] There was no reference to forcible entry in the context of cl 14 in any of the parliamentary materials. Significantly for present purposes, there was no suggestion of any intention to render unlawful forcible warrantless entry by a constable where it is necessary in the circumstances now set out in s 14(2) of the Act.
Discussion
[44] Mr Ryan’s argument that entry could not be effected by force under s 14 essentially rested on the propositions that:
(a) The Search and Surveillance Act codifies police powers of entry, search and seizure. As a consequence, the police cannot rely on the common law doctrine of necessity to justify entry into an address.
(b)While s 14 authorises the police to enter an address if there is a risk to life or safety of any person that requires an emergency response, the
section does not expressly authorise the use of force.
12 Search and Surveillance Bill 2009 (45-1) (explanatory note) at 1.
13 At 4.
(c) If Parliament had intended to confer on the police a power of forcible entry in s 14 it would have done so expressly.
(d)The predecessor of s 14, s 317(2) of the Crimes Act, did authorise the use of force, as does s 110(c) of the Act, but only accompanying search powers. This makes the omission of express provision in s 14 more significant.
[45] Mr Ryan emphasised the importance of the issues in the context of the highly valued right to be secure against unreasonable search or seizure, affirmed by s 21 of the New Zealand Bill of Rights Act. At stake is forcible entry by the State into a private citizen’s home.
[46] In one respect the powers conferred on constables by the new statute are wider than previously existed under the Crimes Act. Section 317(1) authorised warrantless entry to arrest persons found committing any imprisonable offence, or in respect of whom there was good cause to suspect they had committed such an offence on the premises. Under subs (2) there was power to enter to prevent the commission of any offence that would be likely to cause immediate and serious injury to any person or property, provided the constable believed on reasonable and probable grounds such an offence was about to be committed.
[47] These powers are effectively repeated (although the drafting is different) by s 14 of the Search and Surveillance Act. But the new Act broadens the power conferred by providing for warrantless entry to avert a risk to life or safety, without requiring that there be any actual or apprehended offence. The right of warrantless entry in those circumstances had previously been a common law right, exercisable in
fulfilling a common law duty, as was recognised in cases such as R v Fraser.14
Although s 14 now makes statutory provision for constables to enter in these circumstances, the common law rights and duties are preserved for other persons by
s 44 of the Act, which provides:
14 R v Fraser, above n 7.
44 Search and Surveillance Act 2012
Common law defence of necessity for people other than constables not affected by this Part
Nothing in this Part affects the common law defence of necessity as it applies to persons who are not constables.
[48] As a result of these changes there is some academic commentary which suggests that the provisions of the Search and Surveillance Act are to be regarded as a code fully setting out police powers of warrantless entry. In Search and Surveillance: Act and Analysis it is said in a discussion of the definition of “search power” that:15
The powers of the Police with respect to entry, search and seizure (apart from those they have in common with other enforcement officers) are comprehensively codified in pt 2 (ss 6 to 44) of the Act. They are not available to other enforcement officers whose substantive search powers are derived from specific authorising enactments which are set out in column 2 of the Schedule to the Act.
[49] Section 7 of the Act confers a power to enter without a warrant to search for and arrest a person unlawfully at large and reasonably believed to be in a particular place. In discussing that provision, the authors state that:16
Subpart 2 together with subparts 3 to 10 of pt 2 codify police powers to enter a place or vehicle without warrant for a law enforcement purpose.
[50] To similar effect is the later observation, in discussing s 14(2)(b), that the
provision “incorporates” the common law necessity power and that:17
The codification under this section of the common law necessity power available to constables does not affect any necessity power available at common law to other non-police enforcement officers: see s 44.
[51] These various statements suggest that the Act was intended to operate as a code at least insofar as the powers of police constables are concerned. However, it is
not necessary for that issue to be determined in this case.
15 Warren Young, Neville Trendle and Richard Mahoney Search and Surveillance: Act and
Analysis (Brookers Ltd, Wellington, 2012) at [SS3.43.01].
16 At [SS7.01].
17 At [SS14.02].
[52] The discussion in the Commission Report, and the observations that we have quoted from Search and Surveillance: Act and Analysis indicate that what was intended was legislative adoption of the common law as it had been discussed in cases such as Dehn v Attorney-General18 and R v Fraser.19
[53] In these circumstances we do not consider that Parliament would have intended to make forcible entry unlawful in the circumstances set out in s 14(2). That would not be to adopt the common law position developed over many years; it would be instead a radical departure from it. And as we have seen, it would be a departure to which Parliament did not turn its mind in enacting the legislation. While it would have been preferable for legislation seeking to gather together in one place State powers of search and surveillance to refer expressly to an ability to use force where warrantless entry is authorised, we are not persuaded that it would be sensible to interpret s 14(1) so as to exclude forcible entry.
[54] We consider that the better approach, and one that meets the statutory purpose, is to construe the word “enter”, as used in the particular context of s 14(1)(a), as authorising the use of such force as is reasonably necessary to effect the entry.
[55] The appellant’s argument to the contrary is a purely textual one, turning on the absence of express reference to the use of force in s 14(1), and contrasting specific reference to the use of force in other sections of the Act as well as in the repealed s 317 of the Crimes Act. The argument overlooks the fact that the power of entry conferred by s 14 is only available in circumstances where there is a pressing need to enter, to prevent offending or to confront a threat of personal injury or serious damage to property. In the context in which the power to enter is conferred by s 14, we are of the view that use of force is necessarily implicit. The fact that the statute expressly authorises the use of force to enter in less exigent circumstances underlines the absurd result that would be produced by the appellant’s interpretation.
[56] If the appellant’s argument is correct, a police constable could be quite convinced as a result of things seen or heard that there was a homicide in progress
18 Dehn v Attorney-General, above n 6.
19 R v Fraser, above n 7.
behind the locked door of a building, yet be obliged to take no action without leaving to obtain a warrant to enter. Equally, a constable responding to an emergency call from someone trapped in a burning house could not enter to save a life. Numerous examples could be given of circumstances in which it has always been the law that a constable can take action to prevent loss of life or serious injury, even if that involves warrantless entry by force. We cannot conceive that Parliament, by the language employed in s 14(1), intended this power to be removed, while at the same time contemplating that others providing emergency services could enter under the
common law necessity doctrine.20
[57] This conclusion is not affected by s 6 of the New Zealand Bill of Rights Act. That provision requires that whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Act, that meaning is to be preferred to any other meaning. Here, we consider the position sufficiently clear to make any recourse to s 6 unnecessary.
[58] In any event, while the right to freedom from unreasonable search is a fundamental right, there are other rights which plainly justify our interpretation of s 14(1) of the Search and Surveillance Act. Those include the right not to be deprived of life set out in s 8 of the New Zealand Bill of Rights Act. That is at least as, if not more, important than the right to be free from unlawful search and seizure. An interpretation which favoured one important right over the other would not be consistent with s 6 of the New Zealand Bill of Rights Act.
This case
[59] In the present case the police went to Mr Ashby’s address solely as the result of a 111 call. On arrival at the property they were able to confirm, as the person making the call had claimed, that a male person sounding very distressed was calling for help. They tried to enter the garage through a side door, but could not open it. The Judge accepted Constable Topia’s evidence that he had not heard Mr Ashby
telling them to go round to the front door. They then pulled the garage roller door up
20 Our conclusions are not affected by the distinction between grounds for entry, which require reason to “suspect”, and grounds for taking action after entry, which require reason to “believe”. The former signifies a lower threshold than the latter; see for example R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [213].
and found Mr Ashby inside. We are of the view that the forcible warrantless entry was justified in the circumstances.
[60] Mr Ashby was aggressive and yelled at the police to leave. The Judge found that the search of the premises that followed was justified, for the reasons he gave in [8] of his judgment, which we have set out above at [16]. In brief, the circumstances justified them in checking to ensure that there was no one else in the house at risk. The search resulted in evidence that is properly admissible against the appellant at his trial.
Result
[61] We grant leave to appeal, but the appeal is dismissed.
[62] For fair trial reasons, we make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.
Solicitors:
Crown Law Office, Wellington for Respondent