Aue v Police
[2013] NZHC 637
•27 March 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000316 [2013] NZHC 637
BETWEEN TEMAERA AUE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 25 March 2013
Appearances: D P Nairn for Appellant
W N Fotherby for Respondent
Judgment: 27 March 2013
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 27 March 2013 at 3:00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date……………………….
Solicitors: Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – Email: [email protected]
Counsel: D P Nairn, P O Box 76661, Manukau 2241
Email: [email protected]
AUE V NZ POLICE HC AK CRI-2012-404-000316 [27 March 2013]
Introduction
[1] At 5.05pm on 5 December 2011 a 111 call was made from 52B Otara Rd, Otara. The caller was Mr Terbo Aue. He was asking for help with his adult son, Temaera Aue, who is the appellant. Temaera Aue was reportedly being verbally abusive but there were no weapons involved and the Police assessed the situation as
being “no apparent risk”.1 The Police had no units available at the time. Two police
officers attended at about 9pm.
[2] One of the officers, Constable Roberts, went round the back of the house, where he found the appellant and his partner in the doorway of a shed. The appellant’s partner said that they had been using cannabis. Constable Roberts asked them to come to the front of the property so that he could speak to them, which they did. However, when they got to the front of the property they found Constable Tai speaking with Mr Aue senior at the front door. Mr Aue senior, who appeared intoxicated, was telling Constable Tai, in colloquial terms, to leave the property.
[3] Constable Roberts sought to speak to the appellant about the cannabis. The appellant, like his father, told the officer to leave the property. Neither man would discuss the 111 call. The appellant was aggressive and yelling at Constable Roberts, who warned him that he risked being arrested. He still did not calm down. He was arrested for disorderly conduct but resisted the arrest and subsequently spat at Constable Roberts.
[4] The appellant was convicted following a defended hearing in the Manukau District Court before Judge McElrea2 on charges of disorderly behaviour,3 resisting arrest4 and assaulting a police officer.5 He appeals his convictions on the grounds that:
(a) His conduct did not amount to disorderly behaviour;
(b)The implied licence by which the police officers came onto the property had been revoked prior to his being arrested and the Police
1 The internal Event Information record.
2 Police v Aue DC Manukau CRI-2011-092-018673, 10 August 2012.
3 Section 4(1)(a) Summary Offences Act 1981.
4 Section 23 Summary Offences Act 1981.5 Section 10 Summary Offences Act 1981.
were therefore not acting in the execution of their duty when they arrested him. An essential element of the offences of resisting arrest and assaulting a police officere could therefore not be proved.
[5] Mr Nairn, for Mr Aue, sought to adduce further evidence in the form of the Event Summary [National Enquiry Database] “Comms Report”. This is an internal police document containing information recorded in relation to the 111 call over the course of the evening. It was not disclosed to Mr Aue at the time of his prosecution and Mr Nairn submitted that this non-disclosure unfairly disadvantaged Mr Aue because it contained information relevant to the issue of implied licence. Mr Fotherby responsibly did not object to it being admitted and I therefore granted leave to adduce the document.
Conviction for disorderly behaviour
[6] Mr Nairn submitted that the Mr Aue’s conduct did not amount to disorderly behaviour. The nature of behaviour that will satisfy this description was considered by the Supreme Court in Brooker v Police.6 In that case, Elias CJ said at [45] and [47]:
Behaviour which amounts to intimidation, victimisation or bullying is disrupting of public order even if no violence is reasonably in prospect. Such behaviour is likely to alarm or be seen as threatening by those present. It is likely to cause others to withdraw from or avoid the area and it is behaviour which inhibits normal public use of the place …
But a peaceful protest or picket which is simply annoying or embarrassing and which does not seriously interfere with use of the neighbourhood by others does not become disorderly simply because it is conducted in a residential street.
[7] Also of assistance is Blanchard J’s statement at [56]:
Disorderly behaviour is not necessarily offensive in that way. It is behaviour which disturbs or violates public order. To fall within s 4(1)(a) it must be behaviour in or within view of a public place which substantially disturbs the normal functioning of life in the environs of that place. It must cause a disturbance of good order which in the particular circumstances of time and place any affected members of the public could not reasonably be expected to endure because of its intensity or its duration or a combination of both those factors …
6 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.
In a typical incident leading to a charge of disorderly behaviour, for example, where the defendant behaves in a “drunken and noisy manner in a public place” there will be no Bill of Rights dimension. The Court merely determines whether, bearing in mind the seriousness of any criminal conviction, in all the circumstances the defendant’s conduct in or in view of the particular public place can properly be described as causing a substantial disturbance to persons in the environs of that place at the time in question.
[8] And that of Tipping J at [90]:
… I would re-formulate earlier tests in the following way. Conduct in a qualifying location is disorderly if, as a matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.
[9] Constable Roberts described the events giving rise to the disorderly conduct charge in his evidence:
A. I spoke to the defendant about it and he immediately became aggressive towards me and told me to fuck off and get off his property …
Q. Where was he in relation to you at the time?
A. He stood quite close to me, got really in my face, quite an aggressive stance.
Q. And in what manner and volume was he speaking?
A. He was, he was yelling at me right in my face telling me to get off his property and he wasn’t well yeah, he was being very aggressive towards me.
Q. Did you notice anyone else in the vicinity at that stage?
A. I noticed there were some of the neighbours were standing looking over the fence and there were some pedestrians on the road that had stopped and were just watching what was going on due to the yelling and the, you know the kerfuffle that had happened.
Q. So these pedestrians that had stopped, you say that they were watching?
A. Yeah.
Q. – defendant’s property?
Q. Does the courtroom assist you as to where these people were out on the street or was it outside of this courtroom?
A. No, the 52B is quite, quite close to the street. There’s a reasonable sized front yard and then a fence. I mean it would be about where that second set of seats are yeah …
Q. So we’re talking about 8 to 10 metres?
A. Yes …
Q. And is there any or was there any obstruction that would prevent a fair view between or over that 8 to 10 metres area?
A. There’s a fence, it would be a 3 or 4 foot hight fence. From memory it’s a wire link fence like a, yeah, so it was a very short fence. There were no trees or vehicles parked in the yard at this point.
THE COURT:
Q. So it sounds that there was nothing stopping people who were standing up from seeing you?
A. No nothing stopping them from seeing. EXAMINATION CONTINUES: SERGEANT MORGAN
Q. So how were you getting on at that stage in relation to sorting out –
A. Um –
Q. This issue with the cannabis?
A. I wasn’t getting very far with the defendant, trying to reason with him or trying to discuss the cannabis with him. And because of his, his, the way he was acting was getting worse and worse. I warned that he’d be arrested if he didn’t calm down and stop being disorderly.
Q. And what was the defendant’s response to that?
A. He continued to swear at me and be aggressive in his stance towards me.
[10] Constable Tai gave similar evidence. His evidence suggested that the officers arrived about 9.10 pm and Mr Aue senior came to the door about 9.17 pm. The Police “Comms Report” suggests from the entry “male under control” that the appellant had been arrested at about 9.18 pm. Allowing for some inaccuracy in these timings it appears that the confrontation between the appellant and Constable Roberts lasted for only a few minutes.
[11] Constable Tai recalled that there were about eight or nine people outside the property who had come out to watch what was happening. None of the neighbours or passers-by was called to give evidence.
[12] The Judge cited extensively from Brooker and reached the following conclusion:
[39] … We are dealing with conduct which substantially disturbed the normal functioning of life in a residential street because of the intensity of the obscenities and the aggression being exhibited by both men.
…
[41] … I find that the conduct of the defendant already described and of concern to Constable Roberts was causing a substantial disturbance to persons in the environs of that place at the time in question.
…
[46] … I find on the evidence of the two police constables that the behaviour of the defendant once he was spoken to about the cannabis was of such an intensity and type that in the particular circumstances where it was within full view of the street and also of neighbours nearby, it was disorderly conduct.
[13] It is evident from the statements in Brooker that, to satisfy the description of disorderly, the conduct in question must result in a substantial level of interference with the functioning of the neighbourhood or public area in which the incident occurred. It must be at a level beyond which a normal resident should be expected to bear. This is an assessment to be made having regard to all the relevant circumstances.
[14] Having reviewed the evidence I am unable to agree with the Judge’s
characterisation of the conduct as disorderly. The incident occurred shortly after
9 pm, so not especially late and lasted only a few minutes by the time the appellant was arrested. There was shouting and swearing but a degree of shouting and swearing is not uncommon from time to time in residential neighbourhoods. Although neighbours and passersby were clearly curious, there is nothing to suggest that their use of the nearby public areas were in any way disrupted.
[15] Although the police officers were undoubtedly placed in a difficult situation I am not satisfied that what they described in their evidence could be regarded as disorderly behaviour warranting a criminal sanction. The appeal in relation to the charge of disorderly behaviour is therefore allowed.
Were the Police unlawfully on the property?
[16] An essential element in each of the offences of resisting arrest and assaulting a police officer was that Constable Roberts was acting in the execution of his duty when he arrested the appellant. Mr Nairn argued the police officers came onto the property pursuant to an implied licence which Mr Aue senior revoked before any attempt was made to arrest his son. At that point the officers were unlawfully on the property and could not have been acting in the execution of their duty when they arrested the appellant.
[17] The Judge had rejected Mr Nairn’s argument solely on the ground that the evidence did not establish that either the appellant or Mr Aue senior were occupiers of the property with the power to revoke the implied licence. Regardless of the state of the evidence at trial, I am satisfied that the Comms Report adduced for the purposes of the appeal does show that Mr Aue senior was the occupier of the property and entitled to revoke the implied licence. However, for reasons not addressed by the Judge, I consider that the police officers were on the property lawfully when Constable Roberts arrested the appellant.
[18] Whether a police officer becomes a trespasser following the revocation of the implied licence depends on whether he or she has any other legal basis for remaining on the property. Mr Fotherby argued that in this case the officers had two separate bases for remaining on the property. These were the statutory power of entry
conferred by s 317 of the Crimes Act 1961.7 The second was the principle of
necessity which, he argued, operated in the context of police officers responding to a
111 call.
[19] Section 317(1)(b) as it then stood provided that:
(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 -
…
(b) Has good cause to suspect that that person has committed any such offence on those premises.
7 Since repealed by s 325(6) Search and Surveillance Act 2012.
[20] In R v Fraser the Court of Appeal, considering the legality of a police entry onto private property following a 111 call, said of s 317:8
[19] We consider that s 317 is intended to authorise entry onto private land where otherwise it would be a trespass. However, in situations where there is an implied licence or, as we later conclude in this case, the law imputes an authority entry will not be a trespass and therefore outside s 317. We are satisfied that s 317 is not a code which defines completely police rights of entry into private property. We consider that s 317 is more appropriately seen as authorising police entry onto private property in circumstances where such entry would otherwise be unlawful.
[21] Although s 317 refers to entry for the purposes of arresting a person, I respectfully agree with Gendall J’s comments in Harris v Police that s 317 may equally apply where police come onto premises in order to speak to a suspected offender as opposed to immediately arrest him or her.9 Nor do I consider there to be any significance in the fact that the police officers were already on the property when the implied licence was revoked so that s 317 conferred a right to remain, as opposed to actually enter. This is implicit in McGechan J’s decision in Coster v Police.10
[22] Given the evidential basis offered by Constable Roberts for his belief that a drugs offence had been committed, it is clear that he did have good cause to suspect that an offence had been committed at the property for the purposes of s 317(1)(b). For this reason, I consider that Constables Roberts and Tai were lawfully on the property when Constable Roberts arrested the appellant.
[23] For completeness, I also address Mr Fotherby’s alternative argument. He submitted that the presence of the officers could be regarded as lawful based on the principle of necessity in that police officers responding to 111 calls had an obligation to properly investigate so as to satisfy themselves that no person was injured or in danger.
[24] That the Police acting in response to a 111 call may enter property under the necessity principle was confirmed by the Court of Appeal in R v Fraser:11
[20] We are satisfied that the combination of the role and responsibility of the Police and the exceptional nature of their 111 service warrant
8 R v Fraser [2005] 2 NZLR 109 (CA).
9 Harris v Police HC Wellington AP18/97, 12 March 1997.
10 Coster v Police (1993) 10 CRNZ 54 (HC).11 R v Fraser, above n 8.
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 p580 in the following terms:
A person may enter the land or building or 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 to render assistance to another after that other has suffered serious physical harm.
[21] We are unaware of any New Zealand case directly on the point of a
111 call but the principle discussed by Tipping J may reasonably be regarded as envisaging such a call as part of the evidential context in
which issues of good faith and objectively reasonable grounds may
be examined.
[25] The Court subsequently cited with approval from the Supreme Court of
Canada’s decision in R v Godoy12 and concluded that:
[28] … the purpose of a 111 emergency system is to enable citizens to be put quickly in touch with the emergency(s) they need and for that service to respond urgently if required. Its integrity is based on an acceptance by citizens that in exercising their duty arising from the emergency call police, fire service and emergency medical services may impinge upon private property rights. The trade-off for citizens is the potential for saving lives and property, facilitated by the 111 emergency system.
…
[33] We therefore consider the law imputes an authority to enter private property based on necessity in the limited circumstances as identified by Tipping J in Dehn. Whether danger to property is envisaged by the doctrine of necessity is not something we need to be concerned with in this appeal. Where the appropriate circumstances exist it does not matter there is a “keep out” notice or a locked gate. Such entry is lawful whether by a citizen or a policeman. We consider that entry onto private property arising from a 111 emergency call arises from the same concept of necessity. Such a call is indicative of an emergency when life and safety are endangered. It cannot reasonably be contended that the Police did not have reasonably objective grounds for a belief and did believe that the emergency call was indicative of such a danger. New Zealand society would regard the Police as failing in their duty if in the circumstances they had not investigated by entering the house.
[26] In the present case the Police did attend the property pursuant to a 111 call. However, by the time they attended some four hours had elapsed since the call was
made. The information gathered by the Police from Mr Aue senior’s telephone calls
12 R v Godoy [1991] 1 SCR 311.
suggested only that there was a verbal situation between Mr Aue and his son that was causing concern, no weapons were involved and there was no threat of physical injury. When the Police arrived at the property they could see for themselves that both Mr Aue and the appellant, although intoxicated, were safe and that there was no apparent danger to either of them.
[27] Given that the principle of necessity permits a person to enter property in circumstances that would otherwise render them trespassers, it is important not to apply it in circumstances that fall short of true necessity. It cannot be said that there was either a risk to human life or a threat of serious physical harm in this case, nor that there were objectively reasonable grounds for the police officers to hold such a belief. It follows that the 111 call is to be regarded merely as part of the context in which the relevant events occurred rather than justification for invoking the principle of necessity.
Result
[28] The appeal against conviction for disorderly behaviour is allowed and that conviction is quashed.
[29] The appeal against conviction for resisting arrest and for assaulting a police officer is dismissed.
P Courtney J
3