Dixon v The Queen

[2010] NZSC 115

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 SUPREME COURT OF NEW ZEALAND

SC 74/2010
[2010] NZSC 115

TROY ROBIN DIXON

v

THE QUEEN

Court:Blanchard, Tipping and McGrath JJ

Counsel:B J Hart for Applicant
M D Downs for Crown

Judgment:8 September 2010 

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

[1]       The applicant seeks leave before trial to appeal in order to challenge evidence ruled admissible by both the District Court and the Court of Appeal.  The case is said to involve the legal ingredients and parameters of the concept of implied licence. 

[2]       A police constable invoked an implied licence to enter premises at 109 Otaika Road, Whangarei for the purpose of verifying information received from an informant.  Being unable to park on the street, the constable drove his police vehicle down a shared driveway serving both those premises and neighbouring premises.  He stopped near a door to a house on the subject premises.  That door had the appearance of being its main entrance.  While moving from his car to the door the constable smelt cannabis.  He knocked on the door but there was no response.  He then took certain other actions which may or may not have been within the terms of his implied licence to enter onto the premises.  What is clear, however, is that at the time the constable smelt cannabis he was within the terms of his implied licence to go onto and knock on the door of the premises for the purpose of contacting any occupier.  When he smelt the cannabis he had reasonable grounds to seek a search warrant based on a combination of what he had smelt and the information given to him by the informant.

[3]       A warrant was duly obtained.  The application for it relied both on the information which the constable had acquired within the implied licence and the further information which he had acquired arguably outside the terms of the implied licence.  There was, however, clearly enough information to justify the issue of the warrant without reference to the information which the constable obtained in an arguably unlawful manner.  Hence, even if it were held that the constable exceeded his implied licence, there was still enough validly obtained information to justify the issue of the search warrant pursuant to which the evidence in dispute was obtained.  The execution of that warrant was a springboard for the obtaining and execution of other warrants.  Hence the admissibility of the evidence in question depends on the validity of the first search warrant. 

[4]       As that warrant was justified on the basis of information which the constable obtained lawfully, there can be no reasonable prospect of success in the appeal, whatever may be the precise limits of the implied licence invoked by the constable.  There is certainly no basis for any concern that a miscarriage of justice may occur from the admission of the challenged evidence.  For these reasons the application for leave to appeal should be dismissed.

Solicitors:
Nigel Cooke, Auckland for Applicant
Crown Law Office, Wellington