Fleming v Police
[2015] NZHC 1057
•19 May 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-069-001319 [2015] NZHC 1057
BETWEEN BOURKE TINERAU FLEMING
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 February 2015 Counsel:
G C Burt for the Appellant
A C Cresswell for the RespondentJudgment:
19 May 2014
JUDGMENT OF COURTNEY J
[Appeal Against Refusal to Dismiss Prosecution]
This judgment was delivered by Justice Courtney on 19 May 2015 at 4.00 pm
pursuant to r 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date……………………….
FLEMING v NZ POLICE [2015] NZHC 1057 [19 May 2014]
Introduction
[1] Police Constable Coleman came onto Bourke Fleming’s property to conduct a bail check. He did so pursuant to the implied licence that exists at common law. Mr Fleming required him to leave before the bail check was completed. Constable Coleman refused to leave. Mr Fleming is alleged to have then threatened him, which resulted in a charge of assaulting a police constable acting in the execution of his duty1. Proof of an offence under s 10 of the Summary Offences Act 1981 requires that the victim is a police constable acting in the execution of his duty. If the officer is trespassing at the relevant time he is not acting in the execution of his duty.
[2] Mr Fleming claimed he was entitled to revoke the implied licence and that he had done so by the time the alleged assault occurred, so that Constable Coleman was trespassing at the relevant time.
[3] Judge C J McGuire refused Mr Fleming’s application for an order dismissing the charge against him.2 He held that, notwithstanding Mr Fleming’s demand, Constable Coleman was not required to leave the property until he had completed his enquiries and was, therefore, not trespassing.3 Mr Fleming wishes to appeal that decision. He was out of time by two days but there was no objection to leave being granted to bring the appeal out of time and I accordingly grant leave.
Circumstances of alleged offending
[4] The facts were not in dispute for the purposes of the appeal. The charge arose from an incident on the evening of 4 November 2013 at Mr Fleming’s home in Turangi. Mr Fleming’s son, Jira Fleming, was bailed to that address on a 24-hour curfew. The conditions recorded in the bail bond included:
24 hour curfew to the above address unless in the direct company of his father – Bourke Fleming or Uncle Tauri Fleming.
[5] Unusually, there was no requirement that Jira Fleming present himself at the door when required.
1 Summary Offences Act 1981, s 10.
2 Criminal Procedure Act 2011, s 147.
3 R v Fleming DC Rotorua CRI-2013-069-1319, 1 September 2014.
[6] Constable Coleman gave evidence that he and Senior Constable Wells went to the address to conduct a bail check. Senior Constable Wells was off duty at the time and went only to assist. As they arrived at the address, they saw a male on a motorbike about 100 metres away from the property. Constable Coleman suspected that the motorbike rider was Jira Fleming. The constables considered that, if that were right, Jira would have been in breach of his bail conditions.
[7] Constable Coleman drove the police car on to the back of the property. He went to the back door and knocked repeatedly. There was no answer. In his evidence Constable Coleman accepted that Jira Fleming, having failed to present himself at the door, was in breach of his bail. That was not necessarily correct; given the bail condition referred to earlier Jira Fleming would not have been in breach of his bail conditions merely because he did not present himself at the door since he was permitted to be off the property in the company of his father or uncle.
[8] As Constable Coleman was returning to his vehicle, he saw a beer can being discarded from the window of a vehicle parked at the rear of the property. He approached and saw a man reclining in the car seat and attempted to speak to him. That man was Mr Fleming, who told the officer to leave the property, repeating that demand in clear terms.
[9] Constable Coleman did not leave. He wanted to complete his enquiries. On the constable’s evidence, Mr Fleming got out of the car and walked towards the house. Constable Coleman followed. Mr Fleming quickened his pace and then disappeared behind the porch. He came out with a metal-framed chair, which he held in front of him while continuing to demand, in abusive terms, that the constable leave the property. The constable still did not leave. Instead he presented his police taser and told Mr Fleming to put the chair down. A stand-off ensued.
[10] Constable Coleman said that he felt threatened by Mr Fleming. It was this threat that is said to have amounted to the assault; it was accepted that Mr Fleming did not advance further and did not threaten to strike the constable. After a time, Constable Coleman lowered the taser and moved to his vehicle, then left the property.
Judge McGuire’s ruling
[11] The Judge recorded the common law position regarding implied licence to enter a property, namely that any person has an implied licence to enter a property and go to the door to make contact with an occupant. A lawful occupier may thereafter revoke the licence and tell the visitor to leave. If the visitor does not do so, he becomes a trespasser. The Judge recorded the issue in this case as being what the implied terms of the particular licence were.
[12] After referring to the Court of Appeal’s decisions in R v Bradley,4 Dixon v R,5
and R v Hills,6 the Judge concluded that:7
What is not challenged is that the curfew condition, with its requirement that the bailed person present himself at the door, was a proper and lawful bail condition. It must follow, as a matter of law (and practicality) that the implied licence that the police have to enter the property for this purpose extends to their being able to reasonably carry out the bail check.
I conclude, therefore, that the defendant occupier in this case prematurely purported to revoke the implied licence the police had to enter the property and that up to and including the time when the police decided themselves to leave, they were lawfully on the property executing one of their duties.
The appeal
The scope of the implied licence and revocation of it
[13] A police officer may, like any member of the public, enter and remain on private property for the purposes of speaking with the occupier on legitimate business. That is permitted by the implied licence recognised at common law since the decision in Robson v Hallett.8 The implied licence can, however, be revoked by the occupier. If the visitor is directed to leave and fails to do so, he becomes a trespasser. A police officer who fails to leave when directed becomes a trespasser
and can no longer be said to be acting in the execution of his duty.9
4 R v Bradley [1997] 15 CRNZ 363 (CA).
5 Dixon v R [2010] NZCA 297.
6 R v Hills [1999] 16 CRNZ 673 (CA).
7 At [14] and [15].
8 Robson v Hallett [1967] 2 QB 939.
9 Coster v Police (1993) 10 CRNZ 54 (High Court).
[14] In Bradley the Court of Appeal traced the development of the implied licence as an exception to the common law rules around trespass founded on a citizen’s right to privacy. The question in Bradley was whether the scope of that implied licence gave police officers greater rights than members of the public. The Court explored, as a rationale for the implied licence in relation to police officers, the public interest in investigating offences and punishing offenders. This was seen as telling against an unduly restricted scope of the implied licence. The Court in Bradley concluded
that:10
Consequently, notwithstanding that the implied licence as framed in Robson v Hallett provides police officers with the implied licence available to any member of the public, the scope of the implied permission for a police officer to pursue his or her legitimate business will not necessarily be the same as the implied licence for, say, a postman or stranger merely seeking directions. The lawful business of each differs, and with that difference, the occupier’s expectation of privacy may also differ. The scope of the authority to enter may vary so as to permit that which, having regard to the householder’s reasonable expectation of privacy, is reasonable in the circumstances.
[15] In Tararo v R11 the Court of Appeal undertook a careful review of Bradley
and the cases that had been decided since, including R v Soma,12 R v Bailey,13
O’Connor v Police14 and Police v McDonald.15 In doing so it noted that these decisions could not all be reconciled easily. Although it indicated some reservations about the suggestion in Bradley that the public interest in the detection of crime militates against an unduly restricted definition of the implied licence it reiterated the effect of the decision in Bradley as being to allow the police to enter property for the purpose of making inquiries in the context of an inquiry involving an approach to the occupier of the property:
It does not limit the scope of the licence to what is required to enable initial communication with the occupier but permits entry for the purpose of making inquiries as long as those inquiries involve communication with the occupier.
[16] Later, observing that the scope of the licence is “partly defined by reasonable
expectations of privacy (objectively assessed) and partly by the public interest in the
10 At 368.
11 Tararo v R [2010] NZCA 287, [2012] 1 NZLR 145.
12 R v Soma (2004) 21 CRNZ 23 (CA).
13 R v Bailey HC Auckland CRI-2007-095-7842, 7 October 2009.
14 O’Connor v Police [2010] NZAR 50 (HC).
15 Police v McDonald [2010] NZAR 59 (HC).
investigation of crime”16 the Court cited approvingly from the decision in Police v McDonald in which Dobson J summarised the scope of the implied licence insofar as it related to the police in the following terms:17
It permits a police officer to enter private property so far as is necessary to engage an occupier, in the course of any lawful inquiry.
[17] On an appeal against the decision in Tararo the Supreme Court referred to the Court of Appeal’s extensive discussion of the previous cases and then went on to summarise the basis for and scope of the implied licence:18
Put at its simplest, it has been recognised since Robson’s case that citizens generally, including police officers, are not trespassers if all they do is enter upon, but not into, private premises for the purpose of making enquiry of, that is, communicating with an occupier. This doctrine of the common law was adopted to ameliorate the strict historical view that to set foot on the land of another without that other’s consent or legal justification was a trespass. The implied licence articulated in Robson’s case and adopted into New Zealand law by the decisions traversed in the Court of Appeal was, at least initially, seen as providing the landowner’s consent by implication. But that quasi- contractual approach was hard to reconcile with the difficulty of ascribing to occupiers of tinnie houses, for example, implied consent to undercover police officers coming onto their premises for law enforcement purposes.
A more satisfactory legal basis for this kind of licence is to say that it is implied by law rather than on a quasi contractual basis. The common law modifies the absoluteness of the ordinary law of trespass by permitting entry onto private premises for the purpose of reasonable inquiry. The common law recognises, however, that a landowner is entitled to deny or terminate the licence, either in advance of its being invoked or in the course of its being invoked.
The landowner may do this in advance by such means as locking a gate or putting up a notice making it clear that members of the public are not permitted to enter. Termination during the course of the exercise of the licence can be achieved by making it clear to the person concerned that they may no longer remain on the property. If that person does not comply with a request to leave within an appropriate timeframe, they become a trespasser. Of course, contractually-based inter partes licences and their incidents continue to exist and to be governed by the law of contract. They are different in kind from the licence which the law gives to all members of the public under consideration in this case.
Against that background we would formulate that licence in the following way. Members of the public, including police officers, may go to the door of private premises in order to make enquiry of an occupier for any reasonable
16 At [41].
17 Police v McDonald [2010] NZAR 59 at [36], cited at [40] of Tararo.
18 Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145 at [11]-[14].
purpose. Police officers may avail themselves of this licence for law enforcement purposes. But they cannot invoke the licence to do anything that by law requires a warrant.
(emphasis added)
The facts of this case
[18] The Judge’s characterisation of Mr Fleming’s revocation as premature suggests that he was not entitled to revoke the licence when he did. However, Ms Cresswell did not frame her argument as Mr Fleming not being entitled to revoke the implied licence but argued instead that the scope of the implied licence in the context of a bail check is wider than normal because the privacy expectation of a person who has made his home available as a bail address is less than would usually be the case. As a result, and notwithstanding Mr Fleming’s direction to leave, the police officer was entitled to remain on the property until he had obtained the information he sought, namely whether there had been a bail breach by Jira Fleming.
[19] I do not accept this argument. Asserting that the constable is entitled to remain until he has completed his inquiries to his satisfaction regardless of the occupier’s direction to leave is simply another way of saying that the occupier has no right to revoke the implied licence when he wishes. This is contrary to the long accepted position, confirmed by the Supreme Court in Tararo, that an occupier may revoke the implied licence at any time, including before anyone has actually come onto the property. This position is not altered just because a property is being used as a bail address. A person’s right to revoke the implied licence does not depend on who the visitor is; whether a member of public or a police officer, the occupier is entitled to assert his or her right to revoke the licence on which the visitor relies for continued presence.
[20] Upon revocation the visitor must leave, as noted by the Supreme Court in Tararo, “within an appropriate timeframe”.19 The appropriateness of the timeframe is clearly determined by reference to the timing of the revocation, not by the constable’s assessment of what further enquiries he wishes to make. Were it otherwise, the occupier’s right of revocation would effectively be suspended until a
reasonable time for completing the constable’s enquiries had passed. This would gravely intrude on the privacy interests of the occupier.
[21] In another case involving a bail check, R v Hills, the Court of Appeal expressed doubt about a similar argument.20 In that case, the occupant, Ms Hills, refused to say whether the defendant on bail was in the house and told the police officers to leave the property. They did not do so. Ms Hills went back inside to make a telephone call. Upon returning to the front door, she let her dog out of a bedroom and encouraged it towards the officers. This act resulted in a charge of assault with a
weapon (the dog). The Court of Appeal considered that the police officers had had a reasonable time to depart the property while Ms Hills was on the phone and their failure to do so meant that they were trespassers. This was contrary to the finding at first instance and Blanchard J observed that:21
In passing we refer again to [the Judge’s] remark that they were within their rights to explore every possibility to ascertain if the person they were endeavouring to locate was in the house. It is enough to say that this proposition is doubtful. It can be accepted that, notwithstanding the hour, the police had an implied licence to go to the door of the house in the execution of their duty, namely checking on whether Ms Jacom was observing the condition of her bail. But we have not been referred to anything which would authorise them to conduct a search without the consent of the occupier. Nor did it appear that Ms Hills had any obligation to answer the enquiry made by the police officers, although, the District Court Judge observed, if she had given a direct answer to an explicit question, the whole incident would never have occurred.
[22] Ms Cresswell sought to distinguish Hills on the basis that the police officers in that case had reached the front door and been refused the information they were seeking. By remaining after it had been made clear that Ms Hills was not going to answer their questions, they had gone further than the implied licence permitted. She compared that to the present case where the police constable had asked Mr Fleming where Jira Fleming was but was still in the course of making enquiries when the he was told to leave.
[23] I do not accept that there is any real difference between Hills and the present case. The point is that the occupier has the right to revoke the implied licence at any
time. Whether inquiries have been completed cannot affect that right. That this
20 R v Hills (1999) 16 CRNZ 673 (CA).
must be so can be tested by considering the position where the occupier exercises the right to revoke the implied licence in advance, by locking the gate or putting up a sign. Even if the property is being used as a bail address, the police are not free to ignore such a signal and proceed onto the property regardless and Ms Cresswell did not suggest that. Yet it would be inconsistent if an occupier could effectively exclude the police wishing to undertake a bail check by locking his gate, signalling that the implied licence had been revoked, but could not achieve the same effect by exercising that right after the police had entered the property.
[24] I see no justification for enlarging the scope of the implied licence merely because the inquiry that is sought to be made is a bail check. It is true that the occupier has agreed to allow the defendant to be bailed to that address but if it is impractical for bail checks to be made because the occupier revokes the implied licence, the issue simply becomes whether the bail address is suitable. The police can, if necessary, apply to have the bail conditions varied or bail revoked. It is unnecessary to deprive the occupier of his right to revoke the implied licence.
[25] I consider that, whilst the police were entitled to come onto the property and ask Mr Fleming where his son was, Mr Fleming was entitled to revoke the implied licence at any time. Once he did that Constable Coleman was required to leave as soon as reasonably possible. Staying in order to complete his enquiries was not reasonable. As a result, the officer was trespassing at the time Mr Fleming acted in a way that the officer found threatening.
Result
[26] The appeal is allowed and the Judge’s decision set aside. There will be an order under s 147 of the Criminal Procedure Act dismissing the charge against Mr
Fleming.
P Courtney J
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