Gerrard-Smith v Police - [2016] NZHC 2543

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 HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-463-000040 [2016] NZHC 2543

BETWEEN
MANI HEATHER GERRARD-SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 October 2016

Appearances:

K C Johnson for Appellant
A Z M Shore for Respondent

Judgment:

25 October 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 25 October 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Potts & Hodgson, Opotiki
Crown Solicitor, Tauranga

GERRARD-SMITH v NEW ZEALAND POLICE [2016] NZHC 2543 [25 October 2016]

Summary

[1] Ms Mani Gerrard-Smith wants evidence of cannabis ruled inadmissible because the police constable was not lawfully on her property when he found it. The Court of Appeal has said anyone has an implied licence to enter someone’s property to communicate with them, but a police officer going on to a property to stop someone escaping is not within that. Here the constable said there were two reasons for going on to the property: to stop someone escaping and to talk to the occupants about a report of family violence. I find that does fall within the implied licence so the police constable was lawfully on the property when he found the cannabis. I also find the other requirements for a lawful search were met. I dismiss the appeal.

Facts

What happened

[2] On 22 December 2015 Police received a report, from a child, of a potential incident of family violence at a remote rural address in Omaio, near Te Kaha in the Bay of Plenty. At 8 pm two police constables visited the property. They noted there was no vehicle there. Constable Forsyth approached the front door and knocked on it. Constable Haerewa walked down the right hand side of the house to go around the back of the property to the rear entrance. I infer he expected there would be a back door, though there is evidence there was no back door. He says that on a previous visit to the property an occupant had run out of the back of the house into an adjoining maize field.

[3] Constable Haerewa says he had two reasons to go to the back of the house. The first was to prevent the same escape happening again, given the nature of the complaint. The second was that he considered it necessary to speak to both parties as soon as possible given the nature of the complaint, in order to assess it. One possible suspect had a record of family violence.

[4] As Constable Haerewa walked down the side of the house he saw some cannabis plants in the rear garden. He says they were of such a size he could see them from the front of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 2543
Decision Date: 25 October 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Gerrard-Smith v Police involved a dispute over the admissibility of evidence of cannabis found on the property of Ms. Mani Heather Gerrard-Smith. The respondent, New Zealand Police, sought to have the evidence admitted, while the appellant argued that the evidence should be excluded as it was obtained unlawfully. The central legal issues were whether the police officer was lawfully on the property when he discovered the cannabis and if the search and seizure were reasonable under the New Zealand Bill of Rights Act 1990.

The court considered the legal principles surrounding implied licences for police officers to enter private property and the specific circumstances under which such an entry would be lawful. It was established that police officers have an implied licence to enter property to communicate with occupants, but this does not extend to entering to prevent escape without any intention of communication. The court found that Constable Haerewa had both the intention to communicate with the occupants and the need to prevent escape, thus justifying his presence on the property under the implied licence. Furthermore, the court held that the conditions for a warrantless search under the Search and Surveillance Act 2012 were met, as there were reasonable grounds to believe that obtaining a warrant was impracticable and that the evidence would be destroyed if not seized immediately.

Consequently, the court dismissed the appeal, affirming the decision of the Court of Appeal that the search and seizure were lawful. The evidence of the cannabis found on Ms. Gerrard-Smith's property was deemed admissible.

Orders