M v Police HC Napier CRI 2008-441-28

[2008] NZHC 1641

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-441-000028

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 October 2008

Appearances: A F McLean for Appellant

N M Graham for Crown

Judgment:      21 October 2008

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Ms A F McLean, Bate Hallett, Solicitors, Hastings

Ms N M Graham, Elvidge & Partners, Office of the Crown Solicitor, Napier

M V NEW ZEALAND POLICE HC NAP CRI 2008-441-000028  21 October 2008

[1]      Mr M   appeals against conviction on two charges of assault.   I should note that in the oral judgment of Judge Adeane there is reference to a charge of assault and a charge of possession of an offensive weapon.  Counsel before me are agreed that some confusion arose because originally Mr M   faced three charges but a charge of possession of an offensive weapon was withdrawn.

[2]      A brief outline of the facts is as follows.  On 12 February Mr M  ’s wife rang what is described as the Mental Health team to express concern about her husband’s condition and actions.   It emerged from her evidence that she was concerned that Mr M   was driving a car after consuming sleeping pills.   The Police were alerted by the Mental Health team to a possible suicide attempt through an overdose of pills and were told that the call had come from the wife of the person said  to  be  at  risk.    Two  uniformed  constables  went  to  Mr  M  ’s  home  in Hastings.

[3]      Mr M   answered the door.  His demeanour was described variously as aggressive, angry, abusive, fidgety and all over the place.  The police officers spoke to him for a short period of time.  He yelled at them to leave and tried to close the door.  One of the police officers held the door open with his hand and they then went inside.  Mr M   is described as “backing-up” into the kitchen.  He then grabbed a knife block containing four steak knives.   One of the constables stated that Mr M   “pulled a knife, walked round the kitchen toward me, holding the knife in his left hand with the blade forward to me, getting within two metres of me”.  The other constable said that he “came running forward with the knife outstretched” in the direction of both constables.

[4]      After speaking with police negotiators Mr M   eventually came out of the house with a number of self-inflicted wounds to his body, arms and legs.   The charges I have mentioned followed with the convictions on the two assault charges.

[5]      The central contention of the appeal was that the evidence leading to the convictions for assault should have been excluded.   This was put broadly on the

basis the evidence was obtained following unlawful entry.   The three grounds as advanced in the written submissions were in summary:

a)       The police were not entitled to enter Mr M  ’s home under the common law doctrine of necessity, their actions were unlawful and unreasonable and for this reason the evidence of the assaults should have been excluded.

b)The police entry was not authorised under s 317(2) of the Crimes Act with the same consequences.

c)       Even if the police entry was justified and lawful their actions were unreasonable and the evidence should be excluded.

The grounds for exclusion are pursuant to s 30 of the Evidence Act 2006.

[6]      In the course of oral submissions Ms McLean did not press the third ground. Ms Graham for the respondent also  acknowledged  that  the  evidence would  not justify a conclusion that the police were entitled to enter under s 317(2) of the Crimes Act.   In terms of the lawfulness of entry, therefore, the principal question turns on the doctrine of necessity.  This is the basis upon which the matter was dealt with in the District Court.  Judge Adeane held that the doctrine did apply to justify the entry by the police officers and there was therefore no question of excluding evidence.

[7]      In a well argued submission in this regard Ms McLean relied on a number of cases including Edwards v Police [1994] 2 NZLR 164; Dehn v Attorney-General [1988] 2 NZLR 564 and R v Fraser [2005] 2 NZLR 109 and related the principles in those cases to the evidence. I will come back to that argument, but in my judgment and with respect the argument is misdirected.

[8]      In my judgment this is not a case of improperly obtained evidence, even if the entry by the police officers was unlawful or unreasonable.  The cases the appellant relies on are ones where there was, or there was argued to be, an unlawful or

unreasonable entry, or detention, of a person following which and as a consequence of which the police found evidence of an offence allegedly committed before the entry or detention occurred.  That is not what we are concerned with here.

[9]      The offences in question occurred following the entry.   The police did not discover existing evidence that would not have been found but for their entry into Mr M  ’s home.  At the point that they entered, whether lawfully or not, there was no  evidence  to  be  found  in  respect  of  the  charges  on  which  Mr  M    was convicted and in respect of which he brings this appeal.

[10]     If the entry was unlawful or unreasonable, on the facts of this case the only issue that might have arisen would have been whether that justified the appellant’s actions.   This is not a ground of appeal although that would not necessarily be a reason not to consider it.   However, following discussion on the point with Ms McLean she acknowledged that arguments of justification were not advanced in the District Court.  Ms McLean quite properly referred me to a decision of the Court of Appeal in R v Haddon [2007] NZAR 135 where a failure to put to a jury a defence under s 55 of the Crimes Act led to a retrial. However, the factual foundation that existed in that case is not one which exists here.

[11]     For these reasons, although different to the approach on this question in the District Court, I would dismiss the appeal.  However, if I am wrong in this approach I am not persuaded that the learned Judge was wrong in his assessment on the evidence that the police officers were justified in the entering under the common law doctrine of necessity.  If this issue required consideration I would with respect agree with Judge Adeane’s conclusion and notwithstanding Ms McLean’s careful submissions to the contrary.

[12]     Counsel were in agreement that the description of the doctrine by Tipping J

in Dehn is the appropriate yardstick. He said at p 580:

... a person may enter the land or building of another in circumstances which would otherwise amount to a trespass if that person believes in good faith and upon objectively reasonable grounds 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.

[13]     The relevant consideration here is entry “to prevent serious physical harm arising to the person of another”.   Having regard to the evidence as a whole, commencing with the call from Mrs M   to the Mental Health team, through to the police officers’ assessment of Mr M   at the door of the house, I am not persuaded that there was error by the Judge in his conclusion that the police officers were justified in entering because of their concerns for what Mr M   might do to himself.  For this separate reason and in agreement with the reasoning of the Judge I would dismiss the appeal.

Result

[14]     The result is that the appeal is dismissed.

Peter Woodhouse J