Mackey v Police

[2017] NZHC 2567

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2017-416-14 [2017] NZHC 2567

BETWEEN

REUBEN LEWIS MACKEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	17 October 2017
Counsel:	F E Cleary for Appellant T Epati for Respondent
Judgment:	20 October 2017

JUDGMENT OF SIMON FRANCE J

[1]      This is an appeal by the New Zealand Police against the decision of the District Court to exclude evidence of a cannabis growing operation.  The evidence was discovered  following a warrantless entry into a house.   The District Court considered the entry to be unlawful and the balancing exercise to favour exclusion.1

The appeal is limited to the latter aspect of the ruling.

Facts

[2]      Police  received  advice  that  a  burglary  was  occurring  at  the  address  in question.  Cars were dispatched.  The information provided was that three men had driven up in a car, two had gone inside and then came out carrying items.  By the time the attending officers arrived it was known to them the men had left in a car.  It was also known to the Police as a cohort that the resident was not home – this had

been advised over the telephone by the informant who was watching the incident.

1      New Zealand Police v Mackey [2017] NZDC 14379.

MACKEY v POLICE [2017] NZHC 2567 [20 October 2017]

[3]      The attending officers went around the exterior of the house to check it was secure.  Officer Kingi tried the front door which was unlocked.  He slid it open and must have moved to one side the curtain hanging inside it.  The officer then entered just inside the door at which point he smelt cannabis and matters went from there.

[4]      In his job sheet prepared after the event, the officer said:

I checked the front door to see if it was secure. The door was unlocked.

I opened the front door and saw a large plastic container on its side.  The container contained a small amount of dirt.

There was a curtain also lying on the floor.

I assumed that there possibly could have been a struggle at the address.

I immediately called out, “Police is anybody home”.

I went into the address to search the property to make sure nobody was inside hurt.

Upon entering the address I could immediately smell cannabis and I could hear a loud humming noise.

I then search[ed] the property under Search and Surveillance Act 2012.

[5]      In terms of the cannabis growing operation, in three bedrooms the carpet had been covered by plywood.  The walls and windows were lined with black polythene, and over that there was a layer of reflective building paper.  Each room had a number of dehumidifiers and a large number of heat lamps to assist cultivation.   Carbon filters had been installed to duct the smell into the ceiling cavity.

[6]      The heat lamps, dehumidifiers and filters were connected to timers set to run for 21 hours continually and then be off for three hours. The house had been rewired so that the electricity meter was being by-passed.   In total 235 immature plants, many of them seedlings, were located.

Judgment under appeal

[7]      The Judge held the entry was unlawful and this is not challenged.   Some consideration of the illegality is however relevant to the balancing exercise under s 30 of the Evidence Act 2006.

[8]      Counsel for the defendant, both in the District Court and here, stresses the officer’s actions need to be analysed in two parts because that is how the job sheet explains it.  First, there is the opening of the door, said to be done as part of checking the door is secure.   This is submitted to be beyond any implied licence and not authorised  by  the  Search  and  Surveillance Act 2012  since  there  was  no  stated purpose to opening the door and curtain. The Court agreed.

[9]      The second stage is the entry based on what was seen from the door – a plastic container on its side, a curtain lying across the floor, these items causing the officer to think there may have been a struggle, and to check any occupants were all right.  This was submitted to be unlawful because not authorised by any provision of the Search and Surveillance Act.   The most likely source of power, s 14, requires either an impending offence that would cause injury or loss of property or a risk to safety requiring an emergency response. The Court again agreed.

[10]     Central to the Court’s approach was a conclusion that the officer entering the house knew both that the burglars had left and that the occupant was not at home. The latter conclusion was a process of inference from the documentation.  The Court did not have the benefit of oral evidence or indeed statements as such; just the written record comprising of job sheets and the communications log.   It was clear that the informant had said on the telephone to Police communications, before the officers arrived, that the resident was not at home.   The Court inferred this information would have been passed on, and was known to Officer Kingi, before he entered.

[11]     Concerning  s 30  of  the  Evidence  Act,  the  Court  traversed  the  statutory considerations. Assessments made within that process were:

(a)       security  against  unreasonable  search  is  a  fundamental  right,  and significance attaches to a person’s home;

(b)against  what  was  clearly known to  them,  the  police actions  were deliberate and reckless;

(c)       if the evidence is excluded, the prosecution will be at an end; (d)      the offending is relatively serious; and

(e)       there was a grave breach of a fundamental right. [12]  Weighing these factors, the Court excluded the evidence.

Decision

[13]     The appeal focuses on the correctness of the balancing exercise under s 30 of the Evidence Act.

[14]     Before  addressing  that  I  observe  care  is  needed  when  deciding  if  these matters should proceed on the basis of a sparse record such as the present.  I accept that on the face of the job sheet it is possible to split the opening of the door from the entry into the house, but it is inherently artificial.  The reality is we do not know why Officer Kingi opened the door having found it unlocked.  The defendant had placed the legality of the entry squarely in issue prior to the hearing, and in my view it was unhelpful to the Court and correct decision making for the prosecution not to at least present a proper written statement from the officer covering the necessary matters. Presented with that the defendant could then decide whether to cross-examine, and the Court would be properly informed.

[15]     Turning to the Court’s s 30 assessment, I disagree with the conclusion of deliberate and reckless.  I am unsure what is meant by deliberate.  It was accepted there was no bad faith, and so deliberate cannot mean a knowing illegality.  It may just mean the officer purposefully rather accidentally entered, which is correct.

[16]     The conclusion of recklessness is sourced in the conclusion that the officer knew the resident was not home.  I assume this finding of recklessness applies to the door opening rather than the entry since the officer gave his reasons for that second step.  One can dispute whether his concern for occupants was based on reasonable grounds, but it was far from reckless.

[17]     Nor in my view was it open to label the job sheet untrue, if that is the effect of the ruling, without the officer being given an opportunity to comment on two aspects.  Why he opened the door, and whether he personally knew the resident was not  home.    Police  communications  knew  it,  but  was  it  communicated,  and  did Officer Kingi hear it?

[18]     Generally,  I  consider  the  label  of  recklessness  to  be  unmerited.    It  is important to keep in mind the context.   The Police were not at the house for any investigative purpose attached to the house or the resident.  Obviously, they believed the owner was the victim of a recent break-in by three men, but that is the only reason they were there. The front door was not secure and it seems to me to be at the low end of any unauthorised conduct to open the door just to check things, when it is known the house has immediately beforehand been burgled.

[19]     There is no suggestion here, and cannot be, that the officer was acting on any suspicion of misconduct by the residents of the house.  The conduct throughout is entirely consistent with just checking things are okay following what appears to have been a rather dramatic, plain view burglary.   I am not called on to determine the legality or otherwise of the actions.  The starting point for this hearing is that the entry was unlawful, but in my view, the Police actions were far from reckless.

[20]     I also disagree with the label of grave breach.  Within the context of illegal entries of a residential property, this occurrence is at the minor end.  The officer has opened an unlocked door.   He has then barely stepped inside, concerned someone may have been hurt in a known burglary that has just occurred and where items appear to  him  to  be knocked  around.   There  was  no  further unlawful  entry or searching (events thereafter being authorised once the presence of cannabis was so apparent).  It is a breach at the lower end of the scale.

[21]     Finally, I agree the offending is serious.  It is not just the number of plants but the extent to which the property has been converted to the illegal operation.

Conclusion

[22]     I  am  satisfied  that  under  s 30  exclusion  of  the  evidence  would  be disproportionate to the impropriety.  The appeal is allowed and the evidence is ruled

admissible.

Simon France J