Nancarrow v Police
[2017] NZHC 2521
•16 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2017-404-262 [2017] NZHC 2521
BETWEEN JASON NANCARROW
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 9 October 2017 Appearances:
JIC Schlebusch for the Appellant
J Bull for the RespondentJudgment:
16 October 2017
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 16 October 2017 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors: Counsel/Solicitors:
JIC Schlebusch, Public Defence Service, North Shore
J Bull, Crown Solicitor, Auckland
NANCARROW v NEW ZEALAND POLICE [2017] NZHC 2521 [16 October 2017]
Introduction
[1] This is an unusual case where, after having pleaded guilty, the appellant, Jason Nancarrow, appeals against conviction for three drug-related offences under the Misuse of Drugs Act 1975:
(a) cultivation of cannabis;1
(b) possession of cannabis;2 and
(c) possession of utensils.3
[2] The ground of the appeal was that a miscarriage of justice occurred as a result of pre-trial rulings by District Court Judge C Henwood finding:
(a) a search carried out by the police of Mr Nancarrow’s home lawful
under s 14 of the Search and Surveillance Act 2012; and
(b) the evidence obtained during that search admissible.
[3] As a result of those decisions, Mr Nancarrow considered he had no arguable defence to the Misuse of Drugs Act charges and pleaded guilty.
[4] Mr Nancarrow now appeals his convictions on the basis that the police search was illegal in terms of the Search and Surveillance Act and the rulings of the District Court judge wrong.
[5] The appeal was heard before me on 9 October 2017. Mr Schlebush appeared on behalf of Mr Nancarrow. Ms Bull appeared on behalf of the police. Because there were no serious differences of principle or approach between the two sets of submissions, I refer to their submissions as appropriate as I consider the applicable
law and facts.
1 Misuse of Drugs Act 1975, s 9(1); maximum penalty of seven years’ imprisonment.
2 Section 7(1)(a); maximum penalty three months’ imprisonment and a $500 fine
3 Sections 13(1)(a) and 13(3); maximum penalty one year imprisonment and a $500 fine.
Background Facts
[6] On 26 January 2017 at around 6.40pm, police responded to a 111 call to attend Mr Nancarrow’s address at 27A Holiday Road, Stanmore Bay in relation to an alleged assault between two males. It appears the call was from a neighbour and not from the address. On arrival, Sergeant Ovington, one of the attending police officers, saw a male (not Mr Nancarrow) seated on the curb across the road from the property. He was talking to a police constable who had arrived a little earlier on the scene. The male was bleeding from the left side of his head, apparently from his ear. The Sergeant spoke to the male for two or three minutes and then to a local resident about what he had witnessed and then instructed another officer to accompany him onto the property at 27A Holiday Road.
[7] According to the evidence Sergeant Ovington gave before the District Court, the male at the side of the road had been disoriented and the Sergeant found difficulty getting a clear account from him about what had occurred. However, the Sergeant understood from the man that there had been some kind of domestic incident involving the man’s ex-partner and another man. The man also asked where his child, a five year old girl, was.
[8] Other police who had also arrived on the scene were speaking to bystanders and residents. It appeared none of these bystanders and residents knew the parties involved in the incident outside 27A but one or more of them told the police that a woman had been seen getting into a car and that another man had left the area.
[9] Walking down the driveway to the house, Sergeant Ovington saw blood on the driveway, and an open ranch slider door adjacent to the closed front door. After calling out to contact any occupants, and after receiving no response, Sergeant Ovington and the accompanying constable entered the house, with the sergeant assigning a part of the house to the constable to search. On entering the ground level garage, Sergeant Ovington smelled what he believed to be cannabis. He conducted a brief search of the garage and found a number of cannabis plants growing. He then checked the rest of the house and, upon confirming no-one was present, he and the constable exited.
[10] The Sergeant spoke again to the male on the footpath and confirmed he was an occupant of the house. He then informed the male he was going to undertake a search of the house under s 20 of the Search and Surveillance Act to locate the cannabis. The search was then carried out resulting in the following items being found:
(a) 18 cannabis plants being grown in the garage;
(b) A used bong containing residue of burnt cannabis; (c) A cannabis plant growing in the main bedroom; and
(d)A plastic zip-lock bag containing one ounce of cannabis and a set of old scales.
[11] Mr Nancarrow arrived home shortly afterwards and was searched. A small plastic bag containing approximately three grams of dried cannabis leaf was found in his clothing.
The legality of the initial search
[12] The legality of the initial search turns upon whether it was lawful under s 14 of the Search and Surveillance Act.
[13] Section 14 provides:
14Warrantless entry to prevent offence or respond to risk to life or safety
(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b) there is risk to the life or safety of any person that requires an emergency response.
[14] It was accepted in the District Court and on appeal that that the key question on the lawfulness of the search was whether Sergeant Ovington had reasonable grounds for suspecting there was a risk to the life or safety of any person in the house that required an emergency response.
[15] The Police position at the District Court pre-trial hearing and on appeal was that Sergeant Ovington had valid grounds for being concerned about the safety of the wife and the child of the man to whom he had spoken on the street, based on the statements made and questions asked by the man speaking with Sergeant Ovington.
[16] In his evidence to the District Court at the pre-trial hearing, Sergeant Ovington said that, based on his experience over 23 years in the police and recent experience of domestic violence situations, he had been concerned about the safety of the woman and the child. It seems the sergeant may have been aware of the reports that a man and woman had already left the scene but he told the District Court that he knew from his experience that eye witness accounts could vary vastly. He also told the Court that it would have been dangerous for him as the supervisor of the police operation to rely solely on the accounts of one or other witness. He also said he would have considered it neglect of his duty to have just driven off without trying to locate the woman and child and ensure their safety.
[17] The position of Mr Nancarrow was that the Police had no reasonable grounds for such concern because:
(a) The fight had taken place outside the house and was clearly over by the time the police arrived; and
(b)Other witnesses at the scene had told the police before the search that the other male involved in the fight and a woman who had also been at the property had left the scene.
[18] In support of this position, counsel for Mr Nancarrow cited Herlund v Police where Whata J held that a search of a motel room by police, who had been sent to the motel after reports of a woman climbing into the motel via a balcony, required cogent information upon which to support the suspicion that “an emergency response” was required.4 In that case, Whata J noted that the police constable concerned had conceded under cross examination that he had no information about the whereabouts of the female and in particular had had no information that she was in the appellant’s motel unit. To the contrary, the constable had had the advice of a
neighbour that the female had left the premises. Whata J held that in those circumstances the police had not had reasonable grounds for suspecting that there was a risk to the life or safety of the woman requiring an emergency response that justified the warrantless search of the appellant’s unit.
District Court decision
[19] The District Court Judge held that while the circumstances of Herlund were similar in some respects, they were not exactly the same and concluded that the search carried out by Sergeant Ovington was lawful. The Court’s principal findings were:5
[19] The officer [Sergeant Ovington] had good cause to suspect that there was a risk to the safety if a person, ie. the ex-partner or child, that requires an emergency response. He is faced with an injured party, the injured party is disoriented, concerned about his ex-partner and child, he is also a lawful occupant of the property.
[20] In the circumstances the Court agrees with the sergeant that he would be neglectful of this duty if he did not go in and check where the child and partner were to ensure they were not in the house with their safety being jeopardised. The warrantless entry to this property under s 14 is lawful. …
[20] As already noted, as a consequence of this ruling Mr Nancarrow took the view that he had no prospect of successfully defending the charges relating to the possession of cannabis and utensils, and pleaded guilty to all of the charges. Convictions were entered accordingly.
Threshold for appeal against conviction following a guilty plea
[21] It was accepted by both counsel that the threshold for an appeal following a guilty plea is high, in accordance with the decision of the Court of Appeal in R v Le Page.6 In that decision, Panckhurst J said on behalf of the Court:
[16] … it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a guilty plea. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. …
[17] A miscarriage of justice will be indicated if in at least three broad situations which are identified and discussed in Adams on Criminal Law… The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. …
[18] A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged. Examples are where a charge required special leave and such was not obtained, a charge was out of time or where as a matter of law the facts are insufficient to establish an essential ingredient of the offence. …
[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.
… Examples are where a trial Judge wrongly concludes that there is no evidence sufficient to justify a defence being left to a jury (say provocation
or self-defence) leaving the accused with no option but to plead guilty. In such cases, which will admittedly be rare, this Court would intervene to cure a miscarriage of justice which plainly flowed from the erroneous ruling. …
Discussion
[22] Mr Schlebusch submitted that the present case falls within the third category identified in R v Le Page. He said the miscarriage of justice was that Mr Nancarrow had been deprived of his ability to conduct an effective defence once the District Court Judge had ruled the search carried out by Sergeant Ovington lawful and declared admissible the evidence obtained in that search. He cited another Court of
Appeal decision, R v Fraser,7 in support of his submission that the search carried out
by Sergeant Ovington was unlawful.
[23] Mr Schlebusch’s difficulty was that Panckhurst J in R v Le Page addressed precisely the sort of situation that arose in the current case and indicated very strongly that a ruling admitting evidence that then led a defendant to plead guilty was unlikely to be one of the rare cases that came within the third category identified in that case:8
It is notorious that legal rulings vary greatly as to their impact. Where, for example, an accused is reliant upon a single defence, and the Judge considers that such a defence does not lie, then the ruling may necessarily be decisive. But where, as in the present case, a ruling concerns the admissibility of evidence, it does not necessarily follow that an accused had no option but to alter his plea.
[21] This distinction is discussed in R v Chalkley [1998] QB 848. At p
864 Auld LJ in delivering the judgment of the Court of Appeal said this:
“… a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a guilty verdict on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgement of the truth of the facts constituting the offence charged.
Earlier in the judgment the Judge made observations in a similar vein, namely that where a ruling renders a case “factually overwhelming” or “makes it harder” for an accused to mount a defence, such difficulty is insufficient to establish the necessary nexus between the ruling and the change of plea.
[24] Mr Schlebusch was not able to point to any factor that took the present case out of the circumstances canvassed by the English Court of Appeal in R v Chalkley and cited with approval by the New Zealand Court of Appeal in R v Le Page. The problem for Mr Nancarrow following the District Court Judge’s ruling was that mounting a defence became much harder. The District Court Judge’s ruling did not deprive him of a defence; it just made an effective defence very difficult. In that sense, he was in the same situation as the defendant in R v Le Page, of whose case Panckhurst J said:
[23] In our view the present case is not within the third category, where a legal ruling left Mr Le Page with no legal escape from guilty verdicts. By [the High Court judge’s] ruling no legal impediment was raised to his
8 R v Le Page, above n 6, at [20].
defending the charges, although of course his chances of successfully doing so were greatly diminished. That change of fortune, as the passage we have quoted from Chalkley demonstrates, is not enough. The test requires that there be no legal avenue left to an accused, not just that his chances have suffered a body blow.
[25] The same is true for Mr Nancarrow. The District Court Judge’s ruling did not prevent Mr Nancarrow from defending the charges. It just made a defence unlikely to succeed.
[26] It follows that Mr Nancarrow’s appeal fails at this first hurdle. He has not been able to demonstrate that his case comes within any of the categories identified by the Court of Appeal in R v Le Page as being exceptional circumstances where an appeal against conviction should be entertained following entry of a guilty plea. To the contrary, Mr Nancarrow’s situation falls squarely within the category of cases identified in R v Chalkley and R v Le Page where an appeal should not be entertained.
[27] For the sake of completeness, however, I have also considered whether the ruling by the District Court Judge that the search carried out by Sergeant Ovington was lawful. I am satisfied the District Court Judge’s ruling was correct.
[28] Because of the question asked by the injured man the Sergeant found outside the address about the whereabouts of his child, and because it was at least clear from the injured man’s comments that there had been some kind of domestic dispute behind the confrontation with the other man, concerning the injured man’s ex-partner who had been on the scene, I consider Sergeant Ovington had reasonable grounds to suspect there was a risk to the safety of the child or the woman, especially when the ranch-slider door was open and no-one responded to the Sergeant’s inquiries.
[29] Whatever might have been said to one of the other police officers on the scene about a woman having earlier departed, none of the bystanders mentioned a child. In that situation, and in light of the questions asked by the injured man about the whereabouts of his child, the sergeant had good reason for entering the house to ensure the safety of the child. In that respect at least, the situation in this case was quite different from that in Herlund v Police.
[30] Accordingly, the appeal is dismissed.
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