R v H HC Auckland CRI 2006-092-16558

[2007] NZHC 1040

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-016558

QUEEN

v

H
AND M

Hearing:         7 & 18 September 2007

Appearances: On 7 September 2007:  Ms Latimer for Crown

Mr Paul & Ms Maxwell for accused H 

Mr Tait & Ms Jayanandan for accused M   On 18 September 2007:  Ms Latimer for Crown Mr Paul & Ms Maxwell for accused H 

Ms Jayanandan for accused M   Judgment:     10 October 2007 at 4.00 pm Reasons:      10 October 2007

JUDGMENT OF WINKELMANN J

This reasons for judgment was delivered by me on 10 October 2007 at 4.00 pm pursuant to

Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Crown Solicitor, Auckland

E Paul, Public Defence Service, Manukau

S Tait, Barrister, Manukau

R V H & M HC AK CRI 2006-092-016558  10 October 2007

[1]      Late at night on 18 March 2006,  a 111 call was received by the police reporting the suspected burglary of a property at 10 Norman Spencer Drive, Papatoetoe.  Two police officers were sent to the industrial unit concerned.  When they got there they discovered that the roller door at the unit at 3/11 Norman Spencer Drive had been broken through in a “ram” style raid.  They entered the premises, and on doing so noticed a strong chemical smell and items commonly associated with the manufacture of methamphetamine.   They left the building and notified the Police Clandestine Laboratory team.  A search warrant was obtained some time later, and a thorough search undertaken.

[2]      As  a  consequence  of  the  items  located  at  the  premises,  the  accused

Mr H   and Ms M   have been jointly charged as follows:

1.  That between 18 March 2005 and 18 March 2006 they manufactured the class A controlled drug methamphetamine.

2.  That  on  or  about  18  March  2006  they  had  in  their possession equipment capable of being used in or for the manufacture of methamphetamine.

3.  That  on  or  about  18  March  2006  they  had  in  their possession pre-cursor substances intending that they be used in or for the manufacture of methamphetamine.

4.  That  on  or  about  18  March  2006  they  had  in  their possession materials capable of being used in or for the manufacture of methamphetamine, intending that they be used for that purpose.

[3]      The Crown has applied under s 344A of the Crimes Act 1961 for an order that the evidence obtained from the search of the premises be admissible at the trial of Mr M   and Ms H  .

[4]      The accused oppose the admissibility of the evidence.   They say that the search was illegal because the police had no lawful right to enter the premises.  They say  that  all  evidence  obtained  on  that  entry  and  the  subsequent  search  was improperly obtained, the search warrant and any search being tainted by the initial unlawful entry.  The accused submit that in terms of s 30 of the Evidence Act 2000 the exclusion of the evidence would be proportionate to the impropriety involved. The accused Ms M   also brings application under s 347 of the Crimes Act for discharge on the grounds of insufficiency of evidence.  However, her counsel makes clear  that  that  application  is  conditional  upon  the  outcome  of  this  application. Counsel for Ms M   did not wish to address additional submissions in relation to the s 347 application pending the outcome of this application.

[5]      The hearing of the s 344A application took place over two days because of a miscommunication between the parties as to whether the police officers who initially attended would be required for cross-examination.  Counsel then sought time to file submissions.  By the time submissions were complete, the trial was a matter of days away.   Accordingly, I issued a minute recording my ruling that the evidence is admissible, and stating that I would provide reasons.  My reasons are now set out below.

Factual background

[6]      On 18 March 2006, Constables Hunt and Henwood were called to attend a commercial unit at 10 Norman Spencer Drive, Manukau.   They were told by the Northern Communications Centre that security had caught two burglars in the building, who had left the scene, either on foot or by vehicle via Cavendish Drive. The job was coded to them as a burglary.   A short time later they were again contacted by Northern Communications and told that the burglars had left  in  a vehicle, a Mitsubishi “Rosa” van coloured red and white.  They were told that there were five people in the van.  The informant was a bus driver who would be waiting at the site to meet the officers.

[7]      When they arrived at Norman Spencer Drive, Constable Henwood spoke briefly to the informant who pointed out where the burglary had occurred.  This was

unit 3/11 Norman Spencer Drive, not unit 10.   The original address  given was therefore incorrect.  Constable Hunt contacted Northern Communications to say the roller door of the unit had been smashed down and that “the guys had definitely gone”.

[8]     The premises were between an auto-electric services and a professional hydroponics business.   Constable Hunt understood that the business using the premises sold auto electrical equipment.

[9]      On visual inspection of the building it was clear that the roller door had been smashed down.   Constable Hunt thought that it had been knocked down with a vehicle.   He found a security company sticker on the outside of the building and asked Northern Communications to attempt to contact that company.  They did so and reported back that the security company listed on the sticker did not deal with the building.  Under cross-examination he accepted that it could well have been that there was a mix up, because Northern Communications inquiries may still have been in relation to 10 Norman Spencer Drive.   Constable Hunt said that he wanted to contact the security company to ask them to secure the premises and to tell the key holder of the break in.

[10]     Constable Hunt then entered the building.   In his notebook he recorded “I entered building to assess what had happened”.  His reasons for entering the building were expanded upon in his evidence in chief and were the subject of cross- examination.  In his evidence in chief he said that he had several reasons for entering the building.   He said that the normal procedure for commercial premises was to contact the key holder or security company, and if neither were able to attend, to enter the building to check on several matters.  The violent way the roller door had been smashed down gave him concern that there could be people either trapped or injured in the building.  He needed to establish exactly what had happened and why the roller door had been smashed.  Further he said that he wanted to ensure that there was no danger to public safety.  The building was in a light industrial area.  A door had been rammed down and it was possible that chemical containers or gas lines or such things could have been damaged.  He wanted to check that there was nothing of that nature to escalate the situation to a pubic health hazard.   He also needed to

ensure that the offender or offenders who had smashed the roller door down were not still present in the building.   Finally, he wanted to look for contact details for the owner.

[11]     Constable Hunt’s credibility was challenged on cross-examination  and  in submission.  It was put to him on cross-examination that the real reason he entered the premises was as he recorded in his notebook, and that the other reasons were post fact  justifications  thought  up  in  anticipation  of  this  hearing.    Mr Paul  took  the constable through the entries in his notebook, his job sheet and an affidavit sworn on

30 August this year, emphasising that the only reasons for entry described in those documents were “to assess what had happened” and second, to try to find some details for the owner.

[12]     Constable Hunt explained this as follows:

It’s just good common sense, police practice, to establish that there is no one hurt, injured, trapped, there are no offenders in there, the fact that I didn’t write that down in my notebook in my mind it is not important to write that kind of stuff down.

[13]     I  accept  what  the  officer  says  is  correct  and  I  further  observe  that  the explanation that he did record is entirely consistent with the explanation he now gives.

[14]     The officer’s evidence that he needed to check if the burglars were still present on the scene was further challenged under cross-examination on the basis that he had information that the burglars had left the scene.  Constable Hunt said that the information received over the radio was seldom 100% accurate and he would not take anyone’s word that an offender or burglar had left the scene until he was satisfied that there was no one else there.  I also accept that it is good police practice to verify such information where possible.

[15]     It was put to Constable Hunt that he had no information that there was anybody inside injured, and it was unlikely to be so because commercial premises are not usually occupied outside normal working hours.  However, Constable Hunt explained that a ram raid on an “alternator shop” was an unusual situation.   He

observed that ram raids normally occur on jewellery or electronic stores where there are high value goods.  The ram raid could not therefore be assumed to be motivated by theft.  I accept his evidence that this was one reason motivating his entry into the premises.

[16]     Constable Henwood entered the premises behind Constable Hunt.  She said that she was simply following him because he was the senior officer.  It was not her responsibility to make the decision to enter, it was that of the senior officer.   On cross-examination she clarified that as a police officer she knew she had to make sure that there was no one injured inside.

[17]     Once  they  entered  the  building  both  officers  noticed  a  strong  smell. Constable Hunt saw a broken glass table and what he believed to be a methamphetamine P pipe, butane lighters, cannabis in a bag and a small plastic bag containing a white crystalline powder that he believed to be methamphetamine.  He also observed containers marked “phosphoric acid” and “acetone” and items of chemical glassware.  Based on his experience be said that he believed that there was a clandestine methamphetamine laboratory in the unit.  He and Constable Henwood walked out of the unit and informed the Northern Communications Centre of what they had seen.  The ESR was notified of the discovery of the clandestine laboratory because of the potential hazard.   A search warrant was later obtained and a full search of the premises undertaken.

Defence opposition to admissibility

[18]     Counsel for Mr H   and Ms M   submit that the evidence uplifted from

3/11  Norman  Spencer  Drive  was  improperly  obtained  in  terms  of  s  30  of  the Evidence  Act  2006  because  the  initial  entry  into  the  premises  was  unlawful. Therefore anything that flowed from that initial entry into the premises was tainted by that illegality and the evidence should be excluded.

[19]     The relevant principles seem not to be in dispute in this case.  The principles can be shortly stated.  The starting point is that entry onto private property without lawful justification is trespass.  There is an implied licence to enter onto a property to

pursue legitimate inquiries (such as knocking on the door of a dwelling house, or delivering a courier package to the front door), but that does not typically extend to entry into premises on that property.

[20]     The common law doctrine of necessity has been long applied to confer a right of entry onto private property to save lives.  In Dehn v Attorney-General [1988] 2

NZLR 564, 580 Tipping J described the doctrine in these terms:

(1)       A person may enter land or building of another in circumstances which would otherwise amount to a trespass if he or she believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order to (1) 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 one other has suffered serious physical harm.

[21]     The doctrine of necessity extends to police responding to a 111 call (R v Fraser [2005] 2 NZLR 109), but entry into the premises by the police has to be for the purposes as outlined in Dehn.

[22]     In Fraser, the Court said at [31]:

Entry onto private property must be for the protection of life and for the safety of citizens. We understand that often police officers will simply not know whether life or the safety of a citizen needs protection. In such cases police officers will need to exercise their discretion based on the known facts. They will need to keep in mind that someone has made an emergency call. Sometimes the content of the call will illustrate the concern and point to whether  entry  onto  private  property  is  justified  or  required.  On  other occasions the initial inquiry at the scene will determine what should be done. The decision as to entry onto private property will always need to be made with the background that the police are responding to an emergency call but the occupier of the premises has privacy and privatorial rights. It should also be borne in mind that even a lawful search can be an unreasonable one.

[23]     The issue of whether danger to property will be justified by the doctrine of necessity was expressly left open in R v Dehn and in R v Fraser and for the reasons I will come to, it does not fall for determination in this case.

[24]     As I have found, Constable Hunt did enter the premises for the reason that he stated, namely to check that there was no one inside who was injured or needing help, to check that there was no danger to public safety created by the ram raid of the roller door, to attempt to find contact details for the owner and to satisfy himself that

the offenders had left the premises.  The issue is therefore whether it was objectively reasonable for him to believe that it was necessary for him to enter those premises in order to preserve human life, prevent serious physical harm arising to another person or to render assistance to another person who had suffered serious physical harm.

[25]     Mr Paul for Mr H   said that the facts known to the police were not such that it was objectively reasonable for the constable to believe that it was necessary to enter the premises for those reasons.   He submits that none of the facts known to Constable  Hunt  suggested  a  person  was  trapped  or  injured,  and  there  was  no evidence that any services had been disrupted such as to create a hazard to public safety.  Although the ram raid may have been suspicious, suspicion is not a ground identified by the Court in Fraser.

[26]     I accept that the way in which the door had been broken down was a strong indication that the entry had  involved  the  use  of considerable  force  which  was potentially dangerous to anyone in the premises at the time.   Further, the circumstances of the burglary were unusual because of the nature of the business conducted at the premises.  This raised the real possibility that the ram raid was not simply a burglary.   The constable was justified in checking whether anyone was lying injured inside.  Further, the breaking down of the door could have disrupted electrical or gas services to the building, creating a potential hazard.  If a key holder had been at hand, or if the constable had been able to make immediate contact with the security company, then it might well have been reasonable for him to wait for the key holder of the security company to come to the premises and undertake those checks.   But neither could be contacted.   In such circumstances Constable Hunt would  have  been  failing  in  his  duty  had  he  not  made  at  least  some  initial investigation  of  the property to  ascertain  that  further  immediate  action  was  not required to assist injured persons, or address a risk to public safety.

[27]     Given these findings I do not need to consider whether Constable Hunt’s entry into the premises would have been justified by the doctrine of necessity if he had entered only to check that no burglars remained on the premises, and that no further damage was being done to the property.

[28]     It follows from my findings that the initial entry onto the property was a lawful entry and that the search that flowed from it was likewise lawful.  I therefore do not need to undertake the balancing exercise described in s 30 of the Act to determine whether or not the evidence should be excluded.  Accordingly, I make the orders sought in the s 344A application.

Winkelmann J