R v S HC Auckland CRI-2006-090-9488

[2008] NZHC 71

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-090-9488

THE QUEEN

v

S

Hearing and ruling:     4 and 5 February 2008

Appearances:              Ms K E Latimer for Crown

Mr N C Wintour for Accused

Reasons:  7 February 2008 at 3.30 pm

REASONS FOR RULING OF LANG J

This judgment was delivered by me on 2 February 2008 at 3.30 pm, pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Auckland

Counsel:

Mr N C Wintour, Auckland

R V S HC AK CRI-2006-090-9488  7 February 2008

[1]      Mr S   faces five charges under the Misuse of Drugs Act 1975.    They comprise manufacturing methamphetamine  and being in  possession  of  precursor substances, materials, equipment and a pipe.   All of the charges follow a visit by the police to a property rented by Mr S   in Waitakere on 20 October 2006.   During the course of that visit the police located a large number of items that the Crown contends had been, and would in the future be, used in the manufacture of methamphetamine.

[2]      Before  the  Crown  case  closed,  counsel  for  Mr  S    objected  to  the admissibility of some of the evidence that had already been led by the Crown.   He submitted that the Court should rule that that evidence was inadmissible and that, as a consequence, the trial should be aborted.

[3]      The application was argued on the basis of the evidence that had already been adduced at trial, supplemented by further short evidence that was given at a voir dire hearing held prior to the completion of the Crown case.   After the Crown closed its case, but before the defence had made its election, I ruled that the evidence in question was admissible.   I now give reasons for that ruling.

Factual background

[4]      At the time of the police visit on 20 October 2006 Mr S   was the tenant of a cottage situated on a property in Caton Road.  The property was situated in a rural area in the Waitakere district.   The police visited the property because they wished to interview Mr S   about an incident that had occurred some time earlier.  That incident involved an allegation that Mr S   and his female companion had kidnapped or abducted two young women.     The police had taken some time following that incident to ascertain that Mr S   was living at the Caton Road property.

[5]      The police party comprised Detective Sergeant Free and Detective Laws. When they arrived at the property they saw that it appeared to be occupied, because several  motor  vehicles  were  parked  outside  the  cottage.       They  could  not immediately gain access to the property, however, because of a hydraulic gate that

was shut.   Adjacent to the gate was an intercom system that Detective Sergeant Free used without success to speak to the occupants of the property.   It is not clear on the evidence whether the intercom was connected to the cottage in which Mr S   or to a more substantial residence that was situated a short distance away from Mr S  ’s cottage.

[6]      Notwithstanding  their  lack  of  success  using  the  intercom,  the  detectives decided to gain access to the property in order to see whether Mr S   and his associate were present.   They did so by climbing over a wire mesh fence that was adjacent to the gate.   They then walked up to the cottage, where they could see Mr S   standing in the kitchen.

[7]      Detective Sergeant Free’s evidence, supported largely by that of Detective Laws, is to the effect that when he approached the cottage he identified himself to Mr S   by giving his name and holding out his police badge and identification card.   Detective Sergeant Free then told Mr S   from the doorway that there was a matter that he wished to speak to Mr S   about, and he asked if he could come in. The detective said that Mr S   replied that that would be “fine”, and he then entered the room.

[8]      Shortly after he entered the house Detective Sergeant Free noticed a glass pipe on a bench in the kitchen near to where Mr S   was standing.   The Detective could see that there was a white crystalline substance inside the bowl of the pipe. Believing that the pipe had been used to smoke methamphetamine, the Detective asked Mr S   who it belonged to.   Mr S   replied, “its mine”.   At that point the Detective  advised  Mr  S    that  he  proposed  to  search  the  premises  using  his powers under s 18(2) of the Act.   The resulting search has led to the charges that Mr S   now faces.

Grounds for challenge to admissibility

[9]      Counsel for Mr S   submitted that, when they were confronted by the locked gate, the police ought to have withdrawn and made other arrangements to contact Mr S  .    He submitted that there was no particular urgency about their

business and that, in electing to climb over the mesh fence, the police became trespassers.  As a result, he contended that the items found during their subsequent search of the property were improperly obtained.     This meant that s 30 of the Evidence Act 2006 came into play, and that the Court was required by s 30(2) of the Act to determine whether the exclusion of the improperly obtained evidence was proportionate to the impropriety in question.

Issues

[10]     Two issues therefore arose for determination.     The first was whether the evidence in question was improperly obtained.     If it was, the second issue was whether the balancing process referred  to in  s  30(2)(b)  of  the  Act  requires  the evidence to be excluded.

Was the evidence improperly obtained?

[11]     Counsel for Mr S   accepted that, like other members of the public, the police had an implied licence to approach Mr S  ’s property.     He submitted, however, that the closed hydraulic gate revoked that implied licence, and that the police ought to have appreciated that that was the case.

[12]     I am not sure that the mere fact that the gate could not be opened leads necessarily to the conclusion that visitors to the property were not entitled under any circumstances to pass beyond the gate.   There was certainly no sign or other express notice to visitors that they should proceed no further.    Rather, the existence of the intercom suggests that the occupier of the property was prepared to discuss the position with visitors in order to determine whether or not they should be admitted onto the property.    The circumstances of the present case are very different from those in R v Ratima (1999) 17 CRNZ 227, where police officers deliberately climbed over a locked gate notwithstanding the existence of a sign on the gate that said ”No Entry – This Gate is Locked”.

[13]     In this context the actions of the police are in any event to be assessed in a slightly different manner to those of the public at large.    In R v Bradley (1997)15

CRNZ 363 the Court of Appeal said at 368:

Secondly,  as  the  purpose  of  the  implied  licence  is  to  enable  persons, including the police, on legitimate business to enter the property to communicate with the occupier, the nature of that business cannot be disregarded.    On  the  part  of  the  police,  it  may  include  the  making  of inquiries, a request to be admitted to the premises, or permission to perform some other act on the property.   (See, e.g., Neville v Halliday;   Brida v Halliday  [1983] 2 VLR 553). Consequently, notwithstanding that the implied licence as framed in Robson v Hallett provides police officers with the implied licence available to any member of the public, the scope of the implied  permission  for  a  police  officer  to  pursue  his  or  her  legitimate business will not necessarily be the same as the implied licence for, say, a postman or stranger merely seeking directions.  The lawful business of each differs, and with that difference, the occupier's expectation of privacy may also differ.  The scope of the authority to enter may vary so as to permit that which, having regard to the householder's reasonable expectation of privacy, is reasonable in the circumstances.

Thirdly, it is to be appreciated that the facts of Robson v Hallett did not require the Divisional Court to address the possibility of the implied licence extending beyond a right to enter and “knock” on the front or back door of a house…Nor could it be reasonably suggested that a police officer who enters upon property on lawful business would be unable to communicate with a householder who was observed in the garden or yard or who could be seen in the house through an open door or window.   The implied licence to enter must be defined in terms of what is reasonable to enable the police officer to communicate with the occupier of the dwelling house.

[14]     It is common ground that the police went to Mr S  ’s address solely for the purpose of speaking to him regarding a matter that was completely unconnected with the issue of drugs.   When they arrived at the address their proposed business did not include searching the house or doing anything other than speak to Mr S   and his associate.

[15]     As Bradley suggests, I consider that the implied licence to enter Mr S  ’s property must be defined in terms of what was reasonable to enable the police officers to speak with Mr S   regarding the alleged abduction.   Having failed to make contact with the occupants of the property by using the intercom, I do not consider that the police were bound to depart and to come back on another occasion. They, quite reasonably, wished to bring their enquiries into the abduction allegations to a close.   It had already taken some time to locate Mr S   at the Caton Road

address.  Moreover, there was nothing other than the closed gate to suggest that the occupiers of the property did not wish visitors to proceed further.   In those circumstances I do not consider that the detectives acted unreasonably when they decided to enter the property by climbing over the mesh fence.

[16]     I consider that the issue is placed beyond doubt by the fact that Mr S   effectively invited Detective Sergeant Free into the house after the detective had identified himself.      Detective Sergeant Free was not challenged in cross- examination on this point, and Mr S   did not seek to give evidence at the voir dire hearing regarding it.   And, although it was obviously not material to this ruling, Mr S   himself confirmed the correctness of the Detective’s evidence when he elected to give evidence before the jury.   On the facts it is clear that, regardless of the manner in which the police initially gained access to the property as a whole, Mr S   expressly invited them into the house once he became aware of their presence.

[17]     Having done so I consider that Mr S   effectively waived or condoned any irregularity that may have occurred earlier.    On this point, the following passage from Bradley at 369is apposite:

The significance of this initial unauthorised entry, however, is minimised if the Police then obtained an effective and valid consent to enter the house and search for the suspects.  Such a consent would have the effect of excusing or condoning the Police's irregular entry on to the property, and the subsequent actions of the Constable would occur in the course of a lawful search for suspects pursuant to that consent.   In effect, the consequences of the unauthorised  entry  would  be  overtaken  by  the  express  permission  to undertake the search. …

Result

[18]     It follows that I had no hesitation in concluding that the police were not trespassing when they elected to climb over the mesh fence.   Moreover, even if they had been trespassing at that point, their conduct was excused or condoned once Mr S   invited them to enter his house.   I therefore ruled the results of the search to be admissible.

Lang J