R v S HC Auckland CRI 2006-090-9488

[2007] NZHC 2115

This case has been anonymized

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-090-9488

THE QUEEN

v

S

Hearing:         14 September 2007

Appearances: Kate Latimer for Crown

Nicholas Wintour for Accused

Judgment:      14 September 2007

JUDGMENT OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown

Nicholas Wintour (Auckland) for Accused

R V S HC AK CRI 2006-090-9488  14 September 2007

Introduction

[1]      Mr  S   has been committed for trial in this Court on a range of charges under the Misuse of Drugs Act 1975 and the Arms Act 1983.   The most serious is a count of manufacturing methamphetamine.   The charges arose from a search of a property occupied by Mr S  .  It was undertaken by two police officers exercising their powers without warrant: s 18(2) Misuse of Drugs Act.

[2]      Mr S  ’s counsel, Mr Nicholas Wintour, has raised a question about the legality of the search.  It requires determination before trial.  The issue is whether or not the two police officers had a lawful right or licence to enter the premises before conducting the search.  The result of the issue is likely to be critical to the fate of the trial.

Facts

[3]      The essential facts are not in dispute and fall within a narrow compass. Detective Sergeant Murray Free and Detective Constable Margaret Laws visited the property at Waitakere one afternoon in October 2006.  They were pursuing inquiries into a complaint of kidnapping by Mr S  .  The property is relatively remote and is in a rural area.  They entered by a long driveway and approached a cottage which was the smaller of two dwellings on the site.

[4]      Detective  Sergeant  Free  was  ahead  of  Detective  Laws.    He  entered  the cottage through an open ranch slider.  Inside were Mr S   and a young female.  He was in the kitchen, a distance of about seven metres from the ranch slider; she was closer to the door, seated on a sofa near a  computer.   Detective Sergeant  Free identified himself by introducing his name and displaying his police identification badge.  He spoke directly with Mr S   while Detective Laws conferred with the young woman.

[5]      The discussion between Detective Sergeant Free and Mr S   lasted for between five and 10 minutes and focused upon the kidnapping complaint which brought the officers  to  the property.    During this  time Detective Sergeant  Free

noticed some articles which suggested that Mr S   had participated in offences under the Misuse of Drugs Act.  He decided to exercise his powers of search based on his observations.  Mr Wintour does not challenge the adequacy of those grounds. Instead he is concerned with the question of whether or not the officers lawfully entered the dwelling.

Decision

[6]      The two police officers and Mr S   have given evidence this morning. Each witness was lucid and cogent.   The principal area of dispute between them came  down  to  this.    Did  Detective  Sergeant  Free  introduce  himself  and  obtain Mr S  ’s consent to enter the cottage while he was at the threshold of the dwelling represented by the ranch slider?  Or, did he take two or three steps into the lounge before  introducing  himself  and  attracting  Mr S  ’s  attention,  without  ever obtaining his consent to enter?

[7]      Detective Sergeant Free says he first spoke to Mr S   through the open ranch slider while he was standing outside.  At that stage he says he gave his full name and rank and help up his police identification badge.  He says that Mr S   was in the kitchen facing him.  He did not come to the door.  The officer says that rather than try to converse across the width of the room he asked whether he could enter,  advising  that  there  was  a  matter  about  which  he  wished  to  speak  with Mr S  .  He says Mr S   replied with words to the effect ‘that’s fine’.  He was firmly taxed on this account by Mr Wintour in cross-examination.   However, he remained firm on his evidence.

[8]      Mr S   was to the contrary.  He says he was washing dishes in the kitchen. He was unaware of the presence of the police officers until he heard Detective Sergeant Free speak.  At that stage he says that he looked up and saw the officer was standing between one and two metres inside the lounge.   He heard him introduce himself.  He says he did not invite him to enter or remain.  He says that the police officers did not request his permission to stay.

[9]      Detective Laws was a pace or two behind Detective Sergeant Free.  She did not hear the introductory or substantive discussion between them.  But she says that she recalls him standing at the door and before walking into the lounge introducing himself by name and advising whether he could speak with Mr S   about the inquiry.  She says that he then entered.  She was afterwards principally engaged in a discussion with the young woman.  She says that throughout the environment was welcoming.

[10]     I prefer the evidence of Detective Sergeant Free and Detective Laws.  What the police officers say is much more consistent with the relevant objective events. First, Mr S   accepts that he did not remonstrate with the police officers or ask them at any stage to withdraw; that apparent acquiescence in the officers’ presence is consistent with an invitation to enter.  Second, Detective Laws was not challenged in her evidence that Mr S   was facing both officers when they arrived at the ranch slider or that she heard Detective Sergeant Free speak with Mr S   before crossing the threshold; she corroborates material parts of her colleague’s account.  Third, it is unusual, to say the least, that the young woman who was present in the house did not observe either police officer if they had entered before Mr S   was alerted to their presence.

[11]     I am satisfied that both Detective Sergeant Free and Detective Constable

Laws entered Mr S  ’s dwelling lawfully and rule that their evidence of what was subsequently discovered is admissible at trial.

Rhys Harrison J