R v S HC Auckland CRI 2006-092-10560

[2007] NZHC 2116

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NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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 2006-092-10560

THE QUEEN

v

S

Hearing:         14 September 2007

Appearances: Howard Lawry for Crown

Christopher Wilkinson-Smith for Accused

Judgment:      18 September 2007

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

4.00 pm on 18 September 2007

SOLICITORS

Meredith Connell (Auckland) for Crown

Christopher Wilkinson-Smith (Auckland) for Accused

R V S HC AK CRI 2006-092-10560  18 September 2007

[1]      Mr S   has been committed along with three others for trial in this Court in February 2008 on charges of manufacturing methamphetamine and possession of equipment, materials and precursor substances.

[2]      The principal evidence against Mr S   and the others was discovered by the police following the search of a residential property in July 2006.   The search was undertaken pursuant to a statutory warrant: s 18(1) Misuse of Drugs Act 1975. Mr S  ’s counsel, Mr Christopher Wilkinson-Smith, challenges the admissibility of that evidence.   He says that the search warrant was invalid for a number of reasons.  The principal ground of challenge was only identified following evidence given by the police officer who applied for the warrant.

Facts

[3]      Senior Sergeant Siaosi Fanamanu, who lives locally, drove to the Patterdale Boarding Kennels and Cattery in Whitford at about 9 am on 15 July 2006.  He went to inquire about purchasing a dog for his three sons.  It was a Saturday morning and the officer was there in his personal capacity.  He was dressed in civilian clothes.

[4]      Senior Sergeant Fanamanu was unable to locate anybody at the kennels.  So he went next door, to 2 Waikopua Road.  Some geographical orientation is necessary at this stage.   The kennels and the house at 2 Waikopua Road are within about

50 metres of each other.   There is no fence or other form  of  physical  division between the two buildings.  They are located in an elevated rural setting well back from the roadway, at least 100 metres or so.

[5]      Photographs of the two buildings may lead an outsider to assume that they are part of the one property but each is accessed by a separate driveway.  A large sign on a wagon wheel leaning on a tree beside the driveway to the dwelling at

2 Waikopua Road reads ‘Private Residence – kennel entrance 40m on left’.  Senior Sergeant Fanamanu did not notice the sign because he had driven up the kennel’s driveway.

[6]      Senior  Sergeant  Fanamanu  decided  to  inquire  of  the  occupants  at  the dwelling at 2 Waikopua Road about whether they knew anything of the kennels.  He noticed a vehicle parked in a car bay area in front of a garage, in a small section fenced  off  by  metal  gates.     Its  registration  number  was  YG5104.    A  small cobblestone path led to a door to the house.  Senior Sergeant Fanamanu could not remember whether the gates were open or closed but there is no suggestion they were locked.

[7]      Senior Sergeant Fanamanu made his way along the path to the door.  As he did so, he noticed a chemical smell.  The closer he got to the door, the stronger the smell became.  Its strength was such as to irritate his nose.  Based on his experience as a Response Manager for the Counties Manukau Police District in deployment in investigating methamphetamine laboratories, he recognised the smell as associated with the manufacture of methamphetamine.

[8]      Senior Sergeant Fanamanu assumed the door was the front door; he had not seen any other doors to the dwelling.  He knocked loudly a number of times but there was no response.  He walked round the front of the house facing the roadway and down the other side, near a wooded area.  There was no pathway.  There he found what he assumed was the rear door and knocked.  Again there was no response.

[9]      While knocking on this door, Senior Sergeant Fanamanu noticed that the windows at the back of the house were covered with what appeared to be dark or black plastic.  This factor was of significance to him.  He had encountered similar premises emitting this type of chemical smell where measures were taken ‘pretty much covering up what’s happening inside’.  He then left the property.

[10]     Senior Sergeant Fanamanu returned on 17 July.   He was then dressed in a police uniform and carrying out police business.  He parked his vehicle on the road and walked up the driveway to a distance of about three metres from the gates.  He recorded the details of three vehicles.  The original car, registered YG5104, was still there together with two others, registered KY8791 and AJJ861.  On this occasion he noticed the sign on the wagon wheel beside the driveway.

[11]     Senior Sergeant Fanamanu then prepared an application for a search warrant, which materially stated:

10.On the 15th  of July 2006 I was in Waikopua Road Whitford, on an unrelated matter.

10.1I had cause to go to the premises of the Patterdale boarding kennels and cattery.

10.2I approached the main dwelling house on the property to make  enquiries  in regards  to  the  kennels.    The  dwelling house is a wooden residential address with access to the front door being from a cobbled driveway.

10.3As I approached the front door of this property I could detect a very strong solvent/chemical smell emanating from inside.

10.4This smell was so strong that it felt like it was burning my nose and throat.

10.5I knocked loudly on the door but was unable to receive an answer.  I then went to the rear of the property to see if the occupants were outside and unable to hear me.  As I did this I observed that the rear windows of the dwelling house were covered in black plastic and it was impossible to see inside.

10.6I  noted  the  registration  number  of  the  vehicle  that  was parked in the driveway of the address as YG5104.

11.On the 17th  of July 2006, I again drove past the address and noted the following registrations in the driveway – KY8791 and AJJ861 – parked beside the vehicle YG5104.

11.1Further enquiries I have carried out on the Police computer system  show  that  the  vehicle  YG5104  is  registered  to  a female   by  the   name   of  Jennifer  Marie   SMITH   dob:

10.04.1979.

11.2I  have  reviewed  information  relating  to  Jennifer  Marie SMITH’s criminal convictions and found that she has a number of previous convictions for drug offences such as possession of methamphetamine and possession of utensils for   methamphetamine   use,   the   conviction   date   being

17.03.2006.

11.3Further enquiries also revealed that she has been noted as a suspected methamphetamine shopper on the 7th  of February

2006.   At this time staff at the Royal Heights Pharmacy

Waitakere were concerned at the amount of pseudoephedrine based  products  she  was  purchasing,  and  requested  she provide identification prior to any purchase being completed.

11.4This identification was provided and the sale proceeded, but due  to  their  concerns  pharmacy  staff  passed  on  their concerns to local police who noted it for future reference.

11.5Further enquiries show that Jennifer Marie SMITH is linked to the Highway 61 criminal gang.   This is a criminal organisation that is known by police to be heavily associated with the manufacture, sale and supply of methamphetamine and other controlled drugs.

11.6Further enquiries I have carried out on the police computer system  show  that  the  vehicle  KY8791  is  registered  to  a female by the name of Deborah Lee COOK dob: 25.11.1966. She  is  also  known  to  police  as  Deborah  Lee WEATHERALL.

11.7I have reviewed information relating to Deborah Lee WEATHERALL’S criminal convictions and found that she has a number of previous convictions for drug offences such as possession of methamphetamine and possession of cannabis and cultivates cannabis.

11.8Further enquiries also revealed that she has been noted as a suspected methamphetamine pill shopper on the 4th  of October 2002.   At this time staff at the Lee and Hart Pharmacy Warkworth were concerned at the type of pseudoephedrine  based  products  she was  purchasing,  and requested she provide identification prior to any purchase being completed.

11.9This identification was provided and the sale proceeded, but due  to  their  concerns  pharmacy  staff  passed  on  their concerns to local police who noted it for future reference.

11.10On  the  11th   of  March  2003  WEATHERALL  was  in  the Nelson area where she rented a camper van and travelled the South Island purchasing pseudoephedrine based products from chemists.    She  was  apprehended  in  Queenstown  in possession of 646 pseudoephedrine based tablets.

11.11Further enquiries I have carried out on the police computer system show that the vehicle AJJ861 is registered to a male Asian by the name of Van Quang TRAN dob: 20.05.1972.

11.12I have reviewed information relating to Van Quang TRAN’S criminal  convictions  and  found  that  he  is  required  to be interviewed by police in regards to a burglary.

12.Based on my experience and information received from members of the National Clandestine Laboratory Team I know one of the signs of methamphetamine being manufactured at an address is the strong chemical smell, and the fact that the usual occupants try and prevent anyone  seeing  into  the  address  from  the  outside  by  blocking windows with blankets and/or plastic sheeting.

…

15.      Based  on  the  above  information  I  believe  that  the  address  of

2 Waikopua   Road   Whitford   is   being   used   as   a   Clandestine

Methamphetamine Laboratory and that the occupants of the address are heavily involved in this process.

[12]     The  application  extended  to  ‘the  said  building,  aircraft,  ship,  carriage, vehicle, box, receptacle, premises or place situated at 2 Waikopua Road Whitford, or any person(s) found therein or thereon’.  It sought a warrant to search and seize items which ‘may be evidence in respect of offences contained in the Misuse of Drugs Act

1975’.   They were identified as drugs, precursor substances, paraphernalia, documents, money and cellular telephones.   A warrant was issued accordingly on

28 July 2006.

Challenge

[13]     A memorandum filed by Mr Wilkinson-Smith on 11 September identified the grounds of challenge to the warrant as follows:

(i)       whether the information in the search warrant was lawfully obtained;

and

(ii)      whether the information is accurate and can be verified; and

(iii)     whether relevant information has been omitted.

[14]     Before  the  hearing  I  sought  particulars  of  these  grounds,  and  recorded

Mr Wilkinson-Smith’s advice as follows:

(a)Whether the information in the warrant was lawfully obtained (by that, I assume he is referring to the application as well).   He has identified  the  information  as  relating  to  the  legality  of  visits  by police officers to the property on 15 July 2006 and observations of events there;

(b)      Whether   the   information   is   accurate   and   can   be   verified.

Mr Wilkinson-Smith  is  referring  particularly  to  the  information about Ms Smith (11.1-11.5), Ms Deborah Cook or Weatherall (11.6-

11.10), and Van Quang Tran (11.11-11.12).

[15]     Immediately following  completion  of  Senior  Sergeant  Fanamanu’s  cross- examination, Mr Wilkinson-Smith identified the principal ground of Mr S  ’s

challenge to the warrant.   He submitted that Senior Sergeant Fanamanu had no implied licence from the occupiers to enter the property on 15 July.  The officer was thus a trespasser, and had no lawful right to be there.

[16]     In  a  synopsis  filed  after  the  hearing  without  leave,  Mr Wilkinson-Smith described his particulars, as explained to me before the hearing, as a ‘guarded reference to the issue’.  I struggle with that euphemism, as I do with Mr Wilkinson- Smith’s justification of reluctance to specify the ground because the officer’s evidence ‘may be affected’, and that he wanted him to give evidence ‘free from the taint of any prior knowledge’.   His coded implication is that Senior Sergeant Fanamanu might have given false evidence if the Crown was on notice, reflecting on the integrity of Mr Lawry and the officer.

[17]     I do not accept Mr Wilkinson-Smith’s explanation; I am satisfied that his strategy was to take the Crown by surprise.  The spirit and purpose of the s 344A procedure is to isolate the real legal issue in advance of the pre-trial hearing.  It is a notice provision designed to allow the parties, their counsel and the Court a full opportunity to assess the relevant evidence and give informed consideration to its admissibility.  Mr Lawry confirmed that he had no prior warning that trespass was the issue.

[18]     Mr Wilkinson-Smith’s    supplementary    synopsis    expanded    upon    his submission of trespass.  He acknowledges that the wagon wheel sign did not revoke all implied licences, but submits that it imposed a limitation on rights of entry by strangers who visit 2 Waikopua Road because of the neighbouring kennel.  He says this is a natural step to avoid continual inquiries, accepting though that it would not, for example, revoke a licence in favour of ‘collectors for charities, lost tourists or even door to door salesmen’.  He says the limitation is not expunged by the officer’s failure to see the sign when he drove past or because he later followed a direct route from the kennels to the dwelling.

[19]     Mr Wilkinson-Smith submits that Senior Sergeant Fanamanu’s decision to walk around the property went beyond what was reasonable for a stranger entering on kennel business.  He says there was ‘nothing to indicate people would be in the

wooded area behind the house’ and there were no signs of life within.  He concludes with this submission:

If the court considers the issue from the occupiers point of view, this is potentially  alarming  sight,  at  9am  in  the  morning,  a  stranger  with  the powerful stature of Senior Sergeant Fanamanu, emerging at the rear of the house from the heavily wooded area.

[20]     I do not accept Mr Wilkinson-Smith’s submission.   It is settled that every invasion of a private property, whether by a civilian or a police officer, is ‘a trespass unless properly authorised’: R v Bradley (1997) 15 CRNZ 363 (CA) at 367.   The Courts devised the doctrine of implied licence to mitigate the rigour of this principle, in recognition of the reality that strangers will enter a property in good faith and on lawful business, normally to make legitimate inquiries.

[21]     While the implied licence operates as a waiver of the occupier’s privacy interest in his or her home, it extends no further than is necessary to permit communication, and can be negated by express reference or revoked completely: Robson v Hallett [1967] 2 QB 939, applied in Bradley.    In  Robson  both Lord Parker CJ at 951 and Diplock LJ at 953 identified the occupier’s licence to a member of the public as extending to entry through an unlocked gate to the front or back door of a dwelling. The licence to enter must be defined in terms of what is reasonable to enable the member of the public to communicate with the occupier: Bradley at 369.

[22]     The wagon wheel sign did not impose a relevant limitation on the licence implied from the occupiers of 2 Waikopua Road.   It was plainly designed to warn strangers that the driveway was not the vehicular entrance to the kennels.  It was the access way to a private residence.  Strangers, carrying out their lawful business of visiting the kennels, were directed that the entrance was nearby but separate.  The purpose of the sign was to exclude vehicular traffic from using a private driveway.

[23]     However, the sign did not go further, and operate as an express limitation on the occupier’s licence to third parties who might visit the residence on foot to make inquiries about the kennels.  Something more absolute and visible would be required to exclude pedestrian traffic.   A sign warning all third parties to keep out, and

expressly directed to kennel visitors, might be effective if coupled with some form of visible, locked fencing.

[24]     A small, unlocked gated area adjoining a car park does not fulfil that purpose. Gates are a standard means of controlling access and ingress to all or part of a driveway, as often to contain as to exclude.  If they were to serve any other purpose, they should have been locked.

[25]     I am not satisfied there was anything to limit Senior Sergeant Fanamanu’s licence to go to the obvious door to the dwelling, to make a lawful inquiry about what was happening next door and communicate with the occupier for that purpose.

[26]     The  same  conclusion  applies  to  Senior  Sergeant  Fanamanu’s  subsequent actions that morning.  The licence must extend to all steps reasonably taken to attract the occupier’s attention if the stranger is on lawful business.  There was nothing out of the ordinary or unreasonable in proceeding to a second door if knocking on the first does not attract an answer, especially if a vehicle is parked in the driveway.

[27]     And whether or not Senior Sergeant Fanamanu might present as a fearful figure emerging from or adjacent to a wooded area is of no moment.  The question is whether or not the occupiers have revoked or modified the licence which the law implies upon them.  I am satisfied that Senior Sergeant Fanamanu did not trespass at any stage when visiting the property at 2 Waikopua Road on 15 July 2006.

[28]     While his written synopsis referred briefly to Senior Sergeant Fanamanu’s visit  to  the  property  on  17 July,  Mr Wilkinson-Smith  does  not  suggest  that  he trespassed on that occasion.  Doubtless that was because, as Mr Lawry submits, the officer was present on lawful police business, and went no further than standing on the driveway.   Even if such an argument was advanced, the effect of a trespass would be limited to obtaining the registration numbers of two vehicles additional to the vehicle which was parked there on 15 July.  The resulting information is set out in paras 11.6 to 11.12 of the application.   While it was material, the information already  contained  in  paras  10  and  11.1  to  11.5  plainly  provided  a  sufficient

evidential basis to issue a warrant.   This point would have been decisive on any balancing exercise undertaken pursuant to s 30 Evidence Act 2006.

[29]     Alternatively, Mr Wilkinson-Smith submits, very briefly, that the application contained inaccurate information.   He says the document (para 11.10) stated that Ms Weatherall was apprehended in possession of 646 pseudoephedrine based tablets. He says the criminal record sheet does not show a conviction which corresponds to the nominated date, 11 March 2003.  He says that the police intelligence report, upon which Senior Sergeant Fanamanu relied, suggested that ‘her possession was somewhat watered down’ because the tablets were not in her possession but in a car with which she and another person were associated.

[30]   This submission is unsustainable.   Senior Sergeant Fanamanu relied on information from the police computer.   It confirmed that Ms Weatherall pleaded guilty to obtaining pseudoephedrine tablets in the South Island and was sentenced later.  The officer also confirmed that she has convictions for other drug offences. Mr Wilkinson-Smith  has  not  established  that  the  information  was  materially incorrect.  And the fact that Ms Weatherall was with another person in the car where the tablets were found is immaterial; joint possession does not mitigate the accuracy of the officer’s information.

[31]     Mr Wilkinson-Smith also challenges the accuracy of information relating to Van Quang Tran (paras 11.11 and 11.12).   He submits that Mr Tran had no drug related convictions but three minor convictions between 1991 and 1999.   The application did not suggest otherwise.  It stated that the police wanted to interview him  in  relation  to  a  burglary.    Mr Wilkinson-Smith  does  not  submit  that  the information  was  wrong.    I  would  add  only  that  Mr Tran’s  nomination  in  the application is tangential or peripheral, and would not have had a material effect upon the decision-maker’s thinking when issuing the warrant.

Result

[32]     I rule that the search warrant issued on 28 July 2006 was valid and lawful, and the evidence seized on its execution is admissible at trial of Mr S   and the

three other accused.

Rhys Harrison J