Tararo v R
[2010] NZSC 157
•17 December 2010
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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 73/2010 [2010] NZSC 157 |
| TREMAINE MANAIA TARARO |
| v |
| THE QUEEN |
| Hearing: 2 December 2010 |
| Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ |
| Counsel: B J Hunt and J S McHerron for Appellant |
| Judgment: 17 December 2010 |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
Para No
Elias CJ [1]
Blanchard, Tipping, McGrath and William Young JJ [5]
ELIAS CJ
The appeal concerns the admissibility of covert video-recording undertaken by an undercover police officer when purchasing cannabis at a residential property. The appellant maintains, contrary to the ruling of the District Court[1] confirmed on appeal to the Court of Appeal,[2] that the evidence was inadmissible. The sole ground relied on was that the evidence was “improperly obtained” within the meaning of s 30(5) of the Evidence Act 2006 because obtained “in consequence of a breach of [a] ... rule of law”. The “rule of law” claimed to have been breached was the civil law of trespass. It was accepted that, in cases where there is no signage prohibiting entry and access is not barred, there is an implied licence imposed by law for common convenience, by which anyone may enter property to approach a dwelling to speak to its occupants. Within such licence, someone entering the property is not a trespasser. It was argued however that covert surveillance is not within the implied licence, making the entry a trespass. I agree with the conclusion reached by other members of the Court that the appeal must be dismissed.
[1] R v Tararo DC Wellington CRI-2008-091-3656, 21 September 2009.
[2] Tararo v R [2010] NZCA 287, (2010) 24 CRNZ 888.
Although the argument proceeded on the assumption that evidence obtained by a trespasser is “improperly obtained” within the meaning of s 30(5), I should not be taken to agree with that assumption. In a case in which the point arises, I would want to consider it with the benefit of full argument.
I agree with Tipping J that the undercover police officer who made the purchase was not a trespasser. I do not consider that the limited licence implied by law for the purpose of the tort of trespass is lost if the person entering keeps within the narrow scope of the physical entry permitted to him by the common law. Nor do I consider that the licence is lost because the person using it makes some record of the entry. So I agree that the person approaching the house is not a trespasser in cases where there is no negation of the licence, express or implied, by the occupier. No doubt there will be some cases where it is not easy to decide whether the physical intrusion is within the scope of the licence or whether the licence has been negated. But this is not such a case. The physical intrusion which would otherwise constitute a trespass was within the implied licence to approach the house and speak to the occupant, as was made clear by the occupant in dealing with him. In my view it is not lost by the deception that the police officer was a customer or by his recording. That conclusion is sufficient to dispose of the appeal, on the basis on which it was put.
I prefer not to join in the views expressed in the judgment of Tipping J at [7] and [17] that any search entailed in the recording (itself an issue it was not necessary to decide on the appeal) would not have been unreasonable under s 21 of the New Zealand Bill of Rights Act 1990. Although the fact that evidence is obtained by a trespasser is important in a s 21 inquiry as to reasonable search, the converse is not the case. The fact that the officer was not a trespasser has I think little bearing on a s 21 inquiry. It is not possible to conclude, without more, that a search is not unreasonable because it does no more than provide a permanent and accurate record of what the officer saw. In application to modern surveillance equipment and the information able to be obtained from it, such assumption seems to me to be unwarranted and would require further consideration by this Court on better information in a case in which s 21 is in issue.
BLANCHARD, TIPPING, McGRATH AND WILLIAM YOUNG JJ
(Given by Tipping J)
Introduction
At about 4:15pm on Monday 25 August 2008, an undercover police officer purchased cannabis from a “tinnie house” in Porirua. The person who is alleged to have sold the cannabis to the officer is the appellant, Mr Tararo. He is charged with selling cannabis and other related offences. The officer went to the front door of the premises and knocked. A man came to the door. The transaction was then effected without the officer going inside the house. He then returned to his vehicle which was parked on the street.
The point at issue on this pre-trial appeal arises from the fact that the officer covertly filmed the transaction by means of a video camera concealed on his person. Filming commenced as the officer walked onto the premises from the street and ended as he was leaving them. The person effecting the transaction with the officer is shown on the film. The Crown wishes the officer to produce in evidence photographic stills from the film in support of its case that Mr Tararo was the person involved.
Both the District Court[3] and the Court of Appeal[4] ruled that this evidence was admissible. Various grounds for opposing its admissibility were raised below. The only one in issue in this Court is the contention that the officer was a trespasser and hence the evidence in issue was improperly obtained under s 30(5)(a) of the Evidence Act 2006 and should not be admitted pursuant to s 30(2)(b).[5] Mr Tararo does not raise in this Court any contention that the officer was conducting an unreasonable search in terms of s 21 of the New Zealand Bill of Rights Act 1990. We are not therefore required to consider whether what occurred was a search within the meaning of that section. It is sufficient to say that if the officer was conducting a search, it was a reasonable search in the circumstances of this case. Our reasons for that view are inherent in what follows. The same values as are inherent in s 21 are reflected in the trespasser/implied licence jurisprudence addressed below.
The issue
[3]R v Tararo DC Wellington CRI-2008-091-3656, 21 September 2009.
[4]Tararo v R [2010] NZCA 287, (2010) 24 CRNZ 888.
[5]It was not argued that the evidence was unfairly obtained under s 30(5)(c).
The first issue which we must decide is whether the evidence was improperly obtained on account of the officer being a trespasser. As we are of the view that the officer was not a trespasser and that the evidence was therefore not improperly obtained, it will not be necessary for us to consider the application of s 30(2)(b). Ms Hunt accepted that, but for his covert filming, the officer would not have been a trespasser. Her essential argument was that the implied licence which the officer had to go onto the premises and knock at the door did not permit him to conduct what counsel termed “video surveillance” while doing so. He was therefore a trespasser.
Both Judge Kelly in the District Court and the Court of Appeal examined in some detail the subject of an implied licence to go onto private premises. That relieves us of the necessity of going into similar detail. The Court of Appeal traversed a number of decisions on the subject including Bradley,[6] Soma,[7] Bailey,[8] O’Connor,[9] McDonald[10] and TV3 Services.[11] The Court saw some similarity between the present case and Smith (Malcolm),[12] in which Mr Smith’s flatmate had become a police informant and had used a hidden video camera to film Mr Smith supplying morphine tablets to people coming to his house. The significant point, as the Court of Appeal saw it in that case, was that the whole purpose of the use of the video camera was to reduce the risk of unfair undermining of the reliability of the informant’s evidence, had that evidence been given without the support of the video film.[13]
[6]R v Bradley (1997) 15 CRNZ 363 (CA).
[7]R v Soma (2004) 21 CRNZ 23 (CA).
[8]R v Bailey HC Auckland CRI-2007-085-7842, 8 September 2009.
[9] O’Connor v Police [2010] NZAR 50 (HC).
[10]Police v McDonald [2010] NZAR 59 (HC).
[11]TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 (HC).
[12]R v Smith (Malcolm) [2000] 3 NZLR 656 (CA).
[13]At [52].
In coming to the conclusions about to be set out, we have also taken into account the discussion of implied licences in the more recent decision of the Court of Appeal in Hunt v R.[14] In that case the Court discussed further authorities including the decision of the Supreme Court of Canada in R v Evans.[15] That case was referred to in argument in the present case. As the Court of Appeal said in Hunt, the approach of the majority in Evans is not the approach generally adopted in New Zealand. Our courts have taken the view that police officers have the same implied licence as all other members of the public.
Implied licence
[14]Hunt v R [2010] NZCA 528.
[15]R v Evans [1996] 1 SCR 8.
The decision of the Court of Appeal in England in Robson v Hallett[16] marks the origin of the so-called doctrine of implied licence as applied to circumstances like the present. Cooke P said in Howden[17] that Robson’s case had “either invented or articulated” the doctrine. Put at its simplest, it has been recognised since Robson’s case that citizens generally, including police officers, are not trespassers if all they do is enter upon, but not into, private premises for the purpose of making enquiry of, that is, communicating with an occupier. This doctrine of the common law was adopted to ameliorate the strict historical view that to set foot on the land of another without that other’s consent or legal justification was a trespass.[18] The implied licence articulated in Robson’s case and adopted into New Zealand law by the decisions traversed in the Court of Appeal was, at least initially, seen as providing the landowner’s consent by implication. But that quasi-contractual approach was hard to reconcile with the difficulty of ascribing to occupiers of tinnie houses, for example, implied consent to undercover police officers coming onto their premises for law enforcement purposes.
[16]Robson v Hallett [1967] 2 QB 939 (CA).
[17]Howden v Ministry of Transport [1987] 2 NZLR 747 (CA) at 751.
[18]See Semayne’s Case (1604) 5 Co Rep 91a at 91b, 77 ER 194 at 195 (KB) (“the house of everyone is to him as his castle and fortress”) and Entick v Carrington (1765) 2 Wils KB 275, 95 ER 807 (KB).
A more satisfactory legal basis for this kind of licence is to say that it is implied by law rather than on a quasi-contractual basis.[19] The common law modifies the absoluteness of the ordinary law of trespass by permitting entry onto private premises for the purpose of reasonable enquiry. The common law recognises, however, that a landowner is entitled to deny or terminate the licence, either in advance of its being invoked or in the course of its being invoked.
[19]In this respect we prefer, as did the Court of Appeal below, the approach of Dobson J in McDonald at [34] to that of Fogarty J in O’Connor at [16].
The landowner may do this in advance by such means as locking a gate or putting up a notice making it clear that members of the public are not permitted to enter.[20] Termination during the course of the exercise of the licence can be achieved by making it clear to the person concerned that they may no longer remain on the property. If that person does not comply with a request to leave within an appropriate timeframe, they become a trespasser. Of course, contractually-based inter partes licences and their incidents continue to exist and to be governed by the law of contract. They are different in kind from the licence which the law gives to all members of the public under consideration in this case.
[20]Someone who disregards such measures may not be a trespasser if their entry is made for a necessary purpose, such as in an emergency. Necessity is a defence at common law to an action for trespass: see Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers Ltd, Wellington, 2009) at [9.2.06] and [21.6] and R v Fraser [2005] 2 NZLR 109 (CA).
Against that background we would formulate that licence in the following way. Members of the public, including police officers, may go to the door of private premises in order to make enquiry of an occupier for any reasonable purpose. In the course of doing so they may take photographs, if to do so is reasonable in order to accomplish that purpose. Police officers may avail themselves of this licence for law enforcement purposes. But they cannot invoke the licence to do anything that by law requires a warrant. Making a photographic record of what the police officer does or sees while exercising the licence will ordinarily be reasonable to enable the police officer thereby to support the evidence which he or she can give of what was done and seen while on the premises. Making such a record does not turn the officer into a trespasser.
Basis for licence
We will now indicate why the common law grants a licence in the terms described, leaving aside for the moment the photography element. The licence is appropriate in order to reflect the reasonable requirements of society. It would be quite unsatisfactory, as a matter of both social and legal policy, to hold that someone going onto the premises of another in the contemplated circumstances was a trespasser. The rigidity of the law of trespass requires modification in order to accommodate the ordinary interaction of citizens. It is a strength of the common law that it can adjust itself to the contemporary needs of society.
The words of Parke B,[21] when addressing qualified privilege nearly 200 years ago, remain pertinent. He said that the law had to reflect “the common convenience and welfare of society”. In the same way the modern law of trespass has to reflect those considerations. It does so by means of an exception to the general law of trespass along the lines of the formulated licence.
Photography
[21]Toogood v Spyring (1834) 1 CM & R 181 at 193, 149 ER 1044 at 1050 (Exch of Pleas).
The second and more substantial dimension is why the taking of photographs, on the basis formulated above, should not be regarded as depriving the person doing so of their common law licence. Whether it is reasonable to take photographs in the course of invoking the licence will depend on the circumstances in which the licence is invoked. In Barlow[22] Hardie Boys J held, with Cooke P concurring, that what he termed “participant recording” was not, for what we would regard as the analogous purposes of s 21 of the Bill of Rights, inherently unreasonable when its purpose was to obtain a full and accurate record of what was said. The same must apply to gaining a full and accurate record of what the participant sees. Hardie Boys J observed that avoidance of the need for reliance on fallible memory, even when a note is made soon afterwards, was in the interests of justice for both Crown and defence.
[22]R v Barlow (1995) 14 CRNZ 9 (CA) at 40.
In doing so he relied on decisions of the Supreme Court of the United States that were adopted by the Court of Appeal in A (Davis).[23] That case involved an undercover police officer who had on his person a concealed microphone which transmitted to a nearby recording machine a conversation between the officer and the accused. There cannot, at least for present purposes, be any difference in principle between a concealed microphone and a concealed video camera.[24] All three members of the Court held that the technique in issue was neither inherently unreasonable nor unreasonable in the manner it was done.
[23] R v A [1994] 1 NZLR 429 (CA); also reported as R v Davis (1993) 10 CRNZ 327 (CA).
[24]We are speaking here of a video camera without enhancements, such as night vision which would capture images not visible to the participant officer.
We consider the Court of Appeal was right in those cases to rely on the American cases which deal with this kind of issue in a persuasive way. In Lopez v United States[25] Harlan J, speaking for the majority, said:[26]
... The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner’s assent, and it neither saw nor heard more than the agent himself.
Tellingly he went on to say:[27]
Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. (footnote omitted)
In United States v White[28] White J, delivering the leading judgment, said:[29]
... If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
[25]Lopez v United States 373 US 427 (1963).
[26]At 439.
[27]Ibid.
[28]United States v White 401 US 745 (1971).
[29]At 751.
Further support for our general approach can be found in Lewis v United States.[30] In that case a federal narcotics agent was invited into Mr Lewis’ home. His purpose was to purchase unlawful narcotics. In the course of delivering the judgment of six members of the court, Warren CJ acknowledged that it was a person’s home that the agent had entered but continued:[31]
... But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials ...
[30]Lewis v United States 385 US 206 (1966).
[31]At 211.
In their concurring judgment Brennan and Fortas JJ said:[32]
The Fourth Amendment protects against governmental intrusion upon “the sanctity of a man’s home and the privacies of life.” Boyd v United States, 116 US 616, 630. However, the occupant can break the seal of sanctity and waive his right to privacy in the premises. Plainly he does this to the extent that he opens his home to the transaction of business and invites anyone willing to enter to come in to trade with him. When his customer turns out to be a government agent, the seller cannot, then, complain that his privacy has been invaded so long as the agent does no more than buy his wares. Thus the corner grocery with the living quarters in the rear would not be protected with respect to the area set aside for the purchase of groceries, although the living quarters to which shoppers are not privy retain the constitutional immunity. Cf. Wong Sun v United States, 371 US 471.
The petitioner in this case opened his apartment for the conduct of a business, the sale of narcotics; the agent, in the same manner as any private person, entered the premises for the very purpose contemplated by the occupant and took nothing away except what would be taken away by any willing purchaser. There was therefore no intrusion upon the “sanctity” of petitioner’s home or the “privacies of life.”
[32]At 213.
Ms Hunt contended that in the present case the officer had “taken away” the video recording and had thus fallen foul of the last part of this passage. Clearly, however, Brennan and Fortas JJ were referring to the taking away of goods found in the premises. Their minds were not directed to the use of video cameras or the taking of photographs.
This case
Application of the foregoing principles to the present case leads to the following conclusions. Those operating the tinnie house were running a business akin to a shop. They were implicitly inviting people to visit their premises in order to purchase the goods available. The officer’s purpose, when invoking the licence afforded to him by law, was to avail himself of the proffered opportunity to purchase cannabis as part of his undercover duties. This was a perfectly reasonable purpose. There was no advance denial of the licence and no termination during its exercise.
The taking of a photographic record of the transaction was a reasonable course for the officer to adopt in view of his law enforcement purpose in entering onto the premises. He thereby obtained a reliable record of what had occurred, and of the person with whom he had dealt. What the officer did was not such as required a warrant. Nor did he exceed the terms of the licence so as to become a trespasser.
Conclusion
For these reasons the evidence in question was not improperly obtained. The Courts below were correct in holding that it is admissible at the appellant’s forthcoming trial. His appeal must be dismissed.
Solicitors:
Crown Law Office, Wellington
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