The Queen v Findlay

[2006] NZCA 26

IN THE COURT OF APPEAL OF NEW ZEALAND

CA410/05

THE QUEEN

v

HUGH ARCHIBALD FINDLAY

Hearing:8 March 2006

Court:Glazebrook, Wild and Venning JJ

Counsel:D G Slater for Appellant

B J Horsley for Crown

Judgment:14 March 2006 

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS GRANTED BUT THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

[1]       This is an application for leave to appeal against a pre-trial ruling given by Judge Butler concerning the admissibility of evidence of a hydroponic cannabis growing operation found when police entered a house occupied by Mr Findlay.

Facts

[2]       We base this summary of facts on Judge Butler’s ruling. 

[3]       Judge Butler heard evidence from three witnesses, namely Mr Findlay’s neighbour and two police constables.  The neighbour’s evidence was that, while taking his dog for a walk, he noticed Mr Findlay’s front door was open.  He had not seen Mr Findlay for several days.  Fearing that the property had been broken into, the neighbour telephoned the police.

[4]       The neighbour acknowledged in cross-examination that Mr Findlay’s property was surrounded or enclosed by a fence of a height which he described as being “a couple of metres”.  He said the house was about 15 metres back from the street.  Access through the enclosing fence was via a mesh gate which the neighbour described as a “deer fence gate” which, when he observed the property, was padlocked shut.

[5]       Constable Carter and Constable Hogue were sent to Mr Findlay’s property as a result of the neighbour’s call to the police.  Constable Carter said in evidence that he believed that they were going to have to deal with insecure premises.  Responding to such calls was not uncommon and his priorities were to check that no occupier was injured inside the house and that there had been no property offence committed in or around the dwelling.  He said he arrived outside the property at about 5.35pm.  He described the time of day as “twilight”.  He said very little light was coming from the dwelling.

[6]       Constable Carter said that through the mesh gate (which he described as being about seven feet in height) he could see that the front door of the dwelling was open to an extent which he described as 30 – 40 degrees.  He said the gate was secured by a chain and padlock.  He decided to climb over the fence to check in and around the dwelling.  Constable Carter was cross-examined about whether he had called out to announce his presence before he climbed over the fence.  The Judge found that Constable Carter called out for the first time after he had got over the fence and once he was approaching the house.

[7]       Once at the house, Constable Carter smelt what he identified as cannabis and he invoked the powers of search under s 18(2) Misuse of Drugs Act 1975.  Constable Carter found 16 cannabis plants growing under artificial lighting in the front room of the house.  Mr Findlay was not in the house at the time.

[8]       In his evidence, and in answer to questions in cross-examination, Constable Carter acknowledged that he had not been given any specific information which might lead him to believe that in or about the dwelling there was a need to preserve human life or to prevent serious harm to any person or to render assistance to someone who had suffered serious harm.  Nor was he able to say that he had information which might justify him in acting pursuant to s 317(2) Crimes Act 1961.

[9]       Constable Hogue’s evidence was largely corroborative of Constable Carter’s evidence.

Judge Butler’s ruling

[10]     The Crown had conceded before Judge Butler that Constable Carter was trespassing once he was over the gate and inside the enclosing fence.  The Judge considered the concession responsible.  There was no sign or notice on Mr Findlay’s gate but the height of the fence and the gate and the chain/padlock method of securing the gate would, in the Judge’s view, have sent a clear message to anyone standing outside that there was no implied licence to enter the property.  The Judge also held that the police were not entitled to rely on the justification of necessity in the absence of circumstances such as were outlined in Dehn v Attorney-General [1988] 2 NZLR 564. Accordingly, the Judge found that the search conducted by Constable Carter was illegal.

[11]     The Judge then went on to consider if the search was reasonable.  Relative to this enquiry, the Judge made the following findings of fact:

(a)     The police acted in good faith and without any improper motive;

(b)Constable Carter’s sole purpose in entering the property was to ascertain if anyone was injured inside the dwelling and to ascertain if any property offence had been committed therein;

(c)The constables knew they had been directed to the property as the result of contact from a concerned civilian;

(d)Constable Carter did call out to announce the presence of the police before he reached the dwelling but only after he had climbed over the fence;

(e)Constable Carter said that he could smell cannabis when he reached the front door of the house.

[12]     Judge Butler found that the extent of Constable Carter’s trespass was moderate, given that he entered Mr Findlay’s home through the open front door.  By contrast, he would have described entry onto the land only as minimal and a forced entry into the house as to the upper end of the scale.  As to the importance and urgency of the police business, the Judge considered it was important for the police to ascertain if anything was amiss inside the house.  The fading light of the day and the relative isolation of Oreti Beach meant that the police business could fairly be described as urgent.

[13]     For all those reasons, the Judge found that Constable Carter’s actions were not unreasonable.  He ruled the evidence admissible.

Submissions of the parties

[14]     Mr Slater, for Mr Findlay, supported the Judge’s reasoning with regard to the legality of the search.  He submitted, however, that the Judge was wrong to hold that the search was reasonable.  He pointed to the locked entry and the fact that, in his submission, there was no compelling need to enter the property.

[15]     Mr Horsley, for the Crown, withdrew the earlier concession that the search was illegal.  He submitted that, contrary to the Judge’s finding, the entry onto the premises was not a trespass as an implied licence to enter onto the premises existed in the circumstances of this case.

[16]     In his submission, the ordinary proposition is that entering private premises for the purposes of walking through the gate to knock on the front door of a house is lawful by dint of implied licence.  He accepted that this implied licence can be revoked, for instance by signs or express refusal to enter, but the scope of any revocation is, in his submission, dependant upon the circumstances and reasons for entry. 

[17]     It was conceded that a locked gate may revoke the implied licence to enter a property for casual or non-urgent approaches to the front door.  However, Mr Horsley submitted that the presence of a locked gate should not be a deterrent for the police to enter onto a property in order to ascertain the wellbeing of the occupants in situations where there is genuine cause for concern as to their safety.  In Mr Horsley’s submission, a locked gate does not prohibit entry in extraordinary circumstances.

[18]     On the findings of the Judge, the police officers had no suspicion of illegal activity being undertaken by the occupants of the home.  They simply wished to ascertain whether the property and occupants were all right.  Mr Horsley submitted that the general public would be concerned if, when called out by a concerned neighbour who has not seen the occupant for a number of days, the police cannot go past a locked gate without being considered to be unlawfully trespassing.

[19]     If his first submission was not accepted, Mr Horsley maintained that a defence of necessity was available to the police.  In his submission, the Judge’s findings as to the importance and urgency of the police business are not consistent with the rejection of a defence of necessity to the trespass.  The Judge held that it was important for the police to ascertain if anything was amiss inside the house, and noted that this was an isolated beach address and that it was nearing nightfall.  In those circumstances, while the callout did not have the inherent urgency and emergency nature of a 111 call, the general circumstances surrounding that call should give rise to the same result as in R v Fraser [2005] 2 NZLR 109. Further, in Fraser, the doctrine of necessity was invoked to allow entry into the actual household.  Here the entry was only onto the outside premises with the police officer announcing his presence as he approached the front door. 

[20]     Before there had been any entry into the actual dwelling house, the police officer smelt the cannabis and invoked the Misuse of Drugs Act.  In those circumstances, Mr Horsley submitted that the minimal breach of privacy and minimal trespass mean that public policy should favour allowing a defence of necessity to the trespass.

[21]     Finally, Mr Horsley submitted that Judge Butler’s finding that the search was reasonable cannot be impeached.

Discussion

[22]     We consider the Crown’s submissions compelling.  The entry onto the property being lawful and there being no challenge to the existence of grounds for the search under s 18(2) of the Misuse of Drugs Act, the search was lawful.  It was also reasonable for the reasons given by Judge Butler.

Result

[23]     The application for leave to appeal is granted but the appeal is dismissed.

Solicitors:
S G Slater, Invercargill for Appellant
Crown Law Office, Wellington