Wallace v Police
[2016] NZHC 1952
•22 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-155 [2016] NZHC 1952
BETWEEN ALEXANDER WALLACE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 August 2016 Counsel:
M J English for Appellant
DMA Wiseman for RespondentJudgment:
22 August 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 22 August 2016 at 11.00 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Meredith Connell, Auckland
Public Defence Service, Waitakere
WALLACE v NEW ZEALAND POLICE [2016] NZHC 1952 [22 August 2016]
Summary
[1] Mr Wallace faces a charge of permitting premises to be used for the purposes of an offence against the Misuse of Drugs Act 1975 involving a Class C drug, namely cannabis.1 The prosecution relies upon evidence obtained following a search of Mr Wallace’s home on 14 June 2015. Following a hearing in the District Court at Waitakere on 1 April 2016, Judge C M Ryan found that the search was conducted lawfully pursuant to s 14 of the Search and Surveillance Act 2012 (“SSA”) and therefore the evidence would be admissible at trial. Mr Wallace appealed.
Factual background
[2] The District Court judgment includes a detailed, and accordingly lengthy, summary of the relevant factual background. The key factual findings were as follows.
[3] On the afternoon of 14 June 2015, the Northern Communications Centre received a 111 call from a female, who alleged that she had been assaulted earlier that day. Conversations could be heard in the background to the call and the woman said to someone else in the house, “Yeah because I don’t want you to hurt me.” Another person took the phone away from the caller, said that they did not need the Police and hung up. The caller did not give her name, but the operator was able to trace the number used to make the call to a cellphone owned by Karamea Morris.
[4] Constables Roberts and Bishop were dispatched to Ms Morris’ address in Massey. When they arrived, however, another person living at the address told the officers that Ms Morris was probably visiting her boyfriend in Swanson Road. Using her mobile phone, Constable Bishop was able to access Police information which indicated that Mr Wallace was Ms Morris’ last known partner. His address was listed as 20/55A Swanson Road. The officers then travelled to that address. During the journey, Officer Bishop looked into Ms Morris’ background in further detail. She discovered that Ms Morris had been involved in previous domestic
violence incidents.
1 Mr Wallace was initially charged with cultivating cannabis in contravention of the Misuse of
Drugs Act 1975, s 9(1). This was the charge against him at the time of the pre-trial ruling.
[5] Constables Roberts and Bishop arrived at the Swanson Road address approximately 25 minutes after the 111 call was received. They knocked on the door of the flat and identified themselves. Both officers gave evidence that they could hear people talking behind the door and the sound of the front door being locked. They continued to knock and shout for approximately 10 minutes, but received no response from within the flat, although neighbours apparently came outside to investigate the noise. The officers then contacted their superior, Sergeant Wickman.
[6] Sergeant Wickman arrived at the property approximately 50 minutes after the
111 call had been made. He also knocked on the door and heard voices from inside the house. At that time, he understood that a “no speech” 111 call had been made. He gave evidence that, in his experience, such phone calls were often made in domestic or family violence incidents when a victim was unable to speak to an operator directly but required emergency assistance. He was concerned that the refusal to answer the door suggested that the caller might be detained inside against her will; or alternatively, that somebody else inside the address might have become involved in the incident and might be injured.
[7] Ultimately, Sergeant Wickman decided that the risk of harm to a person or persons behind the door was sufficiently serious to justify forcible entry into the flat. The Police shouted that if the door was not opened, the officers would force their way in. There was no response and so the officers began to kick in the door. At this stage, a male and a female came to the door. They expressed, in the words of Sergeant Wickman, “theatrical outrage” and told the officers that they were unwelcome. The female occupant was Karamea Morris. However, she did not identify herself at the time and the officers did not ask her name.
[8] Given the 111 call and the previous failure to answer the door, Sergeant Wickman suspected that there might be an injured person inside the flat. He pushed past the occupants standing in the doorway and moved into the flat. There were four youths in the lounge area. People were apparently yelling and talking over each other. Officer Bishop gave evidence that at that stage, Sergeant Wickman tried to calm everyone down. He explained why he was there and that he intended to look through the flat to ensure that nobody had been harmed. He then commenced a
general search through the rooms of the flat, checking for any other occupants. He did not find any injured persons. However, there was an opaque container on top of the washing machine that appeared to contain cannabis plants. In evidence, Mr Wickman said that the container was open and that he could smell cannabis, although he was challenged on both points in cross-examination.
[9] After this general search of the flat Sergeant Wickman returned to the main room and informed everybody present that he had found cannabis during his search of the flat. He instructed Constables Roberts and Bishop to invoke the SSA and to search the flat for drugs. The Police subsequently located two large cannabis plants in a wardrobe of one bedroom. The other bedroom was locked. The occupants of the flat could not or would not unlock the door and so the officers forced open the door. There was a container full of small cannabis plants on the floor and in the walk-in wardrobe there was a hydroponic setup and seven large cannabis plants. In the kitchen pantry there was a plastic bag containing dried cannabis.
[10] Mr Wallace was subsequently arrested and charged with cultivating cannabis plants in contravention of the Misuse of Drugs Act. This charge was later replaced by the present charge.
District Court judgment
[11] Judge Ryan began by summarising the evidence given by Constables Roberts and Bishop, and Sergeant Wickman. None of the occupants of the flat gave evidence at the hearing. The Judge accepted, almost in its entirety, the evidence given by the Police officers, although she did note that one or two points had been challenged on cross-examination.
[12] Judge Ryan then turned her mind to the question of whether the Police entry into and subsequent search of the flat was justified under s 14 of the SSA. That section provides:
14 Warrantless entry to prevent offence or respond to risk to life or safety
(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b) there is a risk to the life or safety of any person that requires an emergency response.
[13] She found that the Police officers had reasonable cause to suspect a threat to the 111 caller’s safety. There had been a 111 call; the call referred to an assault that had occurred earlier and suggested that the caller was afraid of being hurt in future (although the officers were not aware of that at the time); there was a relatively short period of time between the call being made and the time when officers arrived at the Swanson Road property; the occupants of the flat refused to answer the door to the Police; Ms Morris did not identify herself or inform the Police that she was unharmed. The Judge found that the combination of those factors met the requirement of cogent support for a reasonable suspicion.
[14] Judge Ryan then considered whether the Police had reasonable grounds for believing, specifically, that there was a risk to the life and/or safety of any person inside the flat which required an emergency response. She found that the Police had no way of knowing that there was no continuing emergency and needed to ensure that the 111 caller and/or the other occupants of the flat were safe. In order to do so, they needed to satisfy themselves that no-one else in the house was injured, in danger, currently being harmed, detained or at risk of future harm once the Police left the flat. Therefore, the search of the house was necessary to avert the emergency. They conducted a cursory search which was proportionate to the emergency which they suspected might exist.
[15] Overall, Judge Ryan concluded that the search of the flat was lawful in accordance with s 14 of the SSA. However, the Judge held that even if the search had been unlawful, she would have permitted the evidence to be admitted under s 30 of the Evidence Act. She acknowledged the high value of the right to privacy in one’s home, but found that the impropriety (if any) of the search was not so significant as to warrant exclusion of the evidence.
Grounds of appeal
[16] Mr Wallace seeks to overturn Judge Ryan’s finding regarding admissibility on the basis that the Judge erred when she found that the Police had sufficient grounds to enter or search the premises. In particular, Mr Wallace submits that:
(a) The Police officers did not have reasonable grounds to suspect that there was a risk to the life or safety of any person in the flat which required an emergency response; and
(b)Sergeant Wickman did not have reasonable grounds to believe that it was necessary to conduct a search of the flat in order to avert the emergency.
[17] Mr Wallace further submits that, in the event that this Court finds that the search was unlawful, the evidence should be excluded pursuant to s 30 of the Evidence Act.
[18] In reply, the respondent submits that the Judge was justified in making the findings that she did regarding the existence of a reasonable suspicion and the necessity of searching the flat. The respondent also seeks to uphold Judge Ryan’s finding regarding s 30 of the Evidence Act.
Approach on appeal
[19] Section 215 of the Criminal Procedure Act 2011 (“CPA”) provides that a
defendant may appeal against a pre-trial decision to make or refuse an order
regarding the admissibility of evidence. The court on appeal must determine the appeal by confirming, varying or setting aside the decision appealed against.2
[20] An appeal under s 221 is a general appeal.3 Accordingly, the Court on appeal must form its own assessment regarding the admissibility of the evidence.4
Section 14 of the Search and Surveillance Act 2012
[21] At the hearing in the District Court, the respondent argued that the search of Mr Wallace’s flat was conducted pursuant to s 14(2)(b). Therefore, in order to establish the lawfulness of the search, the respondent must establish:
(a) Sergeant Wickman had reasonable grounds to suspect that there was a risk to the safety of a person inside the flat, requiring an emergency response; and
(b)Sergeant Wickman had reasonable grounds to believe that a search of the flat was necessary to avert the emergency.
[22] The meaning of “reasonable grounds” to suspect or believe was discussed by the Court of Appeal in R v Williams in relation to s 198 of the Summary Proceedings Act 1957, which previously governed the issuance of search warrants:5
[213] Having “reasonable grounds to believe”, the test under s 198 of the Summary Proceedings Act, is a higher standard to meet than “reasonable ground to suspect”… Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant …, while suspicion means thinking that it is likely that a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists[.]
[23] A reasonable suspicion or belief may be based upon the cumulative effect of a number of factors.6 Information which is given to the Police officer in question is
2 Criminal Procedure Act 2011, s 221.
3 R v Gwaze [2010] NZSC 52, [2010] 3 NZCR 734 at [49]–[53]; Hodgkinson v R [2010] NZCA
457 at [47].
4 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at
[16].
5 R v Williams [2007] 3 NZLR 207 (CA).
6 Hoete v R [2013] NZCA 432, (2013) 26 CRNZ 429 at [10(a)].
relevant when assessing whether there were reasonable grounds for the suspicion or belief.7
Were there reasonable grounds to suspect that there was an emergency inside the flat?
[24] The respondent submitted, and I accept, that the state of Sergeant Wickman’s
knowledge immediately prior to entry can be summarised as follows:
(a) a 111 call had been made from a distressed female from a mobile phone number linked to Ms Morrison, whose boyfriend was linked to the flat;
(b)that the 111 call had been a non-speech call, but concerned a domestic incident and a potential assault;
(c) Constables Roberts and Bishop, while at the flat before Sergeant
Wickman’s arrival, had:
(i) identified themselves as Police;
(ii)knocked on the door loudly for approximately ten minutes and had called out to the occupants;
(iii)heard voices inside the address and the sound of a door locking from the inside;
(d) the occupants had not responded to the knocking or calling out;
(e) the address was a small apartment building and anyone inside would have heard the Police knocking and calling out;
7 At [10(c)].
(f) the occupants had only acknowledged that they were inside the flat after Sergeant Wickman and Constable Roberts had begun to kick the door down;
(g) at least one of the occupants was a female;
(h)when the door was opened by the occupants, the occupants were hostile to Police and did not appear to want the Police there.
[25] Mr English, on behalf of Mr Wallace, disputed this summary. In particular, he acknowledged that the 111 call had occurred, but submitted that the call did not identify any emergency which required Police intervention. Certainly, with the benefit of hindsight, it has become clear that some of the details which Sergeant Wickman relied upon were incorrect, particularly the details regarding the content and form of the 111 call received from Ms Morrison’s cell phone. However, as I have noted above, a Police officer is entitled to rely upon information which has been passed to him or her from a reputable source. Sergeant Wickman was acting upon information passed to him by the Northern Communications Centre and by Constables Roberts and Bishop, and he was entitled to do so.
[26] Mr English further submitted that the fact that the occupants did not answer the door to the Police is an insufficient basis to justify a warrantless entry. I accept that people have the right to choose whether they wish to answer the door when the Police come to call. A mere refusal to answer the door, of itself, would not normally give rise to a reasonable suspicion of an emergency. However, in this case, the Police were responding to a 111 call which, to the best of their contemporaneous knowledge, had been made by a distressed female, and which indicated an imminent or ongoing incident of domestic violence. As noted by the Court of Appeal in R v
Fraser:8
… a [111] call is a distress call – a cry for help … it is reasonable, indeed imperative, that the police assume that the caller is in some distress and requires immediate assistance to act otherwise it would seriously impair the effectiveness of a system and undermine its very purpose. The police duty to protect life is therefore engaged whenever it can be inferred that the [111]
8 R v Fraser (2004) 21 CRNZ 158 at [23], citing R v Godoy [1991] 1 SCR 311 at [16].
caller is or may be in some distress including cases where the caller is disconnected before the nature of the emergency can be determined.
[27] Mr English sought to distinguish the present case from Fraser on the ground that the 111 call in Fraser came from a landline connected to the house that was searched whereas here the call came from a mobile phone belonging to Ms Morrison. Mr English argued that whilst ownership of the mobile phone might suggest it was Ms Morrison who made the call, equally it could have been another female who accessed and used Ms Morrison’s mobile phone. Further, Mr English argued that the searched premises were not directly connected to the mobile phone from which the 111 call was made, which further weakened the possibility that a cry for help had actually been made from the Swanson Road address. Mr English submitted that the only connection to Ms Morrison was that the premises at Swanson Road were the home of her last known partner. Thus, there was nothing to suggest Ms Morrison was actually be present at the address, let alone that she had made a
111 call from that address.
[28] I accept that the use of a mobile phone to make a 111 call means the call cannot be connected to a particular address in the way that it could be if made from a landline. Therefore the connection between the 111 call and the flat at Swanson Road is less tenable than was the case in R v Fraser. Nevertheless the combination of the 111 call and the behaviour of the occupants of the premises when the Police arrived was sufficient, in my view, to give rise to a reasonable suspicion that there was a risk to the safety of a person inside the flat, which required an emergency response. I am satisfied that the initial attempts to kick down the door of the flat were justified.
[29] However, I must also consider whether Sergeant Wickman could have held a reasonable suspicion there was a risk to the safety of a person inside the flat once Mr Wallace and Ms Morrison had answered the door.
[30] Mr English submitted that Sergeant Wickman was aware that the female who had answered the door was likely to be Ms Morrison and therefore, that Sergeant Wickman could no longer hold a reasonable suspicion that there might be a risk to the safety of a person inside the flat.
[31] I disagree. First, at no time during the course of his evidence did Sergeant Wickman acknowledge that he knew the female at the door was Ms Morrison, so his evidence must be approached from the perspective that he did not know the identity of the female occupant. Secondly, the behaviour of the flat occupants up until the time the Police entered had caused Sergeant Wickman to suspect on reasonable grounds that there was risk to the safety of a person inside the flat. The female who answered the door did not identify herself as Ms Morrison, so there remained the possibility that Ms Morrison was somewhere inside the flat. Thirdly, the person whose safety was suspected to be at risk was not necessarily Ms Morrison. Sergeant Wickman testified that he was concerned about the possibility that other persons within the flat might have been involved in any violent incident that might have occurred. Sergeant Wickman also testified that even if he had made inquiries of Mr Wallace and Ms Morrison, their behaviour up until that point in time meant that he could not rely upon the truthfulness of their answers.
[32] In light of those factors, I consider that Sergeant Wickman had reasonable grounds to suspect that there was a risk to the life or safety of a person inside the flat that required an emergency response, even after the door had been answered.
Were there reasonable grounds to believe that a search of the flat was necessary?
[33] The essence of Mr English’s submissions on this point was that, in the absence of any attempt to ascertain whether the female who had answered the door was Ms Morrison, Sergeant Wickman did not have reasonable grounds to believe that a search of the flat was necessary. He referred to a number of cases in support of this point.
[34] In Ashby v Police, the Court of Appeal considered the admissibility of evidence that had been obtained following a warrantless entry and search of the property.9 In that case, the Police responded to a 111 call which reported that a distressed male had been calling for help from a neighbouring house for 25 minutes. Officers arrived at the scene five minutes later and heard a male calling for help.
They forced entry into the garage and found the defendant inside, after which they
9 Ashby v Police [2013] NZCA 631, [2014] 2 NZLR 453.
conducted a more extensive search of the house which revealed evidence of drug offending. The Court of Appeal affirmed the finding of the District Court Judge that:10
[8] Once the police had satisfied themselves that there was no emergency requiring their intervention then their presence on the property could only be with the implied licence of the property owner or occupier, in this case the respondent. That licence could be revoked. However the circumstances facing the police at the time were such that they could not safely conclude, simply on the respondent’s word, that there was not an emergency requiring their assistance and they were entitled to satisfy themselves as to the position once they gained entry to the property. No explanation was given by the respondent as to why he was yelling for help, he was agitated and aggressive and in those circumstances it is not reasonable for the police to be forced to [accept] a bland assurance that everything was well. A 111 call had been initiated, which was [sufficiently urgent] to compel the sending of four or five police officers to the address and the defendant’s own behaviour would have done little to reassure the police that there was not an emergency requiring their attention.
[35] The Court of Appeal found that the subsequent search of Mr Ashby’s house was legal. Mr English sought to distinguish the present situation from that in Ashby on the basis that in Ashby, the Police were directed to a specific address, where they were confronted by a distressed person who would not communicate with them. In contrast, Mr English said that Mr Wallace and the other occupants of the flat were cooperative. The Police could have identified Ms Morrison as the 111 caller and could see for themselves that she was unharmed.
[36] The same issue regarding admissibility of evidence was considered by Whata
J in Herlund v Police11 and by Kós J in Tweeddale v Police.12
[37] The search in Tweeddale had been conducted after the appellant’s car was stopped at a roadblock which had been specifically established for that purpose. The appellant was asked to leave his vehicle until the Police could ascertain that he and his passengers posed no threat to the Police. The evidence indicated that the appellant was calm and compliant. The officers subsequently searched the appellant’s vehicle and found an ounce bag of cannabis. At a pre-trial ruling
regarding admissibility, the Police sought to rely on s 14 of the SSA. Kós J found
10 At [16], citing R v Ashby DC Auckland CRI-2012-004-18837, 9 July 2013.
11 Herlund v New Zealand Police [2015] NZHC 1767.
12 Tweeddale v Police [2015] NZHC 1298.
that the searching officer did not have reasonable grounds to suspect that there was a current and continuing risk to the life and safety of any person which required an emergency response. A search which was conducted for the purpose of “making the situation safe” did not meet this threshold.
[38] The Police in Herlund had been sent to an address in response to information that an unknown female was climbing into a motel room, occupied by Mr Herlund, via a balcony from the outside. On their way to the scene, the officers received further information that a female was presently being assaulted by two other females outside the same motel. When the Police arrived, they were advised by a neighbour that the woman who had been climbing into a motel room had left the scene in a motor vehicle, and were given photos which appeared to show the woman leaving in a motor vehicle. Nonetheless, the officers went to Mr Herlund’s room and conducted a warrantless search, against Mr Herlund’s wishes. As a result of the search, they uncovered evidence of drug offending. On appeal, Whata J held that there was no information available to the Police officers to suggest that there was a situation at hand in Mr Herlund’s room which required an emergency response. In fact, the information which was to hand from the neighbour suggested the very opposite. On that basis, the Judge held that the search of Mr Herlund’s motel room had been unlawful.
[39] Mr English contended that the present case was more similar to the facts of Tweeddale and Herlund, because any emergency situation which might have existed at the time of the 111 call was over by the time Sergeant Wickman conducted his search of the flat. Mr English submitted therefore that the Police visit was more in the nature of following up on a lead, and so s 14 of the SSA can have no real application.13
[40] I do not think this argument is particularly helpful in the present case. In Tweeddale and Herlund it was very clear, on the basis of the information available to the Police, that there was no imminent danger. Therefore, the first limb of the test in
s 14 of the SSA was not met: the officers did not have a reasonable suspicion that
13 Mr English also referred me to the case White v New Zealand Police [2015] NZHC 1547 in support of this point.
there was a risk to safety, requiring an emergency response. The question of whether a search of the premises was necessary to avert an emergency did not arise. In any case, however, I consider that the facts of the present case are more similar to those in Ashby than either Tweeddale or Herlund.
[41] The Police had received information regarding a 111 call which indicated, to the best of their knowledge, that there was an emergency involving Ms Morrison. They traced her location, as best as they could, to Mr Wallace’s flat. Upon arrival they were greeted by conduct that was entirely consistent with an attempt to cover up an incident of domestic violence and/or to prevent a victim thereof from accessing assistance. When the door was eventually opened, the occupants shouted at the officers and demonstrated “theatrical outrage” which did nothing whatsoever to allay the officers’ suspicions that something might be gravely wrong inside the flat. Even if Sergeant Wickman had made enquiries of the female who was Ms Morrison at that
stage:14
… the circumstances facing the police at the time were such that they could not safely conclude, simply on the respondent’s word, that there was not an emergency requiring their assistance and they were entitled to satisfy themselves as to the position once they gained entry to the property.
[42] Furthermore, Sergeant Wickman’s search was not particularly intrusive. He merely looked into each room to determine whether or not there was a person there. In fact, the nature of the search was such that, had Mr Wallace thought to hide away the cannabis plants in a cupboard or similar before answering the door, it is possible that the plants would never have been discovered at all.
[43] I am satisfied that the search of Mr Wallace’s flat was lawful.
Section 30 of the Evidence Act 2006
[44] Given my findings regarding the legality of the search, I am not required to consider whether the evidence would have been admissible under s 30 of the
Evidence Act.
14 Ashby v R, above n 9, at [16].
Conclusion
[45] The appeal is dismissed.
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