White v Police
[2015] NZHC 1547
•6 July 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2015-488-4 [2015] NZHC 1547
BETWEEN COLIN JAMES WHITE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 April 2015 Appearances:
W D McKean for the Appellant
M Smith for the RespondentJudgment:
6 July 2015
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 6 July 2015 at 4 pm pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr W D McKean, WRMK Lawyers, Whangarei
Mr M Smith, Marsden Woods Inskip and Smith, Office of the Crown Solicitor, Whangarei
WHITE v NEW ZEALAND POLICE [2015] NZHC 1547 [6 July 2015]
[1] Mr White appeals against his conviction on a charge of cultivating cannabis.1
There was no appeal against the sentence, which was 40 hours community work for cultivating four plants.
[2] The sole issue on the appeal is whether, in terms of s 30 of the Evidence Act, the evidence of cultivation was improperly obtained. The appellant contended that the evidence was obtained in breach of s 93 of the Search and Surveillance Act 2012 (the Act). Section 93 prescribes advice that must be given by an enforcement officer before a “consent search” is undertaken.
The facts
[3] Police were trying to find a young woman who was believed to be at risk of committing suicide. She had earlier been found in Whangarei and was being driven by mental health officers to Auckland. She had disappeared during the journey. Whangarei police searched her car in Whangarei. They found a card with the appellant’s name, address and telephone number on it. The appellant lives at an address at One Tree Point. Police had other information that the young woman had been seen at an address at One Tree Point. Police therefore followed up this lead by going to the appellant’s home.
[4] They arrived at his home in the middle of the morning. The appellant was not there, but his former wife, also living at the property, was there.
[5] There was a discussion between Mrs White and the officer-in-charge. I will come back to some of the detail of this discussion. For the purposes of outline it is sufficient to record that Mrs White, having been advised of the reason for the police visit – the search for the missing woman - willingly consented to two of the police officers having a look around the garden. In the course of that investigation one of the officers lifted a plastic cover off what he described as “a large structure which
appeared to be a white tunnel. Four cannabis plants were found in this tunnel.
1 NZ Police v White DC Whangarei CRI-???
[6] Advice to the officer-in-charge of the finding of the plants in the garden resulted in purported invocation of s 20 of the Act to undertake a search without a warrant of part of the house. It is unnecessary to consider this aspect of the matter any further because Judge Duncan G Harvey held that some further evidence that was found should be excluded, and charges of possession of cannabis seeds and plant material were dismissed.
The statutory provisions
[7] The provisions relating to consent searches are contained in ss 91 to 96 of the
Act; that is, Subpart 2 of Part 4. The relevant provisions are as follows:
91 Application of rules about consent searches
Sections 92 to 95 apply in respect of consent searches undertaken by an enforcement officer in circumstances where a power of search by an enforcement officer to which this Part applies or any provisions of this Part apply (whether a warrantless power or a power able to be conferred by a search warrant) could be exercised if the officer held a particular belief or suspicion.
92 Purposes for which consent search may be undertaken
An enforcement officer may ask a person to consent to undergo a search or to consent to a search being made of a place, vehicle, or other thing apparently in the control of the person, if the enforcement officer wishes to conduct the search for 1 or more of the following purposes:
(a) to prevent the commission of an offence:
(b) to protect life or property, or to prevent injury or harm: (c) to investigate whether an offence has been committed:
(d) any purpose in respect of which the enforcement officer could exercise a power of search conferred by an enactment, if he or she held a particular belief or suspicion specified in the enactment.
93 Advice that must be given before consent search undertaken
Before conducting a search by consent, the enforcement officer who proposes to conduct it must—
(a) determine that the search is for a purpose authorised by section 92;
and
(b) advise the person from whom consent is sought of the reason for the proposed search; and
(c) advise the person that he or she may either consent to the search or refuse to consent to the search.
94 Circumstances where search by consent unlawful
A search by consent is unlawful if—
(a) it is not for a purpose set out in section 92; or
(b) the enforcement officer fails to comply with section 93(a), (b), or
(c); or
(c) the search is undertaken in reliance on a consent given by a person who does not have authority to give that consent.
96 Exceptions to consent search rules
Sections 92 to 95 do not—
(a) apply to a search conducted as a condition of entry to any public or private place; or
(b) apply to a search conducted in accordance with a power conferred by an enactment; or
(c) affect the rule of law relating to the implied licence to enter property.
Did subpart 2 apply?
[8] The first issue is whether subpart 2 applied at all. As the Judge said, this is governed by s 91.
[9] Subpart 2 applies where a search warrant, or warrantless power of search, would have been available if the enforcement officer had a particular belief or suspicion. The Judge held that this did not apply and this is the conclusion challenged on appeal.
[10] On the facts, the enquiry is concerned with the steps taken in relation to the missing woman. The specific acts of the two police officers in the garden, with the lifting of the plastic cover, are not relevant to the question whether subpart 2 applies. And the subsequent unjustified invocation of s 20 of the Act has no relevance.
[11] For the appellant, Mr McKean did not argue that a search warrant could have been obtained by police as part of the search for the missing woman. It is unclear whether that had been argued in the District Court. In this regard Judge Harvey
concluded, at [16], that this was not a case where a search warrant could have been obtained. Although that conclusion does not appear to be in issue I record that I agree.
[12] Mr McKean has presented the appeal squarely on the basis that this was a case involving a power of search without a warrant, and that the power in question is that provided by s 14 of the Act.
[13] Section 14 of the Act is as follows:
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 risk to the life or safety of any person that requires an emergency response.
[14] It appears that there may have been no argument put to Judge Harvey in the
District Court that s 14 applied. He said:
[17] Did the police have the power to conduct a warrantless search? There was nothing in the evidence before me, or in submissions to me, that would suggest that the police had the power to conduct a warrantless search.
[15] In my judgment s 14 has no application for two separate reasons.
[16] The first is that, pursuant to s 91, subpart 2 applies where there is a “power of search” to which Part 4 applies, and if the other circumstances set out in s 91 apply. But s 14 provides a power of entry, not a power of search. This is not a semantic difference.
[17] Section 89 provides that Part 4, “so far as applicable” applies, amongst other things, to powers conferred on the police by Part 2, and s 14 is contained in Part 2. But there is the opening qualification that this applies “so far as applicable”. This takes the enquiry back to the emphasised words in s 91, referring to a power of search. The power provided in s 14 does not come within the definition in s 3 of “search power”. That definition, so far as applicable, is:
every power, conferred under this Act … to enter and search, or enter and inspect or examine (without warrant) any place, vehicle, or other thing, or to search a person.
[18] There is need to consider both the action described in s 3, and the purpose of the action described in s 3, to determine whether s 14 comes within the definition. The actions described in s 14, and the purposes for which those actions can be taken, do not come within s 3.
[19] This construction is also consistent with the different purposes, and circumstances, contemplated by s 14 compared with s 91. There is some ambiguity as to what is meant by the words in s 91 – “where a power to search … could be exercised if the officer held a particular belief or suspicion”. Does this refer to situations where an officer does not in fact hold the relevant belief or suspicion, and therefore should seek consent pursuant to the following provisions of subpart 2? Or does it refer to a situation where the officer does hold the relevant belief or suspicion, but has not got a warrant, or for some reason decides not to exercise a power of warrantless search? The former seems to be the more natural meaning, with the word “if” denoting an absence of the relevant belief or suspicion.
[20] That interpretation is also consistent with purpose. If an officer has reasonable grounds to suspect one or more of the circumstances in s 14(2) – such as a risk to the life or safety of a person that requires an emergency response – the power can be exercised and there can be no question of requiring consent under subpart 2. What is more, and in particular in relation to purpose, the circumstances set out in s 14(2) are not ones where Parliament would have required a police officer to go through the s 93 procedure.
[21] In the commentary on s 14 in Adams on Criminal Law the authors state, without elaboration, that s 14 provides a power of entry, not a power of search.2
Young, Trendle and Mahoney are of the same opinion.3 For the reasons I have
outlined I agree with those opinions.
[22] I am satisfied, contrary to the appellant’s submission, that subpart 2 has no application to s 14. The appeal therefore fails at this point, but it is appropriate to consider the second reason and some other matters.
[23] The second reason for rejecting the appellant’s argument based on s 14 is that the power of entry provided in s 14 did not arise as a matter of fact in the circumstances of this case.
[24] Section 14, so far as it applies to this case, can be recast as follows, with some emphasis added:
A constable who has reasonable grounds to suspect in relation to a place that there is a risk to the life or safety of any person that requires an emergency response may enter the place without a warrant and take any action that he or she has reasonable grounds to believe is necessary to avert the emergency.
[25] Section 14 is concerned with situations which suddenly present themselves to a police officer. That is consistent with the circumstances in which the power was held to arise at common law. Here there was the evidence of concern for the safety of the young woman. There was evidence from the officer-in-charge, to which Mr McKean referred, in which she said that police were “given urgency in relation to finding” the young woman and reference to police in Auckland launching a homicide investigation. But there does not appear to be any evidence that the police went to, or onto, the appellant’s property suspecting there was a risk to life or safety that required an emergency response. They were simply following up leads obtained
from the two pieces of information I earlier mentioned.
2 Bruce Robertson (ed), Adams on Criminal Law – Rights and Powers (looseleaf ed., Brookers, Wellington) at [SS14.03].
3 Warren Young, Neville Trendle and Richard Mahoney, Search and Surveillance: Act & Analysis
(Thomson Rueters, Wellington, 2012) at 156.
[26] For these separate reasons I am satisfied that s 14 had no application and subpart 2 therefore did not apply. The police were entitled, pursuant to their common law licence, to go onto the property and speak to Mrs White. The common law licence is expressly preserved by s 96(c). From that point Mrs White clearly consented to the two police officers having a look around the property. The Judge concluded that Mrs White’s consent was valid consent, and I agree. She provided her consent in circumstances which do not raise any suggestion of conduct by the police officers which might vitiate the implied licence. There was no argument for the appellant to that effect. What occurred up to that point was what every reasonable citizen would expect police officers to do. And Mrs White’s response is what every reasonable property owner would be likely to do.
[27] I am also satisfied that the conduct of the police officer who then looked around the garden did not in some way mean that the consent that had been given was revoked, or that the police officer exceeded the limits of the consent given.
If subpart 2 applies
[28] If I am wrong there would be a question whether s 93 was complied with. The Judge said it was common ground that s 93 was not complied with, but he was not required to consider the point because of his conclusion that subpart 2 did not apply. It appears that the contention in the District Court was that s 93(c) was not complied with; that the officer-in-charge did not advise Mrs White that she could either consent to the search or refuse to consent to the search.
[29] It appears that there was no express advice to that effect. However, in my judgment the provisions of s 93 need to be interpreted in a sufficiently broad way to cover the wide range of circumstances in which the need to give s 93 advice are likely to arise.
[30] This is not an occasion to seek to provide any detailed comment. Rather, the matter can be addressed by reference to the circumstances of this case. Here, the need to follow the provisions of s 93 in a rigorous way – step by step and with precision – did not arise. Had there been a degree of reticence from Mrs White, even though in the end she did not withhold consent, there may have been breach of s 93
given the police officers’ failure expressly to give the s 93(c) advice. However, the nature of Mrs White’s response was the opposite of reticence. In my judgment it can be inferred that she recognised that the officer was giving her a choice; from the way it was put to her she recognised she was being given the option of withholding consent. In these circumstances carefully articulated advice from the officer was not needed for the essential requirements of s 93 to be met.
Section 30 of the Evidence Act
[31] If there had been breach of subpart 2 the evidence of cultivation would have been improperly obtained. It would then have been necessary to determine under s 30 of the Evidence Act whether exclusion of the evidence would be proportionate to the impropriety. I received submissions on the balancing exercise in terms of s 30(3). Section 30(4) requires that improperly obtained evidence must be excluded if exclusion is proportionate to the impropriety. I was satisfied that exclusion would not be proportionate to the impropriety; to have excluded the evidence would have been a disproportionate response, with almost all of the relevant considerations in s
30(2) pointing firmly to that conclusion.
Result
[32] For these various reasons the appeal is dismissed.
Woodhouse J
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