R v Smith CA444/95 [1996] NZCA 22; (1996) 13 CRNZ 481 (23 February 1996)

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This is an appeal against a pre-trial ruling under s344A Crimes Act 1961 that evidence of the results of a police search of the appellant's flat in Guys Hill Road, Napier, should be admitted in evidence on his trial on two charges of unlawful possession of a firearm and one charge of possession of utensils for the purpose of the commission of an offence against the Misuse of Drugs Act 1975.

On 14 June 1995 a party of police officers went to the appellant's flat with a search warrant issued in relation to a suspected offence against the Animals Protection Act 1960. When they arrived the flat was unoccupied. Chained to a kennel on the lawn they found a young dog in an emaciated condition. They then entered the house looking for evidence which might bear on the dog's condition. Immediately upon their entry they saw on a bench beside a stove utensils that both from their appearance and smell appeared to have been recently used for the purpose of smoking cannabis oil. The officers believed that this discovery justified their exercising the powers given by s18(2) Misuse of Drugs Act to search without a warrant and proceeded to search the flat.

In the lounge they located a quantity of cannabis oil. The constable who found it then moved on to a bedroom which opened off the lounge and appeared to be a child's bedroom. His search of a tallboy in that room located, under some child's clothing, the two pistols the subject of the Arms Act charges.

Mr Jensen said he accepted the validity of the warrant taken to the property, and that this would have authorised the initial entry into the flat. The three grounds he urged for ruling the evidence of the discovery of the firearms inadmissible, both on the hearing of the s344A application and before this Court, were:

The significance of non-compliance with the reporting obligation created by s18(6) was considered but not decided by this Court in R v Laugalis (1993) 10 CRNZ 350. At p355 the judgment, after noting that subs (6) had not been complied with, stated:

"Whether this error rendered the search unlawful is arguable. A majority view in R v Jefferies (1993) 10 CRNZ 202 (CA) was that failure by the searching officer to observe a requirement that he identify himself, similar to that in s 18(4) Misuse of Drugs Act, rendered the search unlawful, but the reporting requirement in subs (6) may be thought to be of a different kind, much more of an administrative matter with a disciplinary sanction, and not one going to the lawfulness of the search itself. However, in view of the conclusion we are about to explain it is unnecessary to decide the point and we prefer to leave it open."

The point has not had to be reconsidered since Laugalis in this Court. The judgment under appeal does, however, refer to the subsequent High Court decision in R v Adams [1993] NZHC 390; (1993) 10 CRNZ 687, in which Fisher J reached a similar conclusion about the significance of non-compliance with subs (6) to that suggested in the passage just cited

from Laugalis. At p694 of Adams the Judge stated that even if s18(6) had not in that case been complied with -

"... it does not seem to me that the discretion to exclude evidence should be exercised against the Crown. The principal difficulty for the defence is that even if the mandatory reporting procedure had not been properly followed, that would not mean that at the time that the search evidence was obtained, it was obtained illegally. I accept that the Courts have a supervisory role to prevent abuse of police powers. Because of this, it is not always necessary to show a causal nexus between the police impropriety and the obtaining of the evidence. Nevertheless, it would require an extreme case to justify retrospective invalidation of this nature."

It is inherently unlikely that a failure to comply with subs (6) would have causal connection with the obtaining of evidence by a search made under subs (2), as the failure to report must necessarily follow, and not precede, the making of the search.

Unlike a failure to comply with the requirement in s18(4) that an officer seeking to exercise s18(2) powers should identify himself to persons within the building searched before commencing his search, which failure R v Jefferies (1993) 10 CRNZ 202 held would render a subsequent search unlawful, the construction of s18(6) which Mr Jensen urged upon us would involve accepting that a search which was lawful at the time it was made could somehow be retrospectively invalidated by failure to comply with the s18(6) obligation to report it. That would be such an unusual result that that construction should, in our view, only be accepted if the language of the section compelled it: and we do not believe it does. Certainly that construction is not necessary to enable the Court to retain its powers to supervise the exercise of police powers and act to prevent abuse of those powers in appropriate cases. In the event, for example, that the evidence showed that the officer conducting the search had determined before entering upon it that he would suppress the fact that the search was being made, it would clearly be open to the Court to find his conduct sufficiently culpable to require that in exercise of its disciplinary function the Court rules the evidence obtained by means of the search inadmissible.

Our conclusion is that s18(6) is intended to ensure a continuing supervision at senior police level of the use of s18(2) powers (see R v Taylor (1993) 10 CRNZ 393) and does not go to the lawfulness of the search itself.

The s18(6) obligation is nonetheless, as Mr France properly accepted, an obligation of significance which should not be taken lightly. In that circumstance it cannot be appropriate for the police, as in this case, to offer no explanation for their failure to observe it. The reason for such failures must in nearly all cases be a matter wholly within the knowledge of the police. They should keep well in mind that if in future they elect to

remain mute on the subject it will be open to the Court to consider applying the principle that a repeated election not to supply information which is wholly within the knowledge of one party may justify the Court in reaching an inference unfavourable to that party.

In this case we have concluded that the disclosed circumstances of the case do not give support to an inference that the failure to report was motivated by some improper purpose. The evidence points rather to a series of totally unexpected discoveries, and an absence of any apparent reason or purpose for suppressing the fact that the search, lawfully initiated for a different purpose, had become a search for prohibited drugs which necessarily relied on s18(2).

This ground was in the end but faintly argued by Mr Jensen, who said it was the weakest of his arguments but that he did not abandon it.

As set out in his written synopsis, its essential thrust was that the police could and should have obtained a warrant, and that the circumstances brought the case within the comment made in Laugalis (at pp355-356):

"Although the power to search without warrant is not circumscribed by the statute, its reasonable exercise requires that it be resorted to only where that is reasonably necessary. Clearly the power is conferred under the Misuse of Drugs Act to enable the interception of drugs before they can be removed or disposed of. It is of particular importance where the drugs are believed to be in a motor vehicle. It would be absurd to require the police to obtain a warrant if in the meantime the vehicle could simply be driven away. But where there is no risk of that, no urgency, resort to the power is unnecessary and can in our opinion be unreasonable."

In this case the Judge found that there were four police officers at the property when the decision to make a s18(2) search was reached and implemented but that one was required elsewhere. He also found that the officers did not know the appellant's whereabouts and that "it could be said that if it had been absolutely necessary that one or other of the police officers could have returned to the city and made the necessary application for a warrant", and that there was nothing in the circumstances to suggest that unless the search were made immediately any drugs on the premises would be disposed of. He nevertheless expressed the view that as the police had evidence that gave them a plain reasonable belief that there might be drugs on the premises it was "putting far too high a duty" on them to say that they should stop a search properly instituted and get a warrant.

In our view the discovery of utensils apparently recently used would have given a reasonable ground for belief, in terms of s18(2), that there might be drugs within the premises. Further, we do not read Laugalis as determining that s18(2) powers are only available if the police can establish as a matter of probability that drugs which might be located would be lost if time were taken to obtain a warrant. No doubt proof of such a situation would establish the reasonableness of proceeding without a warrant. But what Laugalis held was that if there was no risk that evidence could be lost that would support a finding that the exercise of s18(2) powers was unreasonable.

In Laugalis the Court had to consider the reasonableness of conducting a s18(2) search of a vehicle which was already held in police custody, so there was no risk of a loss of evidence if the search was delayed until a warrant was obtained. Further, in that case the detective concerned had testified that in hindsight he would have applied for a warrant.

The relevant circumstances were significantly different in this case. It was common ground that the initial entry into the residence was lawful, and relied upon the warrant obtained under the Animals Protection Act. Entry having been so made the police were confronted with evidence which gave reasonable grounds for a belief in terms of s18(2). The officers did not know the number of occupants of the flat, where they were, and when they might come back. Had the search been delayed until a warrant was obtained and the occupants had returned meanwhile, the police would not have been well placed to refuse them entry to the premises until a warrant had to be obtained, nor, if entry were permitted, to secure the property from interference. Certainly if s18(2) powers were not available the occupants could not have been required to defer their reoccupation of the premises until a warrant had been obtained and presented to them.

We therefore agree with the result reached by the Judge, and for essentially the same reasons as those which he gave.

Mr Jensen argued that the Judge should not have found that the police officers had conferred and reached a considered decision that the circumstances they found upon their entry into the flat warranted a s18(2) search. The grounds for that argument were that the only evidence for his finding was the oral evidence of the officers on the voir dire which, Mr Jensen told us, went beyond their deposition statements.

It cannot be for this Court to review a trial Judge's findings on credibility, and this ground also is rejected.

(7) C.A. No. 444/95		PARTIES R v James Ernest SMITH
(2) Hearing Date 22/02/96	(3) Delivery Date 23/02/96		(4) Delivered by Thorp J	(5) Coram Eichelbaum CJ McKay J Thorp J	(9) Lower Ct Judge DCJ Thompson

Failure to report to Commissioner that the police had conducted a search without warrant, relying on s18(2) powers. Held: not to render the search unlawful, nor (in the circumstances) to justify ruling that the evidence obtained during the search should not be admitted in evidence.

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Court of Appeal of New Zealand

R v Smith CA444/95 [1996] NZCA 22; (1996) 13 CRNZ 481 (23 February 1996)