R v Bradley CA205/97 [1997] NZCA 333; (1997) 15 CRNZ 363; (1997) 4 HRNZ 153 (22 October 1997)

Last Updated: 28 October 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 205/97

THE QUEEN

v

ADRIAN SHANE BRADLEY

Coram: Eichelbaum CJ

Thomas J Goddard J

Hearing: 29 September 1997

Counsel: A G Speed for Appellant

J C Pike for Crown

Judgment: 22 October 1997

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

Introduction

Mr Bradley is charged with five counts relating to the possession of a Class B drug, namely, cannabis oil, and two sawn-off shotguns with shotgun ammunition. These items were discovered at a dwelling house in Otara during a search conducted by the Police on 12 March 1996 under s 18(2) of the Misuse of Drugs Act 1975.

Through his counsel, Mr Bradley objected to the admissibility of this evidence on the ground it was obtained as a result of an unreasonable search and seizure in breach of s 21 of the New Zealand Bill of Rights Act 1990. The issue was heard and determined in the District Court pursuant to an application brought by the Crown
under s 344A of the Crimes Act 1961. In a ruling dated 23 May 1997, the District Court Judge disallowed the objection and ruled that the evidence which was obtained as a result of the search was admissible.

The present appeal has been brought against that ruling.

The background facts

Earlier in the evening of 12 March 1996, at approximately 7 o’clock, five people were seen by the Police driving a stolen car on East Tamaki Road in South Auckland. The car was stopped. The five occupants fled from the car making good their escape through residential properties in Otara. Later in the same evening, two of the suspects were apprehended. The Police were informed the three other suspects could be found at 4A Farley Street, Otara. A group of Police Officers then went to this address for the purpose of finding and apprehending the three remaining suspects.

Wishing to preserve an element of surprise, the Police parked their car down the road. A Sergeant and a dog-handler positioned themselves so as to cover the front door of the house. Constable Holmes and another Police Officer then approached open ranch-slider doors off an elevated balcony. They clambered on to the balcony and Constable Holmes went to the open doors. Although it is not entirely clear from the evidence, it appears the Constable did not enter the room before speaking to the occupants. Standing at the open door, he introduced himself to the persons in the room, some of whom were sitting on a couch. He said that he was looking for three suspects and identified them by name. One of the suspects was in the adjoining kitchen and he immediately acknowledged his presence. Constable Holmes then asked if he could look around the house for the two remaining suspects and was told by a woman in the group; “Go for it, do what you want”. The Constable knew that Mr Bradley was a resident at that address.

A search for the suspects was then undertaken. Constable Holmes went upstairs. He searched in three bedrooms, looking under the beds and in wardrobes. He then went into the bathroom and glanced behind the door. As he did so, he
noticed a flap of linoleum “sticking out” by his feet. The Constable lifted the flap up with his foot and, bending down slightly, noticed a hole under the bath. He could see a tinfoil package or packages through the hole.

The Constable immediately returned downstairs and informed the Sergeant he believed he had located some drugs. The Sergeant initiated a search under s 18(2) of the Misuse of Drugs Act, during the course of which the cannabis oil, shotguns and shotgun cartridges were found. It is the evidence of these items and their discovery which Mr Bradley seeks to exclude.

The appellant’s challenge

Mr Speed, who appeared for Mr Bradley, contended in argument that the search was in breach of s 21 of the Bill of Rights for the following reasons.

1. The Police became trespassers the moment they clambered on to the balcony, and their subsequent actions were unlawful.
2. It was not reasonable for the Police to believe they had obtained a valid consent to search the house.
3. If consent was given, it was an extremely limited consent, and did not include consent to search in bedrooms, under beds, in wardrobes and, in particular, to lift any flaps of linoleum.
4. If it is found that the search was unlawful and unreasonable in breach of s 21, then the breach was a substantial breach and the prima facie exclusion rule should apply.

These grounds may be examined separately, but the Police conduct ultimately will need to be looked at in its entirety. In addressing this question, regard must be had to all the circumstances relevant to the search. It is only when that is done that the Court can properly balance the State and citizens’ interest in the protection of the individual’s privacy and the wider public interest which society asserts in the effective investigation, prosecution and punishment of those who undertake criminal activity. (See R v Jefferies [1994] 1 NZLR 290, at 301-305, 315, and 318-319).

Were the Police trespassers?

In advancing the argument that the Police were trespassers, Mr Speed relied upon the established principle that the Police have no general right of entry on to private property for the purpose of obtaining any evidence, questioning persons, or making an arrest. To excuse what would otherwise be a trespass, the Police, he argued, would need to rely on the “implied licence” to knock on the door of a dwelling house and make an inquiry. See, for example, R v Evans (1996) 45 CR (4th) 210. His submission was that the Police acted outside the scope of this “implied licence” by departing from the front door and clambering up on to the balcony of the house.

A citizen’s fundamental right to privacy embraces the sanctity of his or her home. That right, generally encapsulated in the statement “an Englishman’s home is his castle”, cannot be violated by those persons in positions of power without authority founded in the law. Hence, every invasion of private property is a trespass unless properly authorised. Such a principle has been recognised as fundamental since Entick v Carrington [1765] EWHC J98; (1765) 95 ER 807; 19 St Tr 1029, and has been reaffirmed in decisions too numerous to recite.

But as critical as it is, the principle is not absolute. At times and on occasions privacy is forced to yield to the wider interests of the community, particularly the public interest in the detection and prosecution of crime. Thus, to meet the community’s insistent demand to combat crime and the public’s readiness to accept a greater degree of intrusion upon privacy to achieve that end, police excursions on to private property which would otherwise be trespasses have been excused by developments in the common law, or the enactment of statutory powers authorising searches under the authority of search warrants, or warrantless searches in restricted and closely controlled circumstances. (See R v Jefferies, supra, at 318-319). An early common law exception was the power of a police officer, as the conservator of the peace, to enter a dwelling-house to prevent a breach of the peace. Lord Hewart LCJ in Thomas v Sawkins [1935] 2 KB 249, at 255, later articulated the principle as authority for a police officer, ex virtute officii, to enter and remain on private premises
when he or she has reasonable ground for believing that an offence is imminent or is likely to be committed.

The “implied licence” was “either invented or articulated” (to use Cooke P’s language in Howden v Ministry of Transport [1987] NZCA 172; [1987] 2 NZLR 747, at 751) by a Divisional Court in Robson v Hallett [1967] 2 QB 939. It seemed to Lord Parker CJ (at 951) that “the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house”. Diplock LJ (as he then was) held (at 953) that “when a householder lives in a dwelling-house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business”. Such an implied invitation, however, extends no further than is required to permit communication with the occupant of the premises, and it can be negated by express reference or revoked altogether. Where the Police act in accordance with this implied permission their action is not regarded as an intrusion upon the privacy of the occupier. The implied licence effectively waives the privacy interest which the occupier might otherwise have in his or her home.

The essence of this concept, as we apprehend it, is to permit any member of the public, including a police officer, on legitimate business to come on to a property for the purpose of communicating with the occupier. This purpose was recognised by Sopinka J, delivering the judgment of the majority of the Supreme Court of Canada in R v Evans. The Court endorsed the statement of the Court of Appeal of British Columbia (at 217) to the effect that the purpose of the implied leave is “to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant”. Thus, the Supreme Court held (at 217-218) that the implied invitation to knock extends no further than is required to “permit convenient communication with the occupant of the dwelling”. Only those activities that are “reasonably associated with the purpose of communicating with the occupant” are authorised by the implied licence.
But Mr Speed asserted that the implied licence in this case was limited to the Police entering the property by the gate and knocking on the front door. We believe that he construed the licence too narrowly.

In the first place, it is to be borne in mind that this “exception” to the inviolability of the principle that a person’s “home is his castle” exists to serve the public interest in the effective investigation of offences and the punishment of those responsible. The scope of the licence cannot be defined without regard to that “public interest”. While this factor cannot be permitted to enlarge the implied licence beyond what is reasonable in the circumstances, it militates against the adoption of an unduly restricted definition such as that advanced by Mr Speed.

Secondly, as the purpose of the implied licence is to enable persons, including the police, on legitimate business to enter the property to communicate with the occupier, the nature of that business cannot be disregarded. On the part of the police, it may include the making of inquiries, a request to be admitted to the premises, or permission to perform some other act on the property. (See, e.g., Neville v Halliday; Brida v Halliday [1983] 2 VLR 553). Consequently, notwithstanding that the implied licence as framed in Robson v Hallett provides police officers with the implied licence available to any member of the public, the scope of the implied permission for a police officer to pursue his or her legitimate business will not necessarily be the same as the implied licence for, say, a postman or stranger merely seeking directions. The lawful business of each differs, and with that difference, the occupier’s expectation of privacy may also differ. The scope of the authority to enter may vary so as to permit that which, having regard to the householder’s reasonable expectation of privacy, is reasonable in the circumstances.

Thirdly, it is to be appreciated that the facts of Robson v Hallett did not require the Divisional Court to address the possibility of the implied licence extending beyond a right to enter and “knock” on the front or back door of a house. In that case the Constable alighted from a police vehicle and entered the property via the front gate. He then passed directly through the yard or garden to the front door of a semi- detached Council house. In rejecting the submission made on behalf of the occupier
that the Police were trespassers, the Court related the implied licence directly to the facts of that case. Hence, the express reference in the dicta of Lord Parker CJ and Diplock LJ quoted above to “the gate”, “the steps” and “the garden”. Lord Diplock, for example, cannot be taken to have intended to restrict the implied permission to a dwelling-house “to which there is a garden in front”. Nor could it be reasonably suggested that a police officer who enters upon property on lawful business would be unable to communicate with a householder who was observed in the garden or yard or who could be seen in the house through an open door or window. The implied licence to enter must be defined in terms of what is reasonable to enable the police officer to communicate with the occupier of the dwelling-house.

Having regard to the above factors we would be prepared to hold in this case that the entry of the Police on to the property in question and the subsequent communication with the occupants who could be seen through the open ranch-slider door came within the terms of the “implied licence” - if those were the facts. But they are not the facts. Having received information that the three suspects who had fled from the stolen car were at the address, the Police went there with the objective of finding and apprehending the suspects. They did not approach the front door of the house and, contrary to the trial Judge’s finding, their approach to the open ranch- slider doors almost certainly would have been deliberate. They undoubtedly wished to contain the suspects within the property.

Consequently, we consider that it is not possible to sustain the finding of the District Court Judge that the Police entry in what she described as “an unusual manner” was due to a “mistake or misapprehension” as to whether there was another more suitable and perhaps more formal entrance, and to “convenience because of the layout of the house relevant to the street and grass reserve”. The ranch-slider was clearly not a door for the purpose of egress. The balcony off the ranch-slider doors was elevated some feet from the ground and had no steps to enable it to be approached from the yard. The Police Officers had to clamber up over the balcony. In our view, this mode of entry, irrespective whether the Officers could see the occupants of the house or not, exceeded the terms of the implied licence to enter a property for the purpose of communicating with them. For that reason we consider
that the Police’s entry in this case cannot be regarded as having been authorised pursuant to the “implied licence”.

The significance of this initial unauthorised entry, however, is minimised if the Police then obtained an effective and valid consent to enter the house and search for the suspects. Such a consent would have the effect of excusing or condoning the Police’s irregular entry on to the property, and the subsequent actions of the Constable would occur in the course of a lawful search for suspects pursuant to that consent. In effect, the consequences of the unauthorised entry would be overtaken by the express permission to undertake the search. It is, therefore, necessary to move to the question of the validity of the consent in issue.

Did the Police have consent to enter the house?

It was accepted by Mr Speed, we consider correctly, that valid consent to a search may be given by an occupier of the property where his or her conduct and the circumstances which pertain reasonably lead the police officer to conclude that the person had authority to give that consent. Whether such consent has been given is a question of fact to be determined from all the circumstances. Similarly, in this case, whether it was reasonable for the Constable to conclude that the woman who responded to his question had the authority to consent is also a question of fact to be resolved having regard to all the relevant facts.

In the circumstances of this case, we consider the invitation issued by the woman occupant was sufficient to constitute permission for the Police to carry out a search of the house for the remaining suspects. There was no reason why Constable Holmes should doubt that the woman had authority to give permission. The Constable knew Mr Bradley lived at the address, but there is no evidence that he had any reason to suspect the woman was not also living at the address or in a position to respond to his request. If she in fact had no authority or status she could have been expected to avoid a positive answer. In fact, the very words she used, “Go to it, do what you want”, imply that she had the authority to permit the Constable to enter the
house and conduct a search for the suspects. Nor was there any dissent or demurer from any other person who was present.

Mr Speed urged upon us that the Constable should have made further inquiries. He should have asked, Mr Speed elaborated, if the woman lived at the house and confirmed that she had the authority to permit him to enter. We do not consider that the Constable was under any such obligation. The question whether he could reasonably accept the woman’s response as conveying permission to enter the house and conduct the search must be assessed against normal standards of human behaviour in New Zealand. The position may be different in Canada or in the United States. But we consider that in this country, unless something out of the ordinary is present, the response of an unidentified occupier purportedly exercising authority can be taken at face value. A meter-reader, inspector, or the like, seeking permission to enter a house would be unlikely to go beyond the person purporting to give that permission or question the person’s authority to do so.

In our view, therefore, Constable Holmes obtained a valid consent to conduct the search for the remaining suspects. He asked for permission to enter and search for the suspects whom he named and he received that permission from a person ostensibly having the authority to grant permission in terms implying or confirming that she had the authority or status to do so.

A limited consent

Mr Speed further submitted, however, that any such consent was limited in its terms and was not a consent to search in bedrooms, under beds, in wardrobes, or elsewhere for the suspects. He would have it that the Constable could look into the various rooms, but no more. Frankly, we think that this submission is quite untenable. Clearly, the approval given to carry out a search for the suspects must extend to searching any places where those suspects might be hiding.

Lifting the flap of linoleum

Once it is accepted, as we have found, that the Police were authorised to search the house for the suspects, the only significant question which remains relates to the Constable’s action in lifting the flap of linoleum with his foot and detecting a tinfoil package or packages through the hole which was then revealed. Quite clearly, the Constable was not looking for either of the remaining suspects in lifting the flat of linoleum.

The District Court Judge held that the Constable had lifted the flap with his foot “because of curiosity engendered by his job”. We agree that the Constable would not have lifted the flap out of idle curiosity. Something about the way in which the linoleum was “sticking out” would have aroused his suspicion. His reaction might well have been instinctive, but it would have been the trained instinct of a police officer. In such circumstances it would be unrealistic to suggest that the Constable should not have lifted the flap of linoleum and, finding a hole, have peered into it.

We should observe that the evidential foundation to proceed with any finality on the question whether or not the Constable’s action amounted to a search is somewhat deficient. There is no evidence describing how the linoleum was “sticking out”, where exactly the hole was, how large it was, or how visible the tinfoil package or packages were through the hole. Counsel could have been expected to seek to establish more definite facts on which to base a claim that what the Constable did constituted a search. But this was not done. Mr Pike, who appeared for the Crown, however, proceeded on the basis that the Constable’s action amounted to a search. We, too, will proceed on that basis.

Was the search unreasonable?

Having regard to all the circumstances, we have decided that the search was not unreasonable and was not, therefore, in breach of s 21.
The question whether the Constable’s action was unreasonable needs to be put in context at the outset. The Police went to the address in question having been reliably informed the three suspects would be found there, and they were contemplating apprehending them at that address. Hence, the number of Police Officers and the use of a police dog. Constable Holmes and another police officer climbed on to a balcony and spoke to the occupants of the room through open ranch- slider doors. The Constable was invited by an occupant to search the house for the suspects and he had no reason to question her authority. He carried out the search. It was in the course of this lawful search that the Constable’s trained curiosity was aroused by a raised flap of linoleum. He lifted it with his foot and saw the hole under the bath. Peering into it he saw a tinfoil package or packages which he correctly anticipated were drugs. The Sergeant was advised, and a lawful search then was carried out during which the drugs, firearms and ammunition were found and confiscated by the Police.

There is nothing in this conduct which we consider seriously impinges upon the individual’s right to privacy and requires censure. Indeed, most members of the community would regard the law as defective if it were to condemn as unreasonable the Police actions on this occasion. Certainly, this is not a case where the Police could be said to be in “hot pursuit” of the suspects who had fled at the time the stolen car was stopped. On the other hand, it is not a case where the Police were simply pursuing inquiries. Their lawful business encompassed finding and apprehending the suspects. Further, while the Constables’ mode of their entry, that is, clambering on to the enclosed balcony and approaching the occupants of the house through the open ranch-slider doors, must be considered beyond the terms of the implied licence to enter on to property for the purpose of communicating with the occupants, it would be unrealistic to suggest that the Officers should have knocked on the front door and, after identifying themselves and their business, inquired whether the suspects were within the house. If the suspects were in the house, they would no doubt have made good their escape within a matter of seconds yet again. And, as we have said, the legal significance of this mode of entry was overtaken by the consent given by the woman occupant to permit Constable Holmes to search the house for the remaining
suspects. At the time the Constable lifted the flap of linoleum with his foot he was lawfully on the premises conducting a search for the suspects.

The particular grounds on which we base our view that the search was not unreasonable may be now stated.

First, the search cannot be said to defeat the householder’s reasonable expectation of privacy. As s 21 essentially is concerned to protect those values or interests which make up the concept of privacy, the question whether a search is unreasonable or not must be related to that concept. An assessment must be made whether, in the particular situation, the individual’s interest in being left alone must give way to the State’s interest in intruding on his or her privacy in order to advance its goals, notably the objective of law enforcement. It is when the assessment points to the community’s interest in law enforcement being paramount that a search cannot be said to be unreasonable. It is this framework for balancing one set of values and interests against another which has been incorporated in s 21 by the considered use of the word “unreasonable”. (See R v Jefferies, supra, at 319).

Relating the “reasonableness” of the search to the concept of privacy, therefore, means that the Court must initially inquire what legitimate or reasonable expectation of privacy the householder has in the particular circumstances of the case. It is that interest which is being protected. In this regard, while acknowledging in full the citizen’s interest in protecting his or her privacy in their home, we do not consider the householder would have a high or significant expectation of privacy in the floor or space beneath their bath. It is the expectation in respect of that space which is relevant when the Police Officer is already lawfully in the home engaged on a search for the suspects. The householder’s privacy interest in the space under the bath cannot be anywhere near as great as it would be, for example, in the case of the contents of a chest of drawers. Lifting a flap of linoleum cannot be placed on a par with opening the drawers of a chest.

Secondly, assuming that the householder has a legitimate and reasonable expectation of privacy, the Court must ask to what extent, if at all, the search intruded
upon that expectation or interest. In this case we believe the degree of intrusion was minimal. Again, the act of the Constable in lifting the flap of linoleum with his foot and bending down slightly so as to be able to peer into the hole which was then revealed cannot be compared with the opening of a drawer of a chest of drawers. In this case no intrusive search was involved. Indeed, the facts of this case are not far removed from the line of cases based on Ghani v Jones [1970] 1 QB 693 which permit the police, lawfully on any premises, who see something which they suspect on reasonable grounds may provide evidence of an offence, to seize it for evidentiary purposes. The basic notion underlying the principle is that it would be unrealistic and unreasonable to require police officers who unexpectedly find property where it is likely to provide evidence of an offence while in the course of lawful activity, to first obtain a search warrant before seizing that property. Similarly, the facts of this case are close to the kind of situation recorded in R v Dodgson (14 December 1995, CA 441/95) where the illicit goods were exposed to open view. This would have been the case if the flap of linoleum had not been in place and the hole was apparent to the naked eye. No search then would have been involved. While it is accepted, however, that the present case does not fall within either of these propositions, they provide a sound indication of the minimal intrusiveness of the Constable’s act in lifting the linoleum and looking into the hole which was then revealed.

Thirdly, we believe it also would be unrealistic and unreasonable to expect a constable engaged in a lawful search within a house to suppress his or her training and instincts as a police officer and disregard something which aroused their suspicions of criminal activity. It would be absurd to suggest in this case that, if the Constable had seen tinfoil packages in plain view while looking under a bed or in a wardrobe, he would have been obliged to ignore what he had seen. A police officer lawfully in the house engaged in a search for one purpose cannot be expected to ignore circumstances which give rise to a suspicion of criminal activity in another direction. Once Constable Homes had sighted the tinfoil packages, there is no doubt and, indeed, it was not disputed, that the Police were justified in carrying out a search pursuant to s 18(2) of the Misuse of Drugs Act. See R v Smith [1996] NZCA 22; (1996) 13 CRNZ 481, at 484-485.
For these reasons we consider that, in the circumstances of this case, the householder’s reasonable expectation of privacy could not be said to be significant, and the action representing the search was not intrusive or outside the responsible reaction of a trained police officer engaged in a lawful search. In such circumstances the community’s interest in law enforcement is paramount and the search cannot be said to be unreasonable.

The appeal is dismissed.

Solicitors

A G Speed, Auckland for Appellant Crown Law Office, Wellington for Crown