THE QUEEN v MICHELLE RATIMA & PATRICK WARREN [1999] NZCA 307 (14 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca373/99 CA374/99

THE QUEEN

V

MICHELLE RATIMA & PATRICK WARREN

Hearing:	28 October 1999(at Auckland)
Coram:	Tipping J Heron J Robertson J
Appearances:	C B Cato for Crown E R Fairbrother for Appellants
Judgment:	14 December 1999

judgment of the court delivered by HERON J

[1] This is an application for leave to appeal against a decision of the District Court admitting certain evidence following an application by the Crown pursuant to S.344A of the Crimes Act 1961.The application involves a search warrant and the circumstances were the subject of a voir dire hearing before the District Court.

[2] Early on the day of the execution of the search warrant, a constable had spoken to Malcolm, the brother of the accused, Michelle Ratima about certain property alleged to be stolen.It was claimed by Malcolm Ratima that the property belonged to Michelle.Malcolm was then arrested and taken to the Napier Police Station and heldthere pending enquiries being made of Michelle.The constable went to the address where Michelle lived.The police officer said heneeded to talk to her on the basis that he did not want her brother, when released from police custody, to talk to her concerning his interview and the story he had given before the police had spoken to her.He went to the front door which was in fact a door on the side of the small house, and on receiving no reply to his knocking, continued along a concrete path until he reached a gate which he climbed over.The gate had on it "No Entry - This Gate is Locked".

[3] The Judge found that the constable had in fact clambered over the gate to go to the back garden.Michelle was not there.The constable saw a container with cannabis seedlings growing in it.He seized the same pursuant to S.18 of the Misuse of Drugs Act 1975.He searched no further and on returning to the police station, obtained a search warrant based on what he had observed.As the Judge noted, there can be no doubt that the constable gained access to the back yard of the property, by climbing over a gate which had the signage on it which must have been obvious to him.

[4] The appellants are charged with cultivating cannabis at their address, 122 Wellesley Road, Napier.Discovered there were cannabis plants and seedlings inside a shed in the backyard of that address.Related equipment and other paraphernalia associated with cultivation were also discovered.

[5] Although we were not told of the basis on which Michelle's brother continued to be detained at the Police Station, we note for the purposes of this case, that this inquiry of Michelle and a visit to her house was a legitimate procedure for the police officer to take, and preferably before there was any opportunity for suspected collaboration to occur.We have no information on the likelihood of that occurring and do not consider it is necessary to explore that further.Nonetheless, that is the background against which we have to determine the lawfulness and consequent outcome of what occurred.

[6] The particular argument before the Judge was within a narrow compass.He recorded the argument that the initial search and seizure was unlawful, it being a search consequent upon a trespass.The policeman could have called out and made an enquiry from the gate as to whether anybody was at the back of the house, after he received no reply to knocking on the front door.Counsel submitted that if the initial entry was unlawful and unreasonable then its unlawfulness and unreasonableness affected the otherwise validly obtained search warrant.

[7] The Crown on the other hand, submitted there was an implied licence permitting the constable to go into the backyard but if that entry was without lawful authority there was nothing unreasonable in what followed.Counsel submitted the original entry was lawful but if it was unlawful, then the subsequent search and seizure were reasonable and that applied to the search and seizure pursuant to the warrant as well.

[8] In the critical finding the Judge found that the constable had an implied licence to go onto the address in order to make enquiries of Michelle and that as he was unable to make contact by knocking on the front door, he was entitled to try and locate Michelle by proceeding down the concrete path to see if she was in the back yard.He felt it would have been obvious to anyone who went on to the property that the occupier did not want uninvited persons proceeding through the gate, but notwithstanding that, he was entitled to enter the backyard for the purposes of attempting to find Michelle to check the story in respect of the enquiry that he was making.The Judge found that he did climb over the gate and did not kick the gate open.He said:

I find that whilst the constable was a trespasser at the time he climbed over the gate, he nonetheless was still involved in police enquiries.It would not have been appropriate to apply for a search warrant at that time because he wished to speak to a person and not search for property.If Michelle had been in the back yard then she may have consented to speak with him and thus licence him to be where he was originally directed by notice not to be.It is true, that he could have called out to see if anyone was there.Of course, if there had been someone there who did not wish to speak to the constable, then no answer was the likely reply.He did not callout, he climbed over the gate.

[9] Before us Mr Fairbrother submitted the search should be determined to be unfair on the grounds of illegality and consequent unreasonableness.

[10] The Crown on the other hand submit that the police officer had an implied licence to enter the property in order to pursue lawful enquiry and that this was not terminated by the fact that the gate was locked.It was submitted there was no collateral purpose in attempting to find evidence in order to support a search warrant, or acting in any other collateral way, in order to secure evidence against the accused.The Crown says even if the constable was a trespasser, the seizure of the incriminating evidence and subsequent search and seizure under warrant, were not unreasonable.It is said the search was of limited duration and did not interfere with the enjoyment by the occupier of the premises.

[11] It is settled law that the actions of the police officer in proceeding to the front door were justified on the basis of the implied licence which visitors to any property are deemed to enjoy.Howden v MOT [1987] 2 NZLR 747, 751.The termination of such licence either at the time or earlier is also recognised and in our view any licence to proceed further was effectively revoked or curtailed by the fixed nature of the gate and the notice which it contained. See Robson v Hallett [1967] 2 QB 939.

[12] Applying the implied license test as articulated in Howden v MOT it has always remained a matter of degree as to how far and to what extent the license authorised entry onto private property.In R v Bradley [1997] 15 CRNZ 363 entry onto a deck and open ranchslider doors where there were no steps was not implied into the license.In the course of discussing the facts arising from various authorities, Thomas J said:

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. (368)

[13] Although a car was parked in the car port serving the dwellinghouse, there was no sign of the occupier and no enquiry was undertaken by way of calling out or making enquiry of neighbours.

[14] The leading authority on the admissibility of evidence obtained in these circumstances is R v Grayson & Taylor [1997] 1 NZLR 399.We refer to the ten criteria which were set out in that judgment of this court and which provide the background for our consideration of the admissibility of the evidence discovered following the search warrant.

[15] In R v Grayson & Taylor the warrantless search of an orchard about which the police had received information was considered.They had to negotiate electric fences.They stayed on the property for approximately five minutes and caused no damage.The attack on the search warrant which followed was on wider grounds than in this case, but it was agreed the police had no implied licence to enter the premises but their search was otherwise reasonable.The occupiers had created a suspicion of criminal activity.In contrast the entry here onto the premises was merely to check an explanation given by a person who did not live at the address but from whom a confirmation or explanation could be given to the police.

[16] The policeman when he entered the area beyond the gate was in our view a trespasser and the search that he then conducted resulting in the seedlings being discovered was illegal.S.21 New Zealand Bill of Rights Act 1990 provides:

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

[17] There was nothing compelling by its urgency in the circumstances requiring the policeman to interview the appellant Michelle.We accept that it was prudent and proper police practice to act to prevent any collaboration, but locating her could not in itself justify immediate action by way of trespass. We note that it would be for the Crown to justify the urgency based on the facts of the other case but this was not adequately demonstrated.

[18] The entry onto property was in the close confines of a dwellinghouse and not in the more remote area such as an orchard or paddock.Alternative means of locating Michelle by calling out to any person present in the yard before climbing the gate or making enquiry of neighbours, were not pursued.

[19] Evidence found as a result of a trespass is not automatically excluded. The extent of the trespass, and the importance and urgency of the trespasser's business, will be relevant to reasonableness, and thus to admissibility.Here the trespass was deliberate and in the face of a revocation or limitation of the implied licence to enter.The Constable's business was relatively unimportant and of no great urgency.The first finding, which was the springboard for obtaining the search warrant, was entirely fortuitous.

[20] This was in our view a serious invasion of privacy which if approved would allow relatively unfettered access by police officers into the privacy of the surrounds of a domestic dwellinghouse for the purpose of speaking to prospective witnesses.The law should not allow such to occur in this case, on the basis of public interest in the effective investigation of offences.The appropriate sanction to impose is that the evidence of the two searches and seizures be held not admissible.

[21] Accordingly the application for leave to appeal is granted.The appeal is allowed.The evidence arising from the initial entry onto the premises and the further findings following the exercise of the search warrant may not be called in evidence.

Solicitors:

Crown Solicitors Office, Auckland for Crown

E R Fairbrother, Napier for Appellants