The Queen v Lewis [1999] NZCA 84; (1999) 5 HRNZ 490 (13 May 1999)

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The Queen v Lewis [1999] NZCA 84 (13 May 1999); (1999) 5 HRNZ 490

Last Updated: 5 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA399/98

BRENT ALEXANDER LEWIS

V

THE QUEEN

Hearing:	13 May 1999
Coram:	Tipping J Doogue J Robertson J
Appearances:	G. Mason for appellant J.C. Pike for the Crown
Judgment:	13 May 1999

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1] This is an appeal against conviction upon the basis that the jury verdict was dependent upon evidence obtained as a result of a search of premises without a warrant and that the search was both unlawful and unreasonable and in breach of s. 21 of the New Zealand Bill of Rights Act 1990.
[2] The appellant was arguably a joint occupier with the complainant and another person of a flat in Feilding. On Sunday 27 April 1997 the police received a call from the landlords, who lived in an adjoining flat. It was said there was a lot of banging at the flat occupied by the appellant and the complainant and words suggesting the complainant was being assaulted. When the police attended at the address, a constable saw broken windows, blood on an internal wall and blood on the appellant. The appellant told the constable to leave. The constable heard a weak female voice within the premises. The appellant was arrested for wilful damage in respect of broken windows. He asked whether he could go home. The constable and two further constables were told by the appellant not to enter the flat. However, the constables entered the flat and found the complainant gravely injured in one of the bedrooms. When asked whom she lived with, she responded by saying “myself”. She told the police in the flat that she had no wish to lay a complaint or to say who had hit her. The appellant was, however, the only person upon the premises apart from the complainant. She was suffering a life-threatening injury but fortunately prompt attention saved her life.
[3] Following the police entry into the flat and the discovery of the condition of the complainant, a detailed scene examination was conducted by the police with the assistance of forensic scientists. The objection taken on behalf of the appellant is limited to the evidence obtained during that scene examination, given that there was no search warrant in respect of it. There is no objection to the original entry or to what occurred up until the ambulance officers arrived at the property to take the complainant to hospital.
[4] The appellant’s submissions are to the effect that the appeal raises the question of whether a search warrant is required for the search of a house occupied by a complainant and an accused which is reasonably believed to have been the scene of a crime. It is submitted for the appellant that, while the question may not be one capable of a general answer, for the purposes of the present appeal the scene of the crime was so secure that its evidential value was unlikely to diminish and a search warrant could easily have been obtained. It is therefore submitted that once the scene was secure, with the complainant receiving treatment and the appellant in custody, no further search or seizure could be justified by the urgency of the circumstances and that, as a result, anything that took place thereafter was both unlawful and unreasonable.
[5] The view of the District Court Judge was that the appellant’s right to exclude persons from the flat was but one factor in assessing the reasonableness of the search as the appellant to some extent compromised his own claim by his request to be permitted to go home and in any event the complainant also had an interest in the property. The Judge took the view that when the complainant was incapacitated there was an implied right of entry not only to enable the complainant to avail herself of immediate protection and medical assistance but also to allow the police to take steps against the person from whom the attack has come and from whom further attack may be possible at some later time. The Judge took the view that the victim’s property rights constituted a factor to be weighed along with the State’s interest in the prosecution of offenders and the accused’s property rights. Although in this case the complainant indicated to the police that she did not wish to see the person who attacked her charged, her medical state at such a time was such as to give rise to caution in accepting her assessment of the situation. So far as those carrying out the search were concerned, there was nothing to forestall the ordinarily sensible and proper assumption, in the view of the Judge, that the occupiers of the premises other than the appellant would grant the right of entry. He said:

If not grotesque, it would certainly not be in accord with community expectations that the Police would need a warrant to search the home of a victim who has been attacked and seriously injured in that home.

[6] It was thus reasonable in the view of the Judge, whatever the lawfulness of the position, for the police to do what was done.
[7] For the appellant it is said that the starting point is R v Grayson & Taylor [1997] 1 NZLR 399, 407:

A search is unreasonable if the circumstances giving rise to it make the search itself unreasonable or a search which would otherwise be reasonable is carried out in an unreasonable manner. So too seizure. Whether a police search or seizure is unreasonable depends on both the subject-matter and the particular time, place and circumstance.

....

Illegality is not the touchstone of unreasonableness. In terms of s. 21 what is unlawful is not necessarily unreasonable. The lawfulness or unlawfulness of a search will always be highly relevant but will not be determinative either way.

For example, the urgency of the moment or a reasonable misapprehension as to the authority to search or excusable non-compliance with the precise statutory requirements may diminish the significance otherwise attaching to search laws. But if a search warrant is readily obtainable that must tell strongly against an unauthorised search.

[8] It is submitted for the appellant that the District Court Judge’s reasoning was inconsistent with Grayson & Taylor as there was ample opportunity to obtain a search warrant in respect of the scene search. It is submitted that the Judge’s finding creates an exception to Grayson & Taylor.
[9] With all respect to the careful and detailed submissions for the appellant, they ignore the reality of the situation. Regardless of the lawfulness of the position of the police after the ambulance officers had arrived, and we express no concluded opinion on that point, it is apparent from the circumstances of the case that what the police did was reasonable.
[10] So far as the lawfulness of the police’s position is concerned, they were present under an implied licence. The appellant seeks to limit the extent of that licence. We are not satisfied that the implied licence could necessarily be limited in the manner sought by the appellant. The appellant acknowledges that the appellant was lawfully arrested, which itself gave rise to power for the police to search and seize from the person and the immediate environs any relevant evidence. It is submitted for the appellant that that did not extend to the scene search carried out here. We find it difficult to see the rationale in that submission in the circumstances of the case. Thus, whilst we express no concluded view on the lawfulness of the police’s position, we have a preliminary view, contrary to that of the District Court Judge, that the police were more likely to have been lawfully upon the premises than otherwise.
[11] In any event, however, like the District Court Judge, we are of a firm and concluded view that the scene search carried out by the police after the arrival of the ambulance officers was entirely reasonable and could in no manner be categorised as unreasonable. It is accepted that the police were properly on the premises to assist the complainant. There was clear evidence of a crime of violence being committed against the complainant within the property. It is unreal in those circumstances to suggest the police have to apply their minds to the point at which they need a search warrant to obtain further evidence of that crime, of which there is already evidence, within the property. The doctrine of inevitable discovery had to apply to the evidence.
[12] However the case is approached, there would be no basis for a determination that the police’s actions in the present case were unreasonable. It would be wrong for this Court to give any indication that the police, acting reasonably upon the discovery of a serious crime of violence within a property, were to be limited in their investigation of that crime within the property by the rights of an accused occupier under the New Zealand Bill of Rights Act 1990 in respect of search and seizure in circumstances such as the present case. The consequence is the appeal must be dismissed.

Solicitors
Crown Law Office, Wellington, for the Crown