The Queen v Greenwood [2001] NZCA 238; (2001) 6 HRNZ 454 (20 August 2001)

Last Updated: 12 December 2011

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA163/01

THE QUEEN

V

WAYNE GREENWOOD

Hearing:	20 August 2001
Coram:	Blanchard J Salmon J Potter J
Appearances:	R J Hooker and L J Rooney for Appellant S P France for Crown
Judgment:	20 August 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] The appellant faces three charges, pursuant to the Misuse of Drugs Act 1975, of selling cannabis, cultivation of cannabis and possession of cannabis for sale, arising out of a search of his premises by the police on 12 December 2000. He challenges the admissibility of evidence obtained in that search. On a s344A Crimes Act 1961 application by the Crown, the District Court at Manukau held that the relevant evidence is admissible at trial. The appellant now applies for leave to appeal against that finding.

Facts

[2] At approximately 7:40am on 12 December 2000, three police officers and an immigration officer attended the appellant’s residential address in Auckland. The appellant was living with his partner, Ketipha Thongasi, and his two children. The purpose of the officers’ visit was to execute a removal order on Ms Thongasi under s137(1) of the Immigration Act 1987:

137 Powers of entry and search

(1) For the purpose of serving or executing any removal order or deportation order or any notice under section 20(2) or notice under section 34C(3)(a) of this Act, any member of the Police may, on producing the order or notice but without further authority than this section, and by force if necessary, enter at any reasonable time by day or night any building or premises in which the member of the Police believes on reasonable grounds that the person named in the order or notice is present.

[3] On arriving at the front door, which was already open, Constable Carter met one of the appellant’s sons. The constable asked whether Ms Thongasi was at home. The son went and spoke to a Thai woman who, on seeing the police officer, went down a set of internal stairs. Constable Carter, in his evidence, said she was running. The constable entered the residence and proceeded to follow her. The other police officers entered the residence from the back door.
[4] Halfway down the stairs, the constable was met by the appellant, who asked what the constable was doing in his house. The officer informed him that he was there with an immigration warrant. Constable Carter gave evidence at depositions that, while standing on the stairwell, he smelt cannabis. The constable followed the appellant back up to the kitchen, at which time he informed the appellant that he was invoking s18(2) of the Misuse of Drugs Act 1975. The immigration officer, Ms Bentley, gave evidence that it was not until Constable Carter, the appellant and Ms Thongasi entered the kitchen that she was able to serve the removal order.
[5] An extensive search was then made, in which the officers, with the co-operation of the appellant, found a large number of cannabis plants in a hydroponic set-up, five bags of cannabis seeds and some dried cannabis on a desk, together with 19 snaplock bags. The Police also located over $700 cash in a belt bag. The appellant admitted ownership of the plants and that he had intended to sell them. He said he had been selling cannabis for nine months. He accepted also that at least part of the $700 found was from the sale of cannabis.
[6] The appellant challenges the admissibility of the evidence obtained as a result of the police search on the basis that the search was both illegal and unreasonable and was in breach of s21 of the New Zealand Bill of Rights Act 1990.

The District Court

[7] The District Court Judge said the police officers and the immigration officer clearly had authority to be at the door of the appellant’s residence. The issue was whether the officers entered the premises lawfully in all the circumstances. In answering this question in the affirmative, the Judge said:

Section 137(1) of the Immigration Act 1987 confers wide powers to enter private residences for the purpose of serving removal orders, when it is believed on reasonable grounds that the person named in the order is present and attending officers may use reasonable force if necessary.

On this factual situation there were reasonable grounds for believing that the person named in the order was present. She was seen through the open door. She then chose to avoid contact with the visiting police officers and thereby precluded them from producing the order to her until shortly after when she returned to the kitchen.

Situations can be envisaged where persons named in a removal order would refuse to come to the door to be served. The order would in those circumstances not be produced in the sense of being shown to the person named, prior to entering the premises, or if “produced,” is used in the sense that defence counsel seek to have the Court accept, as a requirement prior to entry. I accept that the order was produced at the first opportunity and I also accept that in the special circumstances of this particular factual situation that the entry into the premises was lawful, or the purpose of the Act would be defeated.

[8] In the alternative, the Judge said that, even if she was wrong as to the legality of the search, the search was not “unreasonable” for the purpose of s21 of the Bill of Rights. The Judge took into account that, on entering the premises, Constable Carter had become aware of the presence of cannabis; that the constable’s entry into the appellant’s residence was caused by Ms Thongasi’s conduct in fleeing; that, when speaking to the police, the appellant had not attempted to revoke any of the officers’ purported rights to be on the premises; that the appellant had fully co-operated with the officers’ search; and that the cannabis growing operation had been of significant scale.

Submissions of the appellant

[9] Counsel for the appellant, Mr Hooker, submitted that the Judge erred in finding that the police officers’ search of the appellant’s residence had been both lawful and reasonable. The officers’ right to enter the premises was governed solely by s137. Counsel submitted that strict adherence was required in interpreting the provision. As the officers had failed to produce the removal order before entering the building, their entry was illegal. The police were therefore unable to exercise their powers of search under s18(2) of the Misuse of Drugs Act. Counsel submitted that the Judge had erred in finding that it was sufficient under s137 for the order to be produced at the first reasonable opportunity.
[10] Counsel submitted also that, irrespective of its illegality, the officers’ search had been unreasonable in terms of s21 of the Bill of Rights. Mr Hooker referred to s198 of the Summary Proceedings Act 1957, which provides for police officers’ general powers of search under search warrants. Unlike s137 of the Immigration Act, which expressly requires officers to produce the relevant order or notice before entering the building or premises in question, s198 merely requires officers to have the relevant search warrant with them and to produce it if required to do so. Despite the more relaxed requirements as to production in s198, counsel submitted, officers acting under a s198 search warrant are nevertheless required to take certain minimum steps before they can legally and reasonably enter a building or premises. Counsel said they must first inform the occupier of their presence, their authority and their purpose in entering the building (R v Briggs [1995] 1 NZLR 196, 201); that these minimum requirements are to reduce the risk of a violent response by the occupier.
[11] Counsel submitted that these requirements should also apply to s137 powers of entry, particularly when the s137 production threshold is even stricter than its s198 counterpart. It was always necessary for the order or notice to be produced – even outside an unopened door and whether or not the occupants might be aware of what was being done – before any power of entry could be exercised. As the officers had failed to take these steps before entering the appellant’s residence, counsel said, their entry was akin to “an unannounced peaceable entry of occupied premises”, which this Court described in Briggs (at p202), in the context of s198, as “likely to render the search unlawful, and also unreasonable in terms of s21 of the Bill of Rights Act”.
[12] Mr Hooker also identified further factors which, he submitted, added to the unreasonableness of the officers’ search. In contrast to R v Grayson & Taylor [1997] 1 NZLR 399, where the police had searched a farm, the officers in this case had invaded the appellant’s private dwelling. In addition, he said, the police were attending the property merely to assist an immigration officer on immigration matters. They were not at the property in connection with a crime. They were neither in hot pursuit of a criminal offender, nor attempting to detect or prevent a criminal offence. Further, the police had failed to make any attempt to produce the removal order before entering the premises, even though it was impossible for Ms Thongasi to escape the property; Constable Carter had known there were police officers at the only other entrance to the house.
[13] Mr Hooker submitted also that the Judge had erred in relying on evidence contained in the briefs of evidence of Constable Carter and the immigration officer, as given at depositions, that fell outside of a statement of facts which had been agreed upon by counsel for the purposes of the Crown’s application. In reaching her conclusions on legality and reasonableness, the Judge had taken into account the immigration officer’s evidence that it was not until Constable Carter, Ms Thongasi and the appellant re-entered the kitchen that she was able to produce the removal order. She had accepted also Constable Carter’s depositions evidence that Ms Thongasi, upon seeing him, had “run” down the stairs; as well as his evidence of smelling cannabis while in the stairwell. Mr Hooker submitted that, where the parties in a s344A application have agreed to proceed on the basis of a statement of facts, the Court has no authority to consider other factual material. He observed also that admission of the written statements under s173A of the Summary Proceedings Act was not an acceptance by the appellant of the truth of their consequences.

Submissions of the Crown

[14] For the Crown, Mr France submitted that the police officers had come to the door to serve the removal order and Ms Thongasi had run downstairs. It was a reasonable inference that she had done so because she knew why the Police were at the premises. The agreed statement of fact shows that Constable Carter saw her do this. There was no prejudice to the appellant in the Judge’s factual finding and the inferences which she drew.
[15] It was the Crown’s submission that the Judge’s conclusion that the removal order was produced at the first opportunity was irresistible. It was unrealistic to suggest that circumstances of apparent emergency could not alter the order of events, as the Judge had indicated. The person reasonably suspected to be the subject of the order had been apparently evading service. It was permissible and correct to pursue her. As soon as the constable encountered the occupier, Mr Greenwood, he had announced that he had the warrant and accompanied Mr Greenwood to the kitchen.
[16] Mr France said that the initial entry was lawful and the subsequent search and seizure was reasonable. After smelling cannabis the officer was entitled to invoke s18(2) of the Misuse of Drugs Act.
[17] Mr France also submitted that there was no particular pattern to be discerned in the various legislative provisions governing powers of entry from which it was to be taken that in the case of s137 of the Immigration Act there could be no departure from procedure involving production of the order before any entry.

Conclusion

[18] We find ourselves in entire agreement with the conclusions of the District Court Judge. The cases mentioned by Mr Hooker make it clear that, although there is a requirement to inform the occupier of the police presence on the property, of the identity of the person or persons executing the warrant or other authority and of the purpose for the entry, there may be special circumstances in which there may be a departure from the normal procedure. In reinforcing the usual rule in R v Hapakuku [1999] NZCA 94; (1999) 16 CRNZ 520, 524, this Court said that there may be occasions when all the circumstances on entry and a consequential search so practically merge that it would be unrealistic to take an over-refined view of practical necessity.
[19] This is such a case. The agreed statement of facts records that the front door was open. The constable was met by one of the appellant’s sons. He asked the boy if the subject of the order was present. The boy was seen to speak to a Thai lady. That lady looked at the police officer but did not come to the door. The constable thought she was running down the staircase. He clearly believed – reasonably on these facts – that she was trying to get away. Possibly that was not so. She may have just been going to get the appellant. But the important matter is what the police officer reasonably inferred. His conduct is to be judged on that basis.
[20] It was, in our view, entirely proper for the constable to enter the house in order to ensure that Ms Thongasi was served. Section 137 is not to be read as prescribing a procedure incapable of being adapted to these circumstances.
[21] It would have been futile for the constable to have announced to the empty air that he had a removal order to serve. A requirement to produce a document connotes that there is actually someone immediately available to produce it to. When no adult was coming to the door and the apparent subject of the order was seen to be running away, the constable took the sensible and, we hold, lawful step in these circumstances of entering, locating Ms Thongasi and then producing the order to her. When in the meantime he encountered the appellant he told him that he had a warrant. At that stage he was still looking for Ms Thongasi.
[22] The delay in production of the warrant was very short. It was done as soon as they were all in the kitchen.
[23] The constable’s presence on the premises at the time when the smell of cannabis was detected, and s18(2) could properly be invoked to enable a search under the Misuse of Drugs Act, was therefore lawful.
[24] In our view the police acted reasonably in the circumstances. There was no breach of s21 of the Bill of Rights.
[25] There is nothing in Mr Hooker’s point that the Judge relied on facts external to the agreed statement. If she had confined herself to that statement, as we are prepared to assume she should have done, the inference that the constable believed that Ms Thongasi was trying to evade service was, as Mr France said, irresistible.

Result

[26] Leave to appeal is refused.

Solicitors:
Vallant Hooker & Partners, Auckland
Crown Law Office, Wellington