R v Moses CA254/03 [2003] NZCA 389 (26 September 2003)

Last Updated: 12 January 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA254/03 CA255/03

THE QUEEN

v

JOSEPH MOSES KIRK DUNCAN MOON

Hearing: 23 September 2003 Coram: Blanchard J
Goddard J William Young J

Appearances: P J Goldsworthy for Appellants
J C Pike for Crown Judgment: 26 September 2003

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1] This case concerns the lawfulness and reasonableness of a police search and the admissibility of the evidence discovered as a result.

R V JOSEPH MOSES And Anor CA CA254/03 [26 September 2003]

[2] On 9 April 2002 the police obtained a search warrant which was, relevantly, in these terms:

TO: Every Constable ...

I am satisfied on an application

*(in writing made on oath)

THAT there is reasonable ground for believing that there is (are) in any building, carriage, box, vehicle, receptacle, person, premises or place occupied by Joseph MOSES believed to be 570 Waitaanga, Tongaporutu. This house is the last residence on the right hand side of the road before the Waitaanga Hill. It is a one room hut with an adjoining double bay car shed. Included in the search is a woolshed that is a further 500 metres towards Ohura on the left hand side of the road.

the following things namely: Class C controlled drugs including cannabis, instruments, paraphernalia, documents and money associated with the use of and/or supply of drugs relating to offences committed against the Misuse of Drugs Act 1975.

* upon or in respect of which an offence of: Possession of Cannabis and Possession of Cannabis for Supply

has been or is suspected of having been committed

* which there is reasonable ground to believe will be evidence as to the commission of an offence of: Possession of Cannabis and Possession of Cannabis for Supply

THIS IS TO AUTHORISE YOU at any time or times within one month from the date of this warrant to enter and search the said building, carriage, box, vehicle, receptacle, person, premises or place situated at:

...

(Emphasis added)

[3] In obtaining this warrant, the police had acted on information to the effect that cannabis harvested from an adjoining property was on a farm of some 1,000 acres which was leased by the appellant, Joseph Moses. Most of this property is in bush. The informant had indicated that the cannabis was in the woolshed on the property. The police believed that the farm that was leased by Mr Moses was properly described as “570 Waitaanga Road” but because of doubts about this provided a physical description as well.
[4] The following day, 10 April 2002, the police executed the warrant.

[5] The police searched both the house and the woolshed. No-one was present in the house but a fire in an open fireplace was burning suggesting that someone had been present not long before. A small amount of cannabis, suitable for personal use, was located in the house. In the woolshed the police found a small amount of cannabis in a wool pack and hundreds of seedling bags and a number of seedling container trays.

[6] Constable Arthur Tito arrived at the farm about the time that the search of the house and woolshed was winding up and when the police party was about to make a cursory search of the immediate environs. On his way to the farm property, he had noticed a Honda Accord parked in a paddock just off the road with fresh tyre tracks leading from the road. Where the car was parked was on the farm which was leased by Mr Moses (although it was about a kilometre from the house). A check with police communications showed that Mr Moses was the registered owner of the car.

[7] So after the police completed the search of the house and woolshed on the property, a police party went to the car and conducted a cursory search of it. They wished to speak to Mr Moses and, to this end, a police dog was used to identify a scent leading away from the car. The dog picked up a scent and, around the same time, the police heard a loud explosion and saw associated flames and smoke. This came from a point in the bush about 500 metres from the car. The scent picked up by the police dog went in the general direction of the explosion. So, using the police dog to follow that lead, the police party went towards the scene of the explosion. As a result, they found a cannabis plantation of 498 plants and what remained of a substantial cannabis drying operation which had been badly affected by the explosion which the police had heard. The cause of this explosion is not apparent on the papers which we have seen.

[8] Given the arguments advanced for the appellants by Mr Goldsworthy it is appropriate to set out the relevant evidence which was given at the preliminary hearing by the police as to the circumstances which existed at the time the explosion was heard and the police reactions to that explosion.
[9] Sergeant Bruce McLeod, who was the dog-handler gave evidence in this way:-

What did you do when you got to that vehicle .... on my arrival I harnessed up police dog Caesar and proceeded to cast him in the immediate area. He located a line of scent leading away from the vehicle, to a large log that crossed a nearby stream. It was at about this point that I heard a large explosion coming from further up the valley. I looked up and saw a large plume of smoke coming from further up the valley on a bush covered face.

Have a look at photograph 6 and describe that photo and your recollection

.... that is the smoke you can see in the photograph and the log is off to the right of the car.

Do you know if there was any relation to the smoke and the explosion that you heard. Are they in the same general direction .... yes they are.

Where did you track with your dog Caesar .... tracked from across the other side of the stream. Obviously I couldn’t get the dog to go across the log, so he swam the stream, then I cast him on the other side of the stream, located a track away up the valley, along an overgrown bulldozed track and up onto a clearing.

...

And, a little further on in his evidence:-

Just moving back to the Honda Accord motor vehicle. You said you located a track at the motor vehicle .... that is correct.

How far did that track lead towards the fire .... it lead from the vehicle to the fire in a continuous line of scent.

[10] Detective Constable Ross Wright, in his evidence, referred to what happened once the police party of which he was a member arrived at the vehicle:-

Whilst having a cursory look through the motor vehicle, there was an explosion up the valley from where we were situated. Instantaneous with this explosion, we could see a fire in the bush ...

Sergeant McLeod who had already been casting his dog around, picked up a track which led to a large log across the river.

We decided that we would use the dog to take us in the direction of any possible offenders who we believed would be where the explosion occurred or nearby.

We tracked several hundred metres in the direction of the fire until we came to a clearing.

....

[11] The appellants now face charges in the District Court associated with the cannabis drying operation and the 498 cannabis plants which were being cultivated.

The admissibility challenge

[12] Counsel for the appellants challenged the admissibility of what the police found at the scene. His argument was along these lines:-

1. The search which took place in the vicinity of the car and subsequently was not within the terms of the warrant;

2. It was unlawful and unreasonable and thus in breach of s21, New Zealand Bill of Rights Act 1990; and

3. The evidence of what the police found should therefore be ruled to be inadmissible.

The District Court judgment

[13] These arguments were addressed to the District Court at New Plymouth in the context of a s344A application to test the admissibility of the relevant evidence.

[14] In his judgment on this application the District Count Judge held that the search was not protected by the warrant but was not unreasonable and thus not in breach of s21, New Zealand Bill of Rights Act 1990. So he held that the relevant evidence was admissible.

Application for leave to appeal

[15] Messrs Moses and Moon now seek leave to appeal from this decision.

Overview

[16] We propose to discuss the case by reference to the following questions:

1. Were the police acting unlawfully and/or unreasonably up to the point when the explosion was heard?

2. Were the actions of the police in going to the scene of the explosion lawful and/or reasonable?

As will become apparent, we answer these questions in a way which precludes the necessity for further discussion as to the admissibility of the evidence. We note, however, that if the search was unlawful and/or unreasonable vis-à-vis Mr Moses, that would not necessarily control the admissibility of the evidence as against Mr Moon whose property rights were not affected by the action of the police.

Were the police acting unlawfully and/or unreasonably up to the point when the explosion was heard?

[17] The District Court Judge held that the search warrant did not authorise a search of the farm.

[40] The search warrant was quite specific as to the premises the police were to search. It stated “any building, carriage, box, vehicle, receptacle, person, premises or place occupied by Joseph Moses believed to be 570 Waitaanga, Tongaporutu. This house is the last residence on the right hand side of the road before the Waitaanga Hill. It is a one room hut with an adjoining double-bay carshed. Included in the search is a woolshed that is a further 500 metres towards Ohura on the left hand side of the road.”

[41] The physical premises that the police were interested in were the house and the woolshed. The surrounding lands and any outbuildings would be encompassed in such a description.

[42] I am of the view that the search warrant did not authorise the search of the farm. I am of that view for the following reasons:

1. The farm was not specifically included on the search warrant. It could easily have been added in if it had been contemplated.

2. The police had effectively completed their search and it was additional information from Constable Tito that triggered the actual search subject to this argument.

3. The police information related to cannabis having been harvested from another farm property some 12kms away and being transported to this property. The focus was on buildings where it was believed cannabis would be stored. The search

warrant was specific to include a building some 500 metres away from the main house.

[18] The Judge also held that the police were committing a trespass when they went on the property to inspect the car.

[46] The police going onto the farm where the vehicle was located was in my view a trespass. It was not authorised under the Land Transport Act. The police were not interested in checking registration, warrant of fitness details etc except to identify the owner. The police had not discovered any firearms, so the Arms Act powers were not applicable. The s317 Crimes Act powers could not have been uppermost in the police mind. The police had not entered onto the property to arrest Mr Moses or because they were of the view that an actual offence was being committed.

[47] I am not satisfied that the police had an implied licence to go onto the property. This was not a case of walking up to a front door to make some innocent enquiry.

[19] It follows from what he said, that the Judge was not willing to read the warrant literally. Accordingly he did not see the case as being controlled by the fact that the paddock in which the car belonging to Mr Moses was found was part of the “premises” to which the warrant related.

[20] Overlooked in the judgment in the District Court and, indeed, in the written arguments submitted to us, is the fact that the search warrant extended to vehicles and thus permitted, on its face, a search of the Honda Accord car which was found by Constable Tito in the paddock. If this vehicle had been located by the police in the immediate vicinity of the woolshed or house, there could be no question as to the lawfulness of a search of that vehicle. The fact that it was located about a kilometre away but still on the same property could not affect the lawfulness or reasonableness of a search of the car. Given the nature of the information which led to the issuing of the search warrant, a search of the car was reasonable as it may have been used to transport cannabis.

[21] When we put to Mr Goldsworthy, who appeared for the appellants, the proposition that the search warrant authorised a search of the vehicle in the paddock in which it was found, he accepted that this was so.
[22] We are prepared to accept, at least for the purposes of this judgment, that the search warrant did not permit a general search of the entire farm property. So, in preparing to follow the scent picked up by the police dog, the police may well have been about to embark upon a course of action which lay outside what could fairly be regarded as justified by the search warrant. It is possible that the police, in searching for Mr Moses, would have been acting in accordance with an implied licence to be on his farm, cf Robson v Hallett [1967] 2 QB 939. But this is doubtful. So, we are prepared to accept, again for present purposes, that the search for Mr Moses using the police dog which the police had in contemplation just before the explosion would have been unlawful and unreasonable. But we do not see this as relevant. This is because the police had not left the general vicinity of the motor vehicle when the explosion occurred. For reasons already indicated, they were entitled to be there. So, up until that point anyway, the police were not acting unlawfully or unreasonably.

Were the actions of the police in going to the scene of the explosion lawful and/or reasonable?

[23] In his judgment the District Court Judge concluded that the search was reasonable. This was despite his conclusion that the police were trespassing on the farm property when they heard the explosion.

[24] For the purposes of this part of the case, the starting point for our assessment of the lawfulness and reasonableness of the post-explosion actions of the police is that the explosion occurred at a time when the police officers were lawfully in the vicinity of the car. So this starting point is distinctly more favourable for the Crown than that adopted by the District Court Judge. Given this, there is no point in us referring in detail to the District Court Judge’s reasons for finding the search to be reasonable.

[25] Mr Goldsworthy accepted that if the purpose of the police was to investigate the explosion, what they did was reasonable. He, however, sought to argue that the primary purpose of the police was simply to locate the suspected offender or
offenders and that they went to the scene of the explosion solely for this purpose rather than to investigate the explosion.

[26] We accept that the evidence of the police officers to which we have referred reveals a focus on locating the person or persons who were associated with the car and thought to be associated with the explosion. That, however, is not inconsistent with the police officers also wishing to investigate the explosion, ascertain what caused it, and, importantly, to render assistance to any person who might have been injured in the explosion. An explosion occurring on a bush-covered hillside in Taranaki is unusual, to say the least. In the context of the suspected offending involving Mr Moses, the explosion demanded police investigation. Indeed, it is not difficult to imagine the criticism to which the police officers would have been exposed had they not investigated the explosion and it then transpired that someone (perhaps Mr Moses) had been severely injured by it. We do not see the evidence to which Mr Goldsworthy took us (which is set out earlier in this judgment) as being inconsistent with an intention on the part of the police to investigate the explosion. Indeed, we would regard it as inconceivable if the police did not have such an intention. The most obvious way to get quickly to the site of the explosion was to follow the lead picked up by the police dog. This led in the general direction of where the explosion occurred. Whoever had left the scent which the dog was following (most probably Mr Moses) would have known and used the most convenient route through the bush.

[27] In the circumstances, we are satisfied that the police actions which occurred after the explosion were both lawful and reasonable.

Disposition

[28] Accordingly, in agreement with the view expressed by the District Court Judge, we are of the opinion that the evidence in question is admissible. So, while we grant leave to appeal, the appeal itself is dismissed.

Solicitors:

Till Henderson King, New Plymouth Crown Law Office, Wellington