R v M CA412/02 [2003] NZCA 390 (25 March 2003)

Last Updated: 12 January 2019

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.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

CA412/02

THE QUEEN



v



[B P M]

Hearing: 19 March 2003

Coram: Blanchard J Robertson J William Young J

Appearances: J J Corby for Appellant
M A Woolford for Crown

Judgment: 25 March 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] The appellant is charged with the possession, cultivation and sale of cannabis under the Misuse of Drugs Act 1975. The charges arose as a result of a search of the appellant’s residence at [address] Avenue, Epsom. At the preliminary hearing Detective Reardon, who participated in the search, gave evidence relating to certain items he had discovered. The appellant applies for leave to appeal a pre-trial ruling in the District Court at Auckland admitting this evidence.

Background

[2] Detective Reardon is a member of the Auckland drug squad, which received information from an informant in May 2002 about suspicious activity at the appellant’s residence. The informant had reported blacked out windows and strong smells emanating from the property. However, without any corroborating information, and due to the fact the informant was not known to the police, there were insufficient grounds to obtain a search warrant.
[3] Because of a heavy workload Detective Reardon had not been able to follow up this information immediately, and it was not until 11 June 2002, while out on another matter with Detective Sergeant Brunton, that he decided to make a visit to the appellant’s property. Detective Reardon said that the “intention at that time was to make some observations of the address in an attempt to corroborate the information” received. He went on to say that the type of evidence he would be looking for included potting mix and chemical fertiliser commonly associated with cannabis cultivation, and bits of cannabis plant material dropped outside the house.
[4] The detectives arrived at the appellant’s address at around 1.30pm. They parked their vehicle in a nearby street and made their way on foot. The appellant’s house appeared to Detective Reardon to be unoccupied because the curtains were drawn and there was only one window open, which was located on the second floor. Detective Reardon said that as they approached the house they saw a blacked out window, just as the informant had advised. It was his opinion that this did not provide the necessary corroboration to obtain a search warrant.
[5] Detective Reardon then walked to the left-hand side of the house. He went up the first flight of stairs to a landing where what has been described as the front or main entrance to the house was located. There is no evidence that the detective knocked or even thought of knocking at this door. He said in evidence that the entrance did not look like a front door because the cobwebs around it indicated that it was not often used. Detective Reardon then proceeded up the next flight of stairs to another landing which had exterior windows and a grass area that continued round to the back of the house. Detective Reardon said he “looked around the back of the house” in order “to see if there was any evidence of drug-related activity, or any indicators” like those referred to above, and tried to look through the cracks of the blinds covering the windows.
[6] It was then that the appellant emerged at the front door and asked the detective what he was doing. Detective Reardon, who was at that stage about five metres from the appellant, walked towards the front door to explain. As he approached the appellant he smelt cannabis coming from inside the house. He explained to the appellant that he was a police officer and as he did so he moved to prevent the door being closed. The detective then made his way inside while telling the appellant that he intended to search the premises and that he was invoking s18(2) of the Misuse of Drugs Act. The appellant strongly objected and asked the detective to leave.
[7] Some moments later Detective Brunton appeared. Detective Reardon stated in his evidence that on arrival Detective Brunton had gone around the other side of the house “looking for indicators”. The appellant subsequently showed the detectives around the house and telephoned a lawyer. They discovered a growing room for cannabis, 14 cannabis plants, 43 ounces of dried cannabis which appeared to be packaged for sale, eight dead cannabis storks, a list of names and $3,300 in cash. The appellant was then placed under arrest.

The District Court decision

[8] After referring to the facts above the Judge held that Detective Reardon had been lawfully on the property pursuant to an implied licence. The Judge noted that the detective had been there only a short period of time before the appellant appeared. In his evidence, Detective Reardon said he had been on the property for “a few minutes, if that”.
[9] When the appellant appeared and the detective went to answer the query about his presence on the property, the powers under s18(2) of the Misuse of Drugs Act were invoked. The Judge held Detective Reardon’s actions in this regard were lawful and reasonable and that as a result the evidence should not be excluded.

Arguments on appeal

[10] Mr Corby for the appellant submitted that Detective Reardon was on the property unlawfully at the time he purported to invoke s18(2). Relying on R v Bradley (1997) 15 CRNZ 363, a decision of this Court, he submitted that the implied licence extends only to persons who are on lawful business and only to the extent necessary to enable communication with the occupant of the premises. It was submitted that in this case there could be no implied licence because Detective Reardon arrived at the property intending to conduct a search.
[11] Mr Corby further submitted that the actions of Detective Reardon looked at on the whole were unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990. This was because the detectives arrived for the purpose of searching the premises when they could not obtain a warrant, were not clothed in uniform, had not attempted to communicate with the occupier but instead had walked around the house looking in windows.
[12] It was submitted that, if the search was in breach of s21, on the balancing test in R v Shaheed [2002] 2 NZLR 377 the evidence should be excluded. In this regard, Mr Corby pointed to the fact that the invasion of privacy took place at the appellant’s home, the breach was deliberate, no attempt was made to contact the householder, and the consequences of the breach were serious because the evidence was central to the prosecution and the appellant would receive a term of imprisonment if convicted.
[13] For the Crown, Mr Woolford accepted that there were difficulties with the approach taken by the Judge in finding an implied licence because of the stated intention and purpose of the police officers in entering the property. But he submitted that the search was reasonable in the circumstances. The entry onto the property by the police was of short duration, low level and unobtrusive. There were no fences, gates or other obstacles obstructing entry. No items on the property were disturbed or inspected in any way. “The officers did no more than walk onto the property and around part of the house before turning to leave”. It was submitted that they were acting in good faith on the basis of anonymous information which they were seeking to corroborate. The breach of the appellant’s privacy was said to be minimal. He had voluntarily opened the door and allowed the emissions of cannabis to escape. There was an analogy, counsel submitted, with an occupier who had allowed illegal activities to be conducted within view of those outside. When the appellant called out to him it was not unreasonable for Detective Reardon to move towards the appellant, at which point the detective smelt the cannabis.
[14] On the basis that this submission was not accepted and that the search was held to be unreasonable, Mr Woolford submitted that the evidence should nevertheless be admitted because the causative link between the unlawful entry and the discovery of the evidence was tenuous. The emissions of cannabis were just as likely to have been discovered if the police had knocked on the front door and it had been opened by the appellant.

Decision

[15] The two police officers did not enter the property for any lawful purpose. They were not, for example, intent on going to the front door to communicate with the occupier in order to make inquiries or to make a request that they be admitted to the house. They were not therefore proceeding on the basis of an implied licence: see R v Bradley (1997) 15 CRNZ 363 at 367-369. It is accepted that the police officers could not have obtained a warrant to search the property. They chose instead to conduct a warrantless search of the grounds and to try to make observations through the windows. The police officers had no right to set foot on the property for such a purpose.
[16] In our view the action taken by the two detectives in this case cannot be considered to have been reasonable in the circumstances. There were no circumstances of urgency or emergency. The suspected offending was at a relatively modest level of criminality. The invasion of the privacy of the occupier of this home, at the end of a right of way and not easily visible from the street, by an inspection of the grounds and by peering through windows, was not inconsiderable. It was, for instance, far greater than occurred in R v Grayson and Taylor [1997] 1 NZLR 399, where the police entered an orchard on a rural property of some 2.14 hectares, but did not approach or try to inspect the part of the property where someone was living.
[17] The entry into the house was justified by the police by the invocation of s18(2) of the Misuse of Drugs Act, but of course that power was invoked in reliance on knowledge, namely that there was a smell of cannabis emanating from the house, which was obtained only by means of a breach of s21 of the Bill of Rights. There was therefore no lawful foundation for the use of s18(2). The search of the interior of the house was therefore unlawful and in breach of s21.
[18] It would have been lawful, and it may not have been unreasonable, for the police officers to have walked directly to the front door of the house and to have announced their presence by knocking on it, in order to make an inquiry of the occupier. We canvassed with counsel during oral argument whether such a course of action, if it had been pursued, would have led inevitably to the same result, namely the door being opened and the smell detected coming from the interior. Mr Woolford, fairly and correctly in our view, accepted that it could not be said that this result was inevitable. Mr Moran had opened the door and come out when he saw someone walking about and looking in at the windows, but he may well have reacted differently to a knock on the door. He may have chosen not to come to the door in the expectation that whoever it was would go away; or he may have spoken to the police through the glass door without opening it and the smell of cannabis may not then have been detectable.
[19] On an application of the Shaheed balancing test we consider that the evidence should not be admitted. A citizen’s right not to be subjected to an unreasonable search is an important guaranteed right. The breach of that right in this case involved an unlawful and significant invasion of privacy. The police officers appear to have acted without really thinking about whether they might be trespassing. Mr Corby did not seek to depict their actions as being in any way sinister. But they were certainly careless about the occupier’s rights of property and privacy. The absence of bad faith is merely a neutral feature. The offending would, upon conviction, merit a sentence of imprisonment but is not of special seriousness. Against these factors, weighing in favour of exclusion of the evidence, it can be said that the proceeds of the search were real evidence which is crucial to the prosecution. But these considerations are not enough to outweigh those previously mentioned.
[20] Indeed, if the evidence were to be admitted in the circumstances of this case, that might be seen as an indication from the Court that, provided they were kept brief, police searches involving intrusion into the grounds of domestic properties for the purpose of peering in windows without the authorisation of a warrant would be likely to be condoned. That impression would be false.
[21] Leave to appeal is granted, the appeal is allowed and the evidence ruled inadmissible.

Solicitors:
Crown Law Office, Wellington.