R v Soma CA217/04 [2004] NZCA 369 (22 July 2004)

Last Updated: 25 April 2018

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.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

CA217/04

THE QUEEN

v

HARESH SOMA

Hearing: 21 July 2004

Coram: McGrath J Goddard J Heath J

Appearances: N C Wintour for Appellant
J C Pike for Crown Judgment: 22 July 2004

JUDGMENT OF THE COURT DELIVERED BY HEATH J

The issue

[1] Mr Soma seeks leave to appeal against a pre-trial ruling given by Judge McElrea in the District Court at Auckland on 19 May 2004. The issue is whether the Judge was right to hold that police officers were entitled to go to the rear of Mr Soma’s property, after first knocking at his front door and receiving no response.

R V HARESH SOMA CA CA217/04 [22 July 2004]

[2] In R v Bradley (1997) 15 CRNZ 363 (CA) this Court held that any member of the public, including a police officer, on legitimate business was entitled to enter a property for the purpose of communicating with the occupier. That authority to enter onto private property was derived from an “implied licence” of the type explained by Cooke P in Howden v Ministry of Transport [1987] 2 NZLR 747 (CA) at 751.

[3] Whether an implied licence exists in any given case (and if so, its scope) depends upon an assessment of circumstances confronting a member of the public or a police officer. Those circumstances include (but are not necessarily limited to) factors such as whether any gate between the public footpath and the dwelling is locked and whether any signs exist making clear that public entry to the private property is forbidden or restricted.

[4] In this case, Mr Soma challenges the right of police officers to enter upon his land, to knock on the front door and, when no answer was forthcoming, to walk around the property to the back to ascertain whether anyone was present. The issue assumes some significance because, when the police officers reached the back of the subject property, they smelt cannabis emanating from within the house. At that stage they invoked powers available to them under s18(2) of the Misuse of Drugs Act 1975 to search the dwelling. When inside they noticed a considerable number of plants, said to be cannabis plants, and seized them. It is the admissibility of that evidence that is challenged on the basis that the search was “unreasonable” under s21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).

[5] If the search were held to be “unreasonable” a second question arises: namely, whether the evidence ought to be admitted on the principles set out in R v Shaheed [2002] 2 NZLR 377 (CA).

The facts

[6] Judge McElrea heard oral evidence on voir dire. Having heard that evidence he made relevant findings of fact. Relevant findings of fact made by the Judge are summarised below.
[7] The property in question is situated at 91 Barrys Road, Glendene, in West Auckland. On 12 November 2003 Constable Knight attended at the property. She was the officer in charge of a case involving a female defendant. A bench warrant for the arrest of that defendant had been issued when she failed to appear at the District Court.

[8] Unbeknown to Constable Knight, Constable McLeod had called eight days earlier at the same address in an endeavour to execute the same warrant. Constable McLeod had called in the early hours of the morning to inquire of the occupants whether the female defendant was present. Constable McLeod was from the Henderson Police Station. Constable Knight was from the Avondale Police Station.

[9] Evidence was given by Constable Knight that a procedure would normally be followed by police officers to note the particular visit, the nature of the inquiry and to record that the subject was not present. The Judge accepted Constable Knight’s evidence that she did not know of the visit eight days earlier by Constable McLeod and that she acted in good faith throughout.

[10] When Constable Knight and her colleague arrived at the subject property at approximately 11am on 12 November 2003 they entered down the driveway. They could see two cars parked in the carpark used at this property. They knocked on the front door of the property but received no response.

[11] As they left the front door Constable Knight recalled that the female defendant whom she sought at the property had previously explained a delay in answering a knock at the front door by saying that there was difficulty hearing a knock at that door.

[12] After an exchange to that effect between Constable Knight and her colleague, the two officers proceeded around the side of the house. They did not look into any windows. Their purpose was to knock on the back door to ascertain if the female was at home.
[13] As they approached the back door they discovered the door was wide open and a very strong smell of cannabis was emanating from within the house. They knocked on the back door and called out. Mr Soma came to the door.

[14] The two police officers then invoked the powers available to them under s18(2) of the Misuse of Drugs Act 1975. They explained to Mr Soma his rights. They went inside the house to talk to him. While inside the house they noticed a considerable number of large plants, said to be cannabis plants, the subject matter of the prosecution.

Competing submissions

[15] Mr Wintour, for Mr Soma, submits that the search was “unreasonable” for the purpose of s21 of the Bill of Rights. Section 21 of the Bill of Rights provides:

21 Unreasonable search and seizure

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

[16] In short, Mr Wintour argued that it was an unacceptable breach of a citizen’s privacy for the Police to wander to the back of the house to communicate with the occupant after having received no response to the knocking at the front door. He submitted that the police officers ought to have known that their colleague had been told on the earlier occasion that the female defendant was not present. Having failed to make any further inquiry (before going to the property again) the search ought to be regarded as both unlawful and unreasonable.

[17] Mr Wintour initially challenged the Judge’s findings of fact by submitting that Constable McLeod had accepted what Mr Soma had told her on the first occasion. In his submission, that led to the conclusion that the implied licence to enter the property was thereafter revoked in respect of inquiries about a person sought under the bench warrant.

[18] That submission has no basis in the evidence. Not only did Constable McLeod not say that she accepted what Mr Soma said to her, it was never put to her
that she did. We are not prepared to disturb findings of fact made by the Judge on questions of knowledge and good faith relating to the actions of Constable Knight and her colleague on 12 November 2003.

[19] Mr Pike, for the Crown, points to the fact that the constables were executing a warrant to arrest. Not only, submitted Mr Pike, did the officers have the ability to rely on an implied licence of the type discussed in Bradley but also they were entitled to rely on s22(2) Summary Proceedings Act 1957 to gain access. That provision states:

22. To whom warrant to be directed and power of person executing warrant to enter premises

...

(2) For the purposes of executing any warrant referred to in subsection (1) of this section, the constable executing it may at any time enter on to any premises, by force if necessary, if he has reasonable cause to believe that the person against whom it is issued is on those premises:

Provided that, if the constable executing the warrant is not in uniform and any person in actual occupation of the premises requires him to produce evidence of his authority, he shall before entering on the premises produce the warrant or his badge or other evidence that he is a constable.

[20] Mr Pike submitted that the police officers were making inquiries in the interests of the community generally and in pursuance of a solemn obligation to arrest a defendant who had failed to appear at Court. They did not act in bad faith. In such circumstances, Mr Pike submitted, that the police officers were entitled to enter the property and, if they received no answer from an initial knocking at the front door, they were equally entitled to go to the back of the property in an endeavour to communicate with the occupier of the premises.

The District Court Judge’s decision

[21] Basing his decision, primarily, on R v Bradley, Judge McElrea held that the police officers were entitled to enter the property and to conduct themselves as they did.

[22] At para [30] Judge McElrea said:

[30] It must be remembered that this implied licence is simply the inherited common sense of the community. If somebody wishes to speak to the member of a particular household for any lawful purpose, and they knock on the front door of the house, it is perfectly common for such a person, if the door is not answered, to walk around the house and knock on the back door. That has happened for hundreds of years, probably millions of times. It is a straightforward instance of people making an effort to communicate, and it is based on the assumption that if someone is home, they may not have heard knocking on one particular door. Any suggestion that a member of the public would be trespassing if, having knocked on the front door, he proceeded around the side of the house to go to the back door, would be laughed out of Court. One can imagine a Lord Denning judgment on the point.

[23] Further, at paras [31] and [32] he added:

[31] The implied licence must extend to going to a second door, unless there are clear indications that the person was not at home - for example a doorbell may be rung and the visitor might hear loud bells ringing within the house, such that it was obvious that anyone at home would hear them. Alternatively there may be a sign restricting entry to the back of the house, as there was in [R v Ratima and Warren (CA373/99, 14 December 1999)]. In the absence of some such indication, in my view any police officer, just like any other member of the public, is entitled to knock on more than one door of a house.

[32] In addition to that general conclusion, there is in this case the particular evidence of the police officer, which I accept, that the person she was seeking had earlier commented about the difficulty of hearing the front door from the back of the house. There was, therefore, special reason in this case to attempt to contact the occupant by knocking on that door.

Analysis

[24] While Mr Pike relied on powers conferred by s22(2) of the Summary Proceedings Act 1957, that was not, in fact, the basis on which Constable Knight acted. Constable Knight did not profess to gain her authority to enter the premises
from s22(2). Rather, she intended to make inquiry of the occupant of the dwelling about the whereabouts of the person who had failed to appear at Court. As she did not place reliance on s22(2) and we did not hear full argument on the point we do not see this as a suitable case to discuss the interface between s22(2) and the implied licence.

[25] The starting point is the decision of this Court in Bradley. At 367-368, Thomas J, delivering the judgment of the Court said:

The essence of this concept, as we apprehend it, is to permit any member of the public, including a police officer, on legitimate business to come on to a property for the purpose of communicating with the occupier. This purpose was recognised by Sopinka J, delivering the judgment of the majority of the Supreme Court of Canada in R v Evans [(1996) 45 CR (4^th) 210]. The Court endorsed the statement of the Court of Appeal of British Columbia (at p 217) to the effect that the purpose of the implied leave is "to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant". Thus, the Supreme Court held (at pp 217, 218) that the implied invitation to knock extends no further than is required to "permit convenient communication with the occupant of the dwelling". Only those activities that are "reasonably associated with the purpose of communicating with the occupant" are authorised by the implied licence. (our emphasis)

[26] The police officers were, in good faith, making inquiries in relation to a warrant for the arrest of a person who had failed to attend at Court. They were, therefore, acting in the course of their duty as police officers.

[27] On the Judge’s findings of fact, the two police officers had no knowledge of the prior involvement of Constable McLeod at the property. Even had they had that knowledge, we are not disposed to think it would have made any difference. There was no evidence before the Judge to suggest that Constable McLeod was told that the Police were not entitled to return to the property. Neither does the evidence of conduct go close to establishing that the implied licence had been revoked by conduct.

[28] We agree with Judge McElrea that there is no rule of law that police officers are entitled only to make one visit to a property to attempt to speak to a subject or to arrest someone for whom a warrant to arrest has been issued. In any event, the
possibility of a further visit was not foreclosed during Constable McLeod’s initial visit.

[29] There were no physical barriers, such as locked gates, to prevent the Police from walking from the front of the dwelling to the back to locate and speak to an occupier. Such features might have indicated that any implied licence had been revoked.

[30] Constable Knight’s evidence (accepted by the Judge) was that they went to the back of the property to locate an occupier to whom she could speak. While Mr Wintour sought to persuade us that, in reality, Constable Knight was embarking upon an impermissible investigation, that submission is contrary to the facts as found by the Judge.

[31] The cases seek to draw a bright line between entering premises for the purpose of communicating with an occupant (on the one hand) and investigatory steps (on the other). In one sense any attempt by a police officer (in the course of executing his or her duty) to communicate with an occupier to obtain information can be regarded as an “investigatory” step because the communication relates to the particular inquiry in hand. But that is not the sense in which the term “investigatory” is used in the cases. The term is used to differentiate between a particular inquiry of an occupier and wider investigatory conduct. The use of the term “investigatory” must be understood in that context.

[32] The Court will always be alive to the privacy interests of occupiers into which Police powers to enter premises necessarily intrude. Any Judge will carefully assess evidence given by a police officer as to his or her purpose with those considerations in mind. We have no doubt that an experienced Judge, such as Judge McElrea, would have taken full account of the privacy interests involved in determining whether Constable Knight’s evidence was sufficiently reliable.

[33] Mr Wintour places great reliance on a citizen’s “fundamental right to privacy” and seeks to distinguish an unwanted police officer from a friend of an occupier who might visit, knowing the property. He submits, without citing any
supporting authority directly on point, that the scope of the implied authority for a law enforcement officer ought not to extend beyond an inquiry at the front door.

[34] Mr Wintour placed reliance on a number of cases from which he drew support to submit that the implied licence did not extend to police officers going to the rear of the property in this case. However, on analysis, those cases are far removed from the circumstances of this case. It is trite, but nevertheless true, that each case must be determined on its own facts. It is sufficient, for present purposes, to refer to three decisions of this Court since Bradley was decided.

[35] In R v Ratima and Warren, the gate over which a constable climbed had on it “No Entry – This Gate is Locked”. The Court took the view that there was nothing sufficiently compelling in the circumstances facing the police officer to justify immediate action by way of trespass. In para [20] the Court added:

[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.

[36] In R v Moran (CA412/02, 25 March 2003) this Court ruled evidence inadmissible because the police officers did not enter the property for any lawful purpose. In para [15] the Court expressly held that the police officers were not intent on going to the front door to communicate with an occupier in terms of Bradley. The evidence was ruled inadmissible because the police officers chose to conduct a warrantless search of the grounds and to try to make observations through windows.

[37] Finally, in R v Gurnick [1999] NZCA 19; (1999) 16 CRNZ 513 (CA) at 516 this Court held expressly that it was not unlawful for a constable to go to the back door of a house in order to communicate with an occupier in the circumstances disclosed in that case. In so holding the Court applied the Bradley principle.

[38] Those authorities do not support the proposition advanced by Mr Wintour. In our view, on the findings of fact made by the Judge, the police officers were entitled
to go around the side of the building to the rear door. Their authority to do so stemmed from the scope of the implied licence to which Bradley refers.

[39] On that view, it is unnecessary to discuss the alternative issue as to whether the evidence ought to be admitted on Shaheed principles.

Result

[40] We are satisfied that the Judge was right to admit the evidence, largely for the reasons he gave.

[41] In our view the implied licence operated to permit the Police to go to the back of the property (having received no response to their knock at the front door) and to make inquiries of the occupier in relation to the subject matter of their investigation. Having done that they were then entitled to invoke s18(2) once evidence was available that there were drugs on the property.

[42] For those reasons the application for leave to appeal is dismissed.

Solicitors:

Crown Law Office, Wellington