R v Merrett CA280/05 [2006] NZCA 387 (3 March 2006)

Last Updated: 24 January 2014

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA280/05

THE QUEEN

v

HARLEY ALEXANDER MERRETT

Hearing: 23 February 2006

Court: Robertson, Randerson and Panckhurst JJ Appearances: R M Mansfield for Appellant

A R Burns for Crown

Judgment: 3 March 2006

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted, but the appeal is dismissed. B The search evidence is admissible at trial.

C We order that the judgment and the reasons therefore not be published in the news media or on the internet or any other publicly accessible database until final disposition of trial. Publication in law report or law

_{digest is, however, permitted.}

R V HARLEY ALEXANDER MERRETT CA CA280/05 3 March 2006

_REASONS

_Introduction

(Given by Panckhurst J)

[1] The only issue in this appeal is whether a warrantless search pursuant to s 18(2) of the Misuse of Drugs Act 1975 was lawful and reasonable. Ellen France J, following a pre-trial hearing, held in her reserved ruling that it was. In particular she was satisfied that the police officer who initiated the search had reasonable grounds to believe that controlled drugs would be found at the appellant’s home.

[2] In fact they were not. But various items consistent with the manufacture of methamphetamine were found. As a result the appellant is charged with manufacturing methamphetamine and possession of precursor substances for its manufacture on or about 20 September 2003 at Auckland.

Factual background

[3] The officer who invoked the power of search without warrant, Detective Stephen Humphries, gave extensive evidence before the Judge at a pre-trial hearing on 15 July 2005. In her ruling of 26 July the Judge summarised the effect of the evidence relevant to the key issue of reasonable cause to believe. This summary was accepted by counsel for the purposes of the appeal.

[4] We, therefore, adopt the Judge’s admirably succinct summary of the relevant facts:

[3] Between 10 and 12 September 2003 the New Zealand Customs Service intercepted five airmail envelopes originating from Canada addressed to five different post office boxes in Wellington. Three of the envelopes were found to contain an ounce each of methamphetamine and the other two an ounce each of ecstasy. The three envelopes containing methamphetamine identified the sender as “Markus Stewart” and gave an address in Vancouver BC, Canada.

[4] From fingerprints on one of the envelopes, the Police identified a Nicholas Ferry as a suspect. Mr Ferry had just returned from Canada. A search warrant was executed at his home on 18 September 2003. A variety of drugs including methamphetamine and ecstasy, and paraphernalia associated with dealing in drugs were found there. As well, Police found two notebooks containing “tick lists”, that is, lists of names and amounts

commonly recorded by drug dealers to keep track of monies owing to them. There was an entry in each tick list in each notebook referring to the name “Harley”. The entry beside Harley in one of the lists has a figure of $8,000 crossed out and another figure of 15,500. The name “Harley” was also found in the address book of one of the cellphones found at Mr Ferry’s home with a cellphone number of 021 102 2000.

[5] The Police also found copies of two air waybills which are documents attached to courier packages. They record the name and address of the sender and of the recipient. In each case the sender was recorded as “Markus Fargo”. In terms of one waybill, it appeared the package came from Vancouver, Canada. On the other waybill, addressed to John Wright Electrical Limited, the sender’s address was the same Vancouver address as the other packages containing methamphetamine which Customs had intercepted. The handwriting and signatures on both waybills appeared to the Detective to have been completed by the same person. The recipient of one of the air waybills was identified as Nicholas Farie. The named recipient on the other air waybill was John Wright of John Wright Electrical Limited with an Onehunga, Auckland, address.

[6] In a vehicle driven by Nicholas Ferry, Detective Humphries found the package associated with the waybill addressed to Nicholas Farie. Although the waybill listed the package as containing documents, it appeared to contain some kind of “crunchy” substance which the Detective thought was consistent with the ounce bags of crystal methamphetamine found in the three airmail envelopes. It was later confirmed the package contained methamphetamine but that had not been confirmed at the time of the search of the respondent’s address.

[7] Taking into account the similarities between the associated air waybill and the package located in Mr Ferry’s vehicle and the evidence relating to the three envelopes intercepted in Wellington, Detective Humphries came to the view that the package addressed to John Wright Electrical also contained crystal methamphetamine.

[8] He ascertained that the package had been delivered on 15 September

2003 and signed for by a person called “Gordon”. He established that John

Wright Electrical Limited no longer occupied the premises. He went to the address given for John Wright Ltd on Saturday, 20 September. There he observed a business card stuck to the front door containing the name Gordon Merrett and giving contact details. He telephoned Mr Merrett and said he wanted to speak to him about the package. Mr Merrett confirmed that he had received the package although addressed to John Wright. He said he knew Mr Wright and had decided to retrieve the package and drop it off to him. He had, however, left the package at the bottom of the stairs at the premises. The premises were industrial on the bottom and from the entry a flight of stairs led up to the first floor where Mr Merrett told the Detective he and his family lived.

[9] After the Detective explained the importance of the matter, Mr Merrett eventually agreed to return to the address to get the package but found it was no longer where he had left it or anywhere else on the premises.

[10] Mr Merrett told Detective Humphries that the only people who had access to the premises were his sons or his sons’ friends. He said his sons’

names were Harley and Ben Merrett. Detective Humphries told Mr Merrett that the name Harley had featured in a police investigation in relation to the importing of drugs.

[11] Mr Merrett gave the detective Harley Merrett’s cellphone number which coincided with that listed in the directory on Nicholas Ferry’s phone, i.e. 021 102 2000, although Detective Humphries said he could not have confirmed that at the time as he had not memorised the number. He also told him that his son Harley lived just down the road and pointed out the building in which he lived. The building was about 200 metres away and there was a car out front.

[12] Based on the information in his possession, Detective Humphries concluded that the package would be located at Harley Merrett’s address. He was concerned that Mr Merrett senior would contact him and tell him of the police investigation and that could lead to the disposal of the drugs. He decided that a search without a warrant under s 18(2) of the Misuse of Drugs Act 1975 was justified. He and an accompanying detective ran to the address. The door was answered by Harley Merrett. Harley Merrett agreed to the police coming into the house to talk about the package that had been sent to his father’s address. Detective Humphries informed him of his intention to search the premises under the Misuse of Drugs Act 1975 and advised him of his rights under the New Zealand Bill of Rights Act 1990. A search then took place and various incriminating items were found.

[5] For completeness we note the evidence of Detective Humphries indicated that the package addressed to John Wright Electrical was delivered to Mr Gordon Merrett at 9.15 am on Monday, 15 September. Mr Merrett was spoken to at the same address by Detective Humphries at about 1.00 pm on Saturday, 20 September.

[6] Since a principal plank of Mr Mansfield’s argument concerning reasonable cause to believe was based upon the five day delay between delivery of the package and the police visit to Mr Merrett senior’s premises, it is also relevant to note that Detective Humphries was cross-examined concerning when Mr Merrett had last seen the package, prior to discovering that it was no longer there at about 1.00 pm on the Saturday. The questioning revealed that Mr Merrett expected the package would still be where he had placed it on the Monday. This at least was the inference available from Mr Merrett’s conduct and remarks. However, the final question which counsel asked Detective Humphries was:

The bottom line detective is that the last place he (Mr Merrett) saw it was when he put it there? ... Yes.

At another point the witness agreed Mr Merrett had given no better indication as to when he last saw the package.

The Judge’s decision

[7] The essence of the Judge’s reasoning was contained in these paragraphs:

[18] At the time Detective Humphries went to the Onehunga address, he knew or had good ground for believing:

a) That a package had been delivered to the address five days earlier.

b) It was one of a number of packages sent by courier post from

Vancouver.

c) It was likely to contain methamphetamine.

d) One of the persons involved in the importing of these packages was

Nicholas Ferry who was also dealing in illegal drugs.

e) One of the persons with whom he dealt was named Harley.

[19] Having spoken to the owner of the Onehunga property, Detective

Humphries was entitled to draw the following additional conclusions:

a) The package had indeed been delivered to the address but had since been removed, although when it was removed was unclear.

b) Those who could have taken the parcel were Gordon Merrett’s sons, Harley and Ben, or their friends. At this point, Mr Ferry and the other possible candidate for collecting the parcel, Mr Mitchell, were both in custody.

c) Harley Merrett was the same “Harley” recorded in Nicholas Ferry’s tick lists and address book. Although only the first name was recorded, the name was unusual and had stood out for the officer because the figures beside his name were the largest of those on the list.

[20] In these circumstances, I consider the Detective had reasonable grounds for believing the package containing drugs would be found in Harley Merrett’s house and that an offence against the 1975 Act had been, or was suspected of being, committed in respect of that drug.

[8] On this basis she held that the warrantless search pursuant to s 18(2) was lawful and reasonable, so that the evidence relevant to methamphetamine manufacture was admissible without the need to conduct a balancing exercise in terms of R v Shaheed [2002] 2 NZLR 377 (CA).

Grounds of appeal

[9] In relation to reasonable belief Mr Mansfield submitted:

(a) there was no proper basis for Detective Humphries to infer that the “Harley”

referred to in the tick list was indeed the appellant, and

(b) it was not reasonable to believe that the package would be at the appellant’s home on 20 September, given the five days which had elapsed since it was delivered to Mr Merrett senior and his inability to say when the package was removed from his premises.

[10] For the Crown Mr Burns resisted both of these contentions and supported the Judge’s reasoning and conclusion that the search was lawfully conducted pursuant to s 18(2).

Was the search lawful?

[11] We do not doubt that reasonable grounds for belief existed in relation to the inference that the Harley referred to in Mr Ferry’s tick lists, and the appellant, were the same person. The tick list evidence strongly indicated that Mr Ferry dealt drugs in significant quantities to a person named Harley. When Mr Ferry was also involved in the importation of drugs and in a manner where he required recipients in New Zealand, and when it emerged that one of the imported packages had been sent to a stale business address, but delivery was nonetheless accepted by a man whose son was named Harley (a relatively uncommon name), in our view reasonable grounds for belief existed that the appellant was the intended recipient.

[12] But, in any event there is further material relevant to the Harley connection. This is of course the telephone number evidence. The phone book to Mr Ferry’s cellphone included the number 021 102 2000, which Mr Merrett senior confirmed was the cellphone number used by his son named Harley. Although Detective Humphries had not memorised the number and could not, therefore, immediately confirm the point, the fact remains that objective evidence was within his control which demonstrated to a reasonable belief level that the Harley referred to in the tick lists and the appellant were the same person. Had time permitted, Detective Humphries could have compared the two numbers, so that his subjective belief was

confirmed. Regardless, the objective evidence was already in hand. For these reasons we do not accept the appellant’s argument on this point.

[13] Were there reasonable grounds for believing that drugs would be found at the appellant’s home? This is essentially a timing issue. Had the delay between delivery of the package and the police search been much shorter, we think reasonable grounds for belief would have existed. Equally, if Mr Merrett had said that the package remained unopened at his premises until a short while before Detective Humphries’ visit, it would have been reasonable to believe that the drugs were still at the appellant’s premises. But this question must be approached realistically and on the basis that the appellant was a mere recipient for the importer. On this approach, it follows, in our view, that the reasonable expectation must be that having taken possession of the package the appellant would have already given it to the importer or dealt with it in terms of the importer’s instructions. Hence, while there were grounds for suspecting the appellant’s involvement with the drugs, there was no objective basis to support a reasonable belief the drugs would still be at the premises.

Although unlawful, was the search nonetheless reasonable?

[14] The starting-point is the important case of R v Grayson and Taylor [1997] 1

NZLR 399 (CA). This Court, in referring to matters of general principle said this at

407-8:

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 non-compliance with the search laws. But if a search warrant is readily obtainable that must tell strongly against an unauthorised search. Similarly, the reasonable exercise of the power to search without warrant, eg under the Misuse of Drugs Act 1975, requires that it be resorted to only where it is reasonably necessary to do so before a warrant can be obtained. And it would ordinarily be unreasonable to conduct a warrantless search in violation of an express statutory requirement or where those searching could not meet the test specified in a directly applicable statute.

[15] Whether a search was reasonable or not falls to be judged at the time of its occurrence, as Richardson J explained in R v Jeffries [1994] 1 NZLR 290 at 305:

When is unreasonableness assessed?

It is implicit in the right to be secure against unreasonable search or seizure that reasonableness is to be assessed when the search is about to take place and then, as to the manner of the search, while it is actually taking place. The goal is to prevent unreasonable searches and to stop initially reasonable searches from becoming unreasonable because of the manner in which they are conducted. It is not legitimate to view searches with hindsight and justify them in the light of the results.

The assessment of the particular values underlying the right in the particular case and the balancing of those interests against the public interest in the carrying out of the search, have to be made as at the moment the search is to begin. Only in that way is there adequate focus on securing and vindicating individual rights on the one hand and recognising any imperatives of law enforcement on the other.

[16] Although lawfulness is not determinative of reasonableness there are comparatively few cases in which following a finding of illegality a search has nonetheless been held to have been reasonable.

[17] One such case is R v Loh (1997) 14 CRNZ 649 (CA) in which Blanchard J in delivering the judgment of the Court observed that the relevant principles described in Grayson and Taylor provided general guidance in relation to this issue. Loh, like the present case, involved a warrantless search (although a search for offensive weapons pursuant to s 202B of the Crimes Act 1961), where reasonable grounds for belief were required. The Court was satisfied that the matters relied upon by a constable for stopping and initiating a search of a vehicle “though approaching the line, were not objectively enough to harden suspicion into belief” (p 653) and, hence, the search was characterised as illegal. Nonetheless, the Court considered the search was reasonable because after the vehicle was stopped observations made at that point bridged the gap between suspicion and belief. Hence, the physical search, by which seizure of an already observed weapon was actually effected, was held to be reasonable, given the exigencies of the particular situation.

[18] Is the present case an example of an illegal, but reasonable, search? This inquiry is to be made on the basis of the circumstances objectively available when the search began. This was immediately after Detective Humphries finished

speaking to Mr Merrett senior and ran the short distance to the appellant’s home. It is obvious that the detective had formed the intention to invoke s 18(2) before the appellant answered the door.

[19] While we do not doubt the detective genuinely held a subjective belief as to the existence of reasonable grounds for belief, we do not share that view. That said, this is a close call. In the language of Loh the objective evidence was not enough to “harden suspicion into belief”, but it was close to the line. This is indicated by the circumstance that Ellen France J, in a closely reasoned ruling, reached the conclusion that reasonable belief was established. It is, therefore, a case where a police officer misjudged the weight of the available evidence in circumstances where a fine judgment call was required. Put another way, Detective Humphries entertained a reasonable misapprehension as to his authority to search.

[20] In addition, the urgency of the moment demanded that Detective Humphries act quickly. Mr Merrett senior might well have contacted his son, in light of the discussion which he had just had with the detective. There was, therefore, no time for reflection. Detective Humphries obviously knew as much, as confirmed by his actions in running to the appellant’s address.

[21] But even giving full weight to these factors, we do not consider that the search can be characterised as reasonable. The fact remains that this was a search for which there was no statutory authority. The test of reasonable grounds for belief was not met. That, we think, remains the determinative factor in relation to reasonableness.

Is the search evidence admissible in terms of Shaheed?

[22] In light of the discussion to date, we can proceed directly to the necessary balancing exercise.

[23] The starting-point is the nature of the right which has been breached. In this instance it was the appellant’s right of privacy in relation to his home. A high value is to be accorded to that right. On the other hand the breach was not the most

significant. The objective evidence fell just to one side of the dividing line between suspicion and belief. Moreover, Detective Humphries was confronted by circumstances of urgency, both in relation to deciding whether to proceed under s 18(2) and in doing so.

[24] We accept that the breach was neither deliberate, nor reckless, but that said, good faith on the officer’s part is merely a neutral factor. This is not a case where the officer had other investigatory techniques available to him. In essence, it was a situation where he had to act immediately, or not at all.

[25] Real evidence was obtained in the course of the search. This comprised equipment and substances capable of being used in the manufacture of methamphetamine. Based on residues found on certain items, the Crown has also preferred an actual manufacturing count. The extent to which there is real evidence supportive of this charge, is a matter of dispute. Certainly the evidence obtained is probative, and crucial, in relation to the charge of possession of precursor substances. Exclusion of the evidence is the only remedy available to vindicate the breach.

[26] With these various factors in mind it must be asked whether exclusion of the evidence would be proportionate, or disproportionate, to the breach of the right involved in this particular case. We consider that it would be disproportionate, mainly on account of the extenuating circumstances relevant to the breach in this instance.

Result

[27] For these reasons leave to appeal is granted, but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington