Tararo v R [2010] NZCA 287; [2012] 1 NZLR 145; (2010) 24 CRNZ 888 (5 July 2010)

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ORDER PROHIBITING PUBLICATON OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA609/2009 [2010] NZCA 287

BETWEEN TREMAINE MANAIA TARARO Appellant

AND THE QUEEN Respondent

Hearing: 24 February 2010

Court: Chambers, O'Regan and Randerson JJ Counsel: B J Hunt and M J Dyhrberg for Appellant

B J Horsley for Respondent

Judgment: 5 July 2010 at 4 pm

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted.

B The appeal is allowed in part.

C The decision of the District Court Judge declaring the identification evidence to be admissible at trial is quashed. The admissibility of that evidence under s 45(2) is to be determined in the District Court.

_{D In all other respects, the appeal is dismissed.}

TREMAINE MANAIA TARARO V R CA CA609/2009 [5 July 2010]

E We make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the Internet or other publicly available database until final disposition of trial.

_{Publication in Law Report or Law Digest permitted.}

REASONS OF THE COURT

_{(Given by O’Regan J)}

Table of Contents

_{Para No}

Introduction [1] Issues on appeal [7] Facts [13] Did the officer have an implied licence to enter the property? [18] Was there a search? [51] Was the “search” unreasonable? [65] Conclusion and comment [66] Admissibility of the sweatshirt evidence [67] Identification evidence: s 45 [68] Section 30 of the Evidence Act 2006 [85] Result [86]

Introduction

[1] The appellant and three others face trial on charges of conspiracy to sell cannabis, sale of cannabis and possession of cannabis for the purpose of sale. Two of the co-accused are the appellant’s brothers.

[2] The Crown case is that the four accused were operating a tinnie house (i.e. they were selling cannabis tinnies to those who came to the house and sought to buy them). The charges relating to sale of cannabis arise from specific purchases made by an undercover police officer. The officer also observed the accused in possession of additional tinnies of cannabis, and the transactions with the undercover police officer were followed by a police search of the house. The charges of possession for supply relate to those observations and evidence obtained from the search.

[3] The appellant challenged the admissibility of certain proposed police evidence and the Crown made an application under s 344A of the Crimes Act 1961 for an order that the challenged evidence was admissible. In a decision delivered on

21 December 2009, Judge J M Kelly found that the evidence was admissible.¹ The

appellant seeks leave to appeal against that ruling.² The Crown did not oppose the granting of leave.

[4] There were three categories of evidence covered by the District Court decision. The first was photographic stills taken from a video recording made by an undercover officer when purchasing a tinnie.

[5] The second was the evidence of the undercover officer identifying the appellant as the person who sold cannabis to him. It was argued in the District Court that that evidence was inadmissible on the basis that there had not been compliance with the procedure mandated by s 45 of the Evidence Act 2006. Judge Kelly found it was admissible.

[6] During the search of the house occupied by the appellant and his co-accused, the police seized a sweatshirt which is said to have been worn by the appellant when he sold cannabis to the undercover police officer. This was the third category of evidence in issue in the District Court.

¹ _{R v Tararo DC Wellington CRI-2008-091-3656, 21 September 2009.}

2. There was also a s 344A application relating to evidence against one of the co-accused, Mr Uri, but this appeal does not deal with that aspect of Judge Kelly’s decision.

Issues on appeal

[7] The undercover police officer who purchased a tinnie from the appellant had with him a concealed video camera on which he recorded that sale transaction. The video recording did not include sound. The Crown wishes to admit in evidence still photographs taken from the videotape (but not the video recording itself, unless the defence wishes that to be played before the jury). The first issue is whether the undercover officer was entitled to enter onto the land on which the house was situated and proceed to the front door in order to purchase a tinnie, and, in particular, whether he was entitled to do this while in possession of a concealed video camera that was recording events. The Crown says that the police officer had an implied licence to enter the property for this purpose and was not acting unlawfully when he made the purchase and recorded it on video.

[8] Counsel for the appellant, Ms Hunt, argued that the actions of the undercover officer in making the purchase and recording it on video amounted to a search. She argued that the officer was acting unlawfully (because the implied licence to enter the property did not apply) and that the search was therefore unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990. This gives rise to the second and third issues: was there a search? And if so, was the search unlawful and unreasonable in terms of s 21?

[9] The fourth issue is whether, in light of our findings in relation to the first three issues, there was a sufficient factual basis for the issuing of the search warrant authorising the search in which the sweatshirt was found.

[10] The fifth issue is whether the identification evidence was obtained in breach of s 45 and, if so, what the consequences of that are.

[11] A possible additional issue, if any of the evidence is found to be unlawfully obtained, is whether it should nevertheless be admitted under s 30 of the Evidence Act.

[12] We will deal with the issues in the order in which they are listed above. Before doing so, we will summarise the facts.

Facts

[13] The officer gave evidence that, in accordance with his duties as an undercover police officer, he went to the property which the Crown alleges was a tinnie house (we will call this the property) to purchase a tinnie. There was nothing to prevent his entry to the property (for example a locked gate) and no sign prohibiting entry. He went to the front door of the house on the property and knocked on the door. A person opened the door and the officer produced a $20 note in his hand. The person at the door presented a tinnie. The officer took the tinnie and handed over the $20 note. This transaction was not visible from the street because the front door was shielded by a frosted glass porch. The officer then returned to his vehicle. The transaction was recorded on the concealed video camera the officer was carrying.

[14] Earlier that day, about an hour before the tinnie purchase occurred, the officer had been briefed by another police officer. During that briefing, he was shown between nine and twelve photographs of persons whom the police believed could be at the house or were associated with the property. He studied the photographs to try to “place their faces in my memory”.

[15] The officer said that he recognised the person from whom he had purchased the tinnie as being one of those in the photographs he had been shown earlier.

[16] Immediately after the transaction, the officer returned to base and handed the cannabis exhibit over to a fellow officer. He downloaded a still image of the person from whom he had purchased the cannabis tinnie from the video camera and completed a statement relating to the purchase.

[17] In the statement he wrote up after the transaction, the officer described the occupant who had sold the cannabis tinnie to him. He checked the photographs which had been shown to him before the transaction to find out the name of the

person who had sold him the cannabis tinnie. It appears the officer did these steps together, that is he had the photographs he had seen before the transaction in front of him when he was preparing his statement. The officer recognised the appellant and recorded his name as Tremaine Tararo. He checked the photograph of the appellant that he been shown prior to the transaction against the still photograph downloaded from the video recording he had made during the transaction, in order to confirm his identification.

Did the officer have an implied licence to enter the property?

[18] It was common ground that the implied licence applies to any member of the public entering a property and proceeding to the front door with the intention of communicating with the householder, including police officers. The implied licence is a common law construct deriving initially from the often cited decision Robson v

Hallett.³ In that case the Divisional Court held that a member of the public with a

lawful reason to do so had a licence to enter a property which has an unlocked gate, walk to the door of the house and knock and inquire whether he or she could be admitted.⁴

[19] There has been some controversy about the exact boundaries of this implied licence and, in particular, whether it permits police officers to do more than approach the door with the object of communicating with the householder. But that controversy does not arise in this case because Ms Hunt conceded that the undercover officer in this case would not have been acting outside the implied licence if he had entered the property, gone to the door, purchased the tinnie and left, without having made a video recording of the transaction.

[20] We believe the concession made by Ms Hunt was rightly made. Even if the implied licence is given a narrow interpretation, it would allow an undercover police officer who believes the house is being used to sell cannabis to enter on the premises

³ _{Robson v Hallett [1967] 2 QB 939.}

⁴ At 950-951.

for the purposes of making an inquiry as to the availability of cannabis for purchase. By participating in the transaction, the occupier consented to the officer remaining on the property for that purpose. However, if it turned out that the property was not a tinnie house, or there was no-one home, or the occupier refused to sell a tinnie, the officer could not undertake any investigative activities: in effect the refusal to engage in trade would signal the termination of the implied licence and the officer would need to leave. In this case, a trade did occur, so that scenario does not arise.

[21] But, of course, the officer did make a video recording in the present case, so the question arises whether the fact that he had a video camera in operation during the episode took the activity outside the scope of the implied licence and made his presence on the property unlawful.

[22] Ms Hunt argued that the implied licence was narrow in scope, and limited to what was required to enable initial communication with the occupiers for legitimate police business. She said it would be wrong to extend the implied licence as articulated in Robson v Hallett to empower police to enter private property to undertake general investigations without the express consent of the occupier. For this proposition she relied on an observation by Winkelmann J in R v Bailey.⁵

Winkelmann J emphasised the narrow scope of the applied licence available to the

police: she said that it enabled only what was required to enable initial communication with the occupiers for legitimate police business.⁶

[23] A number of decisions of this Court in recent years have touched on the nature of the implied licence and the permissible bounds of police conduct on private property pursuant to the implied licence.

[24] The decisions of this Court are not easily reconcilable and it is necessary to refer to them in some depth. The uncertainty was summarised by the Law Commission in its report as follows:⁷

⁵ _{R v Bailey HC Auckland CRI-2007-085-7842, 8 September 2009.}

⁶ _{At [130].}

⁷ Law Commission Search and Seizure (NZLC R97, 2007) at [3.113].

However, it is unclear whether enforcement officers have any greater rights [in respect of the implied licence] than members of the public. On one view, consistent with the principle articulated in Robson v Hallett, they do not. On another view, the implied licence has increasingly been regarded by the courts as a law enforcement tool. In R v Bradley⁸ the Court of Appeal stated that the implied licence exists as an “exception” to the principle articulated in Entick v Carrington⁹ about the inviolability of a person’s home and considered that it “exists to serve the public interest in the effective investigation of offences and the punishment of those responsible.”

[25] Notwithstanding this uncertainty, the Commission decided not to recommend codification of the law relating to the scope of the implied licence as it applies to the police.¹⁰

[26] In Bradley, this Court described the law relating to the implied licence as it applies to the police in these terms:¹¹

A citizen’s fundamental right to privacy embraces the sanctity of his or her home. That right, generally encapsulated in the statement “an Englishman’s home is his castle”, cannot be violated by those persons in positions of power without authority founded in the law. Hence, every invasion of private property is a trespass unless properly authorised. Such a principle has been recognised as fundamental since Entick v Carrington (1765) 19

State Tr 1029; [1765] EWHC J98; 95 ER 807, and has been reaffirmed in decisions too numerous to recite.

But as critical as it is, the principle is not absolute. At times and on occasions privacy is forced to yield to the wider interests of the community, particularly the public interest in the detection and prosecution of crime. Thus, to meet the community’s insistent demand to combat crime and the public’s readiness to accept a greater degree of intrusion upon privacy to achieve that end, police excursions on to private property which would otherwise be trespasses have been excused by developments in the common law, or the enactment of statutory powers authorising searches under the authority of search warrants, or warrantless searches in restricted and closely controlled circumstances. (See R v Jefferies, supra, at pp 318, 319; pp 226,

227.) An early common law exception was the power of a police officer, as the conservator of the peace, to enter a dwelling-house to prevent a breach of

the peace. Lord Hewart LCJ in Thomas v Sawkins [1935] 2 KB 249, 255,

later articulated the principle as authority for a police officer, ex virtute officii, to enter and remain on private premises when he or she has reasonable ground for believing that an offence is imminent or is likely to be committed.

The “implied licence” was “either invented or articulated” (to use Cooke P’s language in Howden v MOT [1987] 2 NZLR 747, 751; (1987) 2 CRNZ 417,

⁸ _{R v Bradley (1997) 15 CRNZ 363 (CA).}

⁹ _{Entick v Carrington (1765) 19 State Tr 1029.}

¹⁰ _{See recommendation 3.10.}

¹¹ At 367-369.

420 (CA)) by a Divisional Court in Robson v Hallett [1967] 2 QB 939; [1967] 1 All ER 407. It seemed to Lord Parker CJ (at p 951) that “the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house”. Diplock LJ (as he then was) held (at p 953) that “when a householder lives in a dwelling-house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business”. Such an implied invitation, however, extends no further than is required to permit communication with the occupant of the premises, and it can be negated by express reference or revoked altogether. Where the police act in accordance with this implied permission their action is not regarded as an intrusion upon the privacy of the occupier. The implied licence effectively waives the privacy interest which the occupier might otherwise have in his or her home.

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. 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.

But [counsel for the appellant] asserted that the implied licence in this case was limited to the police entering the property by the gate and knocking on the front door. We believe that he construed the licence too narrowly.

In the first place, it is to be borne in mind that this “exception” to the inviolability of the principle that a person’s “home is his castle” exists to serve the public interest in the effective investigation of offences and the punishment of those responsible. The scope of the licence cannot be defined without regard to that “public interest”. While this factor cannot be permitted to enlarge the implied licence beyond what is reasonable in the circumstances, it militates against the adoption of an unduly restricted definition such as that advanced by [counsel for the appellant].

Secondly, as the purpose of the implied licence is to enable persons, including the police, on legitimate business to enter the property to communicate with the occupier, the nature of that business cannot be disregarded. On the part of the police, it may include the making of inquiries, a request to be admitted to the premises, or permission to perform some other act on the property. (See, for example, Neville v Halliday: Brida v Halliday [1983] 2 VLR 553). Consequently, notwithstanding that the implied licence as framed in Robson v Hallett provides police officers with the implied licence available to any member of the public, the scope of the implied permission for a police officer to pursue his or her legitimate business will not necessarily be the same as the implied licence for, say, a

postman or stranger merely seeking directions. The lawful business of each differs, and with that difference, the occupier’s expectation of privacy may also differ. The scope of the authority to enter may vary so as to permit that which, having regard to the householder’s reasonable expectation of privacy, is reasonable in the circumstances.

Thirdly, it is to be appreciated that the facts of Robson v Hallett did not require the Divisional Court to address the possibility of the implied licence extending beyond a right to enter and “knock” on the front or back door of a house. In that case the constable alighted from a police vehicle and entered the property via the front gate. He then passed directly through the yard or garden to the front door of a semi-detached council house. In rejecting the submission made on behalf of the occupier that the police were trespassers, the Court related the implied licence directly to the factors of that case. Hence, the express reference in the dicta of Lord Parker CJ and Diplock LJ quoted above to “the gate”, “the steps” and “the garden”. Lord Diplock, for example, cannot be taken to have intended to restrict the implied permission to a dwelling-house “to which there is a garden in front”. Nor could it be reasonably suggested that a police officer who enters upon property on lawful business would be unable to communicate with a householder who was observed in the garden or yard or who could be seen in the house through an open door or window. The implied licence to enter must be defined in terms of what is reasonable to enable the police officer to communicate with the occupier of the dwelling-house.

[27] A number of points can be noted about Bradley.

[28] First, it deals only with the situation where the police officer seeks to communicate with the occupier. It does not say that a police officer may enter a property to make general inquiries in any other circumstances. Bradley did not deal with situations involving police entry onto private property for other purposes. Nor do we make any comment on such situations.

[29] Second, it does not suggest that the implied licence permits the police officer to undertake activities that go beyond what is reasonable to enable a police officer to communicate with the occupier of a dwelling house on a property, though it extends Robson v Hallett to permit communication with the occupier not just at the front door, but also at other places such as the back door, in the garden or yard, or where the person may be seen through an open window or door. The touchstone is whatever is reasonable for the purpose of communicating with the occupier. That is not of significance in the present case because the communication between the officer and the person alleged to be the appellant occurred at the front door. For example, it would not permit a police officer to enter a property for the purpose of

checking for unlawful activity by looking through the windows of the house or checking whether he or she could smell cannabis being smoked on the premises. Similar reasoning was applied by the United States Supreme Court in a slightly different context in Lewis v United States.¹²

[30] Thirdly, it permits a person to enter the property “on legitimate business” for the purpose of communicating with the occupier. In the case of the police, that legitimate business may “include the making of inquiries, a request to be admitted to the premises or permission to perform some other act on the property”. This extends Robson v Hallett, for the reasons given by Thomas J in the extract quoted above. That is significant in the present case because it can be argued that, while the officer’s entry onto the property was for the purpose of communicating with the occupier and buying a tinnie from him, an obviously collateral purpose was to thereby uncover criminal activity and collect evidence as to its occurrence. It should also be emphasised that what is a legitimate purpose for a police officer may well not be legitimate for a member of the public or a news media reporter.

[31] Fourthly, Thomas J suggests that the public interest in the detection of criminal behaviour militates against the adoption of an unduly restricted definition of the implied licence. This appears to move away from the idea that the scope of the implied licence is determined by reference to what the occupier would have agreed to, had he or she been asked to give an express licence. In the present case, while the occupier as the proprietor of a tinnie house would have agreed to a prospective customer entering the land to buy a tinnie, he or she would obviously not have agreed to an undercover police officer doing so and reporting the outcome.

[32] Whether an analysis based on what an occupier would have agreed to properly reflects the underpinning of Robson v Hallett is debatable, since that case is founded on an ex-post attribution of deemed agreement to the occupier, rather than any assessment of what the occupier actually agreed to. But, in any event, even if we are wrong in that interpretation of Robson v Hallett, this Court in Bradley went beyond that basis of analysis to incorporate within the scope of the implied licence

¹² Lewis v United States [1967] USSC 36; 385 US 206 (1966); affirmed by the Supreme Court in United States v

White [1971] USSC 96; 401 US 745 (1971).

the entry onto property by a police officer for legitimate police business including the making of inquiries, so long as those inquiries involved an approach to the occupier to communicate with him or her.

[33] Bradley was considered by this Court in a more recent case, R v Soma.¹³ In Soma, police officers entered a property and knocked at the front door, and when no answer was given had proceeded to the back of the house. There they smelt cannabis and then invoked the power of search without warrant, which yielded evidence of possession of cannabis. Applying Bradley, the Court determined that the officers’ actions were lawful. When discussing the scope of the implied licence, the Court

said:¹⁴

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.

[34] The Court concluded that the implied licence permitted the police to go to the back of the property, having received no response to her knock at the front door, and to make inquiries of the occupier in relation to the subject matter of their investigation.¹⁵

[35] As noted earlier, in Bailey Winkelmann J also gave consideration to the scope of the licence. She relied on the quotation from Soma which we have set out above and concluded as follows: ¹⁶

In reality then, the implied licence available to police is of narrow scope and is limited to what is required to enable initial communication with the occupiers for legitimate police business.

¹³ _{R v Soma (2004) 21 CRNZ 23.}

¹⁴ _{At [31].}

¹⁵ _{At [41].}

¹⁶ At [130].

[36] In that case the police entered on land where there was no front door and no path, in order to pursue investigatory steps. They had no intention to approach the occupant of the property or make inquiries of them. Winkelmann J said it would be wrong to extend the implied licence to empower police to enter private property to undertake general investigations absent the owner’s express consent or in an

emergency.¹⁷

[37] Bailey deals with a different situation from the present case because there was no intention on the part of the officers to communicate with the occupiers of the property. So we do not see the comments made in that case as assisting in the present context. Bradley specifically allows the police to enter property for the purpose of making inquiries, but only in the context of an inquiry involving an approach to the occupier of the property. It does not limit the scope of the licence to what is required to enable initial communication with the occupier, but permits entry for the purpose of making inquiries as long as those inquiries involve communication with the occupier.

[38] Two recent High Court decisions have emphasised the differing approaches to the determination of the existence of an implied licence. In O’Connor v Police, Fogarty J said there were two alternative interpretations, which he summarised as follows:¹⁸

1. Implied licence depends on whether or not the grounds for entry were those for which an occupier of a residential dwelling gives implied licence to enter.

Or

2. Implied licence depends upon the police officer having a reasonable ground for entering on private property.

Fogarty J determined that the first of these was correct.¹⁹ Thus, even if a police

¹⁷ _Ibid.

¹⁸ _{O’Connor v Police [2010] NZAR 50 at [15].}

¹⁹ At [16].

officer has a reasonable ground for entering on private property, it will be unlawful to do so if the occupier would not have allowed the police officer to enter for the purpose for which the officer did actually enter.

[39] In Police v McDonald, Dobson J took the other view.²⁰ He expressed the view that Bradley demonstrated that the scope of the implied licence was not dictated by how a reasonable occupier was deemed to respond to the circumstances of entry on to the property, but rather by balancing the nature of the public interest relating to the need to detect offending and the context in which the communication sought by the officer would occur. He concluded as follows: ²¹

The parameters of the implied licence are not usefully defined in any given factual situation by speculating on what ought reasonably to be expected of some notional occupier in the particular situation. Nor are the parameters defined by analysis of the reasonableness of the Police officer’s expectation of an entitlement to enter depending on the nature and extent of information that the officer relies on in wishing to communicate with the occupier.

[40] He added:²²

The existence of the implied licence is not contentious. It permits a Police officer to enter private property so far as is necessary to engage an occupier, in the course of any lawful enquiry.

[41] We agree that the scope of the licence is not determined by what the occupier may (subjectively) have been prepared to agree to, nor by the police officer’s view of what is reasonable to undertake the proposed inquiry. The scope of the licence is partly defined by reasonable expectations of privacy (objectively assessed) and partly by the public interest in the investigation of crime. The formula expressed by Dobson J and quoted above²³ is a succinct and appropriate summary of the scope of the licence.

[42] Ms Hunt also relied on TV3 Network Services v Broadcasting Standards

²⁰ _{Police v McDonald [2010] NZAR 59.}

²¹ _{At [34].}

²² _{At [36].}

²³ At [41].

Authority, where Eichelbaum CJ held that there was no implied licence for TV3 to send a reporter onto private property and set up a surreptitious video camera next door to capture any footage, in circumstances where TV3 knew that the occupier did not want to be interviewed.²⁴ In our view, this case can be distinguished from TV3. When the TV3 reporter went onto the property, she had no legitimate reason for doing so. She was not entering with the purpose of seeking an interview, because

she already knew that the occupier did not want to be interviewed on film. In contrast, the police officer in the present case did have legitimate business when he went onto the property. He wanted to buy a tinnie, a purpose to which he reasonably anticipated the occupier would consent, and he also had a legitimate purpose of investigating criminal conduct. As this Court found in Bradley, a police officer has an implied licence to go onto a property and communicate with the occupier for such legitimate purposes. While it may be permissible in some circumstances for a police officer to film covertly while on private property under an implied licence, it does not follow that it will be permissible for a news media reporter to do so.

[43] Returning to the facts of this case, we are, as indicated earlier, satisfied that the undercover officer was permitted to enter the property with the purpose of purchasing a tinnie. He had reasonable cause to believe that a tinnie house was in operation and the purchase of a tinnie was a legitimate method of inquiry.²⁵ He intended to communicate with the occupier when he entered the property. The occupier did not terminate the licence by asking the officer to leave or by declining to sell him cannabis and thereby removing the reason for his continued presence on the property.

[44] The more difficult question before us is whether the fact that the officer carried a video camera which was operating at the time of the purchase of the tinnie took his entry onto the land outside the scope of the implied licence. There is currently no regime for police to obtain a warrant to use a video camera when carrying out undercover operations such as this. The Search and Surveillance

²⁴ _{TV3 Network Services v Broadcasting Standards Authority [1995] 2 NZLR 720 (HC) at 732.}

²⁵ Misuse of Drugs Act 1975, s 34A.

Powers Bill is currently before Select Committee, with a report due back in 2011.²⁶

The Bill in its current form would require police to obtain a surveillance device warrant for any “observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.”²⁷ However no warrant would be required where the officer lawfully enters private premises and records what he or she observes or hears.²⁸

[45] Once it is established that the licence permits legitimate police inquiries, so long as they involve an approach to the occupier and terminate if the occupier revokes the implied licence or is not present when the attempt to communicate occurs, the nature of the inquiries which are made is not in our view determinative of the existence or otherwise of the licence. Once it is accepted that an officer may make inquiries, it must also be accepted that he or she may be called upon to give evidence of the outcome of those inquiries. That may mean the officer makes notes or otherwise creates a record of what occurred.

[46] We see some similarities between this case and R v Smith (Malcolm).²⁹ In Smith, Mr Smith’s flatmate became a police informer and used a hidden video camera to record Mr Smith supplying morphine tablets to persons who came to his house. This Court held that the tapes were admissible evidence. The Court found that the informer had an express licence to be in Mr Smith’s dwelling. The focus of the case was on the reasonableness of the actions of the police in arranging for the informer to collect evidence by use of covert video equipment. The Court said that it was hopeless to argue that Mr Smith’s privacy expectations overrode other public interest values, particularly the detection and prevention of drug dealing, given the context of unlawful drug dealing using coded hand signals because Mr Smith was

wary of police electronic surveillance.³⁰ The Court noted that the whole purpose of

the video was to reduce the risk of unfair undermining of the reliability of the informer’s evidence if it stood alone.

²⁶ _{Search and Surveillance Bill 2009 (45-1).}

²⁷ _{Ibid, cl 42(c).}

²⁸ _{Ibid, cl 43(1)(a).}

²⁹ _{R v Smith (Malcolm) [2000] NZCA 99; [2000] 3 NZLR 656 (CA).}

³⁰ At [52].

[47] This Court has dealt with covert recordings in a number of other cases, which we discuss below.³¹ In those cases the Court found that covert audio recordings, even if they amounted to a search, were “reasonable”. In our view a similar approach is required in the present context as well. However, all cases are assessed in light of the time, place and circumstances. Nothing in our analysis should be seen as overriding that requirement.

[48] In this case, the police officer used a video camera to create a record of a transaction freely entered into with the appellant. The appellant was a willing participant in the transaction with the officer: Mr Smith had also been a willing participant in transactions with the police informant in that case. In this case, the police officer was present under an implied licence to enter: in Smith the police informant was there under an express licence. Here the purpose of the video was to obtain a record of what actually took place as it occurred to reduce the risk of undermining the reliability of the police officer’s testimony if it stood alone (particularly in relation to the identification of the seller of the tinnie): in Smith the police were alive to the concern that the police informant would not be a credible witness.

[49] One difference between this case and Smith is that in Smith, Mr Smith was conscious of the possibility of being subject to surveillance and therefore engaged only in hand signals: the video surveillance recorded these hand signals. Here the appellant was not conscious of police surveillance. However, we do not see this as a significant difference between the cases.

[50] We are satisfied that, standing back and considering the time, place and circumstances in this case, the use of a covert video camera by the police officer to record his purchase of a tinnie at the property did not exceed the terms of the implied licence. The officer was lawfully on the property.

³¹ At [55]-[59] below.

Was there a search?

[51] Ms Hunt argued that the conduct of the undercover police officer was an unreasonable search in breach of s 21 of the New Zealand Bill of Rights Act.

[52] For the Crown, Mr Horsley argued that the officer’s actions in making a video recording of the transaction was not a search at all, but as a fallback from that position he also argued that, if it was a search, it was not unreasonable.

[53] Logically there are two separate questions to be answered, the first being whether the conduct amounted to a search at all, and the second arising only if that is answered affirmatively, concerning the reasonableness of the search. However, the approach to this Court in similar cases in the past has been to “park” the first question and to proceed straight to the analysis of the reasonableness of the police conduct in question.

[54] A good example of this is R v Fraser,³² which dealt with video surveillance of the property carried out from outside that property. In giving the judgment of the Court, Gault J considered in some detail the question of what amounted to a search. He noted that the White Paper³³ preceding the New Zealand Bill of Rights Act 1990 referred to s 21 applying “not only to acts of physical trespass but to any circumstances where state intrusion on an individual’s privacy in this way is unjustified.” He described a search as endeavouring to find something not readily at hand or available and as an investigation or scrutiny in order to expose or uncover.³⁴

But ultimately, as this Court had done in earlier cases, he determined that the conduct of the police was not unreasonable and so it was unnecessary to find whether the video surveillance constituted a search.³⁵

³² _{R v Fraser [1997] 2 NZLR 442 (CA).}

33. Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984 – 1985] I AJHR A6 at [10.152].

³⁴ _{At 449.}

³⁵ At 452.

[55] In R v A,³⁶ this Court found that participant recording (in that case the surreptitious sound recording of communications between a suspected offender and an undercover police officer) constituted a search and seizure under s 21 of the Bill of Rights Act, but found it was not unreasonable.

[56] In R v Barlow,³⁷ this Court found that evidence obtained by surreptitious sound recording of conversations between the accused and a friend of the accused who had become a police informer was admissible. Hardie Boys J was not convinced that participant recording was properly to be regarded as either a search or a seizure. He said that participant recording raised no issues of privacy or property rights, which were the values underpinning s 21.³⁸ Cooke P agreed with the view

expressed by Hardie Boys J.³⁹

[57] Gault J took a similar line. He said:⁴⁰

For my part I do not accept that to participate in a conversation with another person is to subject him or her to a search, nor that remembering what has been said is to seize. I see no difference if to aid recollection a recording is made of what is said. That amounts to no greater intrusion into privacy by the making of an electronic recording than would occur by the making of a written note.

[58] Richardson J reiterated the view he had expressed in R v A that participant recording may amount to a search, but the recording was reasonable in the circumstances.⁴¹ McKay J left the point open.⁴²

[59] More recently, in Smith, this Court confirmed the approach taken to participant recording in R v A and Barlow, expressing the view that there was no difference in principle between audio and video recording,⁴³ but it again dealt with the matter on the basis of an assessment of reasonableness rather than in dealing discretely with the prior question as to whether there was a search at all.

³⁶ R v A [1994] 1 NZLR 429. See also R v Te Kahu [2005] NZCA 438; [2006] 1 NZLR 459 (CA) at [61] where R v A

_{was followed. That case did not involve participant recording, however.}

³⁷ _{R v Barlow (1995) 14 CRNZ 9.}

³⁸ _{At 41.}

³⁹ _{At 22.}

⁴⁰ _{At 48.}

⁴¹ _{At 33.}

⁴² _{At 58.}

⁴³ At [51].

[60] In the present case Judge Kelly also assessed the matter from the point of view of the reasonableness of the police action rather than the question as to whether there was a search. Having found that the police officer was acting within the terms of an implied licence to be on the property, she concluded that the facts of the present case were analogous to Smith, in that the appellant did not have any expectation of privacy that would override the public interest in detecting sellers of drugs. She said the appellant was a willing participant in drug transactions with strangers at the front door of the property, and hence his expectation of privacy was overridden by the public interest in detecting sellers of drugs. She did not consider the covert video footage to be unreasonable or unfair.

[61] The approach which has been taken to similar cases in the past means there is little guidance for us on this question. We have already referred to the judgment in Fraser, in which some tentative views were expressed. More recently, the issue arose in a quite different context before the Supreme Court in R v Ngan.⁴⁴

[62] R v Ngan concerned the police action in opening a sunglasses pouch found among other possessions (including large amounts of money) on the road after a serious car accident. A police officer picked up the pouch and another officer opened it, thinking that it might contain more cash. The question as to whether this amounted to a search was discussed in some detail in the judgment of McGrath J, but did not require detailed consideration in the other judgments.

[63] McGrath J considered the two possible meanings of “search” that had been postulated in Fraser, the first being investigation or scrutiny in order to penetrate concealment, and the second being narrower, namely examination or investigation for the purpose of obtaining evidence. He thought the second was too restrictive, because it excluded official examinations or investigations that were not linked to the gathering of evidence, but which nonetheless affected privacy rights. On the other hand, he thought the first was too broad because it could cover official conduct

which did not engage the values protected by s 21. He concluded as follows:⁴⁵

⁴⁴ _{R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48.}

⁴⁵ At [111].

Whether or not in any case a particular activity falls within that meaning of “search” must ultimately turn on a value judgment that considers the nature of the particular examination or investigation by government officials and its impact on the privacy and security of the person subjected to it. This will allow the court to decide whether that type of activity should or should not be exposed to assessment in light of Bill of Rights Act restraints. The finding that official actions amount to a search entails no judgment on whether in the particular circumstances the search is reasonable. That aspect must be the subject of further inquiry.

In our view the expectation of privacy of the appellant in this case is minimal. The appellant was prepared to engage in cannabis trading from his front door with strangers. We would have seen the case in quite a different light if the police officer had entered the house, but that did not occur. In our view the mere recording of a transaction freely entered into is not properly characterised as a search in the circumstances of this case.

[64] However, we recognise that there is room for a different view on that issue, and, notwithstanding our conclusion we will consider whether, if the police officer’s conduct had amounted to a search, it would have been unreasonable in terms of s 21.

Was the “search” unreasonable?

[65] This question is answered by the previous decisions of this Court in relation to use of audio equipment (R v A and Barlow) and video equipment (Smith). As this Court made clear in Smith the assessment of reasonableness requires consideration of the time, place and circumstances. We have dealt with Smith in the context of the implied licence.⁴⁶ We concluded that the undercover officer was lawfully on the property under an implied licence. The question we must answer in this context is whether, given that the officer’s actions were lawful, those actions were also reasonable. The factors that led us to conclude that the officer was acting lawfully

also lead us to conclude that his actions were reasonable in the circumstances. We do not see any material difference between this case and Smith in that regard. If his conduct amounted to a search, it was reasonable in terms of s 21 of the Bill of Rights Act.

⁴⁶ At [47]-[50] above.

Conclusion and comment

[66] We conclude that the officer was lawfully on the property and that the covert filming was also lawful. The evidence obtained as a result of that covert filming is admissible. We therefore uphold this aspect of Judge Kelly’s decision. In reaching that conclusion we have sought to apply previous authorities of this Court to the particular facts of this case. In doing so, we have resolved the uncertainty about the nature of the implied licence as it applies to police officers, as identified by the Law

Commission.⁴⁷ We are conscious that the whole area of police powers of search and

seizure is under consideration by Parliament and that this decision may influence the deliberations of the House, particularly on the desirability of codifying the limits on police powers in this area. We direct the Registrar to send a copy of this judgment to the Clerk of the House so that it can be placed before the Select Committee currently considering the Search and Surveillance Powers Bill.

Admissibility of the sweatshirt evidence

[67] In light of our earlier conclusions there is no real dispute that there was a sufficient factual basis for the issuing of the search warrant authorising the search in which the sweatshirt was found. We therefore uphold the finding that this evidence was admissible.

Identification evidence: s 45

[68] It is common ground that the identification procedure adopted in this case⁴⁸ was not conducted according to a formal procedure complying with s 45(3) of the Evidence Act 2006. This means that the Crown must show either that there was a good reason for not following the formal procedure under s 45(4) or that the circumstances in which the identification was made produced a reliable identification.

⁴⁷ _{At [24] above.}

⁴⁸ At [13]-[17] above.

[69] In the District Court, Judge Kelly found that there was a good reason for not following the formal procedure. She found that s 45(4)(e) applied.⁴⁹ That provision says that it is a good reason for not following formal procedure “if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation”. She said she saw no difficulty with the officer

looking at the photographs of persons of interest before going to the address and considered that it would have been artificial to have conducted a photo montage procedure after the tinnie had been purchased.

[70] That conclusion meant that s 45(1) applied. That provision says that where there is a good reason for not following the formal procedure, the visual identification evidence is admissible unless that defendant proves on the balance of probabilities that the evidence is unreliable. Having considered the photograph extracted from the video recording and the evidence obtained of the hoodie which was found in the appellant’s home, and having regard to the consistency of the description of the hoodie made by the officer immediately after the purchase, she concluded that the appellant had not met the requirements of that provision. The Judge found that the visual identification evidence was admissible.

[71] Ms Hunt said that the Judge was wrong to apply s 45(4)(e). She said there was, in fact, no good reason for not following the formal identification procedure. Accordingly, s 45(2) applied. That provision says that where the formal procedure is not followed and there is no good reason for not following such a procedure, the evidence is inadmissible unless the prosecution proves beyond reasonable doubt that the circumstances in which identification was made have produced a reliable identification. She argued that this test could not be satisfied and that the evidence should therefore have been ruled inadmissible.

[72] Since the hearing of the appeal we have been provided with copies of nine photographs which were apparently looked at by the officer an hour or so before he went to the property and purchased the tinnie,⁵⁰ and the still photographs extracted

⁴⁹ _{At [80].}

⁵⁰ See further discussion at [80] below.

from the video recording of the transaction which the officer made. The latter is not of particularly high quality, though the face of the seller of the tinnie is reasonably clear. However we do not consider that the appeal should be resolved on the basis that s 45(2) is satisfied. If there is no good reason for not following the full identification procedure, then the decision as to whether the Crown can establish the reliability of the identification beyond reasonable doubt is best left to the trial Judge. Our reasons for taking this approach are:

(a) The District Court Judge did not make a finding on this issue, because it was unnecessary for her to do so on the approach she took to the case;

(b) The photographs seen by the officer prior to the tinnie transaction (or, at least, nine photographs believed to have been among those seen by him) were provided to us by Crown counsel after the hearing. They were not formally produced and their status is unclear. We do not consider it appropriate to make findings assuming that they are what they are said to be without hearing evidence on the point;

(c) Because the photographs were not before us at the time of the hearing, we did not hear argument on this point; and

(d) The trial Judge may well be able to view the videotape itself, which may be material to the decision on this point.

[73] Accordingly, the issue before us is whether there was a good reason for not following the formal procedure in the present case. Mr Horsley argued either that s 45(4)(e) applied (as the Judge found), or alternatively that the evidence in this case was recognition evidence of the kind described in R v Edmonds.⁵¹

[74] We can dismiss the latter argument briefly. In our view the evidence of an officer who had never met the appellant but had seen a photograph of him an hour or so before is of a quite different quality from the recognition evidence referred to in

⁵¹ R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.

Edmonds. We think it would be stretching the concept described in that case well beyond its limits to classify the officer’s evidence in this case as recognition evidence.

[75] The issue is therefore whether s 45(4)(e) applies, or whether another exception applies.

[76] Ms Hunt argued that s 45(4)(e) did not apply in this case. She said that commentators had confined the application of that provision to identifications made immediately after an offence to an officer who arrives at the scene.⁵² Ms Hunt said that in the present case the police officer had effectively made an identification to himself, whereas the provision contemplates another person making an identification to an enforcement officer in the course of the officer’s investigation.

[77] We agree that the present circumstances do not fall strictly within s 45(4)(e), which appears to deal with a situation where a witness to an offence makes the identification to an officer who is undertaking an investigation.

[78] Although we see this case as falling outside the strict terms of s 45(4)(e), the circumstances in which the identification were made have some similarities to the situation described in that provision. This Court determined in Edmonds that the class of “good reasons” in s 45(4) is not closed and that there may be other good reasons for not following the formal identification process.⁵³ We therefore consider whether, in the circumstances of this case, there were good reasons for not following the formal process.

[79] The first feature of the process adopted in this case was the fact that the undercover officer was briefed prior to the purchase of the tinnie and was shown a number of photographs of those expected to be at the scene, so that he could familiarise himself with them in order to improve the chances of his identifying the tinnie seller. Unfortunately there was no proper record kept of the photographs shown to the officer or even of the number of photographs he saw. He said he

⁵² See, for example, Richard Mahoney, Elisabeth McDonald, Scott Optican and Yvette Tinsley

_{Evidence Act 2006: Act and Analysis (Brookers, Wellington, 2007) at [EV 45.07(5)].}

⁵³ At [64].

believed he was shown approximately a dozen photographs. He was shown nine photographs (including one of the appellant) in the District Court and said he was fairly confident he had been shown all of them, but unsure if he was also shown others. The Judge did not make a specific finding about this. We conclude from the evidence before us that the officer inspected between nine and twelve photographs before the tinnie transaction, one of which was a photograph of the appellant. He saw the same photographs after the transaction, when he selected that of the appellant as being a photograph of the tinnie seller. The nine photographs produced in the District Court and also provided to us were probably among those seen by the officer before and after the tinnie transaction, but the lack of any record means we are unable to make a definitive finding on that point.

[80] Having returned from the tinnie purchase transaction, the officer recorded a description of the seller of the tinnie as a young Māori man with a wispy moustache wearing a striped hooded sweatshirt. He identified the appellant by again going through the photographs he had seen earlier and selecting the one of the person he recalled as being the seller of the tinnie. He compared this photograph against the still downloaded from the video camera. This enabled him to put a name to the appellant (by reading the name on the photograph he had seen before and after the tinnie transaction). The precise order in which these events occurred was not entirely clear, but the officer accepted in cross-examination that he had the photographs he had seen earlier in front of him at the time he was recording his description of the offender.

[81] Given the immediacy with which this exercise occurred, there may be nothing to cause concern that the process may have led to an inaccurate identification. The availability of the videotape and/or still photographs taken from it will allow the jury to check this for themselves. But if that is the case the evidence will be admissible because the prosecution will be able to prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

[82] We do not consider that it would be appropriate to extend the class of circumstances giving rise to good reasons for not following the formal procedure to encompass the facts of this case. Our reasons are:

(a) While this Court has held that the s 45(4) list is not necessarily closed, the Court should be cautious about extending it, especially when s 45(2) allows an alternative method of rendering identification evidence admissible in circumstances where its reliability is assured. And if the list is to be added to, it seems to us that the extension should be for a generic situation rather than for a situation described by the facts of a particular case;

(b) It would not have been difficult for the officer to have been subjected to the normal, statutory identification procedure in this case, if the police considered that identification evidence was needed despite the existence of the videotaped record of the tinnie transaction. That would have had the benefit of removing any question about the admissibility of the evidence and also would have required the keeping of a proper record of the process that was followed.

[83] We hold that the circumstances in which the identification evidence was obtained do not fall within s 45(4)(e). Nor is the evidence recognition evidence of the kind described in Edmonds. We are not prepared to extend the class of circumstances constituting good reasons for not following the s 45(3) procedure to encompass the facts of this case. So we allow the appeal on this aspect of the case. But we do not declare the identification to be inadmissible. Rather, we leave it to the trial Judge to determine, after consideration of all available evidence, whether the prosecution has proved beyond reasonable doubt that the evidence is reliable and

therefore admissible under s 45(2). As noted in Edmonds,⁵⁴ that determination is

undertaken solely for the purpose of rendering evidence admissible or inadmissible. If the Judge determines that the evidence is admissible, the determination will not be

⁵⁴ At [108].

mentioned at the trial and the identification evidence will be part of the pool of evidence considered by the jury in determining whether it is satisfied beyond reasonable doubt that the appellant was the person who sold a tinnie to the undercover officer.

[84] We have considered whether there is a case for admitting into evidence the officer’s written description of the appellant, notwithstanding our decision not to admit evidence of his identification of the appellant. Neither party asked us to consider this description evidence separately from the identification evidence. We have decided that it should not be admitted unless the identification evidence is also admitted, in which case it can form part of the officer’s account of the steps he took to identify the appellant. The description was apparently written while the officer had the police photographs of suspects and the photograph extracted from the video recording in front of him. It does not therefore appear to be a recollection from memory of the encounter with the appellant during the tinnie transaction. This means it suffers from similar shortcomings to the identification evidence.

Section 30 of the Evidence Act 2006

[85] Our conclusions on the earlier issues make it unnecessary for us to address s 30.

Result

[86] Leave to appeal is granted. The appeal is allowed in part. The decision of the District Court Judge declaring the identification evidence to be admissible at trial is quashed. The admissibility of that evidence under s 45(2) is to be determined in the District Court. In all other respects, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent