Russo v The Queen [2011] NZCA 79; [2011] NZAR 123 (18 March 2011)

Last Updated: 24 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA577/2010 [2011] NZCA 79

BETWEEN IVAN LAURENCE RUSSO Appellant

AND THE QUEEN Respondent

Hearing: 23 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: J K W Blathwayt for Respondent H W Ebersohn for Respondent

Judgment: 18 March 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Arnold J)

Introduction

[1] Following a jury trial before Dobson J the appellant was convicted of possession of methamphetamine for supply and possession of LSD. He appeals against his convictions on the ground that crucial evidence was obtained unlawfully and should have been excluded under s 30 of the Evidence Act 2006. In a pre-trial ruling, MacKenzie J had found that the evidence was admissible.[1]

Background

[2] The appellant went to his partner’s house in Carterton. He had a knife and threatened to harm himself. His partner was concerned and sent a text message to her sister, who called the police. Two cars, with two officers in each, were despatched to the address from different locations. The officers were told that there was a person at the house threatening to commit suicide, that his partner had requested assistance, that he had a pocket knife and was possibly under the influence of methamphetamine, that his partner had a protection order against him and that he had gang associations and previous convictions for violent offending. Shortly before they arrived at the address, the officers were told that the appellant had fallen asleep on a sofa but was still holding the knife. They were also told that it was not known whether he would become aggressive when woken up.
[3] When they arrived at the address, the appellant’s partner told the officers that the appellant was in the lounge. They went into the lounge and found the appellant apparently asleep on a sofa. One of the officers roused the appellant who said “I’m sorry” and handed the knife over on request. While this was occurring, another officer pointed a taser at the appellant and directed him to get off the couch and stand against a wall with his arms and legs outstretched so that he could be searched. After some initial delay, the appellant complied. An officer patted the appellant down and required him to empty his pockets. Cannabis was found. The police then invoked s 18(2) of the Misuse of Drugs Act 1975 and conducted further searches, which produced methamphetamine and LSD.
[4] Under cross-examination, the officer who presented the taser accepted that prior to entering the property he had drawn it and concealed it behind his back. He deployed the taser (in the sense of pointing it at the appellant) as the appellant was handing over the pocket knife. He said that the taser was presented for “only a matter of seconds, perhaps just over a minute.” He also made the point that the taser also operates as a torch and a video recorder and noted that there was a video recording of the taser’s deployment on this occasion.

Decision of High Court

[5] MacKenzie J noted that there was no dispute that if the pat down search was lawful, the police were entitled to invoke s 18(2) on the basis of what it had produced. So the entire focus was on the lawfulness of the initial pat down search.[2]
[6] The Crown argued that the search was justified under s 41 of the Crimes Act 1961, which provides:

Prevention of suicide or certain offences

Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.

[7] The Judge concluded that the search was justified under this section. He was satisfied that the force used was no more than was reasonably necessary for the purposes of the section.[3] He considered that there was a sufficient temporal connection between the force used and the threatened harm.[4] The Judge did not consider that the deployment of the taser involved the application of unreasonable force, nor did he consider that there was any causal connection between its deployment and the discovery of the cannabis in the pat down search.[5] The Judge also said that, had it been necessary to do so, he would have held that the evidence should not be excluded under s 30 of the Evidence Act 2006.[6]

Basis of appeal

[8] Mr Blathwayt for the appellant submitted that, on the basis of the facts as found by MacKenzie J, s 41 did not justify what occurred in this case. He invoked ss 21 and 22 of the New Zealand Bill of Rights Act 1990 (which protect against unreasonable search and seizure and against arbitrary arrest or detention). Mr Blathwayt emphasised in particular the presentation of the taser, which he said was an unjustifiable use of force, and the lack of immediacy of any threat once the appellant had surrendered the knife. He emphasised that the police knew when they arrived that the appellant was asleep. Presenting the taser was in these circumstances, Mr Balathwayt submitted, contrary to police policy. He also cited Frost v Police.[7]

Analysis

[9] The appellant did not live at his partner’s house. Rather, he had arrived unexpectedly. The police entered the house at the request of the appellant’s partner, that is, the occupier of the house. No question arises, therefore, of the police being unlawfully on the premises.
[10] The focus, then, is on s 41. It applies to “every one”, not simply to the police. It provides that everyone is “justified” in acting in certain circumstances. “Justified” in this context means “not guilty of an offence and not liable to any civil proceeding”.[8] Accordingly, s 41 protects from liability rather than conferring a positive power.[9] Despite this, there is no dispute that action which is consistent with s 41 is lawful for present purposes.
[11] Section 41 protects preventive action, that is, action prior to the realisation of the particular threat. As we have noted, Mr Blathwayt argued that there must be an immediate threat which might be realised if preventive action is not taken. The section contemplates action to “prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one ...”. The italicised words, although qualifying “an offence” and not “suicide”, do indicate that some immediacy is required. Such a requirement is understandable given that s 41 authorises the use of force.
[12] But we cannot accept Mr Blathwayt’s submission in the unqualified way he made it. Section 41 goes on to refer to action to prevent “any act being done which [the intervener] believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.” On the face of it, this belief relates simply to the question whether the act, if committed, would amount to suicide or a qualifying offence, rather than to the issue of immediacy. However, we consider that, if section 41 is to be given efficacy, it must be interpreted as justifying the use of such force as may be reasonably necessary in the circumstances as the intervener reasonably believed them to be. While there is an element of subjectivity (for example, there must be actual belief), the test is objective (“reasonably necessary” and “reasonable grounds”).[10] But a reasonable mistake may still attract the protection of s 41. So if the threat reasonably appears to be immediate, s 41 may protect even though it subsequently transpires that the threat was not in fact immediate.
[13] When they entered, the police had been advised that the appellant had fallen asleep, but they had also been told that he still had the knife and that he might have been using methamphetamine. They were also aware of his background and the fact that his partner had the benefit of a protection order. What they did not know was how he would respond when woken up (indeed, one of the officers said that he was not sure the appellant was really asleep). As one officer put it in cross-examination: “We were at the stage where we might be awakening the angry bear”. According to the police evidence, methamphetamine users present “many and varied” risks including “unstable behaviour, violence towards other persons, attempts to take their life and bizarre behaviour” and are “unpredictable”.
[14] We consider that the police had a well-grounded concern when they entered the house about the appellant’s state of mind, in particular the possibility that he would attempt to harm himself. In our view, they had reasonable grounds to believe that he might attempt to harm himself immediately. The drawing of the taser immediately prior to entry, its presentation at the point when the appellant was handing over the knife and its continued deployment (which was for a little over a minute in total) while the pat down was being carried out constituted a reasonable response to the threat that the appellant appeared to pose to himself and possibly to others. In this context, however, we note the Judge’s finding that there was no causal connection between the presentation of the taser and the discovery of the cannabis in the course of the pat down search. That is, the appellant did not comply with the requirement for a pat down as a result of the presentation of the taser.
[15] We also consider that the fact that the appellant handed over the knife did not remove the need for the police to pat the appellant down to ensure that he had no other weapons or items with which he could harm himself or others, as Mr Blathwayt argued. As one of the police witnesses explained, it is standard practice in this type of situation for the police to take steps to ensure that a person who has threatened suicide has nothing on his or her person which could be used to self-harm. In the particular circumstances of this case, failure to take such an elementary precaution would have been foolhardy. Overall, the force used by the police was not excessive.
[16] In the result, we consider that the Judge was right to conclude that the cannabis was obtained following a lawful search. In these circumstances, we do not need to address s 30 of the Evidence Act.

Decision

[17] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Russo HC Wellington CRI-2009-035-632, 10 March 2010.
[2] At [3].
[3] At [6].
[4] At [7].
[5] At [8].
[6] At [10].
[7] Frost v Police [1996] 2 NZLR 716 (HC).
[8] Crimes Act, s 2.

[9] Contrast this with, for example, s 315 of the Crimes Act which provides a power of arrest and s 31 which provides protection where that power is properly exercised.

[10] See the discussion in R v Haddon [2007] NZAR 135 (CA) at [24]–[40]. See also R v Guay [2008] NBCA 72, 337 NBR (2d) 252 where a similarly worded Canadian provision was considered. At [25] the majority said that the objective part of the test required consideration of whether the intervener’s belief that force was necessary “was reasonable on the basis of the situation as he perceived it”.