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Court of Appeal of New Zealand |
Last Updated: 10 September 2019
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BETWEEN |
JEFFERY JAMES HALL Appellant |
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AND |
THE QUEEN Respondent |
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Hearing: |
15 August 2019 |
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Court: |
Brown, Collins and Wild JJ |
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Counsel: |
M W Ryan for Appellant M J Lillico and J M Irwin for Respondent |
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Judgment: |
2 September 2019 at 12.30 pm |
JUDGMENT OF THE COURT
The
appeal against conviction is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Mr Hall appeals his conviction and sentence on charges of manufacturing methamphetamine, possession of manufacturing equipment, and unlawful possession of a firearm and ammunition.
[2] We are dealing only with the appeal against conviction. Hearing of the sentence appeal stands adjourned awaiting this Court’s judgment in Zhang v R.[1]
Background
[3] On 10 July 2016 six armed police officers were deployed to a holiday home at 36 Dolphin Place in Tutukaka in Northland. It had been rented for eight days. The agent managing the property for its owners had noticed suspicious activity when she called to advise that a load of firewood was to be delivered. The details she reported led the police to believe the occupants might be manufacturing methamphetamine.
[4] One of the officers was tasked with placing spikes on the road to prevent any vehicle leaving. Two officers were sent up a footpath and thence around to the rear of the property in case the occupants made off in that direction.
[5] The other three officers were to enter the property from Dolphin Place and go up to the door to inquire what was going on. As those officers were approaching the front of the house, one of them paused and looked through a small gap in one of the windows which had been largely covered up. As the other two officers came around the front deck of the house, they saw hoses running out of the house through the open bifold doors into a bucket. One officer turned to the other and said he thought that indicated a clan lab. At almost exactly that moment a man came out through the bifold doors. One of the officers pointed his pistol at the man and shouted “Armed police. Stay where you are.” The man looked at the officers, muttered something like “Oh shit” and ran back inside. The two officers followed the man into the house with their pistols raised, followed shortly afterwards by the third officer who had been looking through the window. When they heard the officers at the front of the house shouting, the two officers stationed at the rear boundary of the property came down towards the house to assist.
[6] As a result of what the police found in the house the appellant and four others were arrested and charged.
The pre-trial evidential rulings of the District Court and of this Court
[7] In a pre-trial ruling, Judge de Ridder held the evidence obtained by the search of the house was admissible.[2] Mr Hall appealed that ruling.
[8] This Court delivered a results judgment on 6 April 2018, just three days before Mr Hall’s trial commenced on 9 April 2018, dismissing the appeal. The Court’s reasons followed on 31 July.[3] In summary, this Court held:
- (a) The three officers who had gone onto the property to make inquiries of the occupants had acted within the scope of the implied licence that permits anyone, including police officers, to go onto a property for the purpose of speaking to the occupants.[4]
- (b) However, by peering through the window, one of those officers had exceeded the scope of the implied licence, thereby rendering all three officers trespassers because the three had arrived together for a single task. Consequently, the discovery of the clandestine laboratory had been made after the officers had become trespassers, albeit only by seconds.[5]
- (c) As the three officers who had gone to the front of the house were not intending to search, but merely to speak to the occupants, they did not need a warrant. Therefore they did not fall foul of the warrant preference rule.[6]
- (d) Because of the breach of the implied licence, the evidence obtained by the search had been improperly obtained. But the balancing exercise under s 30 of the Evidence Act 2006 led to the conclusion that exclusion of the evidence would be a disproportionate response to the low level of impropriety.[7]
Grounds of appeal
[9] As we discern them, Mr Ryan ultimately advanced three grounds of appeal:
- (a) The evidence at trial undermined the factual basis for this Court’s earlier judgment, and its correctness.
- (b) The earlier judgment was wrong in law.
- (c) This Court’s balancing exercise under s 30 of the Evidence Act was flawed.
[10] We will deal with each of these grounds in turn.
This Court’s earlier judgment factually incorrect
[11] In order to succeed on this ground of appeal, Mr Ryan needed to establish that fresh or different evidence had been given at trial which removed the evidentiary basis for the pre-trial ruling.[8]
[12] Of the six police officers who went to the Dolphin Place property, only officers Overton, Todd and Rumens gave evidence at the pre-trial hearing in the District Court. Inspector Symonds also gave evidence. He had been in charge of the operation at an earlier stage, following the call from the managing agent.
[13] On the basis of the evidence heard pre-trial, in its earlier judgment this Court said:
[15] Detective Sergeant Rumens prepared the operational plan. Six officers would be deployed. Because the plan would proceed on the basis that it could be nothing or it could be a clan lab, the officers would be armed and would take a search kit and a camera. Three officers, Detective Sergeant [Rumens], Detective Overton and Detective Constable Todd, would go up to the house to make enquiries. One officer would stay on the road with a set of spikes to prevent any vehicle leaving. Two officers were to go through a walkway at the top of the property where there was a trig station, and then were to come through the garden to the left side of the house. They were there to contain the property and provide assistance if required. As we discuss shortly, it was not clear whether these officers were actually on the property itself rather than behind it.
...
[19] The officers arrived at the property at 1.40 pm. One officer set up the road spikes and two went up to the trig station behind the property. It was not clear from the evidence that these officers were actually on the property. The Judge made no finding on this point. The officers were not called to give evidence. A statement by one of the officers attached to further submissions on Mr Hall’s behalf did not clarify the position. We therefore proceed on the basis that they were not on the property at the relevant time.
...
[48] Therefore, whether the steps[9] were taken out of an abundance of caution or in the serious expectation that they would be required cannot change the nature and purpose of the officers’ act in going to the door of the house to speak with the occupants. They were operational decisions for the police to make, taking into account the potential risks they faced, and did not affect the occupants’ interest in the property.
[14] At trial officers Rumens, Overton and Todd all again gave evidence. They were the three officers designated to go up to the front door of the house and make inquiries of the occupants. Mr Ryan referred to them as “the entry team”, a description used in the District Court’s decision.[10]
[15] We have read the evidence given at trial by these three officers. There is nothing in it to disturb the factual basis on which this Court’s earlier judgment rests. In cross-examining each of the officers, neither Mr Ryan nor any of the other three defence counsel put to them that the “entry team” had gone on to the property in investigatory mode, intent on trying to find incriminating evidence, rather than simply to make inquiries of the occupants. Instead, Mr Ryan’s questions of the “entry team” officers focussed on Mr Hall’s arrival at the scene some 1½ hours after the search had been completed.[11] Mr Hall had arrived in a Mercedes car with a female companion.
[16] Mr Ryan submitted the entry team officers had entered the property intent, from the outset, on searching it. The evidence at trial contradicts rather than supports that submission. We therefore do not accept it.
[17] In [19] of its earlier judgment, which we have set out in [13] above, this Court noted that the two officers who had been despatched to the rear of the property, were not called to give evidence. Mr Ryan did question the three entry party officers about those two officers who were deployed to the rear of the property. For example, there was this exchange with Detective Overton:
- And two other constables, Constable Blair and Dill-Russell were to approach from the rear of the property on the hillside, is that correct?
A. That’s right, yes.
[18] Constable Dill-Russell was not called at trial, but Constable Blair did give evidence. In his evidence-in-chief, referring to exhibit 1 (a booklet which included aerial photographs of No. 36 and the surrounding neighbourhood, with boundary lines overlaid in red), the Constable explained that he and Constable Dill-Russell had gone up the public bush track depicted with the overlaid red lines. This track runs from Dolphin Place up the hillside between Nos. 10 and 20. The track is separated from No. 36 by two properties: Nos. 20 and 26. From the top of the track the two constables would have needed to carry on up and across the hillside to the back of No. 36 where they took up position to the rear of the property. Constable Blair estimated they were approximately 50 metres from the house.
[19] Cross-examining Constable Blair, Mr Ryan asked him to point out, on the aerial photographs, the position he and Constable Dill-Russell took up at the rear of the property. The constable answered that he did not think their position was shown on the photographs, but it was possibly “around where that red arrow actually comes onto [photograph 4]. Possibly around there, it’s hard to tell.” There was then this exchange:
- So is that where the red arrow bisects the bottom of the photo, around about there?
A. Just on the right of that red arrow I’d say, yep.
[20] This exchange between Mr Ryan and the constable followed:
- And you actually, as Detective Sergeant Rumens and the other two officers were approaching the front of the address you went down towards the address because you say you saw a male’s head through one of the windows?
A. That wasn’t the reason I went down. I did see one of the male’s heads.
...
A. No I don’t.
Q. I’ll just give you a copy, its just to get it accurate.
WITNESS REFERRED TO STATEMENT
Q. Photograph 12?
A. Photograph 12.[12] Probably a little bit further back.
Q. Right. Yes thank you I’ve got no further questions. ...
[21] If Mr Ryan’s aim in this cross-examination was to establish that the basis on which this Court proceeded set out in [19] of its earlier judgment was wrong, and that Constables Blair and Dill‑Russell were on No. 36 before the search began, then this evidence fails to do that.
[22] This first ground of appeal fails.
This Court’s earlier decision wrong in law
[23] The ground of appeal could only succeed if there had, since this Court’s earlier judgment, been a development in the law. The somewhat obvious reason for this was explained in Winders v R and need not be repeated here.[13] There has not been a relevant development in the law.
[24] If Mr Hall wishes to pursue this ground of appeal, his proper course is to seek leave to appeal to the Supreme Court. That is the only course open to Mr Hall for the further reason that the leading decision on the scope in New Zealand of the common law doctrine of implied licence is the Supreme Court’s decision in Tararo v R.[14]
[25] This second ground of appeal is dismissed.
Section 30 balancing exercise flawed
[26] In its earlier decision this Court said:[15]
[67] In the case of short-term occupancy based on a contractual right, the privacy interest is unlikely to be as high as that enjoyed by the occupant of a private residence. In this case the privacy interest was less because the defendants occupied the house under a short-term rental on conditions that entitled the property manager to enter the property at any time.
[27] Mr Ryan submitted the Court erred in holding that Mr Hall’s privacy interest in the “holiday let” of 36 Dolphin Place was lower than the privacy interest people have in their own homes.
[28] The two decisions this Court cited in support of what it said in the passage set out in [26] above are Nouri v R and [16]amoti v R.16 In Nouri this Court said:
[28] Counsel for the appellants agreed that, while a privacy interest in a hotel room was greater than, say, that in a motor vehicle, nevertheless the nature of the relationship between the guest and the hotelier was a matter of contract. It was implicit in that relationship that the guest would permit entry for various purposes including cleaning the room, checking the mini bar and any necessary maintenance or repairs. Moreover, entry for a person delivering room service was axiomatic. Thus, while the legality of the appellant’s activity in the hotel room and consequent breach of any licence terms should have no bearing on whether there was a legitimate privacy interest,[17] the extent of that interest was qualified by the contractual nature of the arrangement.
And in Alamoti:
[70] All of these submissions are well made. The critical issue for us, however, is that this was a search of motel rooms. We do not accept counsel for Mr Alamoti’s submission that an occupant of such room has an expectation of privacy similar to that of a residential dwelling. There is clear authority to the effect that the expectation of privacy in such a room where staff may come and go — as they did in this case — is less than exists in a home.
(Footnote omitted.)
[29] We respectfully agree with the reasoning and conclusion in those two passages.
[30] Here, as this Court earlier noted, No. 36 had been let short-term on conditions that entitled the property manager to enter the property at any time, and she had in fact done that to advise of the firewood delivery. Although not a strong point, we reiterate the fact that the front bifold doors of the property were wide open when the officers arrived to speak to the occupants.
[31] This third ground of appeal also fails.
Result
[32] None of the three grounds of appeal has succeeded. The appeal against conviction is accordingly dismissed.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] Zhang v R CA606/2018.
[2] R v Roberts [2017] NZDC 1730.
[3] Hall v R [2018] NZCA 279, [2019] 2 NZLR 325.
[4] At [43]–[45].
[5] At [49].
[6] At [56].
[7] At [71].
[8] Winders v R [2018] NZCA 277, [2019] 2 NZLR 305 at [45]–[50].
[9] This is a reference to the officers wearing stab-proof vests, being armed and taking a search kit and camera.
[10] R v Roberts, above n 2, at [43].
[11] The search of the house at 36 Dolphin Place began at 1.45 pm. Mr Hall’s Mercedes Benz car was stopped in Dolphin Place at 3.20 pm.
[12] Photograph 12 is captioned “Top view of dwelling from back yard”. It is a photograph of the back of the house taken across a lawn and shrubbery, looking out towards the coastline in the distance.
[13] Winders v R, above n 8 at [50].
[14] Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.
[15] Hall v R, above n 3 (footnote omitted).
[16] Nouri v R [2012] NZCA 35 at [28]; and Alamoti v R [2016] NZCA 402 at [70].
[17] R v Williams [2007] NZCA 52, [2007] 3 NZLR 207. Paragraphs [113]–[115] in Williams are those dealing with “the nature of privacy interest” when the s 30 balancing exercise is carried out.
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