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Last Updated: 23 May 2018
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.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2016-463-000040 [2016] NZHC 2543
BETWEEN
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MANI HEATHER GERRARD-SMITH
Appellant
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AND
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NEW ZEALAND POLICE Respondent
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Hearing:
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19 October 2016
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Appearances:
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K C Johnson for Appellant
A Z M Shore for Respondent
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Judgment:
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25 October 2016
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JUDGMENT OF PALMER J
This judgment is delivered by me on 25 October 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Potts & Hodgson, Opotiki
Crown Solicitor, Tauranga
GERRARD-SMITH v NEW ZEALAND POLICE [2016] NZHC 2543 [25 October 2016]
Summary
[1] Ms Mani Gerrard-Smith wants evidence of cannabis ruled
inadmissible because the police constable was not lawfully
on her property when
he found it. The Court of Appeal has said anyone has an implied licence to
enter someone’s property to
communicate with them, but a police officer
going on to a property to stop someone escaping is not within that. Here the
constable
said there were two reasons for going on to the property: to stop
someone escaping and to talk to the occupants about a report of
family violence.
I find that does fall within the implied licence so the police constable was
lawfully on the property when he found
the cannabis. I also find the other
requirements for a lawful search were met. I dismiss the appeal.
Facts
What happened
[2] On 22 December 2015 Police received a report, from a child, of a
potential incident of family violence at a remote rural
address in Omaio, near
Te Kaha in the Bay of Plenty. At 8 pm two police constables visited the
property. They noted there was no
vehicle there. Constable Forsyth approached
the front door and knocked on it. Constable Haerewa walked down the right hand
side of
the house to go around the back of the property to the rear entrance. I
infer he expected there would be a back door, though there
is evidence there was
no back door. He says that on a previous visit to the property an occupant had
run out of the back of the house
into an adjoining maize field.
[3] Constable Haerewa says he had two reasons to go to the back of the
house. The first was to prevent the same escape happening
again, given the
nature of the complaint. The second was that he considered it necessary to speak
to both parties as soon as possible
given the nature of the complaint, in order
to assess it. One possible suspect had a record of family violence.
[4] As Constable Haerewa walked down the side of the house he saw some cannabis plants in the rear garden. He says they were of such a size he could see them from the front of the house and anyone visiting the house would have a clear view of
them. However there is also evidence the back of the property cannot be seen
from the front.
[5] No one was home. Constable Haerewa invoked search powers under
the
Search and Surveillance Act 2012 and located some 31 cannabis plants on the
property.
[6] Constable Haerewa’s understanding was that Ms
Gerrard-Smith and her partner’s family were aware the
Police were
looking for them and were attending the home address. He says he thought it
likely they would return to the address
and remove the cannabis plants which
were in full view.
Subsequent litigation
[7] Ms Gerrard-Smith faces one charge of cultivating cannabis under s 9
of the Misuse of Drugs Act 1975. She has pleaded not
guilty. She made a
pre-trial application under s 78 of the Criminal Procedure Act 2011 to determine
the admissibility of the evidence
of the cannabis plants. She argued the search
and seizure was unreasonable in terms of s 21 of the New Zealand Bill of Rights
Act
1990 (Bill of Rights), the evidence improperly obtained and should be
inadmissible.
[8] Judge Parsons, in the Opotiki District Court, ruled the search and
seizure of the cannabis was reasonable and not in breach
of the Bill of
Rights.1 Ms Gerrard-Smith appeals. A trial date has not yet been
set.
Law
[9] Section 20 of the Search and Surveillance Act 2012 provides,
relevantly:
20 Warrantless search of places and vehicles in relation to some
Misuse of Drugs Act 1975 offences
A constable may enter and search a place or vehicle without a warrant if he
or she has reasonable grounds—
(a) to believe that it is not practicable to obtain a warrant and that in or
on the place or vehicle there is—
...
1 New Zealand Police v Gerrard-Smith [2016] NZDC 10500.
(iii) a controlled drug specified or described in Part 1 of
Schedule 3 of the Misuse of Drugs Act 1975; ... and
(b) to suspect that in or on the place or vehicle an offence against
the Misuse
of Drugs Act 1975 has been committed, or is being committed, or is about to
be committed, in respect of that controlled drug or precursor substance;
and
(c) to believe that, if the entry and search is not carried out
immediately, evidential material relating to the suspected
offence will be
destroyed, concealed, altered, or damaged.
[10] But what if such reasonable grounds are only established after the
police enter a property? What powers do police have to
enter a property in the
first place? After all, the police are not allowed to commit the tort of
trespass. In Tararo v R the Supreme Court found the law implies a licence
to enter in certain circumstances: “citizens generally, including police
officers,
are not trespassers if all they do is enter upon, but not into,
private premises for the purpose of making enquiry of, that is, communicating
with an occupier.”2 Of course a landowner can deny or
terminate such a licence,3 but that is not relevant here.
[11] In R v Balsley a similar police tactic was used as was used here.4 Two constables went to the front door of a house to investigate a complaint of family violence. One went to the back porch, smelt cannabis and conducted a search. The constables relied on an implied licence to enter the property. But the admitted purpose of the constable who went to the back porch was only to prevent escape. The Court of Appeal found that constable had no real intention of making inquiries of an occupier so he was trespassing and the evidence was improperly obtained.5 However, given the serious nature of the complaint the Court considered it would be disproportionate to
exclude the evidence and ruled it
admissible.
3 At [12]-[13].
4 R v Balsley [2013] NZCA 258.
5 At [16] and [19].
Was the evidence improperly obtained?
Submissions
[12] In order to appeal Judge Parson’s ruling Ms Gerrard-Smith filed a notice of application for leave from this Court to appeal. At the hearing Ms Johnson, for
Ms Gerrard-Smith, sought leave. Ms Shore, for the Crown, did not oppose leave
being granted. I granted leave on the ground that the
application involves the
admissibility of evidence important to both of the parties.
[13] Ms Johnson, for Ms Gerrard-Smith, relies on Balsley in
submitting that Judge
Parsons erred. She submits the judge erred in determining:
(a) Constable Haerewa was on the land under an implied licence and
therefore lawfully on the property when he invoked the search
powers;
(b) Constable Haerewa had reasonable grounds to believe it was not
practicable to obtain a search warrant under s 20(a) and evidential
material
would be destroyed, concealed or altered under s 20(c).
[14] Ms Shore, for the Crown, submits the opposite.
1 Was the constable on the land unlawfully?
[15] Ms Johnson submitted Judge Parsons did not consider the restrictions
of the implied licence and that Constable Haerewa went
further than the implied
licence allowed. She emphasised that there was no back door and submitted that
his real purpose was to
catch someone trying to escape. She says he did not know
whether he needed to go to the back until Constable Forsyth knocked on the
front
door and he should have waited.
[16] We don’t know whether Constable Haewera knew there was no back door. But he did believe people had escaped out the back before so he had a reasonable basis for thinking he might be able to both catch and speak to people at the back of the house. And Constable Haewera is clear about having both purposes in going to the rear of the property. There is nothing in the circumstances to suggest he did not intend to
communicate with the occupants. As Ms Shore submits, the nature of the
inquiry being undertaken suggests he did.
[17] If a constable intends to communicate with an occupant he or she may
enter land on the basis of the implied licence. That
is so even though he or
she may have another purpose in going to the back of a property as well.
Whether a constable has that intention
is a matter of fact. A constable’s
statement about intention will, of course, be relevant to that as will other
circumstances.
[18] There is nothing in the circumstances here to persuade me Constable
Haerewa did not intend to communicate with the occupants.
Neither is there
evidence any sign or other notice withdrew the implied licence before he entered
the property. I am satisfied
Constable Haerewa was on the land lawfully when
he saw the cannabis. Judge Parsons did not err.
2 Impracticability of a search warrant and concealing
evidence?
[19] Ms Johnson submitted Judge Parsons erred because there is no
evidence Constable Haewera considered it was impracticable to
get a search
warrant. She said he was required to turn his mind to that. She also submitted
his stated belief that the occupants
knew the Police would visit is hearsay and
was wrong. Therefore there was no reason for him not to consider a search
warrant impracticable
to obtain and no reason to think the evidence of cannabis
might be concealed.
[20] There is no question of a hearsay statement here. The issue is whether there were reasonable grounds for belief in the circumstances.6 I agree with Judge Parsons there were. The property was remote. The time necessary to drive back to get a search warrant at 8 pm on 22 December 2015 could well allow the occupants to remove the cannabis. Doing so would be rational if they knew the Police might visit. A complaint of family violence had been made by a child. It was reasonable for Constable Haerewa
to believe the occupants might expect a call from the
Police.
6 Dick v R [2011] NZCA 230 at [24].
Result
[21] I agree with Judge Parsons that the requirements of s 20 of the Search
and
Surveillance Act 2012 were met here. I dismiss the
appeal.
Palmer J
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