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Gerrard-Smith v Police [2016] NZHC 2543 (25 October 2016)

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
MANI HEATHER GERRARD-SMITH
Appellant
AND
NEW ZEALAND POLICE Respondent



Hearing:
19 October 2016
Appearances:
K C Johnson for Appellant
A Z M Shore for Respondent
Judgment:
25 October 2016




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.











  1. Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145 at [11] (and see [1] per Elias CJ who dissented, but not on this point).

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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