HALL v R [2019] NZCA 402

HALL v R [2019] NZCA 402 [2 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA526/2018[2019] NZCA 402BETWEEN JEFFERY JAMES HALLAppellantAND THE QUEENRespondentHearing: 15 August 2019Court: Brown, Collins and Wild JJCounsel: M W Ryan for AppellantM J Lillico and J M Irwin for RespondentJudgment: 2 September 2019 at 12.30 pmJUDGMENT OF THE COURTThe 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 manufacturingmethamphetamine, possession of manufacturing equipment, and unlawful possessionof a firearm and ammunition.[2] We are dealing only with the appeal against conviction. Hearing ofthe sentence appeal stands adjourned awaiting this Court's judgment in Zhang v R.1Background[3] On 10 July 2016 six armed police officers were deployed to a holiday home at36 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 whenshe called to advise that a load of firewood was to be delivered. The details shereported led the police to believe the occupants might be manufacturingmethamphetamine.[4] One of the officers was tasked with placing spikes on the road to prevent anyvehicle leaving. Two officers were sent up a footpath and thence around to the rear ofthe property in case the occupants made off in that direction.[5] The other three officers were to enter the property from Dolphin Place and goup to the door to inquire what was going on. As those officers were approaching thefront of the house, one of them paused and looked through a small gap in one of thewindows which had been largely covered up. As the other two officers came aroundthe front deck of the house, they saw hoses running out of the house through the openbifold doors into a bucket. One officer turned to the other and said he thought thatindicated a clan lab. At almost exactly that moment a man came out through the bifolddoors. 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 "Ohshit" and ran back inside. The two officers followed the man into the house with theirpistols raised, followed shortly afterwards by the third officer who had been lookingthrough 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 thehouse to assist.[6] As a result of what the police found in the house the appellant and four otherswere arrested and charged.1 Zhang v R CA606/2018.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 searchof the house was admissible.2 Mr Hall appealed that ruling.[8] This Court delivered a results judgment on 6 April 2018, just three days beforeMr Hall's trial commenced on 9 April 2018, dismissing the appeal. The Court'sreasons followed on 31 July.3 In summary, this Court held:(a) The three officers who had gone onto the property to make inquiries ofthe occupants had acted within the scope of the implied licence thatpermits anyone, including police officers, to go onto a property for thepurpose of speaking to the occupants.4(b) However, by peering through the window, one of those officers hadexceeded the scope of the implied licence, thereby rendering all threeofficers trespassers because the three had arrived together for a singletask. Consequently, the discovery of the clandestine laboratory hadbeen made after the officers had become trespassers, albeit only byseconds.5(c) As the three officers who had gone to the front of the house were notintending to search, but merely to speak to the occupants, they did notneed a warrant. Therefore they did not fall foul of the warrantpreference rule.6(d) Because of the breach of the implied licence, the evidence obtained bythe search had been improperly obtained. But the balancing exerciseunder s 30 of the Evidence Act 2006 led to the conclusion that exclusion2 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].of the evidence would be a disproportionate response to the low levelof impropriety.7Grounds 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'searlier 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 wasflawed.[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 thatfresh or different evidence had been given at trial which removed the evidentiary basisfor the pre-trial ruling.8[12] Of the six police officers who went to the Dolphin Place property, only officersOverton, 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 anearlier stage, following the call from the managing agent.[13] On the basis of the evidence heard pre-trial, in its earlier judgment this Courtsaid:[15] Detective Sergeant Rumens prepared the operational plan.Six officers would be deployed. Because the plan would proceed on the basisthat it could be nothing or it could be a clan lab, the officers would be armedand would take a search kit and a camera. Three officers, Detective Sergeant[Rumens], Detective Overton and Detective Constable Todd, would go up to7 At [71].8 Winders v R [2018] NZCA 277, [2019] 2 NZLR 305 at [45]–[50].the house to make enquiries. One officer would stay on the road with a set ofspikes to prevent any vehicle leaving. Two officers were to go through awalkway at the top of the property where there was a trig station, and thenwere to come through the garden to the left side of the house. They were thereto contain the property and provide assistance if required. As we discussshortly, it was not clear whether these officers were actually on the propertyitself rather than behind it.[19] The officers arrived at the property at 1.40 pm. One officer set up theroad spikes and two went up to the trig station behind the property. It was notclear 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 giveevidence. A statement by one of the officers attached to further submissionson Mr Hall's behalf did not clarify the position. We therefore proceed on thebasis that they were not on the property at the relevant time.[48] Therefore, whether the steps9 were taken out of an abundance ofcaution or in the serious expectation that they would be required cannotchange the nature and purpose of the officers' act in going to the door of thehouse to speak with the occupants. They were operational decisions forthe police to make, taking into account the potential risks they faced, and didnot 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 andmake 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 isnothing 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 threedefence counsel put to them that the "entry team" had gone on to the property ininvestigatory mode, intent on trying to find incriminating evidence, rather than simplyto 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 hadbeen completed.11 Mr Hall had arrived in a Mercedes car with a female companion.9 This is a reference to the officers wearing stab-proof vests, being armed and taking a search kitand 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 wasstopped in Dolphin Place at 3.20 pm.[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 supportsthat submission. We therefore do not accept it.[17] In [19] of its earlier judgment, which we have set out in [13] above, this Courtnoted that the two officers who had been despatched to the rear of the property, werenot called to give evidence. Mr Ryan did question the three entry party officers aboutthose two officers who were deployed to the rear of the property. For example, therewas this exchange with Detective Overton:Q. And two other constables, Constable Blair and Dill-Russell were toapproach from the rear of the property on the hillside, is that correct?A. That's right, yes.Q. And you understand that as you were making your entry intothe address, they were to come down onto the property at the back ofthe address, correct?A. Yeah, that's right, they would have covered the rear of the address incase anyone ran or something like that.[18] Constable Dill-Russell was not called at trial, but Constable Blair did giveevidence. In his evidence-in-chief, referring to exhibit 1 (a booklet which includedaerial photographs of No. 36 and the surrounding neighbourhood, with boundary linesoverlaid in red), the Constable explained that he and Constable Dill-Russell had goneup the public bush track depicted with the overlaid red lines. This track runs fromDolphin Place up the hillside between Nos. 10 and 20. The track is separated fromNo. 36 by two properties: Nos. 20 and 26. From the top of the track the two constableswould have needed to carry on up and across the hillside to the back of No. 36 wherethey took up position to the rear of the property. Constable Blair estimated they wereapproximately 50 metres from the house.[19] Cross-examining Constable Blair, Mr Ryan asked him to point out, on theaerial photographs, the position he and Constable Dill-Russell took up at the rear ofthe property. The constable answered that he did not think their position was shownon the photographs, but it was possibly "around where that red arrow actually comesonto [photograph 4]. Possibly around there, it's hard to tell." There was then thisexchange:Q. So is that where the red arrow bisects the bottom of the photo, aroundabout there?A. Just on the right of that red arrow I'd say, yep.[20] This exchange between Mr Ryan and the constable followed:Q. And you actually, as Detective Sergeant Rumens and the other twoofficers were approaching the front of the address you went downtowards the address because you say you saw a male's head throughone of the windows?A. That wasn't the reason I went down. I did see one of the male's heads.Q. Have you got your signed brief of evidence there or your signedformal written statement?A. No I don't.Q. I'll just give you a copy, its just to get it accurate.WITNESS REFERRED TO STATEMENTQ. That's your formal written statement, your initials on the bottom?A. Yes.Q. Okay. I think I've highlighted the — it in yellow about seeing the head?A. Yes.Q. So whereabouts were you when you saw the person's head through thewindow?A. As I said I would've been around 50 metres from the address.Q. Yes.A. Possibly a little further back from photograph 12 in the Clandestine DrugLaboratory Team book.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 onwhich this Court proceeded set out in [19] of its earlier judgment was wrong, and that12 Photograph 12 is captioned "Top view of dwelling from back yard". It is a photograph of the backof the house taken across a lawn and shrubbery, looking out towards the coastline in the distance.Constables Blair and Dill-Russell were on No. 36 before the search began, then thisevidence 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 earlierjudgment, been a development in the law. The somewhat obvious reason for this wasexplained in Winders v R and need not be repeated here.13 There has not been arelevant development in the law.[24] If Mr Hall wishes to pursue this ground of appeal, his proper course is to seekleave to appeal to the Supreme Court. That is the only course open to Mr Hall for thefurther reason that the leading decision on the scope in New Zealand of the commonlaw 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, theprivacy interest is unlikely to be as high as that enjoyed by the occupant of aprivate residence. In this case the privacy interest was less becausethe defendants occupied the house under a short-term rental on conditions thatentitled the property manager to enter the property at any time.[27] Mr Ryan submitted the Court erred in holding that Mr Hall's privacy interestin the "holiday let" of 36 Dolphin Place was lower than the privacy interest peoplehave in their own homes.[28] The two decisions this Court cited in support of what it said in the passage setout in [26] above are Nouri v R and Alamoti v R.16 In Nouri this Court said: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].[28] Counsel for the appellants agreed that, while a privacy interest in ahotel room was greater than, say, that in a motor vehicle, nevertheless thenature of the relationship between the guest and the hotelier was a matter ofcontract. It was implicit in that relationship that the guest would permit entryfor various purposes including cleaning the room, checking the mini bar andany necessary maintenance or repairs. Moreover, entry for a person deliveringroom service was axiomatic. Thus, while the legality of the appellant'sactivity in the hotel room and consequent breach of any licence terms shouldhave no bearing on whether there was a legitimate privacy interest,17 the extentof 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 counselfor Mr Alamoti's submission that an occupant of such room has an expectationof privacy similar to that of a residential dwelling. There is clear authority tothe effect that the expectation of privacy in such a room where staff may comeand 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 conditionsthat entitled the property manager to enter the property at any time, and she had in factdone that to advise of the firewood delivery. Although not a strong point, we reiteratethe fact that the front bifold doors of the property were wide open when the officersarrived 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 againstconviction is accordingly dismissed.Solicitors:Crown Law Office, Wellington for Respondent17 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207. Paragraphs [113]–[115] in Williams are thosedealing with "the nature of privacy interest" when the s 30 balancing exercise is carried out.