ALBERTON V R CA340/2014 [2014] NZCA 317

ALBERTON V R CA340/2014 [2014] NZCA 317 [11 July 2014]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA340/2014[2014] NZCA 317BETWEEN JOSIAS ZAQUEU ALBERTONApplicantAND THE QUEENRespondentHearing: 7 July 2014Court: Wild, Ronald Young and Cooper JJCounsel: N P Chisnall and D J Matthews for ApplicantM D Downs for RespondentJudgment: 11 July 2014 at 10.30 amJUDGMENT OF THE COURTA The application for leave to appeal pursuant to s 223 of the Criminal Procedure Act 2011 is dismissed.B 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.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] This is an application under s 223 of the Criminal Procedure Act 2011 for leave to appeal a judgment of Panckhurst J,1 upholding a pre-trial ruling given byJudge O'Driscoll in the Christchurch District Court.2[2] Section 223(3) provides:(3) the Court of Appeal must not give leave for a second appealunder this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.Factual background[3] After seeing a man climbing through a window into a house, a passerby rang the police. Constable Barton and a dog handler were dispatched to the scene. After receiving no response to his knocking on the rear door of the house, Constable Barton went into the house, calling out several times to indicate his presence. In the approximately 60 seconds he was inside he noticed cannabis plants growing inside two tents.[4] Once outside, the dog handler told Constable Barton the suspected burglar had been located. He lived in a flat at the front of the house and had climbed in because he had left his keys inside.[5] The dog handler then said he would leave. However, after Constable Barton explained the cannabis growing setup he had seen, both police officers went into the house. They made a thorough search. In the course of this, they were approached from behind by a naked man who appeared to have emerged from the bathroom. This man acknowledged he lived in the house and gave a non-committal answer when asked about the cannabis growing. In answer to a further question this man, who was the applicant Mr Alberton, said he wanted to speak to a lawyer.1 Alberton v New Zealand Police [2014] NZHC 1180 [High Court judgment].2 New Zealand Police v Alberton DC Christchurch CRI-2013-009-9800, 24 March 2014 [District Court judgment].[6] Further police arrived. Mr Alberton was arrested and subsequently charged with cultivating cannabis and possession of cannabis for the purpose of sale.The judgment of the High Court[7] Before Panckhurst J, counsel for Mr Alberton accepted the first entry into the house was lawful, as it met the test set out in s 8 of the Search and Surveillance Act 2012 (the Act). That had been a point of contention in the District Court. That concession enabled Panckhurst J to turn to the real question raised on the first appeal: was the second entry into the house lawful?[8] Panckhurst J was satisfied the two police officers, when they made the second entry into the house, had reasonable grounds to believe it was not practicable to obtain a warrant under s 20(a) of the Act which provides:20 Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offencesA 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—[(i)–(iv) a controlled drug or precursor substance as specified or described in the Schedules to the Misuse of Drugs Act 1975](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.[9] Panckhurst J explained:3 I am satisfied that it was not practicable to obtain a search warrant in theparticular circumstances of this case. I think the immediacy of the situation was an influential consideration. The constable had been into the flat. He knew for sure that there was a cannabis growing operation there. His search, to use his own word, was only cursory. He was in the flat for no more than3 At [22].60 seconds. He did not go into every room. Hence, he could not know whether the occupier might return at any moment, or whether the occupant was actually inside the property but undiscovered. [10] That was consistent with the reasons Judge O'Driscoll had given in [39] of his ruling before concluding:4[43] In the circumstances that the constable found himself, I am satisfied he was justified in going back into the building. I am of the view that the constable believed on reasonable grounds it was not practicable to obtain a search warrant.[11] Alternatively, Panckhurst J considered s 123 was a "natural fit" rendering thesecond entry into the house lawful.5 Section 123 provides:123 Seizure of items in plain view(1) This section applies to an enforcement officer who, as part of his or her duties,—(a) exercises a search power; or(b) is lawfully in any place or in or on a vehicle; or(c) is conducting a lawful search of a person.(2) An enforcement officer to whom this section applies may seize any item or items that he or she, or any person assisting him or her, finds in the course of carrying out the search or as a result of observations at the place or in or on the vehicle, if the enforcement officer has reasonable grounds to believe that he or she could have seized the item or items under—(a) any search warrant that could have been obtained by him or her under this Act or any other enactment; or(b) any other search power exercisable by him or her under this Act or any other enactment.[12] Panckhurst J set out key passages in the evidence Constable Barton had given in the District Court. The Judge considered the constable had satisfactorily explained why obtaining a search warrant was not practicable. He referred also tothe constable's answer when asked what power he invoked to re-enter the house,4 District Court judgment, above n 2.5 At [24]."um, well I didn't feel that I was re-invoking, I didn't feel that I had left the property.I was still present."[13] Panckhurst J accepted the search for the burglar was spent, and with it reliance on s 8. But he considered the situation had moved to one of seizure of the cannabis which was in plain view during the initial search of the house. The Judgecommented " to my mind the situation had shaded from s 8 into a s 123 situation".6 Approaching the sections in the Act with the practicalities of policing in mind, the Judge concluded:7 it is my view that the re-entry into the property was part and parcel of the power that the officer had to seize items in plain view. I do not regard the circumstance of his stepping momentarily outside the back door as effecting a break in this activity.[14] In support of the application, Mr Chisnall argued the proposed appeal raises issues of general and public importance regarding the interplay of ss 20, 117 and 123of the Act, and the "warrant preference rule" he contended it promotes. Section 117 provides:117 Special powers where application for search warrant pending(1) If an application for a search warrant is about to be made or has been made and has not yet been granted or refused by an issuing officer, an enforcement officer present at the place or vehicle that is or is to be the subject of the application may, if authorised by subsection (2),—(a) enter and secure the place, vehicle, or other thing in respect of which authorisation to enter and search is being sought, and secure any item or items found at that place or in or on that vehicle or other thing, at any time that is reasonable in the circumstances:(b) direct any person to assist with the entry and securing of the place or vehicle or other thing or the securing of items in it (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi).(2) The powers conferred by subsection (1) may be exercised if the enforcement officer has reasonable grounds to believe that evidential material may be destroyed, concealed, altered, damaged, or removed6 High Court judgment, above n 1, at [28].7 At [30].before a decision is taken to grant or refuse the issue of a search warrant.(3) The powers conferred by subsection (1) may be exercised until the first of the following occurs:(a) the expiry of 6 hours from when the power is first exercised:(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:(c) the application for a search warrant is refused.(4) A person who exercises any power under subsection (1) must, on the request of any person affected by the exercise of the power,—(a) identify himself or herself either by name or by unique identifier; and(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances; and(c) if not in Police uniform, produce evidence of his or her identity.[15] The nub of the proposed argument is that s 117 qualifies or restricts the power in s 20 to search without a warrant. In practical terms, Mr Chisnall seeks to argue that a police officer who could appropriately use the less intrusive power in s 117, cannot use the "warrantless search" power in s 20, or the power of seizure ins 123 which Panckhurst J considered fitted the situation here.[16] There may be something in Mr Chisnall's proposed argument. But this is not the case to run it. There are concurrent findings of fact, by Judge O'Driscoll and then Panckhurst J, that in the circumstances confronting the two police officers it was not practicable for them to obtain a warrant to search the house. If the purpose of the second entry into the house was to prevent evidential material (the two tents containing cannabis) being destroyed, Mr Chisnall submitted the power in s 117(1)(a) covered that. But both Judge O'Driscoll and Panckhurst J found therewas a second sound reason for the second entry into the house. That was to complete a proper search of the house. In the approximately 60 seconds he had been in the house earlier, Constable Barton had not searched it properly. A proper search was called for. There may have been someone in the house and there may have beenfirearms. Illicit drugs and firearms frequently go hand in hand. As it transpired, there was someone in the house – Mr Alberton.[17] It follows we consider the second entry into the house described in [5] above was lawful in terms of s 20 of the Act. The recourse to s 123 which Panckhurst J considered best fitted the situation was not, in our view, necessary. We need not therefore comment on whether it was appropriate. Section 117 does not apply because this was not a situation where an application for a search warrant had been or was about to be made. Two Judges found that such an application was not practicable.[18] For those reasons, we do not consider this case gives rise to the matter Mr Chisnall seeks to argue in this Court as one of general or public importance. And that was the only criterion Mr Chisnall relied on; he did not suggest any risk of justice miscarrying. The application is accordingly dismissed.[19] To ensure a fair trial, we make an 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.Solicitors:Public Defence Service, Wellington for ApplicantCrown Law Office, Wellington for Respondent