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THE QUEEN v SCOTT CRAWFORD MEIKLE [2000] NZCA 207 (19 September 2000)

Introduction

[1] The appellant faces trial on charges of possession of cannabis for supply and cultivating cannabis. He appeals from a pre-trial ruling admitting the evidence which the police obtained by searching the property where he resided.

Factual background

[2] "Oponai" is a rural property in a remote part of the east coast of the North Island. Over a number of years the police received information that it was used as a cannabis cultivation centre. An earlier attempt to uncover drug offences there proved unsuccessful. Then in early 1999 the police received fresh information from a member of the public whom they regarded as particularly reliable. This prompted them to mount a surveillance operation from 24 March 1999.

[3] The Oponai property is several kilometres in length. It has two huts on it about three kilometres apart. The bottom hut is readily visible from the adjoining forest land. The top hut is not. Two constables were assigned the task of observing the property. They took up positions on adjoining forestry land. From there they could see part of the Oponai property including the bottom hut. They were able to communicate with their supervising officers by radio.

[4] Over a period of three days the constables observed a number of persons travelling in and around the Oponai property on four wheel farm bikes. These people were travelling around within the property and also to and from the adjacent forest. They were dressed in camouflage clothing and carried firearms and packages. Although the constables could not see the top hut they knew that a certain track led to it. Some of the traffic passed along this track, evidently travelling to and from the top hut. At one point a gas-operated heater was seen to be transported in the direction of the top hut. No other buildings lay in that direction.

[5] After three days the supervising officers decided that the constables had seen enough from their original vantage point. The constables were directed to move to a new position from which they could see the top hut. As the top hut was not visible from the adjoining forest the constables entered the Oponai property at night and viewed, but did not enter, the top hut. Through a window they were able to see a man and a woman inside but learned nothing of significance. On the following day they took up an observation point about 20 metres into the Oponai property. From there they saw persons moving to and from the hut but again learned nothing of significant evidential value.

[6] During that day the two constables saw the appellant emerge from the top hut with a rifle. He fired two shots, although not in their specific direction. He returned to the hut with the firearm and then emerged without it. From there he walked directly towards the position occupied by one of the constables. Fearing that he was about to be discovered anyway, the constable stood up and arrested the appellant.

[7] The two constables took the appellant to the nearby forestry land where they tied him up. They then went to the top hut where they carried out a search. Inside they found 11 kilograms of collected cannabis head, some of it still being dried. The constables called for further police support, collected the appellant, and brought him back to the top hut. On searching the area the police found a track leading from the Oponai property into the adjoining Crown forest. There they found a plantation of 781 mature cannabis plants. The appellant and his associates were charged with cultivating cannabis and possession for supply.

District Court hearing

[8] The defence objected to the admission of any evidence obtained by searching the Oponai property. There were essentially two grounds. One was that the search of the top hut was illegal in that the police had no reasonable ground for belief in the presence of a drug and the commission of an offence in terms of s 18(2) of the Misuse of Drugs Act 1975. The other was that the evidence had been obtained in breach of s 21 of the Bill of Rights Act having particular regard to a trespass by the two constables. Following an application by Crown under s 344A of the Crimes Act a voir dire was held in the District Court. Evidence was given by the two constables along with their two superior officers.

[9] After finding the facts as earlier outlined, the District Court Judge found that the search was legal, and for two reasons. One was that the police had reasonable grounds for believing that there was a cannabis operation being conducted from the Oponai property as a whole and that this justified a search of the whole property. The other was that there was sufficient evidence to search the top hut in particular, given its apparent link to other aspects of the operation. As to reasonableness, the Judge found that the police had sufficient information to support a search without needing to rely upon anything obtained in the course of the assumed trespass. Further, he considered that the trespass was "neither extensive nor fruitful in terms of gathering of further evidence". He pointed out that the assumed trespass did not involve a house or its surrounds and that it was "not of such seriousness as to call for its criticism and to amount to an unreasonable search breaching s 21".

Lawfulness of search

[10] In this Court Mr Mabey again challenged both the lawfulness and the reasonableness of the search. As to lawfulness he submitted that the police did not have sufficient information to justify a search under s 18(2). That subsection provides:

Where any member of the Police has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in the First Schedule or in Part I of the Second Schedule or in Part I of the Third Schedule to this Act and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.

[11] It was not disputed that the police had adequate grounds for searching the lower hut. The thrust of Mr Mabey's submissions was that large properties of this nature are not to be treated as a single unit for search purposes, particularly where they contain buildings 3 kilometres apart. Reasonable grounds for belief in relation to one part will not necessarily extend to another part.

[12] We do not rule out the possibility that in some circumstances the grounds for searching one building or area under s 18(2) will not extend to other parts of the same property, particularly where the property is a very large one and there are discrete buildings some distance apart. It all depends upon the scope of the original grounds for belief and the way in which they impact upon all or some parts of the property.

[13] In the present case the constables had been told by their supervising officer that he had received reliable information from a member of the public that a large scale cannabis operation was being conducted from the Oponai property. On observing the farm they saw no signs of livestock which might have suggested that the farm was being used for a legitimate farming operation. They saw people travelling between the farm and the adjacent forest where cannabis could be grown. Their camouflage clothing was consistent with a covert operation. They were carrying firearms, possibly as a defence against others with designs upon their crop. They were carrying packages which could have been cannabis. If a large scale cannabis operation were being conducted from the farm the offenders would need somewhere for drying the cannabis plant. The constables knew that the farm included a top hut and that the same people were travelling to and from it in the course of their daily activities. A gas-operated heater was seen to be taken in the direction of the top hut.

[14] All of that information was in the possession of the constables before they left their original vantage point in the adjoining forest. In our view it provided an ample basis for believing that they would find cannabis plant on the Oponai property, that the cannabis had been criminally cultivated, and that all or some was intended for supply.

[15] Mr Mabey submitted that whatever grounds there may have been for searching other parts of the farm, there was no justification for searching the top hut in particular. We cannot accept this. The observable movements and operations made the whole of the farm a reasonable target for a search. A large scale drug operation appeared to be under way. As one member of the Court remarked during the hearing, there was no reason for thinking that the top hut represented an "oasis of innocence" in an otherwise compromised property. Moreover there was every ground for thinking that top hut itself was an integral part of the drug operation. It was the apparent destination for a number of trips by suspects. It was also the apparent destination for the gas-operated heater. Particularly at that time of the year (March), there were reasonable grounds for believing that the purpose of the heater was to speed up the drying of the cannabis plant in the top hut.

[16] We conclude that in terms of s 18(2) the constables had reasonable ground for believing that illicitly grown cannabis would be found on the farm property as a whole and that the top hut was included in the property for that purpose. Consequently they had the power to search under s 18(2) of the Act.

Reasonableness

[17] Section 21 of the NZ Bill of Rights Act provides that "[e]veryone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise." Even where legal, a search may breach s 21 if the circumstances which give rise to the search make the search unreasonable or if an otherwise reasonable search is carried out in an unreasonable manner: R v Taylor (1996) 14 CRNZ 426, 432 (CA).

[18] Mr Mabey submitted that the action of the police in setting up an observation post 20 metres into the Oponai property amounted to a trespass, that it was the trespass which gave rise to the search of the top hut, and that the result of the search ought to be rejected on the ground that it had been obtained by an unreasonable search.

[19] In the peculiar circumstances of this case it is not necessarily beyond dispute that the police entry onto the property for observation purposes was a trespass as distinct from the commencement of a search under s 18(2) of the Misuse of Drugs Act. We do not need to decide that point because the real difficulty for the appellant is to show a material nexus between the assumed trespass on the one hand and the search of the top hut on the other.

[20] It is true that it was the police intrusion onto the property which exposed the constables to possible discovery by the appellant, that the appellant's approach prompted the constables to emerge from hiding, and that this in turn prompted them to bring forward the search before the appellant's associates could interfere with the evidence. However, in our view that connection between the intrusion and the search was a purely temporal one. The search would have been carried out anyway. The only question was the timing. The police already had the evidentiary foundation for the search before the intrusion. Nor was it disputed that the same sequence of events would have followed had the appellant discovered the constables outside the Oponai property in the adjoining forest.

[21] It is not for nothing that in Taylor, supra, this Court said that a search may be unreasonable if the circumstances giving rise to it make the search itself unreasonable." We do not think that the intrusion in the present case had any material connection with the search in the sense intended in Taylor.

[22] Initially Mr Mabey also relied upon the relationship between the search and the appellant's arrest. However it was not suggested that in themselves the arrest and restraint were unreasonable given the lack of immediate police support for the two constables; their knowledge that the appellant had access to a firearm if he could reach the top hut before them; the continuing movement of the appellant's associates in and around the farm property; and the risk that one of the associates could arrive at any time. In those circumstances it was not unreasonable for the constables to arrest the appellant and temporarily restrain him while they conducted the initial search of the top hut. It was not suggested that if the appellant had been arrested and restrained in the adjoining forestry area there would have been grounds for complaint. Nor was it suggested that the police treatment of the appellant called for disciplinary intervention by the Court notwithstanding the lack of material nexus with the search. In the end Mr Mabey accepted that the it was merely the location of the arrest that he was relying upon, and that this added nothing to the trespass argument which we have already addressed.

[23] Given the lack of material nexus between the impugned conduct and the search, and the lack of any call to discipline police conduct, the unreasonableness objection must fail. That makes it unnecessary to go on to consider two other issues raised by counsel - the minimal nature of the intrusion and the question whether the search may have been independently justified as an incident of the arrest.

Conclusion

[24] There is no ground for concluding that the search was illegal or unreasonable or that the evidence thus obtained should be excluded. The appeal is dismissed.

Solicitors

John Smith, Tauranga, for Appellant

Crown Law Office, Wellington