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Endnotes

^[1] Lyons et al v The Queen (1984) 14 DLR (4th) 482, 501.

^[2] These matters are discussed in Seager v Copydex Ltd [1967] 2 All ER 415 (CA), Howden v Ministry of Transport [1987] 2 NZLR 747 (CA) and R v Bradley (1997) 15 CRNZ 363 (CA).

^[3] For example, New York v Burger (1987) 482 US 691.

^[4] Thomson Newspaper Ltd v Canada (1990) 67 DLR (4th) 161, 220.

^[5] Comité Paritaire de l’Industrie de la Chemise v Potash (1994) 115 DLR (4th) 702, 713.

^[6] Differences largely reflect the fact that our Terms of Reference are different, so that, for example, we do not deal with questions of admissability of evidence (dealt with by the proposed Evidence Code) or with works ordered as a result of the entry.

^[7] South-Eastern Drainage Board v Savings Bank of South Australia (1939) 62 CLR 603.

^[8] The extent to which the section excludes the common law right based on necessity is described in Shattock v Devlin [1990] 2 NZLR 88, Dehn v Attorney-General [1988] 2 NZLR 564 and Edwards v Police [1994] 2 NZLR 164. It seems quite clear that s 317 does not preclude lawful entry pursuant to an implied licence. The possibility that it does is not even raised in such recent cases as R v Bradley (1997) 15 CRNZ 363 (CA) and Attorney-General v Hewitt [2000] 2 NZLR 110.

^[9] It may, however, be noted that s 487 of the Canadian Criminal Code authorises issue of a search warrant where an offence against the Code or any other Act of Parliament is suspected.

^[10] In relation to new offences it is sometimes difficult to avoid the unkind suspicion that imprisonment has been included as a penalty not because it is believed that such a penalty would ever be imposed but to ensure that there will be jurisdiction to issue a search warrant.

^[11] The concept of abandonment is discussed in R v Reuben [1995] 3 NZLR 165.

^[12] R v Saunders [1994] 3 NZLR 450, 471–473 contains a valuable discussion by Fisher J of these issues.

^[13] Barnett & Grant v Campbell (1902) 21 NZLR 484, 491 (CA); McFarlane v Sharp & Another [1972] NZLR 839 (CA); R v Burns (Darryl) [2002] 1 NZLR 204.

^[14] McFarlane v Sharp & Another, above n 13, 844. A first instance judge adopted the common law approach in R v Taylor (1983) 9 CRNZ 563. Lord Denning's observations in Ghani v Jones have recently been cited with approval by the Privy Council in Jaroo v Attorney-General of Trinidad & Tobago (unreported, Privy Council Appeal No 54 of 2000, Judgment 4 February 2002).

^[15] R v Power (1999) 17 CRNZ 662.

^[16] R v Power, above n 15, 665.

^[17] See for example Laws New Zealand, Criminal Procedure, para 66 and Everitt v Attorney-General [2002] 1 NZLR 82, 104 (Blanchard J) and 101 (Thomas J).

^[18] United States v Robinson (1973) 414 US 218, 235. There is a discussion of English and Victorian authority in Dan Meagher "Black and White is Always Grey – The Power of the Police to Conduct a Strip Search in Victoria" 26 (2002) CrimLJ 43.

^[19] This question was recently considered in the District Court in R v Surton [1998] DCR 768 and R v Hughes [1998] DCR 1069.

^[20] Cowan v Commissioner of Police [2000] 1 All ER 504.

^[21] With the consequences, in relation to the exclusion of otherwise admissible evidence, that we discuss in paragraph 38.

^[22] R v Fraser (1997) 15 CRNZ 44.

^[23] R v Gardiner (1997) 15 CRNZ 131.

^[24] A Bill of Rights for New Zealand; A White Paper (1985, Government Printer, Wellington, 1 Appendix to the Journals of the House of Representatives of New Zealand 1984–1985 A6) 103.

^[25] Note that the French translation employs the adjective abusif with its connotations of excess: Chacun a droit à la protection contre les fouilles les perquisitions ou les saisies abusives.

^[26] Above n 24, 10.150.

^[27] Wilson v Maihi (1991) 7 CRNZ 178.

^[28] R v Jefferies [1994] 1 NZLR 290, 299.

^[29] Above n 28, 290.

^[30] New Zealand Law Commission Evidence (NZLC R55 Vol 2, Wellington, 1999) proposed s 29.

^[31] Hunter et al v Southam Inc (1984) 11 DLR (4th) 641, 649.

^[32] R v Bradley above n 2, 372. Hart Schwartz "The Short Happy Life and Tragic Death of the New Zealand Bill of Rights Act" (1998) NZ Law Rev 259, 262–264 contains an unflattering account of the sequence of cases of which Bradley forms a part.

^[33] Dunaway v New York (1979) 442 US 200, 213–214.

^[34] New York v Belton (1981) 453 US 454, 458.

^[35] "Search and Seizure" in G Huscroft and P Rishworth (eds) Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and The Human Rights Act 1993 (Brookers Ltd, Wellington, 1995) 297, 323, 324. (Citations omitted.)