The Judicial Committee of the Privy Council Decisions

PF Sugrue Ltd v The Attorney General (New Zealand) [2005] UKPC 44 (14 November 2005)

ADVANCE COPY

Privy Council Appeal No. 37 of 2004

P.F. Sugrue Limited Appellant

v.

The Attorney General Respondent

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 14th November 2005

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

Lord Carswell

Sir Anthony Evans

[Delivered by Lord Carswell]

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1. New Zealand has found it necessary to exercise control in respect of its wildlife, in particular the deer population, in order to reduce damage to farming and to the environment and to conserve the population by preventing undue depletion. The governing legislation is the Wild Animal Control Act 1977 ("the 1977 Act"), the objectives of which are set out in section 4:

"(1) This Act shall apply to all land, having regard to the provisions of any Act applying to the land, and shall be for the purposes of controlling wild animals generally, and of eradicating wild animals locally where necessary and practicable, as dictated by proper land use.

(2) This Act shall be administered, having regard to the general purposes specified in subsection (1) of this section, so as to –

(a) Ensure concerted action against the damaging effects of wild animals on vegetation, soils, waters, and wildlife, and

(b) Achieve co-ordination of hunting measures, and

(c) Provide for the regulation of recreational hunting, commercial hunting, wild animal recovery operation, and the training and employment of staff."

The control of deer hunting is exercised through a system of wild animal recovery ("WARS") licensing of recreational and commercial hunters. The licences provide for quotas of animals which may be killed and are granted subject to various conditions, the object of which is to maintain control over culling of different species.

2. Contravention of the several provisions of the 1977 Act is made a criminal offence and the Act contains machinery for enforcement of those provisions and for the necessary searching and investigation to be carried out. For present purposes the material section is section 13, the relevant portions of which provide (as amended):

"(1) Every warranted officer holding a warrant for the purposes of this Act may, on production of his warrant of appointment if so required, in the exercise of his duty, -

(a) At all times without let or hindrance, -

(i) Where he has good reason to believe that an offence is about to be or is being or has been committed, enter upon, pass through, or remain on any land (including any yard and enclosure), shed, barn, hut, tent, and other erection, and any other premises of any description for the purpose of preventing or detecting offences against this Act:

(ii) Enter any vehicle, vessel or aircraft that is about to be used or is being used or has been used in contravention of this Act or that he has good reason to believe is about to or is being or has been so used:

(iii) Where he has good reason to believe that any offence has been committed against this Act, search any land, or any hut, tent, caravan, bach, or other erection, or any barn, storehouse, or other premises of any description, or any trailer, vehicle, vessel, or aircraft to which paragraph (e) of this subsection applies, or any riding or pack animal, or any other device for transportation or carriage found on any premises or on any water:

Provided that nothing in this paragraph shall apply to any dwellinghouse or other permanent residence or to the enclosed garden or curtilage of any dwellinghouse or other permanent residence:

* * * *

(c) Seize all nets, traps, snares, tranquillising drugs, ammunition, firearms, poisons, vessels, horses, dogs, aircraft, vehicles and devices that are about to be used or are being used or have been used in contravention of this Act, or that he has good reason to believe are about to be so used or are being so used or have been so used:

* * * * *

(6) Any warranted officer shall have power, on production of his warrant of appointment if so required, to enter at all reasonable times on the land or premises of the holder of any permit or licence or other authority to which any of the provisions of this Act apply, or any other land or premises where he has good reason to believe that an offence against the Act is about to be or is being or has been committed, and inspect any part of the land or premises for the purpose of ascertaining whether the conditions of the permit are being complied with or, as the case may be, whether any offence against this Act has been committed; and where he has good reason to believe that any offence has been committed against this Act, search any land, or any hut, tent, caravan, bach, or other erection, or any barn, storehouse, or other premises of any description, or any trailer, vehicle, vessel, or aircraft to which paragraph (e) of subsection (1) of this section applies, or any riding or pack animal, or any other device for transportation or carriage found on any premises or on any water:

Provided that a warranted officer shall not enter any dwellinghouse or the enclosed garden or curtilage of any dwellinghouse, unless he is authorised by a warrant under the hand of a District Court Judge or Justice of the Peace or Community Magistrate, who shall not grant such a warrant unless he is satisfied that the warranted officer has reasonable grounds for requiring entry into the dwellinghouse, garden or curtilage.

(7) Any District Court Judge or Justice of the Peace or Community Magistrate who is satisfied on oath that there is probable cause to suspect that any offence against this Act has been or is being committed within any dwellinghouse, garden, or curtilage may, by warrant under his hand, empower a warranted officer to enter therein for the purpose of detecting that offence at such time or times of the day as are mentioned in the warrant, but no such warrant shall continue in force for more than 14 days from the date thereof."

3. On 6 December 1990 at Wainihinihi, Westland, the Department of Conservation ("DOC"), acting through a warranted officer Mr Gerald Olde-Olthof, seized a Hughes 500C helicopter, registered number ZK-HPS, owned by the appellant company PF Sugrue Ltd and used by it for the hunting and recovery of deer pursuant to the terms of a licence issued to the appellant. The shareholding in the company was owned by two brothers, Michael and Patrick Meates. The helicopter was based at a deer farm belonging to the brothers and was at the material time parked not far from the dwellinghouse on the farm. As was required by the terms of the licence it carried on its sides an identification mark, a yellow letter G on a black background with a yellow border.
4. Mr Olde-Olthof had received several reports, some of which were more reliable as identification than others, from which he concluded that the helicopter ZK-HPS had been used for killing deer in contravention of the Act. A major issue in the case was whether he had good reason to form his belief, which it was accepted he genuinely held. He submitted reports to his superiors and obtained authority to carry out an operation involving the search of the Meates brothers' farm and the seizure of the helicopter.
5. Mr Olde-Olthof went on 6 December 1990 to the Meates' farm. Before he did so he applied to a justice of the peace for a warrant to search the property, on the ground that Michael Meates and Donald Greig, the appellant's regular hunter, had hunted red deer from the helicopter without written authority. The justice issued the warrant, which purported to be granted in pursuance of section 13(7) of the 1977 Act. It was common ground throughout the proceedings that, whatever the respondent's grounds for entry, search or seizure, there was no case for the issue of a warrant under section 13(7).
6. Mr Olde-Olthof arrived at the farm with other DOC officers and police personnel. The DOC officers seized the helicopter, a semi-automatic rifle (the property of one of the hunters on contract to the appellant), a logbook and a map. The helicopter was flown later that day to the Wigram air base at Christchurch. Over the next few days the appellant's solicitors made representations for the release of the helicopter, on the ground of the damage to the appellant's business caused by its absence, and on 14 December 1990 it was released unconditionally by the DOC. It was not flying satisfactorily and it transpired that damage had occurred at some stage to a compressor. This caused the helicopter to be grounded for some time until a replacement was obtained. The appellant suffered serious losses, leading to eventual failure of its hunting business, which it attributed to the loss of the helicopter for a critical period and the escalating effect on the business. The cause of the damage to the compressor was not established, but the appellant's claim in these proceedings did not include an allegation of negligence on the part of the DOC, its servants or agents.
7. The DOC brought a prosecution against the appellant company for breach of the 1977 Act, but at a jury trial in 1993 it was found not guilty. A proposed prosecution of Mr Michael Meates did not proceed.
8. The appellant company and the Meates brothers commenced proceedings against the respondent the Attorney General on behalf of DOC and other public officers and bodies on 5 December 1996, a day before the expiry of the limitation period. The original statement of claim centred around a claim that officers of DOC and certain holders of public office conspired together to interfere with the appellant's business. The pleading contained allegations of fabricating evidence, tampering with documents, suborning witnesses and committing perjury, allegations which the Court of Appeal described as extravagant and castigated as grossly improper and unfounded. A claim based on trespass can be spelled out of the pleading, but it was not a central plea in the document.
9. On 15 June 2000 the appellant company, now suing as sole plaintiff, served through new solicitors a wholly new statement of claim, based on claims of trespass to chattels, breach of the New Zealand Bill of Rights and malicious prosecution. None of the allegations of conspiracy was pursued in this pleading, nor was a claim against the police based on negligence. The respondent pleaded limitation, as the new cause of action under the Bill of Rights was put forward long outside the expiry of the limitation period. A defence was also put forward which was based on section 6(5) of the Crown Proceedings Act 1950. By further amendments made in July 2001 the claim began to take the shape in which it was eventually presented at trial, with an attack being made on the validity of the warrant to enter the premises and of the consequent search and seizure.
10. The trial of the action took place before Chisholm J over a total of 16 days between November 2001 and January 2002 and the judge gave a written judgment on 3 May 2002 (reported at [2004] 1 NZLR 207). The judge held that the entry of the DOC and police officers was lawful under section 13(1) of the 1977 Act, since the error in seeking a warrant under section 13(7) was "not of great moment" (para 135). Mr Olde-Olthof had good reason to believe that the helicopter and the rifle had been linked to unlawful hunting (although the judge found that the evidence fell short of establishing that the appellant's helicopter had in fact been so used), and consequently the seizure of these items was authorised under section 13(1)(c) and was lawful. He accordingly dismissed the claims for trespass and malicious prosecution, but went on to find the case made out for breach of section 21 of the New Zealand Bill of Rights Act 1990, which provides:

"Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise."

He held that Mr Olde-Olthof's reasons for seizing the helicopter were insufficient and that the adverse effect which seizure was bound to have on the appellant's business heavily outweighed the reasons for carrying it out. He concluded accordingly (para 177) that

"In all the circumstances seizure of the helicopter and rifle was plainly both irrational and unreasonable."

He considered the question of damages in some detail and ended by making an award totalling NZ$361,792.28 plus interest.

11. The Attorney General appealed and the company cross-appealed. The Court of Appeal (Gault P, Keith, Blanchard, Tipping and Anderson JJ) on 26 August 2003 gave a written judgment delivered by Blanchard J (reported at [2004] 1 NZLR 220), allowing the appeal, dismissing the cross-appeal and setting aside the judgment. The court upheld the judge's view that Mr Olde-Olthof had "good reason to believe" that the helicopter and rifle had been used in contravention of the Act. It went on to consider whether the seizure was unreasonable, in the light of the purpose for which it was carried out. It also gave consideration to the question, raised by the court itself in a minute dated 3 April 2003, whether the seizure was a lawful exercise of the statutory power or was vitiated and so unlawful because motivated by an improper or irrational purpose. It came to the conclusion (para 49) that the appellant would not have succeeded in direct challenge to the seizure in judicial review proceedings, and accordingly did not pronounce upon the limits of collateral challenges in New Zealand law. The court was of the opinion that the seizure of the helicopter and rifle were carried out for authorised purposes and were therefore not unlawful. On the Bill of Rights Act issue it held that neither the decision to effect seizure nor the manner in which it was effected was unreasonable and accordingly there was no breach of section 21. Finally, the Court of Appeal stated that even if it had taken the view that the seizure was in breach of section 21 of the Bill of Rights Act it would not have upheld an award of damages and would have restricted the remedy to a declaration.
12. At the hearing before the Board leading counsel for the appellant submitted that the Court of Appeal had been wrong to reverse the judge's finding that the seizure had been unreasonable within the meaning of section 21 of the Bill of Rights Act. He then sought to support the contention that the seizure was a trespass by means of an argument that the helicopter had at the time been within the curtilage of the Meates' dwellinghouse, entry into which required the authority of a warrant granted under section 13(6) of the 1977 Act. He submitted that since no such warrant had been issued, the entry was unauthorised and the seizure was unlawful in consequence.
13. This argument was not advanced in the appellant's pleadings or at trial and it was not referred to at any point in the full and detailed judgment of Chisholm J, who did not make any finding on whether the helicopter was located within the curtilage of the dwellinghouse. Nor did it form any part of the appellant's submissions before the Court of Appeal or the reasoning of its judgment. The nearest that it came to being an issue in the proceedings was the specific denial in paragraph 13.3 of the respondent's statement of defence dated 28 May 1997 that the helicopter was in the curtilage of the adjacent dwellinghouse. This plea was not a traverse of any averment in any of the versions of the statement of claim, in none of which is it alleged that the helicopter was within the curtilage, and is not to be found in the statement of defence dated 14 September 2001 pleading to the third amended statement of claim. No evidence was directed at trial to the extent of the curtilage and the question whether the helicopter was within it. There was merely a passing reference to the curtilage in the evidence of Michael Meates, but the question was not pursued and the judge did not address the issue in his judgment. It would not be possible to determine it on the evidence contained in the transcript. It would be necessary to remit the matter to the trial judge to take further evidence and make a finding on it. It is now approaching 15 years since the seizure of the helicopter and even if reliable evidence could now be obtained on the point their Lordships are of the firm opinion that it is much too late for the question to be raised and determined. Litigation in the common law system demands finality and closure after a reasonable time, which in this case has long since elapsed. Their Lordships are therefore unwilling to entertain the appellant's arguments on the question of the extent of the curtilage and the location of the helicopter in relation to it or to remit the case for further evidence and findings.
14. Their Lordships will accordingly consider the validity of the seizure and the claim for trespass in light of the provisions of section 13. It is not in dispute that the conditions for obtaining a warrant under section 13(7) did not apply and that that warrant was invalid as authority for entry. It was suggested in argument that a warrant could have been obtained under section 13(6), but that appears to be debatable. As it is not necessary for determination of the appeal, their Lordships do not propose to express an opinion on the point.
15. Authority for the entry, search and seizure in the present case may be found in the provisions of section 13(1). In their Lordships' view the judge and the Court of Appeal were right to conclude that it is contained in section 13(1)(a). The terms of this paragraph clearly cover the case, unless either Mr Olde-Olthof did not have good reason to hold the requisite belief or the issue of an invalid warrant under section 13(7) made the entry itself unlawful. Both of the lower courts have held that Mr Olde-Olthof did have good reason to hold the relevant belief and in their Lordships' opinion they were fully justified on the evidence in reaching this conclusion, which was not challenged before the Board. They do not consider that there is any substance in the argument that the incorrect issue of the warrant under section 13(7) invalidated the entry, which Mr Olde-Olthof was quite entitled to make under the provisions of section 13(1). That warrant, being incorrectly obtained and therefore invalid, had no legal effect and, though Mr Olde-Olthof may have mistakenly thought that he could rely on it as a warrant for entering the premises, he had in law sufficient justification on other grounds for entering and effecting a consequent seizure of the helicopter and other items.
16. In holding that the seizure was not unreasonable within the meaning of section 21 of the Bill of Rights Act the Court of Appeal considered the question whether the power of seizure was exercised for a purpose or purposes for which it was conferred. It examined those purposes in detail and, having found that it was carried out for proper purposes, went on to determine whether the seizure was a proportionate exercise of the power.
17. The reasons given by Mr Olde-Olthof for carrying out the seizure were to create a chain of evidence, to prevent ongoing unlawful hunting, the need to show other WARS operators that unlawful hunting would not be tolerated, the maintenance of DOC's credibility with the public and farmers and preventing disposal of the helicopter "to places unknown" (Court of Appeal judgment, para 50). It was submitted on behalf of the appellant that none of these purposes was legitimate. It was not necessary to seize the helicopter in order to provide a chain of evidence in any proceedings which might be brought, for a report and photographs would readily suffice. There was no necessity to seize the helicopter and rifle to prevent further offending by the appellant or those associated with it. Demonstration to other WARS operators of the DOC's attitude to unlawful hunting and appeasement of farmers and the public, while they might be advantageous incidental consequences of a seizure followed by conviction, were not legitimate purposes in themselves. Finally, prevention of disposal of the helicopter was a misconceived reason, since the necessary proof was available without its presence and it was acknowledged that actual forfeiture was wholly unlikely. The judge agreed with these submissions of the appellant. He held that the reasons advanced were insufficient justification, bearing in mind the impact which seizure of the helicopter would have on the appellant's business, and that the seizure was irrational and unreasonable.
18. The Court of Appeal analysed in some detail the purposes for which the power of seizure was conferred by the legislation. It held, first, that one purpose was to ensure that a seized item could not be taken out of the country prior to any prosecution and so made unamenable to any eventual forfeiture. There is power under section 13(5) to release a seized item. The court took the view that it was legitimate for seizure to be effected in order to put the DOC and the court in a position where forfeiture would be available as an effective sanction.
19. The court was of opinion that Parliament must have intended that seizure could be effected for the purpose of obtaining evidence for a prosecution. Although large items would not usually be produced physically in court, forensic examination may nevertheless be required, which would give a good reason for their detention and removal, at least for a period.
20. It held (para 54) that a seizure must be made primarily for one or more of the purposes of (a) preventing and deterring a breach or further breach by the owner or user of the seized item (b) rendering it more easily amenable to eventual forfeiture or (c) a forensic purpose. The other factors of the deterrent effect and the signal to others that the DOC was intent on enforcing the 1977 Act may not have been authorised purposes of seizure, but they were not irrelevant in the context of the exercise of this kind of statutory power.
21. The court set out its reasons for rejecting the appellant's argument in paragraphs 55 to 57 of its judgment:

"55. It is indisputable that Mr Olde-Olthof believed that ZK-HPS had been involved in a number of instances of hunting of deer contrary to the Act. Furthermore, as the Judge below has held and we have confirmed, he had good reason to believe that was so in relation to the incident at Lake Sumner. Although the other reports about the helicopter could not be substantiated, they too provided some basis for concern about Sugrue's continuing activities. As appeared from his reports, Mr Olde-Olthof was plainly intent on preventing illegal activity by seizing the helicopter and the rifle and was therefore acting for a purpose for which the statutory power was primarily conferred. He was also acting for the authorised purpose of having the helicopter available for forfeiture, if that were ordered. Although with the benefit of hindsight and when the expertise of DOC's regional solicitor, Mr Alty, was brought to bear, forfeiture was not pursued as a realistic possibility, this is not to the point. The evidence against the respondent at the time, the desire to prevent further offending and the ease with which the aircraft could have been disposed of were factors which in combination could have led a reasonable officer to decide in favour of seizure. This is especially so given that the officer would have been aware that an early decision could be made about returning the helicopter, subject to any appropriate conditions. It was not illegitimate for Mr Olde-Olthof in those circumstances to have regard also to showing other WARS operators that DOC would not tolerate unlawful hunting activities and to the maintenance of DOC's credibility with the public and farmers.

56. But it is said that the real reason for the seizure was Mr Olde-Olthof's mistaken belief that the helicopter was needed for forensic purposes. Chisholm J described this belief as 'irrational' which may in all the circumstances have been a little harsh. The respondent's argument was that this rendered the seizure decision unreasonable in administrative law terms and hence, it was said, unlawful. We do not accept this argument. In the first place, as we have found, a seizure can be lawfully made under s 13(1)(c) for forensic purposes. Even if, however, in the particular circumstances a reasonable officer would not have seized the helicopter for such a purpose, it does not follow that the decision made by DOC's head office to allow Mr Olde-Olthof to proceed with a seizure was unreasonable. The focus must be on that decision as a whole, not simply on one facet of the reasoning of Mr Olde-Olthof. Unfortunately, with the passage of time and the death of one of the senior officers it is not possible to say to what (if any) extent DOC's decision was really influenced by Mr Olde-Olthof's mistaken belief, which would seem unlikely to have been shared by head office. The important point, however, is that if overall it was not unreasonable for DOC to decide to seize the helicopter in the particular circumstances, the fact that part of Mr Olde-Olthof's reasoning was mistaken would not vitiate the decision.

57. When giving his evidence, eleven years after the event and long after he had ceased to work for DOC, Mr Olde-Olthof was still inclined to defend what he did by asserting that ZK-HPS was needed as part of a chain of evidence. Chisholm J was quite right to call this his 'primary justification'. But Mr Olde-Olthof's floundering attempts to defend himself on this point should not obscure what is plain from the contemporary documents, namely his reports to his superiors (see paras [28] and [32] above) that he had genuinely believed the helicopter had been used in contravention of the Act and was also motivated by entirely proper purposes, especially the prevention of ongoing unlawful hunting using the helicopter. Having considered the entirety of Mr Olde-Olthof's evidence, with all its inconsistencies, we have not been persuaded that in reality his misguided belief in the need for a chain of evidence so dominated his thinking, and the Department's decision to authorise him to carry out a seizure of the helicopter, that, where objectively good grounds existed for his belief that it had been used in contravention of the Act, the seizure can nevertheless be said to have been unlawful."

22. The Court of Appeal then expressed its conclusion that the seizure had not been unreasonable. It reiterated the reasons why it considered that the DOC had reasonable grounds to think that the helicopter had been involved in contravention of the 1977 Act and that if the appellant were not deprived of the use of the helicopter it might well continue with unlawful activities. It went on to consider the argument that the action taken was disproportionate and concluded (para 62):

"What would have seemed to an objective observer the probable course at the time of the seizure was that consideration for release of the helicopter would follow within a short period – but sufficient to have preventative and deterrent effect on Sugrue – and then would be released in working order with relatively little disruption of Sugrue's legitimate business, which, on the basis of the pilot's logbook, must in any event have seemed far from continuous, even making allowance for seasonal factors. The case against Sugrue would, we think, have also appeared quite strong. Temporary removal of the helicopter and rifle would not have seemed disproportionate."

23. Their Lordships consider that the approach of the Court of Appeal was correct. Constitutional provisions such as section 21 of the Bill of Rights Act are primarily directed towards preventing the invasion of personal freedom and privacy. The objective of the entry, search and seizure provisions in section 13 of the Wild Animal Control Act 1977 is the prevention of unlawful killing of wild animals by detection of offences and deterrence of offenders and its provisions should be applied in such a way as to forward that objective. They contain checks and balances designed to give the necessary constitutional protection to personal freedom and privacy.
24. Seizure may be carried out of items used in contravention of the 1977 Act for an amalgam of purposes, the relative importance of which may vary from case to case. The power of seizure is a common feature of legislation dealing with unlawful activities such as smuggling. Articles are regularly seized by enforcement officers, including vehicles and other items of substantial value, which may be subsequently released after examination or on redemption by a monetary payment. The fact that a valuable aircraft is unlikely to be forfeited except in a case involving very large sums does not make it illegitimate to seize and detain it for a time. That gives an opportunity for forensic examination if required, ensures that it cannot be used for unlawful activity while it is detained, prevents its disposal and serves as a strong deterrent to its owner and other persons against engaging in such activity. The Court of Appeal properly took such purposes into account in reaching its conclusion on the claim under the Bill of Rights Act that the seizure was not unreasonable. Their Lordships consider that the Court of Appeal was justified on the evidence in reaching that conclusion and that its decision should stand. They cannot accept that there is any substance in the argument that the court strayed outside the proper limits of an appellate court in reviewing the findings of a trial judge. On the contrary, it exercised the classic function described by Viscount Simonds in Benmax v Austin Motor Co Ltd [1955] AC 370 as evaluation, drawing inferences from primary facts found by the judge. As Lord Reid stated in the same case at p 376, where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge.
25. This is sufficient to determine the appeal in the respondent's favour, and it is unnecessary for the Board to consider either the issue of delay and its effect on the remedy which might be given or the argument based on section 6(5) of the Crown Proceedings Act 1950. Their Lordships accordingly do not propose to express any opinion on either of these points.
26. Their Lordships will humbly advise Her Majesty that the appeal be dismissed with costs and the order of the Court of Appeal confirmed.