Beazley v Police
[2016] NZHC 129
•11 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-315 [2016] NZHC 129
BETWEEN MATHEW BEAZLEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 February 2016 Counsel:
C B Wilkinson-Smith for Appellant
M J Hammer for RespondentJudgment:
11 February 2016
JUDGMENT OF DAVISON J
This judgment was delivered by me on 11 February 2016 at 3:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: Christopher Wilkinson-Smith (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
BEAZLEY v POLICE [2016] NZHC 129 [11 February 2016]
Introduction
[1] The appellant, Mr Beazley, was found guilty following a Judge-alone trial at the Kaikohe District Court on one charge of possession of methamphetamine for supply1 (the “vehicle offence”) and, in relation to the second set of offending, one charge of possession of utensils (a glass pipe)2 and one charge of possession of methamphetamine for supply (the “Ormonde Place offences”). He was sentenced to
three years and two months’ imprisonment.
[2] Mr Beazley now appeals against his convictions.
Background
The vehicle offence
[3] On 28 July 2014, Mr Beazley and a Mr Reeves were travelling together in Mr Reeves’ car on a road in Kaikohe. Mr Reeves was driving and Mr Beazley was seated on the backseat. A small child was seated in a child’s seat situated on the front passenger seat. The vehicle was stopped by the Police as part of a routine traffic check. As a Constable approached the vehicle, Mr Beazley was observed to be trying to conceal something in the rear seat area and Mr Reeves appeared rather nervous.
[4] The Police proceeded to conduct a search of Mr Beazley and a backpack he had with him. Mr Beazley was found to be in possession of $2,800 in cash and a number of point bags. Under Mr Beazley’s backpack, in the backseat area, the Police found a glass pipe and a small set of pocket scales. Also found was a small plastic container containing 12 grams of methamphetamine which had been placed under the passenger seat near the foot-well where Mr Beazley had been seated when the car was stopped.
[5] Mr Beazley claimed that the methamphetamine found in the vehicle did not
belong to him but to Mr Reeves. Mr Beazley’s explanation and defence advanced at
his trial was that he was a customer of Mr Reeves, and that he had arranged to meet
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2).
2 Section 13(1)(a) and (3).
Mr Reeves to purchase some methamphetamine from him by means of an exchange of text messages between them earlier that day. He said he was in the car with Mr Reeves to go to the Ormonde Place address to collect some needles he needed for his own use.
Ormonde Place offences
[6] In the course of speaking with the Police, Mr Beazley advised them of the address on Ormonde Place which was where he said he stayed from time to time. This was the address of his partner, Ms Howard, and their young children.
[7] The Police thereupon proceeded to conduct a warrantless search of the Ormonde Place address and there located 0.63 grams of methamphetamine together with paraphernalia (including another glass pipe) that appeared consistent with having being used for the consumption of methamphetamine.3
[8] Mr Beazley claimed that the methamphetamine found at the Ormonde Place address was also purchased from Mr Reeves.
The District Court decision
[9] In the decision under appeal, the Judge rejected Mr Beazley’s defence and explanation that the methamphetamine found in the vehicle belonged to Mr Reeves, and the claim that he was simply purchasing drugs from his dealer, Mr Reeves.
[10] The Judge’s conclusion was based on the following reasons:
(a) Mr Beazley attempted to conceal the drugs in the car and took steps to avoid detection of the drugs when the vehicle was stopped by the
Police.
3 I note that in the Judge’s verdict decision, the amount of methamphetamine said to be found at the Ormonde Place address was 1.19 grams. It was clarified at the hearing before me that the calculation was made in error and counsel are in agreement that 0.63 grams of methamphetamine was in fact found at that address.
(b)The methamphetamine was located in or near the foot-well close to where Mr Beazley had been seated when the vehicle was stopped.
(c) Mr Beazley had paraphernalia in his possession, “including scales to weigh the methamphetamine, bags which are typically used for measuring methamphetamine and point bags associated with the supply and distribution of methamphetamine …”.4
(d)Mr Reeves had also been searched and no utensils associated with the weighing or supplying of methamphetamine had been found in his possession.
(e) A plastic container found at the Ormonde Place address and another found in the vehicle in which Mr Beazley was seated were similar in their appearance, and the drugs found at both locations were sealed in a similar manner.
[11] The Judge concluded that Mr Beazley was unable to rebut the presumption that he was in possession of methamphetamine for the purpose of supply, and accordingly, he found that the charge of possession for the purpose of supply was proven.
[12] In relation to the Ormonde Place offending, the Judge noted that that address had been searched without a warrant but, after undertaking the balancing process required by s 30 of the Evidence Act 2006, he found the factors and circumstances to be finely balanced in favour of the evidence of the items located at the house being admitted.
[13] Although Mr Beazley asserted the glass pipe found at that address was not his, and gave evidence that he did not consume methamphetamine in that manner, the Judge was satisfied on the evidence he had ruled admissible, that the utensils found at the Ormonde Place address belonged to Mr Beazley and found that the
elements of the charge against Mr Beazley were established, as he was:
4 R v Beazley [2015] NZDC 8502 at [21].
(a) aware of the location of the glass pipe; (b) aware that it is prohibited;
(c) had actual or potential control of the glass pipe; and
(d) had an intention to exercise control over it. [14] The Judge explained:5
He has acknowledged putting the pipe in his bedside cabinet and on occasions when Ms Howard uses methamphetamine he assists her in that process. I am satisfied that that charge is also proven to a standard beyond a reasonable doubt.
[15] The Judge was also satisfied that the methamphetamine found at that address belonged to Mr Beazley.
Approach on appeal
[16] Section 229 of the Criminal Procedure Act 2011 sets out a convicted person’s
right to appeal against their conviction.
[17] Under s 232(2), the Court can only allow an appeal from a Judge-alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”.
[18] “Miscarriage of justice” is defined as:
232 First appeal court to determine appeal
…
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
5 At [25].
(b) has resulted in an unfair trial or a trial that was a nullity.
[19] For a miscarriage of justice to have occurred, the errors or irregularities must, for the purposes of s 232(4), depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court “must quash the decision.”6
[20] For the purposes of s 232(4)(a), a “real risk” exists when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.”7 This standard means that “…an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.8
[21] Subsection (4)(b) deals with circumstances that have resulted in an unfair trial or a trial that was a nullity. The assessment of the fairness of a trial is to be made in relation to the trial overall.9 Nullity concerns cases where some fundamental procedural error has occurred.
[22] An appeal against conviction proceeds by way of rehearing. I am therefore required to carefully consider all matters which were before the Judge but, ultimately, I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgment.
Appellant’s submissions
[23] At the commencement of the hearing of this appeal, I granted leave to the appellant to amend the grounds of appeal by the addition of a ground based on a failure of the Police and the Crown to make full and complete pre-trial disclosure, as required by the Criminal Disclosure Act 2008. In December last year, immediately prior to the date upon which this appeal was originally scheduled for hearing, the Police discovered that by reason of an oversight and error, they had not disclosed nor
provided to the Crown and the appellant a large amount of electronic data relating to
6 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
7 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
8 At [110].
9 Condon v R, above n 6, at [78].
phone and text records as well as forensic examinations of two phones and a number of SIM cards seized by the Police. Although these electronic records had been in the possession of the Police in the period leading up to the trial, they had not been disclosed, and were only belatedly discovered and disclosed virtually on the day prior to the scheduled hearing of this appeal in December 2015. In its submissions, the Crown responsibly conceded that the evidence was fresh evidence and that the appellant himself could not have located it for use at his trial. The telephone and text records were said by Mr Beazley to be highly relevant to his defence as they included text messages which showed that he was a customer of Mr Reeves and was not himself a dealer in methamphetamine. Accordingly, it was said that the Police failure to comply with the obligation to disclose this vital information had seriously prejudiced Mr Beazley’s defence and had resulted in a miscarriage of justice.
[24] For the appellant, Mr Wilkinson-Smith contended this new appeal ground was so cogent and compelling that the Court would be likely to allow the appeal on that ground alone, but as he did not abandon the other grounds of appeal contained in the notice of appeal, for completeness, I will address all the grounds of appeal. I shall deal with the fresh evidence appeal ground first.
The fresh evidence
[25] In Mr Wilkinson-Smith’s submission, the Judge proceeded under the erroneous basis that full disclosure of the phone records had been made, and that the text messages to which Mr Beazley claimed had passed between he and Mr Reeves to arrange his purchase of methamphetamine for his own use, did not actually exist. Accordingly, Mr Wilkinson-Smith submitted that a miscarriage of justice had occurred as the failure to disclose the relevant phone record (now forming the fresh evidence) had resulted in Mr Beazley not receiving a fair trial.
[26] Mr Wilkinson-Smith further submitted that there is a real risk that a more favourable outcome may have been reached because the fresh evidence is consistent with Mr Beazley’s version of events given at trial. In particular, approximately one hour before the vehicle was stopped, a text message was sent by Mr Reeves to the appellant to inform him that he had drugs available for sale. Mr Beazley had
responded almost immediately saying that he would meet him in five minutes. In full, the relevant text correspondence is in the following terms:
28-07-2014 11:54:46 SMS 64210479792 64221539347
Bro; come c me ples?gud 4 u
28-07-2014 11:56:13 SMS 64221539347 64210479792
Ok I b 5mn
[27] In his affidavit filed in support of the application for leave to amend the grounds of appeal, Mr Beazley stated that Mr Reeves’ number was not saved on his phone because of the illegal nature of the relationship. The text messages were therefore necessarily brief and carefully avoided any reference to drugs.
[28] In Mr Wilkinson-Smith’s submission, the fresh evidence is also relevant to the appellant’s case in relation to the Ormonde Place offending in that it demonstrates that Mr Beazley did not have effective control of the drugs at the time of his arrest. He referred me to an exchange of text messages between Mr Beazley and Ms Howard on the eve of his arrest wherein he was told by her that he would no longer have access to the Ormonde Place address:
27-07-2014 18:44:25 SMS 64221539347 642108576572
So I homeless
28-07-2014 09:51:44 SMS 642108576572 64221539347
Got dead locks for tha drs so u cnt get in!!
Earlier submissions
[29] Putting the fresh evidence aside, Mr Beazley’s other grounds of appeal are
that:
(a) The quantity of methamphetamine found in the vehicle could not be established on the evidence because the purity was not measured.
(b) The Judge erred in the s 30 analysis by:
(i)considering the 12 grams of methamphetamine found in the vehicle when assessing the significance of the evidence found at the Ormonde Place address (which was less than a gram); and
(ii) failing to consider that the need for an effective and credible
system of justice “cuts both ways”.
The essence of Mr Wilkinson-Smith’s submission was that the unlawfully obtained evidence should not have been admitted under s 30 of the Evidence Act.
(c) The Judge failed to give reasons for the guilty verdicts on the Ormonde Place charges and did not consider all the elements of the offences.
Respondent’s submissions
The fresh evidence
[30] Ms Hammer, for the respondent, accepted the evidence was fresh and credible but, in her submission, the evidence should not be admitted because it would not have an effect on the safety of the conviction.
[31] Ms Hammer submitted the text messages contained in the fresh evidence have limited corroborative value. They do not provide any insight on the nature of the parties’ relationship nor do they provide any insight onto what actually happened on the day of the offending. Moreover, the text messages do not explain how Mr Reeves came to know that Mr Beazley had been thrown out of home, as he had alleged in his evidence.
[32] In Ms Hammer’s submission, Mr Beazley has overstated the weight the Judge had placed on the absence of the phone records in evidence and at trial. Rather, in rejecting Mr Beazley’s version of events, the Judge properly considered the totality of the evidence and was satisfied that the prosecution had proved
Mr Beazley was in possession of the drugs for the purpose of supply. Mr Beazley was unable to displace the presumption of possession for the purpose of supply given the factors listed at para [10] above, which the Judge found relevant.
[33] The respondent accepted that the text messages sent from Ms Howard to Mr Beazley on the day prior to the offending, and on the day of the offending, corroborate the appellant’s evidence that he did not have access to the Ormonde Place address at the time of his arrest. However, in Ms Hammer’s submission, Mr Beazley was still able to exercise control as he said in evidence that he intended to:
… try and sneak over there, ‘cos I know how to get into the house as long as she’s not there.
Other submissions
[34] Ms Hammer submitted the appeal should be dismissed as none of the grounds raised by the appellant amount to a miscarriage of justice. Specifically:
(a) While Mr Beazley is right to point out that the Judge did not consider purity, he was not required to do so as the issue was not disputed by Mr Beazley at trial.
(b)The Judge did not err in admitting evidence that was the result of an unlawful search. The Judge, after undertaking the balancing process under s 30 of the Evidence Act, reached a conclusion on the charges which was available to him on the evidence.
(c) The Judge did not fail to give reasons for the Ormonde Place charges as his reasons were appropriately given in accordance with s 106 of the Criminal Procedure Act.
Analysis
Fresh evidence
[35] The “sequential series of tests” for adducing fresh evidence is set out in
Lundy v R. They are:10
(a) Is the evidence credible?
(b)If so, is the evidence fresh in the sense that it could not have been obtained for the trial with reasonable diligence?
(c) If the evidence is fresh and credible it should be admitted unless it would have no effect on the safety of the conviction.
(d)If the evidence is credible but not fresh, it may nevertheless be admitted if there is a risk of a miscarriage of justice if it is not admitted.
[36] It is common ground here that the evidence is both credible and fresh. For the purposes of this appeal, counsel are in agreement that the fresh evidence was not disclosed at trial due to an oversight on the part of the Police. As I understand it, the phone records were in the possession of the Police in the week leading up to the trial (presumably sometime in March 2015) but no one was aware of its existence until sometime in December 2015, after the notice of appeal was lodged for the
appellant.11 As explained by Ms Hammer, the oversight was a result of human error
– it was simply that the relevant officer looking at the attachments overlooked the drop down button which, when clicked, would have shown not two but a further third attachment containing the phone records (now forming the fresh evidence).
[37] With that background in mind, I accept that the evidence, with reasonable diligence, could not have been called at trial. Neither party was aware of its
existence. Counsel for the appellant had made various disclosure applications and
10 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
11 As I have noted, the appeal was initially set to be heard in December 2015 but an adjournment was granted to allow counsel to investigate the existence of additional phone records.
the respondent, at the hearing, accepted that it was at the appellant’s insistence that the fresh evidence was later discovered.
[38] However, the respondent’s position is that the evidence (notwithstanding it is fresh and credible) would have no effect on the safety of the conviction. I consider that the test for whether or not the evidence would have “no effect on the safety of the conviction” must be read in light s 232(4)(a) of the Criminal Procedure Act. Namely, it is enough that there is a real risk or reasonable possibility the evidence has an effect on the safety of the conviction but it need not be established that the
verdict is actually unsafe.12
[39] Having considered the relevance and cogency of the fresh evidence that was not before the Judge, I am satisfied there is a real risk that the outcome of the trial was materially affected by its unavailability for use by Mr Beazley in his defence of the charges, and, consequently, that a miscarriage of justice has occurred. My reasons are set out below.
[40] The fresh evidence directly confronts the Judge’s finding on the credibility of Mr Beazley, and it supports his version of events. Mr Beazley said he met Mr Reeves on the day of the offending after having been contacted by Mr Reeves via a text message telling him he had something that Mr Beazley wanted (“something he wanted” is said to refer to the drugs found in the vehicle). The Judge rejected Mr Beazley’s evidence and formed the view that it was not credible given the text
messages to which he referred did not actually exist. The Judge explained:13
The Crown undertook searches of the phone records of Mr Beazley and Mr Reeves and no text message that fits with that described by Mr Beazley was recorded. I infer the reason for that is because no such text was sent.
12 See also the comment in Lundy v R, above n 10, at [120] that: “If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.” (emphasis added)
13 At [20].
[41] The Judge made a further reference to the absence of any communication between Mr Beazley and Mr Reeves in the phone records:14
Mr Beazley cannot explain why the phone records do not record that contact. I accept there is no onus on a defendant to explain evidence generally unless there is a reverse onus to do so such as when there is a presumption that quantities of methamphetamine over 5 grams are possessed for the purpose of supply to others. I am of the view there is a very simple explanation for that and that is because the telephone calls, texts or other communication between the defendant and Mr Reeves, or any communication between Mr Reeves and the defendant did not occur.
[42] As is now apparent, the text messages to which the appellant referred do in fact exist. Accordingly, the Judge’s finding that Mr Beazley was untruthful about communicating with Mr Reeves is plainly wrong.
[43] The Judge was clear and consistent in the view that Mr Beazley’s version of events – which is that he was the purchaser and Mr Reeves was the dealer – did not have “the ring of truth to it”. This was largely based on, and explained by, the Judge’s finding that the phone records on which Mr Beazley relied did not exist. I am satisfied that had the fresh evidence been available at trial, there is a reasonable possibility that the appellant’s explanation and evidence would have been more favourably received. That is also because the other factors on which the Judge relied, relating to the totality of the evidence, are equivocal in nature. For example:
(a) The Judge was satisfied that Mr Beazley’s behaviour in attempting to conceal the drugs when the vehicle was stopped by the Police was consistent with the actions of a drug dealer. However, whether a drug dealer or a drug user, it is likely that Mr Beazley’s immediate reaction would have been the same, namely to attempt to conceal the drugs once the vehicle was stopped by the Police. Unlike Mr Reeves, he was seated close to where the drugs were located.
(b)Mr Beazley said he was meeting with Mr Reeves to secure more methamphetamine and to sample that methamphetamine. The Judge
rejected that account, holding it was an unlikely explanation given he
14 At [26].
had a supply of methamphetamine at the Ormonde Place address. However, there was evidence that Mr Beazley was a heavy user of methamphetamine and, in any event, the Judge acknowledged that the amount of methamphetamine found at the Ormonde Place address was very small.
(c) The Judge gave weight to the fact that the container found in the vehicle was similar in appearance to the one found in the Ormonde Place address, and that the drugs in both locations were sealed in a similar manner. However, the Judge did not specify the extent to which the drugs and/or the packaging of the drugs were similar in appearance. For instance, if the Judge was sure that the containers were similar in size, colour, branding etc, it would make it unlikely that the containers found in both locations were unrelated to each other and to Mr Beazley. But, in any event, even if the containers were the same or similar in appearance, their connection to the appellant could well be explained by the fact that they had originated from the same source (being Mr Reeves, the appellant’s drug dealer).
(d)The Judge considered that the paraphernalia Mr Beazley had in his possession (including point bags and electronic scales) was consistent with the supply and distribution of methamphetamine and that was his purpose for having possession of the methamphetamine. However, Mr Beazley said in evidence that he was an intravenous drug user and that, to avoid overdose, his practice was to weigh the amount of drugs using electronic scales. Mr Beazley also said he always had point bags in his possession to avoid “making a big mess” when using.
[44] For these reasons, I am satisfied that the Judge’s finding on the credibility of
Mr Beazley and his version of events was material to the outcome of the decision.
[45] Lastly, I accept the more obvious point that the text messages contained in the fresh evidence are highly relevant to Mr Beazley’s defence. That he was unable to rely on them to corroborate his version of events meant he was denied a fair trial.
Purity (and the presumption of possession for the purpose of supply)
[46] In Mr Wilkinson-Smith’s submission, the prosecution failed to prove the quantity of methamphetamine in the substance found in the possession of Mr Beazley, meaning the presumption for the purposes of supply was not properly raised.
[47] The container found in the vehicle contained 12 grams of white crystalline powder. Analysis showed it contained methamphetamine. It is not in dispute that the actual quantity of the controlled drug was never measured. It is therefore possible that the 12 grams of methamphetamine found in the vehicle was a mixture of substances, containing less than five grams of the actual drug.
[48] Schedule 5 to the Act requires five grams of methamphetamine, “whether or not contained in a substance, preparation, or mixture”.15 This has been held to refer to the actual quantity of the controlled drug in its pure form.16
[49] I am satisfied that the Judge did not address or consider the actual quantity of the controlled drug in its pure form before concluding and deciding that the quantity of methamphetamine found in the possession of Mr Beazley was more than five grams. The Judge’s finding was simply that:17
… the Defendant cannot avail himself of the rebuttal presumption that the
12 grams of methamphetamine found in the car was for his personal use.
[50] Ms Hammer submitted the Judge was not required to consider the issue of purity as the matter was not disputed by Mr Beazley at trial or at sentencing. Ms Hammer relied on R v Fatu which states:18
The sentencing bands which we propose are to apply by reference to the weight of what the market would regard as “P”, ie a form of the drug in which the purity is of the order of, or exceeds, 60%. In most cases, it will be relatively obvious, without expensive analysis, whether the drug involved is indeed “P”. The prosecution position as to this should be stated in the summary of facts. If disputed by the defendant, such dispute should be
15 Misuse of Drugs Act 1975, s 6(6) and sch 5.
16 See R v Fatu [2006] 2 NZLR 72 (CA) at [27] and R v Osborne (2008) 24 CRNZ 598 (HC) at
[21].
17 At [13].
18 R v Fatu, above n 16, at [30].
signalled, and the issue can then be determined by the Court (presumably after analysis of the drug). In cases where the purity levels are less than what would be expected of “P”, the sentencing response can be less stern.
[51] Ms Hammer also referred me to R v Pickering as authority for the proposition that the lack of a formal ruling on the issue does not mean that there was a serious error.19
[52] I do not agree with the respondent that the Judge was not required to consider the level of purity on the basis that Mr Beazley had not disputed the issue. First, I do not consider R v Fatu as guiding authority in the circumstances. That decision relates to purity as regards to sentencing, not proof at trial.
[53] Secondly, and more fundamentally, the onus of proof was on the prosecution, not Mr Beazley, to prove the quantity of methamphetamine contained in the substance found in his possession.
[54] Furthermore, I consider it unusual that the issue of purity was put before the Court but not explored in any real detail. For example, it was put to the ESR analyst in cross-examination that no testing had been done to determine purity:
Q. Firstly Mr Edwards, can you confirm whether any tests were done as to purity of the items found to contain methamphetamine?
A. No.
[55] It is perhaps surprising that the ESR analyst’s answer did not alert the Judge to the issue of the purity of the substance, but in any event, it appears that the matter received no further attention by the Crown or the Court in considering the evidence relating to the quantity of the crystalline powder or its purity.
Improperly obtained evidence
[56] The Judge noted that the police search of the Ormonde Place address was conducted without a warrant and without Ms Howard’s consent. When the Police first attended the address, it was locked and secure. Ms Howard was not there. She
was subsequently brought there by the Police.
19 R v Pickering [2012] NZCA 311, [2012] 3 NZLR 498 at [98].
[57] Although the Judge found that the search was unlawfully conducted and the evidence was improperly obtained, he nevertheless admitted the evidence after undertaking the balancing process required by s 30 of the Evidence Act, whereby appropriate weight is to be given to the impropriety, but also taking proper account of the need for an effective and credible system of justice. The Judge explained:20
The evidence obtained was significant in that further methamphetamine and utensils were found at the address. The quantity of methamphetamine was not of itself overly significant but when added to that found in the vehicle at De Merle Street the quantities are significant. Absent the actual methamphetamine and utensils the police do not have any evidence to support the case in respect of the Ormonde Place offences.
[58] Section 30 of the Evidence Act, in relevant part, provides as follows:
30 Improperly obtained evidence
…
(2) The Judge must—
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
20 At [45].
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is improperly obtained if it is obtained—
(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
[59] In Hamed v R, Blanchard J commented that:21
… the most straightforward way to proceed is for the judge to identify and evaluate relevant matters which weigh in favour of exclusion and then those which are against that course. Some may potentially go either way. In light of what emerges from that process, the judge should then determine whether, overall, exclusion of the evidence would be proportionate to the impropriety.
[60] Turning to the s 30(3) factors, the factors in favour of the evidence being admitted are:
(a) The Police did not appear to have acted in bad faith.
(b) The charges against Mr Beazley were serious.
21 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [189].
(c) The Police brought Ms Howard to the address after having advised her of Mr Beazley’s arrest. In that context, there seemed to be little risk of the evidence being interfered with.
[61] The factors that favour exclusion of the evidence are:
(a) The right breached was fundamental; being a breach of the freedom from unreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act 1990.
(b)The intrusion of privacy was serious. This was a residential property that Mr Beazley said was not his, despite the fact that he stayed there fairly frequently. In addition to Ms Howard living at that address, Ms Howard’s children lived there too. Furthermore, the Judge noted that the substance that formed the basis of the two charges against Mr Beazley was located in the bedroom. Some items were taken out of drawers. The Court of Appeal has acknowledged that the private areas of a residential home attract the very highest expectation of
privacy.22
(c) The Police had time to obtain a warrant, or at least endeavour to obtain a warrant.
[62] In my view, the Judge ought not to have given any significant weight to the amount of methamphetamine found in the vehicle when undertaking the s 30 balancing process. The reason for that is two-fold. First, Mr Reeves was, at the time of Mr Beazley’s arrest, under an active charge for drug dealing and could not, therefore, be excluded as being responsible for what was found in his car. Secondly, Mr Beazley was asserting the drugs found in the vehicle were not his. His position is strengthened by the discovery of, and reference to, the fresh evidence which tends to support his claim. Taken together, my view is that the evidence on the substance
found in the vehicle is of limited probity and relevance to the s 30 balancing process.
22 See R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [113]-[114] and R v Gardiner (1997)
15 CRNZ 131 (CA).
[63] On balance, I consider that the s 30 exercise points in favour of exclusion of the evidence. The need for an effective and credible system of justice requires not only that offenders be brought to justice, but also that impropriety on the part of the Police should not readily be condoned by allowing evidence unlawfully obtained to be admitted as proof of the offending (especially in circumstances where a warrant
could have been obtained).23 Reference to an effective and credible system of justice
involves not only an immediate focus on the case at hand but also a wider focus on the administration of justice generally.24
[64] In light of my finding that the evidence in relation to the Ormonde Place offending should be ruled inadmissible, it is unnecessary to proceed to address the other substantive grounds of appeal, particularly as they were not pressed by Mr Wilkinson-Smith who, as noted earlier, relied principally on the fresh evidence ground.
Conclusion
[65] The conviction entered on the one charge of possession of methamphetamine for supply (in relation to the vehicle offending) is quashed and I direct a new trial on that charge.
[66] The convictions entered on the charges relating to the Ormonde Place offending – namely, the one charge of possession of utensils and one charge of possession of methamphetamine for supply – are quashed and acquittal is entered in
respect of each of those charges.
Davison J
23 Hamed v R, above n 21, at [187].
24 At [229].
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