Bielawski v Police - [2014] NZHC 2653

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.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000086 [2014] NZHC 2653

GLENN STEPHEN BIELAWSKI

v

NEW ZEALAND POLICE

Hearing: 14 October 2014

Appearances:

A J Bailey for Appellant
S J Jamieson for Crown

Judgment:

29 October 2014

RESERVED JUDGMENT OF DUNNINGHAM J

[1] This is an appeal against a pre-trial ruling of Judge Kellar made in the District Court on 18 August 2014, determining that evidence obtained following execution of two search warrants was admissible.

[2] While Mr Bielawski requires leave from this Court to appeal the decision,1 the respondent does not oppose leave being granted. I also consider it appropriate to grant leave because the evidence admitted by the ruling is pivotal to the further charges against Mr Bielawski proceeding. It would be unfair and inefficient to leave the determination of this issue to a substantive appeal against conviction. Leave is
therefore granted.

1 Criminal Procedure Act 2011, s 215.

BIELAWSKI v NEW ZEALAND POLICE [2014] NZHC 2653 [29 October 2014]

Background

[3] The District Court’s decision relates to two search warrants which were sought on 11 February 2014 and executed on 18 February 2014. One warrant was issued in respect of Mr Bielawski’s home address at 2 Middlepark Road, Christchurch, and the other in respect of a Holden Commodore car registered to his partner.

[4] The search warrants were issued to obtain evidence in relation to a possible charge of obtaining/causing loss by deception, because it was believed the tyres and mag wheels on the Holden car had been obtained by Mr Bielawski giving a false name and false order number to staff at Tyreland, saying they should be invoiced to Fulton Hogan.

[5] Because Tyreland had communicated with the person ordering the tyres and mag wheels by a cell phone number, the two search warrants obtained authorised police to search Mr Bielawski’s residence for “cell phones, SIM cards and all related cell phone electronic records”, as well as for the mag wheels and tyres.

[6] When conducting the search of Mr Bielawski’s residence, the police located counterfeit bank notes, a shotgun and shotgun shells. Discovery of those items led police to charge Mr Bielawski with obtaining by deception, possessing forged bank notes, dishonestly using a document (x 2), possession of a firearm except for lawful purpose and possession of explosives except for lawful purpose.

Grounds of appeal

[7] The basis for Mr Bielawski saying the evidence obtained is inadmissible is as follows:

(a) there was a significant delay between the dates in August when the cell phone number had been used in the course of communications with Tyreland (1-2 August 2013) and then discontinued on
21 August 2013, and the date on which the warrant was sought in

February 2014;

(b)there was a lack of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2653
Decision Date: 29 October 2014

CaseChat Overview and Summary

Glenn Stephen Bielawski sought leave to appeal against a District Court ruling that evidence obtained pursuant to two search warrants was admissible. The warrants were issued to obtain evidence in relation to a possible charge of obtaining/causing loss by deception, as it was believed the tyres and mag wheels on a Holden Commodore car registered to his partner had been obtained by Mr Bielawski using a false name and order number to staff at Tyreland. When conducting the search of Mr Bielawski’s residence, the police located counterfeit bank notes, a shotgun and shotgun shells. Mr Bielawski sought leave to appeal the District Court’s ruling that the evidence was properly obtained. The appeal was allowed, and the case came before the High Court. The High Court held that the appeal was dismissed and the search warrant was valid and the evidence obtained when it was executed is admissible. The court found that the issuing officer had a sufficient basis for asserting that Mr Bielawski, at least at the time of the offending, would have had a mobile phone with the SIM card for that telephone number and for asserting that this is "evidential material" relevant to the charge. The court further found that the search warrant was worded broadly enough to ensure that any cell phone or SIM card which might, on subsequent checking, be found to relate to that number, could be uplifted. The court considered the challenge to the wording of the search warrant on this basis to be an engagement in a "nit-picking exercise". The court did not consider it necessary to address the application of s 30 of the Evidence Act 2006.
The final orders of the court were that the appeal is declined, the search warrant was valid and the evidence obtained when it was executed is admissible.

Orders