Blackler v The King
[2025] NZHC 658
•26 March 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-000077
[2025] NZHC 658
BETWEEN SEAN ANTHONY BLACKLER
Appellant
AND
THE KING
Respondent
Hearing: 27 February 2025 Counsel:
Appellant in person
M J R Blaschke for Respondent
Judgment:
26 March 2025
JUDGMENT OF LA HOOD J
(Appeal against Conviction)
An appeal against conviction for possession of methamphetamine and a pipe
[1] Following a Judge-alone trial in the District Court,1 Sean Blackler was convicted of one charge of possession of a class A controlled drug (methamphetamine)2 and one charge of possession of a pipe.3 Mr Blackler now appeals those convictions.
1 R v Blackler [2024] NZDC 16506 [Judgment under appeal].
2 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty of six months’ imprisonment or a fine of $1,000.
3 Section 13(1)(a) and (3); maximum penalty of one year’s imprisonment or a fine of $500 or both.
BLACKLER v R [2025] NZHC 658 [26 March 2025]
[2] Mr Blackler represented himself in the District Court and on this appeal. In his notice of appeal, he advances the following grounds:
(a)Abuse of police process.
(b)That critical disclosure was not provided.
(c)That there were breaches of legal privilege and standards by his previous lawyers.
[3] The Crown submits that, across the wide range of material filed, Mr Blackler’s grounds of appeal can be distilled into the following areas:
(a)The Judge erred in her assessment of the evidence, such that there was a real risk the outcome of the trial may have been affected. In particular, Mr Blackler considers that the Judge erred in being satisfied that:
(i)the substance located was methamphetamine; and
(ii)the methamphetamine was in his possession.
(b)The non-disclosure of certain information (an irregularity affecting the trial) has led to a miscarriage of justice.
(c)The police investigation was an abuse of process, which affected the search warrant that led to the charges against him (and thus the totality of the evidence), meaning it was a miscarriage of justice that he was charged at all.
(d)Mr Blackler has also raised concerns about his previous lawyers (prior to representing himself).
Background and procedural history
[4] The police obtained a production order for Mr Blackler’s phone and search warrant for his property in respect of alleged drug dealing. The latter was executed on 22 December 2020. In the course of that search, the methamphetamine (0.86 grams) and glass pipe in question were located, leading to Mr Blackler’s arrest.
[5] In addition to the two charges relating to possession of methamphetamine and the pipe, Mr Blackler was originally charged with cultivation of cannabis4 and possession of cannabis for supply.5 The Crown subsequently withdrew these charges as the cannabis seized was inadvertently destroyed.6
[6] Throughout the proceeding, Mr Blackler challenged the search warrant. The application for the search warrant was based nearly entirely on informant information.7 Mr Blackler sought unredacted disclosure of the search warrant and production order applications. On 25 July 2022, Judge Davidson dismissed Mr Blackler’s application, finding that the redactions were legitimately made and would make no difference to a pre-trial challenge if disclosed.8 In reaching this finding, Judge Davidson had the benefit of the views of an independent counsel, Ms Stoop. Ms Stoop was appointed to review the applications and determine whether the redacted material was justifiably withheld. She concluded that the redactions were justified.9
[7] On 12 March 2024, Judge Harrop considered a further application by Mr Blackler about the admissibility of the evidence obtained through the search warrant.10 This application concerned Mr Blackler’s submission that the officer applying for the search warrant breached his duty of candour, by failing to include reference to telecommunications data obtained via the execution of the production order. In considering this application, Judge Harrop determined that, whilst that information should have been included, nonetheless it would be inconceivable that the
4 Misuse of Drugs Act 1975, s 9(1); maximum penalty seven years’ imprisonment.
5 Section 6(1)(f); maximum penalty eight years’ imprisonment.
6 R v Blackler DC Wellington CRI-2020-085-2747, 2 April 2024.
7 R v Blackler [2024] NZDC 14798 at [1] [Ruling 2 of Judge Warburton].
8 R v Blackler [2022] NZDC 14114 at [18] [Pre-Trial Application for Disclosure].
9 At [9]–[10].
10 R v Blackler [2024] NZDC 4754 [Search Warrant Evidence Admissibility Decision].
application for the search warrant would have been declined.11 Additionally, Mr Blackler contended for the purposes of that application that “the police officers who executed the warrant were looking for evidence, particularly firearms relating to a homicide, rather than for drugs”.12 This contention was rejected by Judge Harrop as there was no evidence to support it. Mr Blackler’s view was described in the judgment as formulated because of “an institutional conspiracy lens”.13
[8] Mr Blackler appealed Judge Harrop’s pre-trial decision. Grau J declined to grant leave to appeal on 17 May 2024, finding that the “merits of the appeal [did] not appear to be strong”.14 However, Grau J indicated that the matter could be revisited by the trial Judge if Mr Blackler did adduce admissible and relevant evidence that he was the “victim of a miscarriage of justice”.15
[9] Allegations of police misconduct were again raised at trial, resulting in two rulings of Judge Warburton, released on 8 July 2024.16 The first related to Mr Blackler’s contention that full disclosure had not been made because other search warrants in respect of a different operation existed and had not been released. The Crown maintained that no such further information existed. The officer in charge offered to recheck the police database and Mr Blackler also asked the registrar to check the court records. Both did so, and neither search revealed any other search warrant applications for the December 2020 period.17 The Judge proceeded with the trial, satisfied that there was no outstanding disclosure in relation to other search warrants.
[10] The second ruling related to Mr Blackler’s request that Detective Sergeant Falconer of the Central Human Source Management Unit be summoned, in support of his contention that all the police officers involved had committed perjury. His proposed questioning of the Detective Sergeant centred on two placeholder documents
11 At [25].
12 At [6].
13 At [33].
14 Blackler v R [2024] NZHC 1248 [Pre-Trial Appeal] at [28]. The High Court was the appropriate appeal court because the notice of appeal was filed after the matter was transferred to a Judge- alone trial proceeding: at [3].
15 At [30].
16 R v Blackler [2024] NZDC 14577 [Ruling 1 of Judge Warburton] and Ruling 2 of Judge Warburton, above n 7.
17 Ruling 1 of Judge Warburton, above n 16, at [9]–[10].
on the file disclosed to the defence, provided in place of sensitive information.18 Judge Warburton considered that the Detective Sergeant’s evidence, given he was not involved in the investigation of Mr Blackler, was not relevant under s 7 of the Evidence Act 2006, and thus was inadmissible.19 Detective Craig was, however, recalled to explain the placeholder documents for Mr Blackler’s benefit.20 The trial then proceeded, resulting in Mr Blackler’s convictions.
[11] On 24 October 2024, Mr Blackler was convicted and discharged on the possession of the pipe charge and was convicted and fined on the possession of the methamphetamine charge (and destruction orders were also made).
Judgment under appeal
[12] At the Judge-alone trial on 24–26 June 2024, Senior Sergeant Richardson (who led the search of Mr Blackler’s home), Constable Morris Trainor (who photographed the scene and recorded exhibits seized) and Detective Craig (who assisted in the search) gave evidence.21 Mr Blackler also gave evidence.22
[13] In a reserved judgment dated 25 July 2024, Judge Warburton started by reminding herself of the onus and standard of proof.23 The Judge noted that Mr Blackler was not required or expected to give evidence and whilst he chose to do so, this did not change that the onus of proving the charges rested with the prosecution.24 The Judge recorded that she had directed herself on the defendant giving evidence, credibility, reliability, demeanour, and inferences.25
18 Ruling 2 of Judge Warburton, above n 7, at [8]–[9].
19 At [13].
20 At [16]–[17].
21 Judgment under appeal, above n 1, at [11].
22 At [10].
23 At [9] and [12].
24 At [10].
25 At [13].
The methamphetamine
[14] The Judge found Mr Blackler guilty of the charge of possession of methamphetamine. In doing so, she was satisfied that the Crown had established that:26
(a)… Mr Blackler knew that there was methamphetamine on the coffee table in his lounge and that it was in his control.
(b)The item was a class A, controlled drug, namely Methamphetamine.
[15] Judge Warburton’s findings on both issues are challenged on appeal. In reaching her conclusions, the Judge noted that the substance in the blue pouch found on Mr Blackler’s coffee table tested positive for methamphetamine.27 Additionally, Sergeant Richardson’s evidence was that Mr Blackler had told him at the beginning of the search that the items in the house belonged to him (not the woman also present at the time of the search).28 The Crown submitted that there was no evidence suggesting it was not within his control.29
[16] Conversely, the Judge noted that Mr Blackler raised that the methamphetamine was only tested using a First Defender device, which could give false positive results.30 He denied the location of the blue pouch on his coffee table, describing it as a purse, which he would not carry and had not seen before.31 Further, Mr Blackler’s line of cross-examination of Constable Trainor seemed to imply that the police had interfered with the blue pouch when photographing it as an exhibit.32
[17] In considering these arguments, the Judge noted that the Crown did not provide evidence that the substance was analysed by ESR and no certificate of analysis was provided.33 The Judge cited R v Cruse for the proposition that courts accept various kinds of evidence short of such analysis as capable of proving beyond reasonable doubt that a particular substance was a controlled drug. However, she noted that care
26 At [28].
27 At [29].
28 At [30].
29 At [31].
30 At [32].
31 At [33].
32 At [34].
33 At [36]; and Misuse of Drugs Act 1975, s 31.
must be taken to ensure that circumstantial evidence of this type is capable of pointing unequivocally to the nature of the substance.34
[18] The Judge considered Detective Craig’s evidence about the location of the blue pouch corroborated by Constable Trainor’s photographs, and Constable Trainor’s view that the only difference in the photographs of the blue pouch was caused by differing camera angles (rather than police interference).35 Judge Warburton also referred to the photograph showing the positive result for methamphetamine when tested with the First Defender device.36
[19] The Judge noted that a First Defender device is not sufficient alone to prove that the substance was methamphetamine as it is “not an absolute or conclusive identification tool for evidential purposes in Court proceedings”.37 However, the totality of the evidence (being the photographs of the scene, the substance being crystals contained in a small snaplock bag, the location of glass pipes on the table and the test result) pointed unequivocally to the substance being methamphetamine.38
[20]The Judge further found:39
[49] There was no evidence given in Court which raised a reasonable doubt on the question of the substance’s identity, and at no time prior to trial, when there were a number of defence counsel involved, did the defence challenge the nature of the crystal substance or ask for it to be tested by ESR. Accordingly, the conclusion that the evidence put forward by the Crown is enough is one more readily able to be drawn.
[21] In respect of the second issue, the Judge found that Mr Blackler knew of and was in control of the methamphetamine on the coffee table, as the occupier of the house who “knew his house inside out”.40 Mr Blackler accepted, in cross- examination, that he had told police that everything in the house belonged to him.41 The Judge did not find Mr Blackler’s evidence that he had not seen the blue pouch
34 R v Cruse [1989] 2 NZLR 279 (CA) at 285 as cited at [37].
35 At [38]–[41].
36 At [45].
37 New Zealand Police Police Manual Chapter: Drugs — Part 9 (16 March 2023) at 13 as cited in Judgment under appeal, above n 1, at [46].
38 At [48].
39 At [49] (footnotes omitted).
40 At [50]–[51].
41 At [52]–[53].
before credible. She noted the consistency of the police officers’ evidence about its location and absence of evidence that others who could have placed it there had been in the house.42 The Judge did not find evidence that police tampered with or planted evidence.43
Possession of the methamphetamine pipe
[22] The Judge noted Mr Blackler’s argument that possessing a pipe was not illegal, given its other possible purposes (such as smoking tobacco).44 She noted that Mr Blackler also questioned whether it was glass and denied ever seeing it.45
[23] Judge Warburton relied on the same factual findings regarding possession of methamphetamine to determine that the pipe was in Mr Blackler’s possession.46 In the absence of evidence that it had been planted, she inferred that it belonged to Mr Blackler.47
[24] In determining that the item was a methamphetamine pipe, the Judge relied on Constable Trainor and Detective Craig’s evidence that it was a pipe, along with photographs of the item showing it to be a pipe. Additionally, the Judge recorded that Mr Blackler had referred to the pipe as a “meth pipe” in cross-examination, accepting that it was a pipe in doing so.48
[25] Finally, Judge Warburton found that the pipe was possessed for the purpose of smoking methamphetamine. She accepted that Detective Craig, who has been dealing with drug offending in his role with the Precision Targeting Team since 2019, had sufficient expertise to identify drug paraphernalia.49 Accordingly, the Judge deemed Detective Craig’s description of the pipe to be credible in light of the other evidence available, including a small section of straw, cut at an angle, found resting on a metal plate next to the pipe (and Detective Craig’s evidence that such straws are used to
42 At [55].
43 At [55].
44 At [58].
45 At [58].
46 See above at [19].
47 Judgment under appeal, above n 1, at [61].
48 At [63].
49 At [66].
scoop small amounts of crystal into the pipe); and photographs which showed the pipe, with brown residue in it, next to the pouch containing methamphetamine.
Approach on appeal
[26] Mr Blackler appeals under s 229 of the Criminal Procedure Act 2011 (the Act). Under s 232(2) of the Act, I must allow Mr Blackler’s appeal if I am satisfied that:
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
[27] Appeals under s 232(2)(b) are general appeals,50 which means that if the appeal court comes to a different view on the evidence, the trial judge will have erred and the appeal will be allowed.51 However, an appeal court should not consider the issues de novo and must take into account the advantages that the trial judge had in assessing the evidence.52
[28] Appeals under subs 2(c) require assessment of “whether something material has gone wrong beyond the sufficiency of the evidence”.53 This requires a broad approach and includes errors of law.54
[29] Both subsections require me to assess whether a miscarriage of justice has occurred. Subsection (4) defines miscarriage of justice as follows:55
… 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
(b)has resulted in an unfair trial or a trial that was a nullity.
50 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
51 At [38].
52 At [38].
53 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25] (footnote omitted) as cited in Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [45].
54 Misa v R, above n 53, at [39].
55 Criminal Procedure Act 2011, s 232(4).
[30] By definition, therefore, a miscarriage of justice does not encompass inconsequential mistakes or irregularities.56 For a “real risk” to be established, there must be “a reasonable possibility that a … more favourable verdict … might have been delivered if nothing had gone wrong”.57 Therefore, I must first assess whether something has gone wrong in a relevant way and if so whether that error has led to either an unfair trial or a real risk that the outcome of the trial was affected.58
The arguments on appeal
For the appellant
[31] Mr Blackler submits that the Judge erred in determining that the substance located was methamphetamine. He says that while Judge Warburton noted that he did not apply to have the methamphetamine evidence tested in a laboratory, he did question the First Defender evidence. He submits that First Defender evidence is inconclusive for the purposes of court proceedings.59
[32] In respect of whether the methamphetamine was in his possession, Mr Blackler submits that, even if it was methamphetamine:
(a)Evidence which has not been disclosed by the police would show that the bag of methamphetamine was not on his table when the police entered the house.
(b)The methamphetamine was found in a common area and no fingerprints were taken. Mr Blackler reiterates his contention that the first time he saw the methamphetamine was in the photos disclosed by the police.
[33] In respect of his submission that the absence of disclosure was an irregularity leading to a miscarriage of justice, Mr Blackler:
56 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
57 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], per Tipping J; and Haunui v R
[2020] NZSC 153, [2021] 1 NZLR 189 at [67].
58 R v Sungsuwan, above n 57, at [110].
59 New Zealand Police, above n 37, at 13.
(a)reiterates his request for Detective Sergeant Falconer to be called as a witness (the subject of Judge Warburton’s second ruling);60
(b)requests the disclosure of the search warrant application in full; and
(c)reiterates his view that the search warrant was for firearms in respect of the investigation of an unrelated murder in Karori.
[34] Mr Blackler contends that the lack of disclosure led to a miscarriage of justice in this case. He lists the disclosure that he contends was not provided, including the production order application, the search warrant applications relating to him in respect of the murder already mentioned, the property record that was used to record the evidence located during the search, and redacted notebook entries.
[35] In respect of his submission that the search warrant (and the evidence it produced) was an abuse of process, Mr Blackler contends that the search warrant application was fraudulent. He reiterates his previous arguments about the duty of candour when making such an application. He also contends that the informant whose evidence formed the basis of those applications fabricated the evidence.
[36] More broadly, Mr Blackler suggests that the police investigation was an orchestrated conspiracy or abuse of process. Mr Blackler’s allegations against the police are wide-ranging, spanning from allegations that he has been harassed and intimidated by the police to the police forging documents and planting evidence. On this basis, the pre-trial decisions described above remain relevant to Mr Blackler’s appeal.
[37] For these reasons, he requests that the police operation that led to him being charged be judicially reviewed and that the search is found to be in breach of his rights under the Bill of Rights Act 1990.61 He requests that his convictions be overturned,
60 Ruling 2 of Judge Warburton, above n 7. Mr Blackler appends Detective Sergeant Falconer’s statement to his submissions.
61 Mr Blackler refers to ss 3, 21, 25, and 27.
and seeks costs and disbursements, and compensation for himself and all others affected by the abuse of process.
[38] Mr Blackler’s submissions also suggest he has concerns about the three lawyers who represented him in the early stages of the proceedings. He notes that Mr Robinson did not follow up on his queries about the weight of the cannabis (in respect of the withdrawn charges). These issues are not further explored by Mr Blackler.
For the respondent
[39] The respondent opposes the appeal on the basis that the Judge did not err in her assessment of the evidence and there has been no error or irregularity that has caused a miscarriage of justice. I will return to the respondent’s arguments in my below analysis.
Decision
Did the Judge err in assessing the evidence?
[40] The Judge gave clear reasons for why she found that the appellant’s evidence was not credible when assessed against the consistent evidence of the police witnesses.62 Mr Blackler has not identified any error that would persuade me to disturb this finding (especially having regard to the advantage the Judge had in seeing and hearing the witnesses give their evidence).
[41] I consider the Judge’s analysis of whether the substance was methamphetamine to be unimpeachable. The evidence available was more than sufficient for the Judge to draw the inference that the substance was methamphetamine. It was clearly supported by the location of white crystals in a ziplock plastic bag (inside the blue pouch) on the table next to methamphetamine pipes (identified by an experienced police officer) and the First Defender device result. There is nothing second-rate about inferential and circumstantial reasoning. The Judge did not reverse the burden of proof because there was nothing to detract from the inference that the substance was
62 Judgment under appeal, above n 1, at [23] and [55].
methamphetamine. The Crown was required to prove the substance’s identity beyond reasonable doubt, not all scientific doubt.
[42] I consider the Judge was clearly correct to accept that the First Defender device test result was an admissible piece of circumstantial evidence. There is no requirement that the identity of a drug be proven by a certificate of analysis under s 31 of the Misuse of Drugs Act 1975.63 I also consider the Judge was correct to reject Mr Blackler’s argument that the photographs suggest the evidence was tampered with by police.
[43] I am also not persuaded that there was any error in the Judge’s conclusions that Mr Blackler possessed the methamphetamine and pipe, and that the pipe was possessed for the purpose of smoking methamphetamine. The Judge’s conclusions on possession were clearly supported by the evidence that Mr Blacker “knew his house inside out” and told police that everything in the house belonged to him. The implausibility of his evidence that he had not seen the blue pouch before or that the police had planted or tampered with it also support the Judge’s assessment.
[44] The Judge’s finding that the pipe was possessed for the purpose of consuming methamphetamine was clearly supported by Detective Craig’s expertise in identifying such pipes. It was also supported by brown residue in the pipe, the photograph showing a small section of straw cut at an angle resting on a metal plate next to the pipe, and the location of the pipe near the pouch containing the methamphetamine.
Has non-disclosure caused a miscarriage of justice?
[45] I accept the respondent’s submissions that the documents sought by Mr Blackler, particularly in respect of undisclosed search warrants, do not exist. The issue has been repeatedly addressed throughout the proceedings.
[46] Significant efforts were made at both the pre-trial and trial stages to ensure that Mr Blackler’s concerns about a lack of disclosure had been addressed (extending to the registrar and officer-in-charge both conducting searches for warrant applications
63 R v Cruse, above n 34, at 285; see also Mathew Downs (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [MD31.08].
in the relevant periods). I accept the submission that there is little more that the Crown can do to prove an absence of further disclosable material.
[47] Moreover, I consider that even if the information in question did exist, it is very unlikely that disclosure could have affected the trial outcome or rendered the trial unfair.
Has there been a miscarriage of justice because the police investigation involved an abuse of process?
[48] Mr Blackler’s challenges to the lawfulness of the search warrant and conduct of the police investigation in its entirety have already been reviewed. They were considered in Judge Davidson’s pre-trial decision, Judge Harrop’s pre-trial decision, Grau J’s decision on the application for leave to appeal that decision, and Judge Warburton’s first ruling.64 The latter involved further reviews of the available search warrant applications by both the court registry and the police. There is simply no evidence to support the contention that there was a further warrant issued in respect of Mr Blackler.
[49] Mr Blackler has also not persuaded me there is any reason to disturb Judge Warbuton’s ruling that Detective Sergeant Falconer’s evidence would be irrelevant and inadmissible. I consider that this issue was sufficiently addressed through recalling Detective Craig.65
[50] Mr Blackler’s oral submissions focused on a theory that Detective Craig knew the informant information that formed the basis of the production order was fabricated. He contends that the detective realised this after reviewing the results of the phone data obtained from a production order on Mr Blackler’s phone on 11 December 2020. This is said to be supported by Mr Blackler’s belief that the phone data revealed that his ex-partner had put spyware on his phone and his belief that his ex-partner was placed under surveillance on 11 December 2020. Mr Blackler’s theory is that Detective Craig allowed another police officer, Sergeant McKendry, to apply for the
64 Pre-Trial Appeal, above n 14; Search Warrant Evidence Admissibility Decision, above n 10, and Ruling 1 of Judge Warburton, above n 16.
65 Ruling 2 of Judge Warburton, above n 7.
search warrant using the same informant information without revealing that it was fabricated. Mr Blackler submits that he should, instead, have ended the investigation after discovery of this fabricated evidence. The problem with this theory is that Detective Craig denied it under cross-examination and there is no evidence to support it.66
[51] Mr Blackler’s submissions on appeal fail, by a wide margin, to establish that there was an unfair trial caused, or a real risk that the outcome of the trial was affected, by police misconduct or unlawful action. The broad challenge to the search warrant was rejected pre-trial and no further evidence has been adduced at trial that justifies revisiting the admissibility ruling. Mr Blackler was given a wide latitude to cross- examine relevant witnesses at trial, which failed to reveal any improper police conduct. The trial Judge was well aware of the pre-trial decisions and was clearly justified in concluding that the issues did not need to be revisited.
Has there been a miscarriage of justice due to concerns raised about Mr Blackler’s former lawyers?
[52] Mr Blackler represented himself at trial and on the application for leave to appeal the pre-trial decision ruling admissible the evidence obtained from the search. In any event, it is difficult to discern any basis on which it could be alleged that any error has caused a miscarriage of justice. I am satisfied there is no basis to conclude there has been a miscarriage of justice due to the conduct of counsel representing Mr Blackler.
66 The challenge to the lawfulness of the search warrant based on omission of the police to include reference to the telecommunications data was rejected pre-trial: see Pre-Trial Appeal, above n 14, at [7]–[11] and [25].
Conclusion
[53] It follows that the appellant has failed to persuade me that the Judge erred in her assessment of the evidence at all, let alone to such an extent that a miscarriage of justice occurred, or that a miscarriage of justice occurred for any other reason.
[54]I dismiss the appeal.
La Hood J
Solicitors:
Crown Law Office, Wellington for Respondent
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