Busch v Police

[2016] NZHC 59

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-442-27 [2016] NZHC 59

BETWEEN

NATHAN PETER BUSCH

ANNA HELOISE HORGAN Appellants

AND

NEW ZEALAND POLICE Respondent

CRI 2015-442-15

BETWEEN  CHELSEA MORTIMER Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:	2 February 2015
Appearances:	A J Heward for Mr Busch S M Barclay for Ms Horgan and Ms Mortimer J M Webber for the Crown
Judgment:	2 February 2015

ORAL JUDGMENT OF MALLON J

[1]      Mr Busch, Ms Horgan and Ms Mortimer each appeal their convictions on drugs charges.  The convictions were entered following their early guilty pleas.  Mr Busch was convicted of three charges of importing BZP and one charge of selling cannabis, and was sentenced to 11 months  home detention.1     Ms Mortimer was convicted of two charges of supplying LSD and was sentenced to 10 months home detention  and  120  hours  community work.2      Ms  Horgan  was  convicted  of two charges of supplying methamphetamine and one charge of knowingly permitting her premises to be used for the consumption of methamphetamine.  She was sentenced

to four months community detention, and supervision for nine months with a special

1      New Zealand Customs Service v Busch DC Nel CRI-2011-042-4068, 23 May 2012.

2      R v Mortimer DC Nelson CRI-2011-042-001190, 9 February 2012.

BUSCH v NEW ZEALAND POLICE [2016] NZHC 59 [2 February 2015]

condition.3      They have  each  served  all  or  a  large  part  of  their  sentences.    Ms Mortimer also brings a related application for leave to withdraw an early abandonment of her appeal.

[2]      The charges arise out of a police investigation known as Operation Explorer. After the appellants had entered their guilty pleas, a number of defendants who faced charges arising out of the same operation, applied for a stay because there had been improper police tactics in the operation.  A stay was initially granted by the High Court.4     The Court of Appeal quashed the stay.5     Subsequently the High Court granted a stay on the basis of what the Judge regarded as new evidence about the police tactics.6  That stay was not appealed.

[3]      The  Supreme  Court  ultimately  upheld  the  Court  of  Appeal’s  decision quashing the original High Court order for a stay.7     The matter came before the Supreme Court as an appeal against conviction by one of the defendants who had entered a guilty plea after the stay application had been heard, but not determined.8

Although the Supreme Court upheld the Court of Appeal’s decision quashing the stay,  it  quashed  that  defendant’s  convictions.    That  defendant’s  charges  were regarded as less serious than the charges against those who had been given the benefit of the later stay order which had not been appealed.   In the unusual circumstances that had arisen the Supreme Court considered a miscarriage of justice

would arise if that defendant’s convictions were not quashed.9

[4]      In light of the Supreme Court’s ruling, the Crown accepts that it would be a miscarriage of justice to allow the convictions of the three present appellants to stand.  I agree and accordingly allow the appeal and quash their convictions.  I also grant the application by Ms Mortimer for leave to withdraw the earlier abandonment of her appeal.

Mallon J

3      R v Horgan DC Nel CRI-2011-042-891, 12 January 2012.

4      R v Antonievic [2012] NZHC 2686.

5      R v Antonievic [2013] NZCA 483, [2013] NZLR 806.

6      R v Antonievic [2015] NZHC 1096.

7      R v Wilson [2015] NZSC 189 at [93].

8      At [4] – [7].

9 At [108].