Butler v Police - [2014] NZHC 1059

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-470-000007 [2014] NZHC 1059

VICTOR ZANE BUTLER Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 8 May 2014

Appearances:

Rita Nabney for the Appellant (on instructions from Mr
Nabney)
Hayley Sheridan for the Respondent

Judgment:

20 May 2014

RESERVED JUDGMENT OF MOORE J [Appeal against conviction]

This judgment was delivered by on 20 May 2014 at 2:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

BUTLER v NEW ZEALAND POLICE [2014] NZHC 1059 [20 May 2014]

Introduction

[1] This is an appeal against a conviction on a single charge of cultivating cannabis. The appellant was convicted by his Honour Judge Geoghegan in the Tauranga District Court on 4 February 2014.

[2] The appellant submits that the Judge was wrong to admit evidence arising from a search undertaken by the police without warrant under s 20 of the Search and Surveillance Act 2012.

[3] It is common ground that if the evidence obtained pursuant to that search is excluded, there is not sufficient evidence to prove the elements of the charge.

Appeal

[4] Section 229 of the Criminal Procedure Act 2011 sets out the right to appeal against conviction. Under s 232(2)(b) and (c) the High Court may only allow an appeal if it is satisfied 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”.

[5] A miscarriage of justice is defined in s 232(4) as:

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

(b) has resulted in an unfair trial or a trial that was a nullity.

[6] This section makes it clear that not every error or irregularity may lead to a miscarriage of justice:1

A miscarriage is more than an inconsequential or immaterial mistake or irregularity.

[7] The error or irregularity must lead to either of the consequences listed in (a)

or (b).

1 Matenga v R [2009] 3 NZLR 145, [2009] NZSC 18 at [30].

[8] A “real risk” that the outcome of the trial was affected 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.”2 This standard means an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe but that there is a real possibility the verdict would be unsafe.3 An unfair trial exists when the errors or irregularities are prejudicial or unacceptably give rise to the appearance of unfairness. The errors must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irredeemable” that the Court must quash the decision.4

Factual background

[9]…

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 1059
Decision Date: 20 May 2014

CaseChat Overview and Summary

The appellant, Victor Zane Butler, appeals against his conviction of cultivating cannabis. The conviction was handed down by his Honour Judge Geoghegan in the Tauranga District Court on 4 February 2014. The appeal concerns the admissibility of evidence obtained by the police from a search undertaken without a warrant under s 20 of the Search and Surveillance Act 2012. The appellant submits the District Court erred in admitting the evidence and that the error resulted in a miscarriage of justice. The appeal raises questions about whether the search was lawful under s 20, and if not, whether the evidence should be admitted under s 30 of the Evidence Act 2006.

The court first considered whether the constable had reasonable grounds to believe there was a controlled drug at the address. The court found the constable's belief was based on objective and credible facts. The court also found the constable had reasonable grounds to suspect an offence against the Misuse of Drugs Act 1975 had been committed at the address. The court was satisfied the constable had reasonable grounds to believe it was not practicable to obtain a warrant and that evidential material would be destroyed, concealed, altered or damaged. The court concluded the search was lawful under s 20 of the Search and Surveillance Act 2012.

The court then examined whether the evidence should be admitted under s 30 of the Evidence Act 2006. The court weighed the factors for and against exclusion of the evidence, including the seriousness of the offence, the nature of the impropriety and whether there were other investigatory techniques available. The court found the evidence should be admitted because it was central to the proof of the charge and there were no other investigative techniques available to the officer.

The appeal against conviction is dismissed. The court found no miscarriage of justice occurred and that the conviction should be upheld.

Orders