C v Police HC Christchurch Civ-2006-409-230

[2007] NZHC 675

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2006-409-000230

CIV-2006-409-000231

C

Appellant

v

POLICE

Hearing:         19 July 2007

Appearances: A Bailey for Appellant

C J Lange (with S L Litt) for Crown

Judgment:      19 July 2007

ORAL DECISION OF HON JUSTICE JOHN HANSEN

[1]      The appellant seeks leave to appeal against my decision dated 1 May last.

[2]      That  was  an  appeal  against  convictions  on  charges  of  receiving  and possession of a pistol.  Essentially it was brought against the ruling of Judge Green that evidence obtained pursuant to a search warrant was admissible even though the search warrant was invalid and unlawful.

[3]      The matter came to be determined in the light of the Court of Appeal decision in R v Williams & Ors [2007] NZCA 52. In that decision the Court discussed at

some length the principles applicable in cases of search and seizure.

C V POLICE HC CHCH CIV-2006-409-000230  19 July 2007

[4]      Of course, the lower Court hearing determined the matter before Williams had been decided, as I understand it.  I considered the matter in the light of Williams. I concluded, as indeed the Crown appeared to accept, that the search was unlawful, and then proceeded to carry out a fresh balancing act in the light of the principles enunciated for such balancing in Williams.

[5]      The allegations of error of law are, firstly, my finding that the breach of rights is between minor and moderate, and, secondly, the classification of the offence as serious.  Mr Bailey argues that in relation to the first ground that it was not open to classify the breach as being less than moderate.  It is clear that any breach will be on some sliding scale between serious and almost de minimus.   In applying the necessary principles it is necessary for the Court to consider the facts and apply those to the principles.

[6]      The reasons for the conclusion that the breach fell in that category are set out in my reserved decision, and they are clearly factually based.  In my view the Crown is correct to submit that no questions of law are raised in relation to that.

[7]      In relation to the seriousness of the offending, this was a matter discussed by the Court of Appeal at [135] and following.  That was in the context of considering factors that need to be taken into account in conducting a post- Williams/Shaheed balancing test.  It is unnecessary to repeat all of those factors here.

[8]      Mr Bailey’s point is that in this case the offending could not be seen as serious.  Essentially he is submitting that [135], and the matters set out there, are in some way a code.  It is said, for example, that the accused would not face a penalty of imprisonment of four years or over in this case, therefore the offence was not serious.  But of course, in this case there were other factors that I held created the necessary seriousness of offending when considering the balancing act, and indeed they were matters set out by the Court of Appeal in Williams, for example such as the threat to public safety.

[9]      The threat in this case is illustrated in the situation relating to the pistol and where it was found.  In my view again that is the application of fact to the principles enunciated in Williams.

[10]     Finally it is said that the Court was not entitled to conclude that there were matters within the knowledge of the police officer that would, if included in the application for search  warrant, have made that warrant lawful.   The  Court  was advised by the Crown on various matters.  The officer indeed was following what was then the standard practice pre- various appellate decisions.   There was no challenge to the accuracy, as I understand it, of what Mr Zarifeh had said, and it is common in appellate matters for the Crown to place such information before the Court in this way, absent challenge

[11]     In relation to the two supposed questions of law, in my mind the Crown is correct to classify those as the application of particular facts to the principles of law. They are factual questions.

[12]     In those circumstances, leave to appeal is dismissed.

Solicitors:

A Bailey, Christchurch

Crown Solicitors, Christchurch