Collis v Police
[2014] NZHC 1553
•4 July 2014
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV 2014-454-62 [2014] NZHC 1553
BETWEEN GLENN MARK COLLIS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 27 June 2014 Counsel:
Appellant in Person
D Flinn for RespondentJudgment:
4 July 2014
JUDGMENT OF RONALD YOUNG J
[1] Mr Collis faced a charge of cultivating cannabis in the District Court at Palmerston North. The charge arose after the police obtained and executed a search warrant at his house.
[2] When the police searched Mr Collis’ premises they found a tent inside a locked room inside a shed on the property. Inside the tent were eight cannabis plants which were growing hydroponically. The police found a large number of items associated with the hydroponic cultivation of the cannabis including electric fans, heat pump shields, an extractor fan system, ducting transformers, electrical multi boards and timers.
[3] After he was charged Mr Collis challenged the admissibility of the evidence obtained as a result of the search warrant. A Judge in the District Court concluded that the evidence found by the police in the search of his address was unlawfully obtained and ruled it inadmissible. Because the primary evidence against Mr Collis
was the evidence obtained from executing the search warrant and there was no other
COLLIS v NZ POLICE [2014] NZHC 1553 [4 July 2014]
evidence to prove the charge, Mr Collis was discharged on the count of cultivating cannabis.
[4] Subsequent to his discharge, Mr Collis asked the police to return the property they had seized in the execution of the search warrant. He excluded the cannabis and cannabis plant material that had been seized. The police refused to return the property. They made an application under s 199 of the Summary Proceedings Act 1957 (which then applied) for an order that the District Court direct how they should dispose of the property.
[5] In the District Court, the Judge concluded that the items seized from Mr Collis should be disposed of by the police. He refused to order the return of the items to Mr Collis. He said that he was satisfied that the items were being used to cultivate cannabis. He said that the police could destroy those items they considered would be uneconomic to sell and sell those items that were economic to sell and pay the resulting funds to the Consolidated Fund.
[6] Mr Collis’ appeals the order of the Judge that the property be disposed of as identified above. He says the property is his and that another Judge in the District Court has already concluded that the property was illegally obtained by the New Zealand Police. They obtained the property by the exercise of a search warrant that should never have been granted and the property, therefore, should never have been seized. He says that as the owner of the property, he should have the right to have his property returned to him.
[7] Section 199(3) of the Summary Proceedings Act 1957 provides as follows:
199 Disposal of things seized
…
(3) If the thing seized is a thing to which subsection (2) of this section does not apply, the following provisions shall apply:
(a) In any proceedings for an offence relating to the thing, the Court may order, either at the trial or hearing or on a subsequent application, that the thing be delivered to the person appearing to the Court to be entitled to it, or that it be otherwise disposed of in such manner as the Court thinks fit:
(b) Any constable may at any time, unless an order has been made under paragraph (a) of this subsection, return the thing to the person from whom it was seized, or apply to a [District Court Judge] for an order as to its disposal; and on any such application the [District Court Judge] may make any order that a Court may make under paragraph (a) of this subsection:
…
[8] The District Court Judge made an order under s 199(3)(b). Section 199(3)(b) gives the Court a wide discretion as to disposal of items seized as a result of the exercise of a search warrant. Ordinarily the Court would recognise the rights of an owner of property and so return property to the rightful owner. The exception is where the items are the product of illegality and ordering their return would be an affront to the public.1
[9] In this case, it is not disputed that the items seized by the police were used to cultivate cannabis. The fact that this evidence was not able to be used to prosecute Mr Collis does not mean that the evidence cannot be used in a s 199 application. The prohibition in the District Court from using the evidence is limited to the prosecution of Mr Collis. The proceedings under s 199(3)(b) are not criminal proceedings. They do not involve any form of allegation of a crime having been committed. They are civil proceedings which are designed to resolve ownership of items seized during the course of a criminal investigation.
[10] While the items seized could be used by Mr Collis for lawful purposes, there was no evidence before the Court from him that he intended to use them in that way. The only evidence, therefore, is of their unlawful use, that is, in the cultivation of cannabis in the shed on Mr Collis’ property.
[11] The Judge, therefore, was entitled to conclude that it was more likely than not that Mr Collis’ purpose in having the equipment returned to him was for a further
illegal purpose.
1 R v Collis [1992] NZLR 287.
[12] In those circumstances I am satisfied the Judge in the District Court was right to refuse to return the property to Mr Collis. The evidence on balance established that Mr Collis was likely to use the equipment for an illegal purpose. To return the property to him in such circumstances would clearly be contrary to public policy and would therefore be an affront to the public.
[13] For those reasons, therefore, the appeal will be dismissed.
Ronald Young J
Solicitors:
Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North
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