Cooper v Police - [2020] NZHC 2514

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-52

[2020] NZHC 2514

AMON ELBERT COOPER

v

NEW ZEALAND POLICE

Hearing: 1 September 2020

Appearances:

S W Campbell and B A Crowley for Appellant L R van der Lem for Respondent

Judgment:

24 September 2020

JUDGMENT OF CLARK J

Introduction

[1] In a reserved decision issued 11 June 2020 Judge Johnston convicted Mr Cooper of the following two charges:1

(a)possession of a pipe for the purpose of consuming methamphetamine;2 and

(b)possession of a knife without reasonable excuse.3

1      New Zealand Police v Cooper [2020] NZDC 10643 [District Court decision].
2      Misuse of Drugs Act 1975, s 13(1)(a)(iii), maximum penalty one year’s imprisonment or $500 fine.
3      Summary Offences Act 1981, s 13A, maximum penalty three months’ imprisonment or $2,000 fine.

COOPER v NEW ZEALAND POLICE [2020] NZHC 2514 [24 September 2020]

[2] The Judge found that the warrantless search of the vehicle Mr Cooper was driving was unlawful and unreasonable and that the evidence “relating to the searches” was improperly obtained.4 He determined nevertheless, under s 30 of the Evidence Act 2006, that excluding the evidence would be disproportionate to the impropriety.

[3] Mr Cooper appeals his convictions on the basis that the evidence obtained from the unlawful search should have been ruled inadmissible and that the Judge erred in finding Mr Cooper lacked a reasonable excuse for possession of a knife. Broadly speaking, the respondent’s case is that the breach was entirely technical and the exclusion of such probative evidence would amount to “judicial disciplining” of the Police and would undermine the credibility of the justice system.

[4] The appellant accepts that if his appeal is successful on the inadmissibility ground and the convictions are quashed then the other issues do not need to be addressed.5

Factual background

[5] On 22 November 2019 around 11.30 pm, Mr Cooper was driving on Mazengarb Road in Paraparaumu. Two of his friends, one of whom (Ms Cross) was the owner of the car, were passengers.

[6] Constable Whitaker observed the car swerving and driving slowly. He activated the lights on his police vehicle requiring Mr Cooper to pull over.

[7] Constable Whitaker approached the car and collected the details of the occupants. His evidence was that as he took their details he noticed a glass pipe sticking out of a “bum-bag” across Mr Cooper’s chest and that he observed Ms Cross reach across and poke the pipe out of sight. Constable Whitaker returned to his vehicle and requested backup. At 11.45 pm two police units arrived. Constable Whitaker returned to the vehicle and invoked a warrantless search under the Search and

4 District Court decision, above n 1, at [51] and [67].
5 The other issues being that the trial Judge failed to address Mr Cooper’s evidence denying possession of the pipe and his reasoning was therefore inadequate, and as to the reason Mr Cooper had a knife in his…

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.

Continue reading Cooper v Police

Details

AGLC: Cooper v Police [2020] NZHC 2514
Case: [2020] NZHC 2514
Decision Date: 24 September 2020

CaseChat Overview and Summary

In Cooper v Police, Cooper appealed against his convictions of possession of a pipe for the purpose of consuming methamphetamine and possession of a knife without reasonable excuse. The High Court allowed Cooper's appeals against conviction, set aside the convictions, and entered acquittals. The Court found that the District Court failed to properly address Cooper's evidence in relation to the charge of possession of the pipe and that the Judge erred in finding that Cooper did not have a reasonable excuse for possession of a knife. The appeal against the admissibility of the evidence obtained from the unlawful search was dismissed. The evidence was relevant and probative, and its exclusion was disproportionate to the impropriety. The Court found that the seriousness of the offence of possession of the pipe, the fact that lawful investigatory techniques were available, and the urgency of the situation were factors that weighed in favour of admission. The Court also found that the balance under s 30 of the Evidence Act clearly favoured admission of the evidence obtained from the unlawful search.

Orders