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…
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- [2020] NZHC 2514
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