Croton v Police - [2017] NZHC 422

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000131 [2017] NZHC 422

BETWEEN
SAM JORDAN CROTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 February 2017

Appearances:

P Watts for the Appellant
E J Henderson for the Respondent

Judgment:

13 March 2017

JUDGMENT OF NATION J

[1] Mr Croton faces charges of being in possession of cannabis and being in possession of a utensil for consuming cannabis. The cannabis and a pipe were found in a car he was driving.

[2] On 29 June 2016, there was a hearing in the District Court in which Mr Croton challenged the admissibility of the evidence obtained from the search. In a judgment of 19 October 2016, the District Court Judge ruled the search was unlawful. He nevertheless admitted the evidence under s 30(2) of the Evidence Act
2006.

[3] Mr Croton has appealed against that judgment. Counsel for Mr Croton and the Police had both overlooked the fact that leave was required to appeal and both made submissions as to the merits of the appeal. Because there has been no
prejudice, leave to appeal is granted and I deal with the matter on the merits.

CROTON v POLICE [2017] NZHC 422 [13 March 2017]

The Judge’s decision

[4] The Judge said the primary challenge to the lawfulness of the appeal appeared to have been that, during the search, the Police had taken Mr Croton’s cell phone and it had been withheld from him in breach of the Land Transport Act 1998 (LTA) in a way which rendered the search unlawful. The Judge said he did not consider that the withholding of the cell phone affected the right to impound the vehicle or that the obtaining of evidence as to the cannabis and pipe resulted from the withholding of the cell phone.

[5] The Judge considered that the more significant issue related to the interplay between s 96 LTA and the Search and Surveillance Act 2012 (S & S Act). He called for submissions from the Police and counsel on that issue then gave his judgment.

[6] The Judge referred to the evidence as to how the vehicle had been stopped with the belief that the driver was a suspended driver:

(a) While Sergeant Hardee was speaking to Mr Croton in the back of the patrol car and Mr Croton was being given his rights before further questioning, Mr Croton asked the sergeant to retrieve his phone so that he could call his partner and tell her that he had been pulled over.

(b) Sergeant Bayne became aware of the vehicle stop and arrived on the scene a little later. Sergeant Bayne knew the stop related to a suspended driver. Sergeant Hardee informed Sergeant Bayne of his decision to impound the vehicle.

(c) Constable Van Dyk, acting on the instructions of Sergeant Bayne, then began searching the car to prepare an inventory of valuables before the tow truck arrived. Constable Van Dyk found the sunglasses case in the left foot-well. He opened…

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 Croton v Police

Details

AGLC: Croton v Police [2017] NZHC 422
Case: [2017] NZHC 422
Decision Date: 13 March 2017

CaseChat Overview and Summary

The case of Croton v Police was heard in the High Court of New Zealand Christchurch Registry. The appellant, Mr Croton, faced charges of possession of cannabis and possession of a utensil for consuming cannabis. Mr Croton had challenged the admissibility of evidence obtained from a search of his car. The District Court had ruled the search unlawful but admitted the evidence under s 30(2) of the Evidence Act 2006. Mr Croton appealed against that judgment.

The court needed to decide whether the search was lawful and, if not, whether the evidence obtained should be excluded under s 30 of the Evidence Act 2006. The court considered the interplay between s 96 of the Land Transport Act 1998 (LTA) and the Search and Surveillance Act 2012 (S & S Act). The Judge concluded that the search was unlawful because it occurred before the vehicle was impounded. However, the court found that the unlawfulness was technical at best and that the evidence obtained should be admitted under s 30(2) of the Evidence Act 2006, as the invasion of privacy was minimal, there was no bad faith or recklessness, and the evidence was of good quality.

The court disagreed with the finding that the search was unlawful. It considered that if the Police were required to impound a vehicle under s 96(1B), they were entitled to search the vehicle to make an inventory of the personal property in it when they began the process of impounding the vehicle. The court found that the Police had not, at the time of the search, manifested an intention to assume control of the vehicle for the purposes of s 96. The court also found that the non-delivery of the cell phone to Mr Croton immediately after he asked for it could not make the Police search of the spectacle case so unreasonable that the evidence as to the discovery of the pipe and later the cannabis should be ruled inadmissible. For these reasons, the appeal was dismissed, and the Judge's decision that the evidence objected to was admissible was confirmed.

Orders