Dumolo v The Queen - [2013] NZCA 223

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/2012 [2013] NZCA 223

BETWEEN DAVID DUMOLO Appellant

AND

THE QUEEN Respondent

Hearing: 16 May 2013

Court:

Randerson, Rodney Hansen and Lang JJ

Counsel:

A J Haskett for Appellant
M D Downs for Respondent

Judgment:

12 June 2013 at 12 noon

JUDGMENT OF THE COURT

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A The appeal is allowed.
B The convictions are quashed.
CThere is no order for retrial.

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REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

After trial by judge and jury in the District Court at Rotorua, Mr Dumolo was found guilty of importing and selling a Class C controlled drug, mephedrone, and of attempting to import mephedrone. He was acquitted of one count of attempting to import a Class C controlled drug, namely napthylpyrovalerone. Mr Dumolo was sentenced to 300 hours community work.
Mr Dumolo appeals against conviction on the ground that the convictions depended on evidence obtained pursuant to unlawful searches which trial counsel (not Mr Haskett) had failed to challenge. It is submitted that the wrongful receipt of that evidence has led to a miscarriage of justice.
In the absence of a prior challenge to the search warrants, this Court is without the benefit of pre-trial evidence and a decision of the lower Court. It is, nevertheless, accepted by the Crown that s 385(1)(c) of the Crimes Act 1961 requires the Court to undertake an enquiry into the validity of the search warrants in order to determine whether a miscarriage of justice has occurred.[1] For this purpose the Court has received affidavits from trial counsel and Detective Karin Staunton, the police officer who applied for the search warrants. She also gave oral evidence.

Further background

[1]As in R v Savelio CA234/96, 5 August 2005 where the validity of a search warrant had not been challenged at trial.

On 2 June 2010, Detective Staunton, who was working in the Rotorua Organised Crime Unit, was advised by telephone that Customs staff at the Auckland International Mail Centre had intercepted three packages sent from overseas to a Rotorua address. Detective Staunton was provided with some of the relevant information, including the name David Dumolo; a date of birth; the address to which the mail had been directed; and the date of the interceptions.
Detective Staunton was subsequently sent a dossier described as an “intel summary”. This contained a great deal of supporting information regarding the intercepted mail and previous instances in which controlled drugs consigned to Mr Dumolo had been intercepted.
The three recent interceptions were the subject of detailed reports by the Customs officers concerned. In chronological order, they comprised:
(a)An envelope intercepted on 16 April 2010 addressed to David Dumolo at 313 Eason Street, Rotorua, found to contain six grams of a light cream crystalline powder which the Customs officer concerned said she suspected to be mephedrone.
(b)An envelope intercepted on 3 May 2010 addressed to Jonathon Adams at 313 Eason Street, Rotorua, containing 10 grams of a white powder which the…

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 Dumolo v The Queen

Details

AGLC: Dumolo v The Queen [2013] NZCA 223
Case: [2013] NZCA 223
Decision Date: 12 June 2013 at 12 noon

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from David Dumolo against his conviction and sentence for importing and selling mephedrone and for attempting to import mephedrone. The appeal was based on the argument that the convictions depended on evidence obtained through unlawful searches, which trial counsel had failed to challenge. The Crown accepted that section 385(1)(c) of the Crimes Act 1961 required the court to undertake an inquiry into the validity of the search warrants to determine whether a miscarriage of justice had occurred. The Court received affidavits from trial counsel and Detective Karin Staunton, the police officer who applied for the search warrants.

The legal issues the Court had to decide were whether the search warrants were valid and if the evidence obtained through those warrants should be admitted. The Court found that the applications for the search warrants were critically deficient and misleading, as they failed to disclose that the substances intercepted by Customs were only suspected to be mephedrone and napthylpyrovalerone, and not confirmed through testing. Additionally, the warrants incorrectly stated the address to which the packages were addressed.

The Court held that the misstatements and omissions in the search warrant applications were material and that the evidence available to the police did not provide reasonable grounds for believing that evidence associated with the commission of an offence would be found at the premises. The first warrant was therefore unlawful and unreasonable, and the second warrant was also unlawful and unreasonable. As a result, the evidence obtained pursuant to the warrants should not have been admitted.

The Court concluded that, without the inadmissible evidence, the convictions could not be supported, and a miscarriage of justice had occurred. The appeal was allowed, the convictions were quashed, and there was no order for retrial.

Orders