Ellery v Police

[2021] NZHC 2097

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2020-435-4

[2021] NZHC 2097

DENISE HUIA ELLEY

v

NEW ZEALAND POLICE

Hearing:	29 June 2020
Appearances:	A K Mobberley for Appellant D P Neild for Respondent
Judgment:	12 August 2021

JUDGMENT OF COOKE J

Table of Contents

The facts[4]

Counsel error affecting guilty plea as ground of appeal[18]

Warrantless search[27]

Is the evidence inadmissible?[41]

Was the aerial surveillance a search?[49]

Admissibility of admissions[56]

Compliance with Practice Note[58]

Admissions consequent on breach[63]

Conclusion[72]

[1]        Ms Denise Elley appeals against her conviction and sentence on one charge of cultivating  cannabis1   and  one  charge  of  possession of  methamphetamine.2  The

1      Misuse of Drugs Act 1975, s 9, maximum penalty 7 years’ imprisonment.

2      Section 7(1)(a) and (2), maximum penalty 6 months’ imprisonment or $1,000 fine.

ELLEY v NEW ZEALAND POLICE [2021] NZHC 2097 [12 August 2021]

District Court convicted and discharged Ms Elley on 11 June 2020 following her entering guilty pleas.3 She now appeals notwithstanding her guilty pleas on the basis that her counsel failed to advise her that she had a defence to the charges, and that given the nature of the offending she should have been discharged without conviction in any event.

[2]        Counsel’s alleged error arises from a failure to advise Ms Elley that the search and seizure operation under which the evidence of the offending was obtained was unlawful, that this evidence would have been excluded if the charges had been defended and that Ms Elley would not have been convicted. The search of Ms Elley’s property was conducted on a warrantless basis under s 20 of the Search and Surveillance Act 2012 following an aerial spotter plane operation in the South Wairarapa. Under this operation properties apparently being used for cultivating cannabis were identified, and ground teams were directed to conduct searches of those properties. Another defendant whose property was identified and searched during this exercise had the evidence excluded on a similar basis to that which Ms Elley now advances.4 Ms Elley says that her counsel should have advised her that this approach was available to her, and that if she had the charges would have been defended, the evidence excluded and no conviction would have followed. As a consequence she says that her conviction is a result of a miscarriage of justice and that her appeal should be allowed.

[3]        Given that there were guilty pleas in the District Court and no evidence was led in that Court, on appeal I have received evidence in the form of an agreed summary of facts, the admission of evidence from particular witnesses by consent, and the calling in cross-examination of other witnesses, in particular those police officers who were involved in the search and seizure exercise under which the evidence was obtained. I had the advantage of written submissions filed before the hearing at which I heard the evidence, oral submissions that counsel wished to advance at that hearing,…