Greer v The Queen - [2004] NZCA 75

IN THE COURT OF APPEAL OF NEW ZEALAND
CA162/03
THE QUEEN
v
ALAN IVO GREER
Hearing:26 April 2004

Coram:Chambers J
Panckhurst J
Laurenson J
Appearances: B S Yeoman for Appellant

K Raftery for Crown

Judgment:24 May 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

An illegal search
[1]       At about 3.20am on 15 June 1996, John Merrick, then of 123 Linton Street, Palmerston North, awoke to the sound of his garage door opening. He called the police. They quickly rushed to the scene, with a police dog. The police dog followed what appeared to be an unbroken scent from the garage at the premises concerned to a property a short distance away. There the police found Alan Greer lying face down under a children’s play area in the rear fenced yard of a domestic dwelling, which was not his own.
[2]       Constables Jones and Romney approached Mr Greer. Mr Greer stood up. Constable Jones said to Mr Greer that he required him to come back to the police station with him. He told Mr Greer he was going to search him. He then immediately fully cautioned him, advising him of his right to silence and his rights under s23 of the New Zealand Bill of Rights Act 1990. Constable Jones asked Mr Greer to stand and place his hands up on a rail with his legs apart. Constable Jones held him with one hand on his back near his neck and with his other hand frisked him. His search covered the entire outer area of Mr Greer’s clothing and his pockets. During the course of this search, a crescent spanner, a wheel nut, and a combination bottle opener were found.
[3]       After the search had been completed, the accused was handcuffed. Judge Becroft, the trial judge, accepted that ~~that~~ this was because Mr Greer was in an agitated state and the constables feared for their personal safety if Mr Greer were not handcuffed. The constables did not at this stage formally tell Mr Greer that he was under arrest. That was because they were under the mistaken impression that, were they to arrest him, they would not be able to question him further. They wished to question him further as soon as they had him back at the police station.
[4]       The constables and Mr Greer then travelled to the police station. At that point, Mr Greer was given his rights again. He was invited to make a statement or explanation, which he ~~refused~~ declined to do. He was then formally arrested. He was then searched again. This search was conducted pursuant to s57A of the Police Act 1958. The legality of that search has never been in question. Further items were at that point discovered on Mr Greer’s person. ~~That further items were discovered confirms that the initial search was superficial or inept.~~
[5]       Mr Greer was then charged. He was charged with having in his possession by night an instrument capable of being used for burglary, namely…

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 Greer v The Queen

Details

AGLC: Greer v The Queen [2004] NZCA 75
Case: [2004] NZCA 75
Decision Date: 24 May 2004

CaseChat Overview and Summary

Greer appealed against his conviction and sentence, raising two issues: the admissibility of the evidence from the backyard search and whether his total sentence was manifestly excessive. The appeal against conviction was centred on the question of whether the evidence obtained during the backyard search was admissible. The Crown conceded that the search was unlawful, but the Court of Appeal found that the items discovered during the search would have inevitably been discovered during the lawful search conducted at the police station. The Court endorsed the "inevitable discovery" doctrine and upheld the trial judge's decision to admit the evidence. On the appeal against sentence, the Court of Appeal found that the sentence was not manifestly excessive. The appellant had a significant criminal history, including multiple convictions for burglary, and the trial judge had appropriately considered the need for a deterrent and public protection sentence.

The Court of Appeal dismissed the appeal against conviction and sentence, upholding the trial judge's decision. The Court found that the evidence from the backyard search was admissible under the "inevitable discovery" doctrine and that the sentence imposed was appropriate given the appellant's criminal history and the need for deterrence and public protection.

Orders