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ORDER RESCINDING EXISTING SUPPRESSION ORDERS IN RESPECT OF THE JUDGMENT OF 2 SEPTEMBER 2011, MADE BY THE HIGH COURT ON 15 SEPTEMBER 2011. IN PLACE OF THOSE ORDERS, ORDERS PROHIBITING PUBLICATION IN NEWS MEDIA, ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASES OR PUBLICATION BY ANY OTHER MEANS UNTIL FINAL DISPOSITION OF THE TRIAL ORIGINAL JUDGMENT. REDACTED VERSION MAY BE PUBLISHED.
OMAR HAMED TAME WAIRERE ITI PHILLIP PUREWA MARAKI TEEPA EMILY FELICITY BAILEY TRUDI PARAHA TE RANGIWHIRIA KEMARA RAWIRI KIYOMI ITI URS PETER SIGNER RUANATIRI HUNT VALERIE MORSE
v
THE QUEEN
Hearing: 3 and 4 May 2011
Court: Elias CJ, Blanchard, Tipping, McGrath and Gault JJ
Counsel: A T I Sykes and T M Wara for Appellant Teepa R E Harrison QC, T B Afeaki and G M Fairbrother for all other Appellants J C Pike and R J Collins for Crown
Judgment: 2 September 2011
JUDGMENT OF THE COURT
AThe appeals of Mr Tame Iti, Mr Te Rangiwhiria Kemara, Mr Urs Signer and Ms Emily Bailey are dismissed.
BThe appeals of the other appellants are allowed in part. The video surveillance evidence (other than footage of vehicles on Reid Road) is inadmissible against those appellants. All the other disputed evidence is admissible against them.
REASONS
Para No
Elias CJ [1] Blanchard J [90] Tipping J [209] McGrath J [255] Gault J [281]
ELIAS CJ
The appeal concerns the powers of search of the police, raising points of constitutional principle and Bill of Rights protections. It can readily be accepted that the police need legal powers to investigate apparently serious criminal offending and that such powers may include powers of surveillance. Parliament has not however provided legislative authority for covert filmed surveillance, despite recommendations that it should do so. The courts cannot remedy the deficiency through approval of police action taken in the absence of lawful authority without destruction of important values in the legal system, to the detriment of the freedoms guaranteed to all.
The appeal
In bush, on Tuhoe-owned lands in the Urewera Ranges, it is alleged that the appellants participated between November 2006 and October 2007 in military-style exercises using firearms, live ammunition, and Molotov cocktails. The appellants have connections with the privately-owned lands (those who are of Tuhoe descent either as beneficiaries of the owner incorporations or through whakapapa, and the other appellants as their invitees). All appellants are charged with offences contrary to the Arms Act 1983 arising out of the possession and use of the firearms and Molotov cocktails.[1] For such offences the maximum penalty is imprisonment for four years.[2] Four of the appellants (Te Rangiwhiria Kemara, Tame Iti, Urs Signer and Emily Bailey) are also charged under s 98A of the Crimes Act 1961 with participation in an organised criminal…
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.
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Details
AGLC
Hamed v R [2011] NZSC 101
Case
[2011] NZSC 101
Decision Date
CaseChat Overview and Summary
The appeals were heard by the Supreme Court of New Zealand, comprising Elias CJ, Blanchard, Tipping, McGrath and Gault JJ. The appellants were charged with various offences arising from their alleged participation in military-style exercises on Tuhoe-owned lands in the Urewera Ranges between November 2006 and October 2007. The prosecution's evidence included physical items left on the land, photographs of such items, and film obtained from motion-activated hidden cameras placed by the police. The appellants challenged the admissibility of this evidence, arguing that it had been improperly obtained through trespass and in breach of the protection against unreasonable search and seizure contained in s 21 of the New Zealand Bill of Rights Act 1990. The Court of Appeal had previously held that the police entry on to the Tuhoe lands was lawful pursuant to warrants issued under s 198 of the Summary Proceedings Act 1957. However, the Supreme Court disagreed with the Court of Appeal's reasoning and held that the warrants did not authorise the police entry on to the Tuhoe lands either for the purposes of the physical searches undertaken or for the purpose of setting up the hidden cameras and later retrieving the film taken by them. The Court also held that the evidence was improperly obtained not only by reason of the trespass but because it constituted unreasonable search and seizure, contrary to s 21 of the New Zealand Bill of Rights Act. The Court applied s 30 of the Evidence Act, which provides that improperly obtained evidence must be excluded if its exclusion is proportionate to the impropriety. The Court held that the exclusion of the filmed surveillance evidence, with the exception of that recording vehicle movements along Reid Road, must be proportionate. The Court also held that the filmed surveillance evidence, with the exception of that recording vehicle movements along Reid Road, must be excluded against all appellants. The Court, however, admitted under s 30 both the physical evidence discovered on inspection of the sites (including the photographs of the sites as inspected) and the film of vehicle movements along Reid Road, for the reasons given. The formal orders of the Court were as follows: (a) by majority (Blanchard, McGrath and Gault JJ), all the disputed evidence is admissible against those appellants charged under both s 98A of the Crimes Act and s 45(1)(b) of the Arms Act; (b) unanimously, the footage of vehicles on Reid Road and the evidence gathered by police in person on the Rangitihi land in June is admissible against all appellants; (c) by majority (Elias CJ, McGrath and Gault JJ), all evidence other than film surveillance evidence is admissible against the appellants charged only under the Arms Act; (d) by majority (Elias CJ, Blanchard and Tipping JJ), the film surveillance evidence is inadmissible against the appellants charged only under the Arms Act. The appeals of the other appellants were allowed in part.