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Hamed v R

Hamed v R

Case [2011] NZSC 27 24 March 2011

Appeal

Jurisdiction

Admissibility of Evidence

Statutory Interpretation

Natural Justice & Procedural Fairness

Criminal Law

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IN THE SUPREME COURT OF NEW ZEALAND

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[2011] NZSC 27

OMAR HAMED
TAME WAIRERE ITI
PHILLIP PUREWA
MARAKI TEEPA
EMILY FELICITY BAILEY
TRUDI PARAHA
TE RANGIWHIRIA KEMARA
TUHOE LAMBERT
RAWIRI KIYOMI ITI
URS PETER SIGNER
RAUNATIRI HUNT
VALERIE MORSE

THE QUEEN

Hearing: 21 March 2011

Court: Elias CJ, Blanchard, Tipping and McGrath JJ

Counsel: R E Harrison QC and T B Afeaki for Applicants
J C Pike and N P Chisnall for Respondent

Judgment: 24 March 2011

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.
BThe approved grounds are whether the challenged evidence was lawfully obtained under s 198 of the Summary Proceedings Act 1957 or was, alternatively, properly admissible pursuant to s 30 of the Evidence Act 2006.
CThe appeal is set down for hearing on 3 and 4 May 2011.

REASONS
(Given by Elias CJ)

The applicants, all represented for the purposes of the leave hearing by Mr Harrison QC, sought leave to appeal a decision of the Court of Appeal[1] ruling that evidence obtained by surveillance and physical search is admissible at the trial of the applicants, currently scheduled for twelve weeks starting on 30 May 2011. The Court of Appeal, differing from the conclusion reached in the High Court by Winkelmann J,[2] held that most of the evidence was lawfully obtained pursuant to warrants issued under s 198 of the Summary Proceedings Act 1957. (Some surveillance evidence was held by the Court to be improperly obtained by trespass, but it held such evidence was admissible under s 30 of the Evidence Act 2006.) In respect of the evidence it held to have been lawfully obtained under s 198 warrants, the Court of Appeal indicated that, if wrong in the conclusion of lawfulness, it would have nonetheless held the evidence admissible under s 30 of the Evidence Act (on the basis that its exclusion would be disproportionate to the impropriety). In this indication, the Court of Appeal agreed with the conclusion reached by Winkelmann J.[3]
[1]      Hunt v The Queen [2010] NZCA 528.
[2]      R v Bailey HC Auckland CRI-2007-085-7842, 7 October 2009.
[3]      R v Bailey HC Auckland CRI-2007-085-7842, 15 December 2009.
Both the validity of the surveillance and searches under s 198 of the Summary Proceedings Act and the assessment of disproportionality in the exclusion of the evidence, should the searches be unlawful or in breach of s 21 of the New Zealand Bill of Rights Act 1990, raise matters of general or public importance (as is conceded by the Crown) which make it necessary in the interests of justice for this Court to consider the correctness of the approach taken in the Court of Appeal. The only point that has exercised the Court in granting leave is the application of s 13(4)…

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 Hamed v R

Details

AGLC: Hamed v R [2011] NZSC 27
Case: [2011] NZSC 27
Decision Date: 24 March 2011

CaseChat Overview and Summary

The applicants in this case were seeking leave to appeal a decision of the Court of Appeal, which had ruled that evidence obtained by surveillance and physical search was admissible at their trial. The Court of Appeal had concluded that most of the evidence was lawfully obtained under warrants issued under s 198 of the Summary Proceedings Act 1957, although it found some evidence to have been improperly obtained by trespass. However, the Court of Appeal held that such evidence was still admissible under s 30 of the Evidence Act 2006. The applicants argued that the evidence was unlawfully obtained and should not be admissible.

The legal issues before the Court were whether the evidence obtained by surveillance and search was lawfully obtained under s 198 of the Summary Proceedings Act, and if not, whether it was properly admissible under s 30 of the Evidence Act. The Court had to determine if it was necessary in the interests of justice for it to hear and determine the proposed appeal before the proceeding concerned was concluded, as per s 13(4) of the Supreme Court Act 2003.

The Court found that the proposed appeal raised matters of general or public importance, and it was necessary in the interests of justice for the Supreme Court to consider the correctness of the approach taken in the Court of Appeal. The Court granted leave to appeal and set down the appeal for hearing on 3 and 4 May 2011. The Court acknowledged that the interpretation of s 198 of the Summary Proceedings Act was an important issue in the investigation of suspected crime which should be resolved promptly, and that there was a public interest in avoiding unnecessary expense and delay if the Supreme Court were to come to a different conclusion from the Court of Appeal post-trial.

This case demonstrates the importance of resolving issues of general or public importance and the potential consequences of not doing so. The Supreme Court's decision to grant leave to appeal highlights the need to balance the interests of justice with the proper reluctance of final courts of appeal to supplant the responsibility of the intermediate court of appeal in supervising trial practice.

Orders