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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 125/2010 SC 128/2010 SC 129/2010 SC 130/2010 SC 131/2010 SC 132/2010 SC 133/2010 SC 134/2010 SC 135/2010 SC 138/2010 SC 139/2010 SC 2/2011 [2011] NZSC 27 |
| OMAR HAMED |
| v |
| 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 |
| 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]
[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)…
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- Hamed v R [2011] NZSC 27
- Case
- [2011] NZSC 27
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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