Harvey v Police - [2017] NZHC 2283

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL THE FINAL DISPOSITION OF TRIAL [OR RETRIAL].

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CRI-2017-409-99

[2017] NZHC 2283

BETWEEN
MATTHEW ALLEN HARVEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 August 2017

Appearances:

R W Maze for Appellant

C C White and M McClenaghan for Respondent

Judgment:

20 September 2017

JUDGMENT OF NICHOLAS DAVIDSON J

A.INTRODUCTION

[1] The appellant has been charged with cultivation and possession of cannabis, and possession of utensils under the Misuse of Drugs Act 1975. Evidence was found when the Police executed a search warrant at his home in Middlepark Rd, Christchurch.

[2] The Police anticipated a challenge to the search warrant and applied for an order that the evidence obtained by the search is admissible. The District Court

HARVEY v NEW ZEALAND POLICE [2017] NZHC 2283 [20 September 2017]

agreed.1 That evidence is critical to the prosecution. Mr Maze, for the appellant, said that if the evidence is admissible, then pleas of guilty are likely, but without the evidence the Police have no case.

[3] Mr Maze submits the Police did not have reasonable grounds to suspect the commission of an offence when they sought, then obtained, the search warrant. The Police, represented by Mr White and Mr McClenaghan, say the search warrant was lawfully issued. If not, they say the Court should exercise its discretion to admit the evidence as its exclusion would not be proportionate to any impropriety in the way the Police sought and obtained the warrant.

B. BACKGROUND

[4]Section 6 of the Search and Surveillance Act 2012 (“the Act”) provides:

6 Issuing officer may issue search warrant

An issuing officer may issue a search warrant, in relation to a place, vehicle, or other thing, on application by a constable if the issuing officer is satisfied that there are reasonable grounds –

(a)to suspect that an offence specified in the application and punishable by imprisonment has been committed, or is being committed, or will be committed; and

(b)to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application.

(emphasis added)

The application

[5] The application for the search warrant was made by a Senior Constable. It was issued on 13 June 2016, and executed the next day at a residential property in Middlepark Rd, Christchurch. There were four cannabis plants in a purpose built greenhouse fitted with a sheet for insulation, with a thermometer and a fan. Six medium sized cannabis plants were located inside the garage, in a refrigerator with a heat lamp. A wooden box contained dried cannabis and cannabis head in plastic zip lock bags. The cannabis head totalled 105.5 grams and the dried cannabis 81.72

1 New Zealand Police v Matthew Allen Harvey [2017] NZDC 8668.

grams. Glass pipes and a glass bong were found. The appellant…

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 Harvey v Police

Details

AGLC: Harvey v Police [2017] NZHC 2283
Case: [2017] NZHC 2283
Decision Date: 20 September 2017

CaseChat Overview and Summary

Matthew Allen Harvey has appealed against the decision of the District Court to admit evidence obtained by the Police when they executed a search warrant at his home in Christchurch. The Police had obtained the warrant under the Search and Surveillance Act 2012, relying on information from Crimestoppers and evidence of excessive power consumption at the property. The District Court found that the search warrant was lawfully issued and the evidence lawfully obtained. Mr Maze, counsel for the appellant, submits the Police did not have reasonable grounds to suspect the commission of an offence when they sought, then obtained, the search warrant. The Police say the search warrant was lawfully issued. If not, they say the Court should exercise its discretion to admit the evidence as its exclusion would not be proportionate to any impropriety in the way the Police sought and obtained the warrant. The High Court found the search warrant was lawfully issued. The appeal was dismissed.

Orders