Hole v Police - [2017] NZHC 808

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000154 [2017] NZHC 808

BETWEEN
MARTIN CLIFFORD HOLE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 April 2017

Appearances:

K H Cook for the Appellant
C J Bernhardt for the Respondent

Judgment:

27 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

(APPEAL AGAINST PRE-TRIAL RULING - EVIDENCE OBTAINED BY WARRANTLESS SEARCH WITHOUT WARRANT)

Background

[1] The appellant/defendant, Mr Hole, is charged with procuring the controlled drug heroin on 12 April 2016. That day, a surveillance operation was underway at a property at 264 Wilsons Road, Christchurch (“the property”) where the police believed the occupants were involved in drug dealing. A warrant had been issued for the search of the property, but had not been executed.

[2] A red Ford Mondeo driven by the defendant was seen by the Police to stop outside the Wilsons Road address, and there was a brief engagement between an occupant of the house and the defendant, through the driver’s window. The defendant then drove away. Detective Sergeant Fisher directed the vehicle be
stopped and searched under the provisions of the Search and Surveillance Act 2012

HOLE v NEW ZEALAND POLICE [2017] NZHC 808

(“the Act”). As a result of that search the defendant was charged with procuring and possessing heroin under ss 7(1)(a) and 7(2) of the Misuse of Drugs Act 1975.

[3] The appellant admitted ownership of a syringe full of brown liquid, being

heroin and said he had purchased “morphine” for $100.

District Court

[4] By a reserved decision of 2 December 2016, His Honour Judge Saunders recorded that the police had proper grounds to obtain a warrant to search the property, and that some occupants had been arrested on drug charges. The police did not have evidence of transactions conducted on and before 12 April 2016, but it was a reasonable inference for the police to conclude that the occupants were supplying something to persons in vehicles who pulled up outside the address. The police did not know who might call on 12 April 2016, or at what time. It would have been futile to apply for a search warrant for vehicles that might arrive on that day.

[5] When the defendant’s vehicle stopped outside 264 Wilsons Road, and a drug related transaction of some kind seemed to him to have occurred, the decision was taken by Detective Sergeant Fisher to instruct that the defendant’s car be stopped and searched. His Honour concluded he was the decision maker for the purpose of the evidential challenge.

[6] The question turned on whether Detective Sergeant Fisher had reasonable grounds to believe that drugs were on the person of (Mr Hole), or otherwise in the vehicle. His Honour concluded that he did have reasonable grounds to believe that there were drugs in the vehicle, and in Mr Hole’s possession. His Honour rejected the submission that Mr Hole or the vehicle should have somehow been detained, while the police obtained a search warrant. He…

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 Hole v Police

Details

AGLC: Hole v Police [2017] NZHC 808
Case: [2017] NZHC 808
Decision Date: 27 April 2017

CaseChat Overview and Summary

Martin Clifford Hole has appealed against the decision of Judge Saunders in the District Court to admit evidence obtained through a warrantless search of his vehicle. The search was conducted under the Search and Surveillance Act 2012 after he stopped outside a property where police believed drug dealing was occurring. Hole was charged with procuring and possessing heroin following the search. The High Court considered whether the police had reasonable grounds to believe that drugs were present in Hole's vehicle and whether the search was justified without a warrant. The central issue was whether the police had reasonable grounds to believe drugs were present, rather than merely suspecting them. The Court found that the police had reasonable grounds to believe a drug transaction had occurred, justifying the warrantless search. The Court also found that seeking a warrant would have been impractical given the mobile nature of the situation. Therefore, the appeal was dismissed, and the evidence obtained from the search was deemed properly admitted.

The High Court granted leave to appeal but dismissed the appeal, affirming the District Court's decision. The evidence obtained from the warrantless search of Hole's vehicle was held to be properly admitted, as the police had reasonable grounds to believe that a drug transaction had occurred. The Court found that obtaining a warrant would have been impractical in the circumstances and that the search was justified. Therefore, the evidence was not improperly obtained, and there was no need to exclude it under the balancing exercise in the Evidence Act 2006.

Orders