Khalifa v Police - [2021] NZHC 746

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-554

[2021] NZHC 746

BETWEEN
MOHAMED KHALIFA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 March 2020

Counsel:

A Kashyap for appellant

K Fitzgibbon for respondent

Judgment:

1 April 2021

JUDGMENT OF KATZ J

[Appeal against conviction]

This judgment was delivered by me on 1April 2021 at 4:00 pm

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Office of the Crown Solicitor, Auckland Counsel: A Kashyap Law, Auckland

KHALIFA v NEW ZEALAND POLICE [2021] NZHC 746 [1 April 2021]

Introduction

[1] On the evening of 2 April 2020, police were called to an altercation between two of Mohamed Khalifa’s flatmates. While at the address they undertook a warrantless search of Mr Khalifa’s bedroom. During that search the police located approximately 200 grams of cannabis plant material (separated into clear plastic bags which were found throughout the room), a small set of scales, and numerous empty clear zip lock bags.

[2] Following a Judge-alone trial, Judge D F Clarkson found Mr Khalifa guilty of possessing cannabis for the purpose of sale.1 Mr Khalifa appeals his conviction on the basis that the search of his bedroom was unlawful, and that the evidence found there should not have been admitted.

[3]The issues raised by Mr Khalifa’s appeal are:

(a)whether Constable Allsop had reasonable grounds to believe that there was a controlled drug in Mr Khalifa’s bedroom, prior to entering the room;

(b)whether Constable Allsop had reasonable grounds to believe that Mr Khalifa would destroy, conceal, alter or damage evidence if a search was not carried out immediately; and

(c)whether Constable Allsop had reasonable grounds to believe that it was not practicable to obtain a warrant, prior to searching Mr Khalifa’s room.

District Court decision

[4] Judge Clarkson found Mr Khalifa guilty of possessing approximately 200 grams of cannabis for the purpose of sale.2 The sole issue at the trial was the

1 Police v Khalifa [2020] NZDC 26429.
2 At [31].

legality of the warrantless search of Mr Khalifa’s bedroom, and therefore the legality of the evidence obtained in that search.3

[5] The Judge referred to the “warrant preference rule” (as described by Cull J in Smith v Police).4 However, having regard to the warrantless search powers under ss 8 and 20 of the Search and Surveillance Act 2012 (“the Act”), the Judge found that the search fell within the practical realities exception to the warrant preference rule.

[6] In any event, even if she were wrong in that conclusion, the Judge determined that the evidence would have been admissible under the balancing test in s 30 of the Evidence Act 2006. If there was any impropriety it was an of “extremely minor nature.”5 It would therefore be disproportionate to exclude “what is effectively the entire prosecution case” as a consequence.6

Relevant legal principles

[7] The search of Mr Khalifa’s bedroom was conducted pursuant to the warrantless search power prescribed by s 20 of the Act. Section…

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 Khalifa v Police

Details

AGLC: Khalifa v Police [2021] NZHC 746
Case: [2021] NZHC 746
Decision Date: 1 April 2021

CaseChat Overview and Summary

Mohamed Khalifa appealed against his conviction for possessing approximately 200 grams of cannabis for the purpose of sale. The appeal was based on the contention that the warrantless search of his bedroom was unlawful and that the evidence found should not have been admitted. The High Court was required to decide whether the search was justified under the Search and Surveillance Act 2012 and if the evidence obtained during the search was admissible under the Evidence Act 2006. The central issues were whether the police officer had reasonable grounds to believe that a controlled drug was present, that it was not practicable to obtain a warrant, and that evidence would be destroyed if the search was not conducted immediately.

The Court found that Constable Allsop had reasonable grounds to believe that there was a controlled drug in Mr Khalifa’s bedroom. This belief was based on Constable Allsop’s evidence that he saw a cannabis plant from the adjacent courtyard. The Court rejected the argument that there was a conflict in the evidence of Constable Allsop and another officer, Constable Rowe, as they had different vantage points. Furthermore, the Court held that Constable Allsop had reasonable grounds to believe that obtaining a warrant was not practicable and that evidence would be destroyed if the search was not conducted immediately. This conclusion was based on the unpredictable nature of the situation, the late hour, and the potential for evidence to be removed or destroyed.

Consequently, the Court found that the warrantless search was justified, and the evidence obtained was admissible. The appeal was dismissed, and the conviction was upheld. The Court of Appeal's decision that the warrant preference rule is best practice but requires a practical approach in policing circumstances was reaffirmed. The High Court held that Constable Allsop’s actions were reasonable and aligned with the statutory requirements and practical realities of policing.

Orders