Mackey v Police - [2017] NZHC 2567

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2017-416-14 [2017] NZHC 2567

BETWEEN
REUBEN LEWIS MACKEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 October 2017

Counsel:

F E Cleary for Appellant
T Epati for Respondent

Judgment:

20 October 2017

JUDGMENT OF SIMON FRANCE J

[1] This is an appeal by the New Zealand Police against the decision of the District Court to exclude evidence of a cannabis growing operation. The evidence was discovered following a warrantless entry into a house. The District Court considered the entry to be unlawful and the balancing exercise to favour exclusion.1
The appeal is limited to the latter aspect of the ruling.

Facts

[2] Police received advice that a burglary was occurring at the address in question. Cars were dispatched. The information provided was that three men had driven up in a car, two had gone inside and then came out carrying items. By the time the attending officers arrived it was known to them the men had left in a car. It was also known to the Police as a cohort that the resident was not home – this had
been advised over the telephone by the informant who was watching the incident.

1 New Zealand Police v Mackey [2017] NZDC 14379.

MACKEY v POLICE [2017] NZHC 2567 [20 October 2017]

[3] The attending officers went around the exterior of the house to check it was secure. Officer Kingi tried the front door which was unlocked. He slid it open and must have moved to one side the curtain hanging inside it. The officer then entered just inside the door at which point he smelt cannabis and matters went from there.

[4] In his job sheet prepared after the event, the officer said:

I checked the front door to see if it was secure. The door was unlocked.

I opened the front door and saw a large plastic container on its side. The container contained a small amount of dirt.

There was a curtain also lying on the floor.

I assumed that there possibly could have been a struggle at the address.

I immediately called out, “Police is anybody home”.

I went into the address to search the property to make sure nobody was inside hurt.

Upon entering the address I could immediately smell cannabis and I could hear a loud humming noise.

I then search[ed] the property under Search and Surveillance Act 2012.

[5] In terms of the cannabis growing operation, in three bedrooms the carpet had been covered by plywood. The walls and windows were lined with black polythene, and over that there was a layer of reflective building paper. Each room had a number of dehumidifiers and a large number of heat lamps to assist cultivation. Carbon filters had been installed to duct the smell into the ceiling cavity.

[6] The heat lamps, dehumidifiers and filters were connected to timers set to run for 21 hours continually and then be…

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 Mackey v Police

Details

AGLC: Mackey v Police [2017] NZHC 2567
Case: [2017] NZHC 2567
Decision Date: 20 October 2017

CaseChat Overview and Summary

In the case of Mackey v Police, the New Zealand Police appealed against the decision of the District Court to exclude evidence of a cannabis growing operation discovered following a warrantless entry into a house. The District Court had found the entry to be unlawful and, after conducting a balancing exercise under section 30 of the Evidence Act 2006, decided that the evidence should be excluded. The appeal focused on the District Court's balancing exercise. The High Court found that the District Court had erred in its assessment of the Police actions. While the entry was unlawful, the Court held that the Police actions were not deliberate or reckless. The High Court emphasised that the Police were not at the house for any investigative purpose related to the house or its resident, but rather to address a recent break-in. Given the circumstances, opening an unlocked door to check for any potential harm in the wake of a burglary was not extreme unauthorised conduct. The High Court also disagreed with the District Court's characterisation of the breach as grave. In the context of illegal entries into a residential property, the incident was at the minor end of the scale. The High Court concluded that excluding the evidence would be disproportionate to the impropriety and allowed the appeal. The evidence was ruled admissible.

This case highlights the importance of carefully considering the circumstances and context of an entry when conducting a balancing exercise under section 30 of the Evidence Act. The High Court emphasised that the Police actions, while unlawful, were not deliberate or reckless, and the breach was not grave. The Court found that excluding the evidence would be disproportionate to the impropriety and allowed the appeal, ruling the evidence admissible. This decision serves as a reminder that the balancing exercise under section 30 should be conducted with care and consideration of the specific facts and circumstances of each case.

Orders