McCartin v R - [2016] NZHC 1807

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-164 [2016] NZHC 1807

UNDER the Court Martial Appeals Act 1953

IN THE MATTER

of an appeal on a question of law by A1030791 Sapper Jacob Dane McCartin, RNZE

BETWEEN

JACOB DANE MCCARTIN Appellant

AND

THE QUEEN Respondent

Hearing: 25 July 2016

Court:

Brewer J
Judge D McGregor
Judge J R Billington QC

Appearances:

P L Murray for Appellant
Colonel L Ferris, NZALS, for Respondent

Judgment:

5 August 2016 at 3:00 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted. B The appeal is dismissed.
C Judge Gaskell’s ruling is confirmed.

MCCARTIN v THE QUEEN [2016] NZHC 1807 [5 August 2016]

REASONS OF THE COURT

(Given by Brewer J)

Introduction

[1] The appellant is a soldier. On 28 April 2015, he was searched by Military Police on the authorisation of his Commanding Officer. His cellphone was seized and examined. It contained text messages which clearly implicated him in drug- related offending. Later that day the appellant was interviewed under caution. He made significant admissions.

[2] In reliance, in large part, on the text messages and on his admissions, the appellant is charged with nine offences related to his involvement with controlled drugs.

[3] The appellant protested the admissibility of the evidence of the text messages and of his interview. On 26 February 2016, Judge AE Gaskell ruled the evidence to be admissible.1 The appellant now seeks leave to appeal Judge Gaskell’s ruling and for the appeal to be determined.2

Background

[4] A Commanding Officer has powers of search and seizure of property conferred by s 95 of the Armed Forces Discipline Act 1971. This section provides, relevantly:

95 Search in connection with suspected offence

(1) If a commanding officer has reasonable grounds to suspect that a person subject to this Act has in his possession any property which has been unlawfully obtained or any article or thing which is or may be evidence relating to the commission of an offence (whether against this Act or otherwise), the commanding officer may—

(a) detain and search that person; or

(b) search any premises within the limits of his command occupied or used by that person; or

1 McCartin v R (Ruling of Judge AE Gaskell on application as to admissibility of evidence),
26 February 2016.
2 Court Martial Appeals Act 1953, ss 7 and 8.

(c) take possession of any property or any article or thing previously referred to in this subsection, in which event the property, article, or thing shall, subject to this section, be disposed of in accordance with section 99.

(2) The powers conferred on a commanding officer by subsection (1) may be exercised by him personally or by any person authorised or ordered by him in that behalf.

…

[5] On 23 April 2015, Staff Sergeant Packer of the Military Police made a written request to the appellant’s Commanding Officer for authority, under s 95, to (among other things) search the appellant and to seize…

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 McCartin v R

Details

AGLC: McCartin v R [2016] NZHC 1807
Case: [2016] NZHC 1807
Decision Date: 5 August 2016 at 3:00 pm

CaseChat Overview and Summary

The appellant, a soldier, was searched by Military Police with his Commanding Officer's authorisation. His cellphone was seized and examined, revealing text messages implicating him in drug-related offending. The appellant sought to challenge the admissibility of the text messages and his interview. Judge AE Gaskell ruled the evidence to be admissible. The appellant sought leave to appeal that ruling and for the appeal to be determined. The issues for the Court were whether the evidence obtained from the search and the subsequent interview was improperly obtained, and if so, whether the evidence should be excluded. The Court found that the evidence was properly obtained. Although the Commanding Officer had not made an independent assessment of the informant's reliability, the information provided was sufficient to provide reasonable grounds to suspect that the appellant had in his possession an article or thing that could be evidence of an offence. The Court found that if the evidence had been improperly obtained, it would still have been admitted because excluding it would be disproportionate to the impropriety. Leave to appeal was granted, but the appeal was dismissed, and Judge Gaskell's ruling was confirmed.

Orders