McRae v Police - [2017] NZHC 2255

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI 2017-442-16 [2017] NZHC 2255

BETWEEN
ROBERT WILLIAM MCRAE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 September 2017

Counsel:

D E Holloway for Appellant
K B Bell for Respondent

Judgment:

18 September 2017

JUDGMENT OF ELLIS J

[1] On the afternoon of 22 February 2017, Constables Wallbank and Walker were in a marked Police car, on duty in Nelson. They saw a black Honda Accord being driven by Mr McRae, with a woman in the passenger seat. There was a QVR flag on the vehicle in the police database. They followed the Honda in the Police car to a public carpark 20 metres away, where both cars parked. Constable Wallbank spoke to Mr McRae who said that the Honda belonged to his de facto partner who was in the passenger seat. The officers then put a non-operational order on his vehicle, otherwise known as a green sticker.

[2] As he was speaking to Mr McRae, Constable Wallbank saw a number of car parts on the back seat which Mr McRae said were for the Honda. Constable Wallbank also saw a large machete laid down behind the driver’s seat. This caused him to advise Mr McRae that he was going to search the car under the
Search and Surveillance Act 2012 (the SSA) for weapons. He also told Mr McRae

MCRAE v POLICE [2017] NZHC 2255 [18 September 2017]

and his partner that they would be personally searched. Because they would be detained for that purpose he gave them their rights, which they said they understood.

[3] The car was duly searched. The Constable also took photographs of the contents of the car. No other weapons or items of interest were found but Constable Wallbank seized the machete. It was approximately 70 centimetres in length with a blade of approximately 50 centimetres. At that point Mr McRae told Constable Wallbank that it was “for camping”. Constable Wallbank saw a packed up tent in the boot of the vehicle, but there was no other camping equipment present. Mr McRae declined to comment further on when or where he had been camping, and declined to make an official statement.

[4] Mr McRae was then charged with possessing an offensive weapon in a public place without lawful authority or reasonable excuse under s 202A(4)(a) of the Crimes Act 1961 (the CA).1

[5] On the recent authority of Kearns v R Mr McRae contended in the District Court that the search of the car was unlawful and objected to the admission in evidence of its fruits.2 On 12 July 2017, Judge Zohrab held that the evidence was improperly obtained, but was nevertheless admissible pursuant to s 30(4) of the Evidence Act 2006 (the EA).3 Mr McRae now appeals that s 30(4) finding.

[6] In opposing the appeal the Crown submits that the evidence was not improperly obtained, but in any event the Judge was right to rule…

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 McRae v Police

Details

AGLC: McRae v Police [2017] NZHC 2255
Case: [2017] NZHC 2255
Decision Date: 18 September 2017

CaseChat Overview and Summary

McRae v Police concerned an appeal against the decision of a District Court Judge to admit evidence obtained by police in the course of an unlawful search of a vehicle. Mr McRae was seen driving a vehicle in which a large machete was in plain sight. The police stopped Mr McRae and searched the vehicle, finding no other weapons but seizing the machete. Mr McRae was subsequently charged with possessing an offensive weapon in a public place without lawful authority or reasonable excuse under s 202A(4)(a) of the Crimes Act 1961. He appealed against the Judge's ruling that the evidence obtained by the police was admissible under s 30(4) of the Evidence Act 2006. The appeal raised issues as to whether the evidence obtained by the police was improperly obtained and whether its admission was proportionate to any impropriety. The High Court held that there was no impropriety in the police search of the vehicle and that even if there had been, the evidence obtained was admissible under s 30(4) of the Evidence Act 2006. The appeal was dismissed.

Orders