Meyrick v The Queen

[2005] NZCA 150

IN THE COURT OF APPEAL OF NEW ZEALAND

CA513/04

THE QUEEN

v

MICHAEL BRIAN MEYRICK

Hearing:16 May 2005

Court:William Young, Goddard and Salmon JJ

Counsel:Appellant in person

J M Jelas for Crown

Judgment:14 June 2005 

JUDGMENT OF THE COURT

The appeal is allowed, the appellant’s conviction is set-aside and a re-trial is directed.

REASONS

(Given by William Young J)

Introduction

[1]        On 19 October 2004 the appellant was tried before Judge Behrens QC (sitting without a jury) on an indictment which alleged that he had wilfully attempted to pervert the course of justice.  In an oral judgment, delivered at the end of the trial, the Judge found the appellant guilty.

[2]        The appellant now appeals against conviction.

Background

[3]        In May 2003, the appellant was living with his partner, Ms Marion Ashby in Huntly.

[4]        On 4 May 2003, their daughter, Ms Amy Meyrick (“Amy”) showed Ms Ashby a picture that she had found on a computer which was in the appellant’s office at the family home. The picture was of an adult male having sex with a child.  A large number of other picture files were stored on the computer.

[5]        Ms Ashby packed her bags and left home.  She returned the next day (5 May) and removed the computer.  The next morning (6 May), the appellant telephoned Ms Ashby and asked, unsuccessfully, for the return of the computer. Instead, she took the computer to Amy who removed the hard drive.  Ms Ashby took possession of the hard drive leaving Amy with the computer tower.  Ms Ashby’s evidence at trial was that she offered to return the computer tower to the appellant but he did not wish to uplift it as he considered that it “was useless without the hard drive”.

[6]        Amy inserted another hard drive in the computer tower and used it for her own purposes.

[7]        On 6 August 2003, Ms Ashby handed the hard drive to the police.

[8]        The police obtained search warrants for the appellant’s house and vehicle and also Amy’s address in Auckland.

[9]        On 10 September, the police executed a search warrant at the appellant’s home in Huntly.  The police removed from the home several other computers together with disks, equipment, and related paraphernalia.  On the same day, Detective Sergeant Carr of the police telephoned Ms Ashby and told her that he needed to speak to Amy and that he had a search warrant that authorised him to seize the computer tower.  Ms Ashby told Amy this and arranged for her to meet with Detective Sergeant Carr at her flat in Auckland at 10.30am on Friday 12 September 2003.

[10]      On the morning of 12 September 2003, the appellant travelled from Huntly to Amy’s flat in Auckland.  The evidence makes it clear that this visit was a result of a discussion which had taken place earlier between the appellant and Amy in which the appellant had learnt that the police were going to visit Amy on the morning of 12 September.  One of the primary factual issues in the case is what Amy told the appellant in the course of this discussion, a point to which we will revert shortly.

[11]      Amy’s evidence as to what happened after the appellant arrived was reasonably limited, and, if the transcript is any guide, guarded:

Q.       When he arrived at your address what did he say to you?

A.       Oh, can’t remember.

Q.       Did he say why he was there?

A.       Yeah, I think we went out for a coffee and stuff you know.

Q.       Would he usually arrive at 6:45, 7 o’clock in the morning?

A.       No.

Q.       When you went out for a coffee did he indicate why he was there?

A.       Ah, don’t remember.

Q.       How did you come to give him the computer tower?

A.       I, I it was mentioned, but.

Q.       Mentioned by who?

A.       Me probably, I don’t know.

Q.       In what way?

A.       That I didn’t want the Police in my house and.

Q.       And so what did he say to that?

A.       I don’t remember.

Q.       And so what did you do?

A.       Um, I gave him the computer.  I’m fairly sure he asked for it, but.

[12]      In his evidence at trial the appellant admitted that he knew that the police were going to visit Amy in order to interview her.  He also said that he was conscious that the police might want to pick up the computer tower.  But he denied knowing that the police had a search warrant which was addressed to the computer tower.  He said that his principal motivation for the trip to Auckland was to reassure his daughter and take her out for coffee.  Either at the café where he took Amy for coffee or upon returning from the café, he asked for the computer tower.  Amy agreed to give the computer tower to him and placed it in the boot of his car.  Having obtained the computer tower, he drove back to Huntly with it.  He asserted that he saw the computer tower as having no evidential value but claimed that it did have utility to him particularly as his other computers had been seized.  Another possible reason for him taking the computer tower which he hinted at was that Amy did not wish the police to come into her house and, if the computer tower was not there, presumably the police would have no occasion to enter her residence.

[13]      After the appellant left his daughter’s residence the police arrived.  Amy telephoned him twice while he was en route to Huntly. On both occasions she asked him to bring the computer tower back because the police were at her residence and were asking for it.  It is also common ground that the appellant told her that it was irretrievable, which, on the appellant’s evidence was a lie as he still had the computer tower with him in the car at the time.  The appellant’s explanation for lying to his daughter was that he was simply being “bloody-minded”.

[14]      The appellant claimed at trial that he kept the computer tower at home for some six weeks before throwing it out.  His evidence as to this, in cross-examination, was as follows:

Q.But Mr Meyrick you were the only person who was not wanting the Police to have it, weren’t you?

A.       Sure.

Q.And that motivated your taking hold of it in Auckland, and that motivated your lying to your daughter, didn’t it?

A.       My computer, I wanted it.

Q.       It sat in your office at home you say?

A.       Yes it did.

Q.       Just sitting there?

A.Well no, I tried to get it going.  Originally I was going to, I wanted a working computer at home.  I didn’t have one.  I thought, all I’ve got to do – you see the man who builds my computer systems for me, all the computers, both computer systems my businesses have, are constructed for us to specifications.  I could have taken it down to him, tell him to put another hard drive in it, and I’d have a working computer.  Now, I had a wee bit of a crack at trying to get the thing going myself.  Um, I don’t know what Amy had done to it, but I certainly couldn’t make any sense of it, so eventually I went down to the computer man who builds the computers for me, and I said “I’m not prepared to stuff around with this thing, build me another” so he made me a new computer system to match the systems we already had, so I could tie it in with those.  Eventually this thing, we were having a clear out at home, trying to get the house ready for sale, and I threw it out.

Q.       You threw it out?

A.       Yeah.

Q.       You made it irretrievable?

A.And that was about, I suppose, six weeks, two months later.  At that stage it became irretrievable.  But if the Police had wanted it, I’d figured, why didn’t they come and ask me.

Q.And if you had wanted to make it workable with a hard drive, you could just have asked Amy how she did it couldn’t you?

A.Well, I wouldn’t have done that?  Amy, um, certainly puts herself forward as being somebody who is expert in computers, but let me tell you, she is not.  Every computer I have ever seen her work on, finishes up non-functioning.  If I wanted it working I would have taken it down to the man who builds the systems for me and asked him to fix it.

[15]      There was limited evidence as to the possible evidential significance of the computer tower.

[16]      Detective Sergeant Carr said in evidence that he wanted the computer tower:

To corroborate date and time information that would have been on the motherboard relating to the hard drive that had come out of it.

He said that if he had obtained the computer tower he would have taken it to the electronic crime laboratory for examination.  Detective Sergeant Carr was not cross‑examined on that evidence but in response to the question from the Judge he elaborated on it slightly:

Sir, electronic crime advised me that they needed the tower, there would have been information on the motherboard, date and time information that would corroborate date and time information on the hard drive, that was the reason, they said, I should prepare a search warrant as well for the computer tower, which I did.

[17]      On the other hand, Mr Meyrick was adamant in his evidence that the computer tower had no evidential significance and added nothing of value to the hard drive which the police already had.

[18]      His evidence in chief on this point was as follows:

… I did think about whether the Police would want it but, but what possible evidential value could it have.  I mean it was – I’d been told and my understanding was that it just could do nothing without a hard drive.  So I thought well it can’t possibly have evidential value.

THE COURT:          Am I expected to accept that evidence Mr Sutcliffe [who was counsel for the defence].

MR SUTCLIFFE:     It’s evidence that he’s giving, Sir.  It’s his –

THE COURT:          That he’d been told something.

MR SUTCLIFFE:     Sorry.

THE COURT:          That he’d been told something.

MR SUTCLIFFE:     Well, Your Honour can disregard it, sitting as a Judge alone with respect Sir.

It was unfortunate that the Judge interrupted the appellant’s evidence in this way.  The Judge had not interrupted what was, in a sense, broadly similar evidence from Detective Sergeant Carr (as to what he had been told).  Further, and more importantly, the appellant’s state of mind as to the evidential value (or otherwise) of the computer tower was a material consideration and evidence as to what he may have been told prior to the events of 12 September 2003 was obviously relevant and admissible as bearing on his state of mind.

[19]      In cross-examination the appellant asserted on a number of occasions that he could not think of any reason why the police would want the computer tower.  At no stage in his cross-examination did the prosecutor put to the appellant any actual evidential significance which the computer tower may have had (and which he should have appreciated).

[20]      The appellant is a former police officer and, at the time of the events in issue, was a barrister and solicitor practising at the criminal bar.  Both in the way in which he conducted his appeal and, more importantly, in his evidence at trial, he displayed considerably hostility to the police, particularly the Hamilton CIB.  These factors provide an important context:

(a)The appellant was well familiar with police investigative techniques, a consideration which cuts both ways. 

(b)From the Crown point of view, this familiarity was a factor which might support the drawing of an inference that he was aware that the search warrant had been obtained to seize the computer tower. 

(c)From the defence point of view, however, this familiarity raises a significant question as to his motivation.  He must have known that the police would discover that he had taken the computer tower.  If he was conscious either of the search warrant or of any evidential significance which the computer tower might have had, he would presumably have recognised that the taking of the computer tower was an invitation to the police to prosecute him for attempting to defeat the course of justice.

(d)The appellant’s hostility to the police provides possible explanations for his conduct; along the lines that he was trying to put one across the police, that he wanted to give them the run around and/or that he was, in his own words, being “bloody-minded”.

The approach of Judge Behrens QC

[21]      The critical part of the judgment of Judge Behrens QC is as follows:

[8]       The Crown says that on 12 September 2003 in going and getting the computer tower the accused attempted to pervert the course of justice. The acts of the accused, say the Crown, had a tendency to pervert the course of justice and that was the accused’s intention, that is he was wilful in that regard. The course of justice, says the Crown, was the investigation of the allegation that the accused had possession of objectionable material and its attempted perversion was the concealment or destruction of evidence of that alleged possession. The Crown must prove the charge.

[9]       The accused has given evidence but in doing so has not taken on the burden of proving his innocence. The Crown must prove the charge beyond reasonable doubt. If the accused is to be convicted I must be sure of his guilt. If there is an explanation for his actions, based on reason and consistent with innocence, then he must be acquitted. This is not to say that he must provide such an explanation. He is not obliged to do so but it may be present in the evidence that has been given at trial.

[10]     The accused gave evidence. He said he went to Auckland to reassure his daughter because the Police were going to see her. He spent some time with her and told her she did not have to talk to the Police. In his own words that was pretty much it but he did tell her that he would like to take the computer tower back to Auckland so he did so. He said he took it because it was his and he did not want the Police to have it and that he could get a new hard drive in it. The accused expressly denied having any knowledge that the Police visit for 10.30am that morning was to execute a search warrant in respect of the computer tower that he took away with him. He did accept that he thought the Police might want it but could not, he said, imagine what evidential value it might have. He said, in evidence, that he did get a telephone call from his daughter while he was driving away from her property and that she did ask him to return the computer tower. He said that he told her that it was irretrievable. He acknowledged this as a lie. I shall come back to the significance of that.

[11]     Essentially his explanation for driving to Auckland is that he wanted to reassure his daughter about what he knew to be a visit that day by the Police. He said that he had become aware of the projected Police visit in a telephone conversation he had with his daughter after a Police visit to his residence in Huntly that took place on 10 September when a search warrant was executed, I refer to exhibit 1, so the telephone conversation took place between 10 and 12 September.

[12]     I am satisfied that his daughter knew that the Police were coming to her residence at 10.30am on 12 September to get the computer tower. The inference is irresistible that in the telephone conversation, both daughter and father refer to, his daughter told the accused just that. The accused says he does not remember it.

[13]     In the evidence of Glenn McAllister, a flatmate of the accused’s daughter, which evidence was read into the record there is reference to a message on the resident’s answerphone at 6.40am on 12 September from the accused being something like “Amy I've got to see you or get in touch with you before I go to Court this morning.” The Crown says that this is an indication of the accused’s state of mind but I find it in that respect to be equivocal.

[14]     I return to the lie the accused admitted he told. In essence the Crown says that this is more than just an indication of the accused’s lack of credibility. It is a lie tending to show that the accused is guilty. I think that is so. I think it also significant that some time before the Auckland visit and before a search warrant was executed on his Huntly address on 10 September the accused had rejected the offer of the return of the computer tower. That rejection is at odds with his claim that, amongst other things, he needed the computer tower.

[15]     I did not find the accused a credible witness. I reject his explanation for going to Auckland on 12 September. The rejection does not mean that I then find him guilty. I put his explanation to one side and look at the evidence adduced by the Crown. I find it sufficient to satisfy me beyond reasonable doubt that on 12 September 2003 in Auckland he did wilfully attempt to pervert the course of justice.

[16]     I refer to a decision R v Rogerson (1992) 174 CLR 268 where it was held that an act which deflects the Police from adducing evidence on the true facts would, if done with the requisite intent, constitute an attempt to pervert the course of justice. As I say I have found that the accused had the intent that accompanied the act and is therefore convicted.

The nature of the appeal

[22]      The appeal to this Court is provided for by s 385 of the Crimes Act 1961 which relevantly provides:

385      Determination of appeals in ordinary cases

(1AA)  This subsection applies to—

(a)       an appeal to … the Court of Appeal against conviction:

…

(1)       On any appeal to which subsection (1AA) applies, the Court of Appeal … must allow the appeal if it is of opinion—

(a)       That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b)      That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c)       That on any ground there was a miscarriage of justice; or

(d)      That the trial was a nullity—

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[23]      For these purposes the judgment of Judge Behrens QC is, in effect, a verdict.

[24]      It has been traditional for Judges giving judgment in judge alone criminal trials to give short-form judgments.  We discussed this practice, including its justifications and problems, in R v Eide CA77/04 8 September 2004 at [19] to [21].  Where this practice is followed and the Judge finds the defendant guilty, it is absolutely fundamental that the Judge identifies the findings which are critical to that guilty verdict.

[25]      As will become apparent, the Judge in this case did not do so.  This has caused us some real problems on appeal.

The issues on appeal

[26]      We propose to address the issues raised by the appeal primarily by reference to the following headings:

(a)The findings of fact made by the Judge.

(b)On these findings of fact was it open to the Judge to find the appellant guilty?

The finding of fact made by the Judge

[27]      The key credibility finding against the appellant was made in [12] and [15] of the judgment of Judge Behrens QC.

[28] It is quite clear that the Judge found that the appellant had been told by Amy that the police were going to come to her residence at 10.30am on 12 September to pick up the computer tower, see [12]. The Judge rejected the appellant’s claim that his primary purpose in going to Auckland was to speak to Amy and comfort her, see [11] and [15].

[29]      Beyond those points, the findings which the Judge made against the appellant are very much matters of implication. 

[30] We think it clearly implied in what the Judge said that he found that the appellant’s purpose in going to Auckland was to uplift the computer tower. It is fair to say too that the Judge must have concluded that the appellant was not motivated solely or predominantly by a desire to retrieve the computer tower so he could use it himself. This last point emerges indirectly from [14].

[31]      What is not so clear is whether the Judge concluded that the appellant knew that a search warrant was to be executed at 10.30am on 12 September.  As will become apparent, this is an extremely important issue.

[32]      If the appellant knew of the search warrant, the most likely source of the information would have been Amy.  In her evidence, however, she did not claim to have told the appellant that a search warrant was to be executed.  The appellant himself denied in evidence knowing that a search warrant was to be executed and, on this aspect of his evidence, was not challenged in cross-examination.

[33]      There was an evidential basis for a finding that the appellant knew that a search warrant was to be executed.  On the assumption that Amy had told the appellant that the police were going to her residence to uplift the computer tower (as the Judge found), it is likely that she also told him that this was to be pursuant to a search warrant.  He was, of course, aware that a search warrant had been executed at his own premises.  Given his experience as a police officer and a lawyer, the appellant might be thought to have known that in all probability the police would have obtained a search warrant in relation to Amy’s residence and the computer tower or otherwise they would have no entitlement to uplift the computer tower.  Given the totality of these considerations it would have been open to the Judge to infer that the Amy had said enough to the appellant to alert him to the fact that a search warrant was to be executed.

[34]      On the other hand, if the Judge were to have drawn that inference, it would necessarily have involved a rejection of the denial by the appellant that he knew that there was a search warrant, this despite that denial not having been challenged when he gave evidence.

[35]      Our impression from reading the judgment of Judge Behrens QC was that he had not made a finding that the appellant knew that a search warrant was to be executed at 10.30am on 12 September.  He certainly did not say so and, given the significance of the issue, we would have expected such a significant finding to be expressed if made. 

[36]      We note that when the Judge came to sentence the appellant some months later he analysed his offending in these terms:

[1]       … Boiled down, you took a computer tower you knew was the subject of a search warrant from your daughter’s flat, because you thought it might contain, or be evidence against you, and it has disappeared.

The appeal must be determined on the basis of the Judge’s finding of fact made at the time he delivered his verdict.  So we think that we must put to one side what the Judge said when sentencing the appellant.

[37]      Another lacuna in the judgment is as to the evidential significance of the computer tower.  The Judge simply did not make any finding as to whether the computer tower had evidential significance and, if it did, whether that was appreciated by the appellant. 

[38]      We propose to address the appeal on the basis that the Judge’s findings of fact were as follows:

(a)The appellant knew that the police intended to uplift, if possible, the computer tower from Amy but not that this would necessarily be pursuant to a search warrant;

(b)He uplifted the computer tower so as to prevent the police being able to do so; and

(c)He knew that the police desired to have the computer tower for the purposes of the investigation into allegations associated with his alleged possession of objectionable material.

On these findings of fact was it open to the Judge to find the appellant guilty?

[39]      At this point it is necessary to set out s 117(e) of the Crimes Act:

117     Corrupting juries and witnesses

Every one is liable to imprisonment for a term not exceeding 7 years who—

…

(e)       wilfully attempts … to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

[40]      This subsection is by no means unproblematic and sometimes calls for broad evaluative judgments, see for instance R v Kellett [1976] QB 372 and R v Taffs [1991] 1 NZLR 69, decisions which show that in this area of the law the end cannot be taken necessarily as justifying the means. Somewhat closer to the facts of the present case are the remarks of McCarthy J in R v Coneybear and Another [1966] NZLR 52 at 56 where he observed:

… Of course there are some acts whose effects may make the task of a prosecution more difficult but which yet cannot fairly be said to obstruct, prevent, pervert or defeat because they are merely the exercise of what the law accepts as the legitimate right of an individual. They are protected by s. 20 [of the Crimes Act]. Each particular action, therefore, must be viewed in its own surrounding circumstances.

[41]      It is clear that despite the use of the word “attempts” in s 117(e), the section creates a substantive offence which requires proof of both an action which has the tendency to pervert the course of justice (the actus reus) and an intention to pervert the course of justice (the mens rea), see R v Rogerson (1992) 174 CLR 268 at 279 per Brennan and Toohey JJ.

[42]      The “course of justice” undoubtedly includes the administration of justice by publicly established tribunals, see, for instance, Rogerson.  It is sometimes said that the “course of justice” extends to cover police investigations. There is no doubt that criminality attaches to actions which have the tendency (and are intended) to adversely affect court proceedings (or indeed prevent such proceedings being commenced) even though those actions are in the context of police investigations, and occur prior to proceedings being commenced, see, for instance, R v Kane [1967] NZLR 60 and R v Sharpe [1938] 1 All ER 48 at 51. But the fact remains that the tendency and intention which are critical must be addressed to actual or contemplated proceedings before publicly constituted tribunals, a point which emerges clearly from Rogerson.

[43]      The actus reus may consist of an otherwise lawful action which is rendered criminal by its tendency in the circumstances of the case, and the underlying intention, to pervert the course of justice, see for instance Kellett. But where the actions are legal, nuanced and difficult questions can arise as discussed by Glanville Williams in a three part article, “Evading Justice” [1975] Crim LR 430, 479 and 608. A few passages from this article (at 487, 488 and 489-90) identify some of the problems:

The offender knows that the police are on his track, so he burns his diary and letters, which incriminate him.  Or he is arrested for possessing controlled drugs, and manages to swallow the evidence.  Does he commit an offence?  No prosecution is known to have been brought in this country, except in special cases about to be mentioned [of no materiality in the present context].  The suspect does literally obstruct the police and obstruct justice by destroying evidence.  He may be so successful that he cannot be convicted of the main offence.  Nevertheless, some people would think that the law ought to look indulgently at an offender’s natural efforts to avoid conviction by taking steps that do not in themselves involve any fraud, oppression or illegality.

…

If a burglar wears gloves, he commits no offence in failing to leave finger-prints; should it be an offence for him, not having worn gloves, to wipe off the fingerprints he has left?

…

It would be open to the courts to hold (and doubtless they would hold) that there is an obstruction of the police or of justice if the evidence has lawfully come into the hands of the police and is lawfully being retained by them for the purpose of inquiries when it is taken back by its owner or some other person.  In a Canadian case of lowly status, the police found a piece of chromium-plated metal after an accident caused by a hit-and-run driver.  They came upon the defendant’s car and found that the piece fitted his headlamp rim.  The defendant, having seen the test, took the piece, which was apparently lying on the top of his car, and threw it into a field.  The police were able to take possession of it immediately; nevertheless, the defendant’s act was held by a magistrate to be an obstruction.  If this is right, it must be because the police, having lawfully come into possession of incriminating evidence, are entitled to retain it until the conclusion of a charge.

[44]      If the appellant had known that the police had a search warrant and intended to seize the computer tower pursuant to that search warrant, we think that a conviction under s 117(e) would probably have been well founded.  It is, for instance, perfectly clear that the offence can be committed notwithstanding the fact, that, at the relevant time, legal proceedings are not in train, see for instance Kane and R v Rafique [1993] QB 843. The execution of the warrant could perhaps be regarded as a subset of the “course of justice” referred to in s 117(e), see the analogous case R v Kiffin [1994] Crim LR 449. The appellant’s removal of the computer tower might therefore be thought to have had the tendency to interfere with the course of justice. If the appellant knew that a search warrant had been issued, then his actions could probably be regarded as intended to defeat the execution of that search warrant and therefore as intended to defeat the course of justice. On this assumption as to the appellant’s state of mind, he would have appreciated that there had been a judicial process which had resulted in the making of a court order addressed to the computer tower. Wilful interference with the execution of that order would probably be sufficient to attract liability under s 117(e) irrespective of the appellant’s personal beliefs as to the evidential significance of the computer tower. Whatever the appellant might have thought of the merits of the search warrant, he was not entitled to interfere with the processes associated with its execution. In this respect the case of Taffs might provide an analogy. 

[45]      We accept that the existence of a search warrant and, more relevantly for present purposes, the appellant’s awareness of the warrant, are not prerequisites to his liability under s 117(e).  This is apparent from Rafique.  In that case a number of young men (including the appellants) had been involved in an incident in which one of them had been killed accidentally with a shotgun.  In the immediate aftermath of the young man’s death, the appellants disposed of the shotgun and cartridges. At this time, there was of course no police investigation underway and, necessarily, those items were not subject to any search warrants. They were found not guilty of offences associated with the events leading up to the young man’s death but convicted of attempting to pervert the course of public justice with the convictions being upheld on appeal. 

[46]      As we have already indicated, the appellant committed an offence only if his actions had the tendency to defeat the course of justice and were intended to do so.  We think that orthodox criminal law principles mean that he is only guilty if he was conscious of the tendency of his actions to defeat the course of justice.  Leaving aside the search warrant, as we think we have to, his actions only had a tendency to defeat the course of justice if the computer tower had some likely evidential significance and he had the requisite mens rea only if he recognised that likely evidential significance. 

[47]      The appellant’s extraordinary actions in going from Huntly to Auckland in the early hours of 12 September might justify the drawing of an inference that he thought the computer tower was of evidential significance (particularly given the Judge’s implicit finding that the appellant did not wish to use the computer tower). The Judge, however, did not expressly draw this inference.  The possibility that the appellant truly believed that the computer tower had no evidential significance and was simply trying to annoy the police was never expressly rejected by the Judge. 

[48]      In all of this it is important to recognise that the Crown never attempted to demonstrate that the computer tower did have (or could have had) any evidential significance.  To the very limited extent that there was Crown evidence addressed to this point, it was hearsay and could be taken as showing no more than that the police wished to secure the computer tower for reasons which seemed legitimate to them.

[49]      In those circumstances, the appeal must be allowed.

Other issues

[50]      Other issues were argued in the course of the appeal, most significantly a challenge to the validity of the search warrant. 

[51]      It is important to recognise that this is not a search and seizure case and what is in issue is not whether there was an unlawful and unreasonable search and seizure.  Rather what the appellant wants to argue is that the alleged invalidity of the search warrant means that his interference with its execution did not involve an interference with the course of justice.  Put simply he wants to argue that interfering with the execution of an invalid warrant does not involve an interference with the course of justice.

[52]      We do not propose to address in detail the issues in relation to this argument. This issue was not raised in the District Court and in a sense involves an attempt to introduce new factual issues on appeal.  Further, assessment of the validity of the underlying arguments may require oral evidence.  It is sufficient to say that our preliminary view is that where a search warrant has been issued, public policy is best advanced by allowing the warrant to be executed and arguing about its validity later.  In accordance with orthodox administrative law principles, such a warrant is valid until set aside.  So we are inclined to the view that action intended to frustrate the execution of a doubtful warrant might properly be the subject of prosecution under s 117(e).

Result

[53]      For the reasons given we are not satisfied that the Judge made findings of fact against the appellant which warranted a finding of guilty.  In those circumstances, we are satisfied that there was a miscarriage of justice.  Accordingly we allow the appeal.

[54]      We direct a re-trial.  We suggest, however, that those responsible for this prosecution give serious consideration to whether the underlying criminality associated with the conduct of the appellant (assuming there was criminality) is sufficient to warrant the expense and anxiety of a re‑trial.  We note that English practice is that such cases are only prosecuted where there are serious aggravating features, see Archbold 2005 at 28-02.  We do not any such features in this case.

Solicitors:

Crown Solicitor, Auckland