Milligan v Police - [2017] NZHC 836

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CRI-2016-435-5

[2017] NZHC 836

BETWEEN
WENDY MILLIGAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 March 2017

Appearances:

J K W Blathwayt for appellant S Ellis for Crown

Judgment:

28 April 2017

JUDGMENT OF CULL J PRE-TRIAL RULING APPEAL

[1] Ms Milligan (the appellant) appeals a pre-trial ruling by Judge Morris delivered on 19 October 2016, regarding the lawfulness of a police search of her house and the admissibility of evidence of drug related items found in the course of that search.1

[2] The present proceeding comprises first, an application for leave to appeal against the pre-trial ruling pursuant to ss 215 and 217(2)(b) of the Criminal Procedure Act 2011 and, secondly, if leave is granted, the appeal to set aside the pre- trial ruling.

[3]The key issues to be determined on the second part of the proceedings are:

1 Police v Keen [2016] NZDC 20313.

MILLIGAN v NEW ZEALAND POLICE [2017] NZHC 836 [28 April 2017]

(a)whether the Judge erred in finding that the entry and first search were reasonable and the evidence obtained was admissible; and

(b)whether the Judge correctly applied the test under s 30 of the Evidence Act 2006 to determine that, even if the evidence was improperly obtained, excluding the evidence would not be proportionate to the impropriety.

Background facts

[4] Following a complaint to the police call centre about a strong smell of cannabis coming from the appellant’s address on 5 November 2015, the police arrived at a house occupied by the appellant and her partner, Tony Keen, at approximately 11.35 am. The police officers investigating the complaint were Constable Bunny and Detective Constable Flowers. At this stage, they were not aware that a search warrant had already been sought and issued at 8.45 am that same day, in respect of the same premises for alleged drug possession and drug transactions occurring at that address. They had decided to visit the address, under the guise of a boy-racer problem in the area.

[5] Upon arriving at the address, both officers said they could smell cannabis emanating from the house as they stood in the driveway. Constable Bunny phoned his supervisor to advise him and he was then made aware that a search warrant was being prepared in respect of the address. After talking to Mr Keen about the boy- racer problem at the front door of the house, Constable Bunny visited other properties in the area and returned to his car. He then telephoned his supervisor for advice on how to proceed, given that he was aware a search warrant was being prepared. While he was on the phone, Mr Keen came out of the house, saw Constable Bunny in his car and then returned…

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 Milligan v Police

Details

AGLC: Milligan v Police [2017] NZHC 836
Case: [2017] NZHC 836
Decision Date: 28 April 2017

CaseChat Overview and Summary

Wendy Milligan appeals a pre-trial ruling by Judge Morris, regarding the lawfulness of a police search of her house and the admissibility of evidence of drug related items found in the course of that search. The key issues to be determined are whether the Judge erred in finding that the entry and first search were reasonable and the evidence obtained was admissible; and whether the Judge correctly applied the test under s 30 of the Evidence Act 2006 to determine that, even if the evidence was improperly obtained, excluding the evidence would not be proportionate to the impropriety. The Court found that the entry and the first search were reasonable. The evidence obtained during the first search, namely, the growing cannabis plants, was therefore admissible. The Court also found that the Judge’s application of s 30 of the Evidence Act was appropriate and not in error. The appeal is dismissed and the Judge’s finding that the entry and first search were reasonable is confirmed. The application for leave to appeal is granted.

Orders