Police v McCreedy

[2025] NZHC 1721

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-000012 [2025] NZHC 1721

BETWEEN  NEW ZEALAND POLICE

Appellant

AND  KERRY VICTOR MCCREEDY

Respondent

Hearing:                   7 May 2025

Appearances:           F S Sinclair and T Zhang for Appellant

J H C Waugh for Respondent (via VMR)

Judgment:                27 June 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 27 June 2025 at 10.00 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

NEW ZEALAND POLICE v MCCREEDY [2025] NZHC 1721 [27 June 2025]

Introduction

[1]                 The New Zealand Police seek leave to appeal a pre-trial decision excluding evidence obtained from a warrantless search of Mr McCreedy’s house.1 Police undertook the warrantless search—which led to discovery of evidence of a commercial scale cannabis operation—after responding to a report of the flight of two burglars from the address.

[2]                 Following a voir dire, Judge Dawson gave a brief oral decision finding the entry was unlawful. In what he described as a finely balanced decision, he determined that exclusion was a proportionate response to the impropriety.2

[3]                 The police case is dependent on the evidence obtained. It founds charges against Mr McCreedy of cultivation of cannabis,3 possession of cannabis for supply,4 theft,5 unlawful possession of ammunition/explosives6 and money laundering.7

[4]                 The applicant accepts that the search was unlawful, but contends the Judge erred in his assessment of the balancing exercise:

(a)first, by failing to engage with the nature of the impropriety and whether, in particular it was deliberate, reckless or done in bad faith; and

(b)second, by underrating the seriousness of the alleged offending. The Judge assessed this only by reference to the distinction between class A, B and C drugs, whereas the evidence indicates the offending should have been regarded as serious of its kind, favouring admission.

1      Police v McCreedy [2025] NZDC 1479.

2      Evidence Act 2006, s 30(2)(b) and (3).

3      Misuse of Drugs Act 1975, s 9(1)—maximum penalty: seven years’ imprisonment.

4      Misuse of Drugs Act, s 6(1)(f)—maximum penalty eight years’ imprisonment.

5      Crimes Act 1961, ss 219 and 223(b)—maximum penalty: seven years’ imprisonment. The theft charge was laid in relation to diversion of electricity from the address.

6      Arms Act 1983, s 45(1)—maximum penalty: four years’ imprisonment.

7      Crimes Act, s 243(2)—maximum penalty: seven years’ imprisonment.

[5]                 It is submitted when these errors are cured, exclusion would be disproportionate to the nature of the impropriety and the evidence should be admitted.

[6]                 Mr McCreedy opposes leave, and Mr Waugh on his behalf submits the proposed appeal is without merit.

[7]                 Mr Waugh argues no error is disclosed: the impropriety involved was not minimal; it indicates systemic carelessness and there is no basis to depart from the findings of the Judge, who had the benefit of a first instance assessment of the evidence.

The circumstances of the search in outline

[8]                 Ms Ashwin is (or was) married to the first respondent, Kerry McCreedy. In 2024, she was aggrieved at his behaviour towards her. She knew that he used a Whanganui address to conduct a cannabis operation. To get back at him, she made a 111 call from the address and falsely reported she had seen two men run away from the property. Three constables responded to the dispatcher’s call. The evidence of the constables differed in several respects, including how they came to the address, the order in which they arrived, spoke to Ms Ashwin and then entered the house, and what Ms Ashwin had said. They also had different recollections of the information relayed by the dispatcher, which included advice there may be drugs at the property: one recalled being told this information but neither other officer could recall it.

[9]                 I return to these aspects as relevant in discussion of the merits, but for present purposes draw from the outline of Constable Smith’s evidence, which, aided by his notebook entry made at the time, paints the broad picture.

[10]              Constable Smith was preceded to the scene by Constables Murphy and Docherty. He found Ms Ashwin outside the address and obtained a brief overview of what had happened. She said she had seen two people running out of the front door with bags. She said the property belonged to her and her husband. Constable Smith understood they both lived elsewhere. Ms Ashwin gave consent to enter the property (which he recorded in his notebook). She said she had not seen her husband since several days before. Constable Smith thought she had come to see if he was there.

His initial intention was “to locate her husband, if he was on the property, and to ensure that there was no one else still on the property”; as he explained in cross-examination:

… to ensure that there was… no one else inside because to us it reads as like a burglary type event that you see people running from an address. So to make sure there’s no further offenders inside and to make sure if there is someone inside that they are okay and safe and well.

[11]              Constable Murphy was told by Ms Ashwin that she “wanted us to make sure that the property was secure and safe”, and that it was “safe inside”.

[12]              Constable Smith entered the house last, though the three constables moved together. The constable gave conflicting answers about whether he communicated Ms Ashwin’s consent to his fellow officers.8

[13]              Inside, cannabis was smelt and then located in a sophisticated grow room set up in the central bedroom. Constable Smith remained with it while the other two officers continued to look through the house. Mr McCreedy and his son were located and arrested. They were in a caravan at the back of the property.

The evidence located

[14]Police subsequently obtained a search warrant for the property, finding:

(a)approximately six kg of prepared cannabis.9

(b)100 cannabis plants within the grow room, including 87 larger plants that included plants with harvestable ‘head’ material. There were also fans, heaters, light bars and a large extraction filter system.

(c)24 cannabis plants ranging from 30 cm to 1.2 m in height, located near the campervan where police apprehended Mr McCreedy.

8      Constable Smith indicated in cross-examination that he thought as or just before the group were entering, he said “I have obtained consent”. But, when questioned by the Judge later, Constable Smith confirmed that he could not recall if he had something like “we have consent” or not.

9      2.6 kilograms was located in the central bedroom and 3.3 kilograms in various locations in the rest of the property.

(d)An exercise book with a list of individuals with sums of money next to their names.

(e)20 rounds of .243 calibre ammunition.

(f)$76,850 in cash, and evidence of electricity diversion.

District Court decision

[15]After the voir dire the Judge gave a brief oral judgment.

[16]              The Judge found the evidence established that police communications were told that Ms Ashwin did not own the property; police did not obtain a search warrant until after going into the property; and no police officer invoked the Search and Surveillance Act 2012.

[17]              He considered it also “very likely that police officers dispatched to the address heard of the allegation of drugs at the address and would have heard that from police communications”.10

[18]Addressing whether the evidence was improperly obtained, the Judge found:11

… [T]he police did not have consent from a person able to give it to enter the property at 81 Niblett Street. The police knew Ms Ashwin was not the owner or the occupant of the property. There was no search warrant at the time and the Search and Surveillance Act was not invoked. There was no reason requiring an immediate entry into the property as there was no apparent risk to life or property.

Police were not aware that the allegations of Ms Ashwin about the two burglars at the address was a lie. Nevertheless, she had told the police that those two persons had left the address. There was no expectation of anyone else being inside the address.

[19]              Therefore, the Judge held, the police entry into the property was unlawful and the evidence was improperly obtained.

10 At [6].

11     At [7]–[8].

[20]On the balancing exercise to determine admissibility, the Judge reasoned:12

First this was a residential property with a high expectation of privacy. The police officers could and should have followed lawful procedures. There was no apparent risk to life or property that might justify departure from lawful procedures. The charges faced by the defendants are relatively serious and the evidence obtained is highly probative to the charges. However, cannabis is a class C drug only, which recognises it does not cause the same level of risk and damage to the community as a class A or B drug would.

[21]              Describing it as a “finely balanced” decision, the Judge found exclusion was not disproportionate to the impropriety.13 Accordingly, the evidence should be excluded.

Leave

[22]              The application for leave was directed to be heard together with the appeal.14 The overall criterion remains whether it is in the interests of justice to grant leave for a pre-trial appeal.15

[23]              I am satisfied the test is met. The excluded evidence is real evidence critical to the prosecution case. Without leave, the prosecution is at an end. No other remedy is available to police to remedy the contended error. While this reality is not determinative, on any view, the leave decision cannot be described as finely balanced given the primacy of the evidence and the nature of the conduct alleged in the charges. No trial date is set; delay therefore does not arise. The proposed appeal is meritorious, notwithstanding it is focused on the second stage of the Judge’s determination— which, as noted, the Judge himself described as finely balanced. The challenges to the sufficiency of the reasons and findings both raise legitimate questions to be determined on appeal, subject to the usual deference to the advantages enjoyed by the first instance Court.16

12 At [9].

13 As expressed, the Judge found exclusion not to be disproportionate to “the impropriety alleged in the charges against [Mr McCreedy and his two co-defendants]”. This formulation on its face frames the test in the wrong terms. Where evidence is found to be improperly obtained, s 30(2)(b) requires the court to determine whether exclusion is proportionate to that impropriety, not the impropriety within the alleged offending itself, as is clear from the terms of s 30.

14 See Criminal Procedure Act 2011, ss 215 and 216.

15 W (CA624/2022) v R [2023] NZCA 397.

16 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and [13].

[24]Leave is granted, accordingly.17

Analysis

[25]              It is accepted the entry was unlawful, but the appeal requires consideration of two of the factors relevant to the balancing exercise: the nature of the impropriety and the seriousness of the alleged offending.

Issue one: what was the nature of the impropriety?

[26]              On the first issue, Mr Sinclair for the appellant submits there was no transparent or adequate analysis of the nature of the impropriety; in particular, whether it was deliberate, reckless, or done in bad faith.18 In omitting this, the Judge’s reasoning failed to meet the requirement to explain how the s 30 factors he relied on bear on the determination that exclusion is proportionate to the impropriety.19

[27]On a correct analysis, Mr Sinclair argues, this was low level impropriety.

[28]              For the respondent, Mr Waugh notes that it was not obligatory that the Judge consider the nature of the impropriety by reference to the s 30(3) factors in conducting the s 30 analysis. This is correct as far as it goes. The admissibility of improperly obtained evidence (including evidence obtained through a breach of the New Zealand Bill of Rights Act 1990) is to be determined under s 30 by a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.20 The s 30(3) factors which may be assessed by the judge in that process are not mandatory. But except in extraordinary circumstances consideration of the illegality will inevitably be relevant to the balancing exercise, as it was here.

17 The appeal therefore proceeds as a general appeal. It requires an evaluative assessment by this Court, having regard to the reasoning of the District Court Judge if appropriate: R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49]–[53].

18 Evidence Act, s 30(3)(b).

19 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [59], per Elias CJ. Citing this passage, the Court in R v Reti [2020] NZSC 16, [2020] 1 NZLR 108 at [73] remarked that “[w]hile the s 30(2) determination does not require the court to proceed through all of those matters listed in s 30(3)(a)– (h), it is necessary to identify the factors that the court has weighed both for and against the exclusion of evidence.

20 Evidence Act, s 30(2)(b).

[29]              The Judge did not make any express finding or expressly address the question whether the police conduct was deliberate, reckless or involved police acting in bad faith. Mr Waugh submits the Judge “clearly engaged” with the level of impropriety “by his finding that in a matter of relative seriousness, exclusion was proportionate to that impropriety”. But that submission is unpersuasive: it fails to point to any reasoning in the judgment in support, relying instead on the conclusion reached to infer the Judge must have done so.

[30]              In any event, Mr Waugh contends the police were either reckless or, at a minimum, “careless and overly casual”.

[31]              What then was the nature of the impropriety? To assess this issue, it is helpful to set out briefly the evidence from the two other police witnesses and Ms Ashwin about the nature of the entry into the property.

Constable Murphy

[32]              Constable Murphy believed he arrived at the address with Constable Docherty. Ms Ashwin greeted them and said she had seen two males inside the address and the front door open. Further, she told them she had been trying to get hold of her husband that morning, without success. That was why she had come to Niblett Street, which Constable Murphy understood was her husband’s work address. The constable did not know where Ms Ashwin lived.

[33]              Constable Murphy recalled Constable Smith arrived before the constables entered the house “to see if those two males had committed a crime or if they were still present.” As noted, Constable Murphy was told by Ms Ashwin that she “wanted us to make sure it was safe inside”, and that:

There were two people in the middle of the house, she was not sure if they were still inside but they had run towards the back and she did not know if they had completely left the property.

[34]              Constable Murphy’s evidence was he interpreted her request to make sure the house was safe as consent to enter.

Constable Docherty

[35]              Constable Docherty thought he had travelled with Constable Smith. His evidence was the constables entered to clear the house: to check for offenders. He followed Constable Smith inside.21 It was unnecessary to consider the Search and Surveillance Act, in Constable Docherty’s view, “[b]ecause [he] asked if [the constables] had permission to go through from the informant”. Unlike the other constables, Constable Docherty remembered the radio call mentioning the informant’s belief that marijuana would be present.

Ms Ashwin’s evidence

[36]              It is common ground Ms Ashwin lied to police about her reasons for being at the address, and that the police were unaware of her deceit.

[37]              Ms Ashwin’s recollection, as Mr Sinclair submits, was rather limited and equivocal. She could not remember if she consented to entry. She testified she was questioned by one of the constables who arrived later and seemed to be “the boss”, and acknowledged lying about why she was there. She could not say more about their conversation.

[38]              Ms Ashwin did not have a key to the house and had not lived there for ten years. When challenged in cross-examination about having no connection with the house, she responded: “it depends how you look at it and what way you look at it, the property… I have yeah rights”.

The unlawfulness: absence of actual consent

[39]              Based on the evidence, the unlawfulness turned on whether police were entitled to undertake a warrantless entry either by consent22 and/or to avert risk to safety.23

21     This being inconsistent with Constable Smith’s evidence noted above at [12] that he “entered the address behind Constables Murphy and Docherty”.

22     Search and Surveillance Act 2012, s 93.

23     Search and Surveillance Act, s 14.

[40]              Although the evidence varied, there is no contest that the officers thought   Ms Ashwin gave her consent to the search. Notwithstanding this, as the Judge found, police did not have lawful consent as in fact Ms Ashwin neither owned nor occupied the house. Reasonable reliance upon apparent authority for a consent search under the Search and Surveillance Act is insufficient.24 For this reason, and as Mr Waugh aptly puts it, it was a “flawed search by consent”.

[41]              But it is clear that the officers were not indifferent to obtaining consent from an authorised person, and this was relevant to the assessment of the nature of the impropriety.

[42]              The Judge found further that police knew Ms Ashwin was neither an owner nor occupier. He noted that police communications were told that Ms Ashwin did not own the property. Certainly, the evidence of all three officers indicates that it was clear (to them) Ms Ashwin did not live there. But Constable Smith’s unchallenged evidence was he believed neither spouse  lived  there  and  potentially  both  were  owners:  Ms Ashwin told him the address was “hers and her husband’s”. Further, and recalling that the police were unaware the burglary report was false, it was reasonable for the constables to treat Ms Ashwin as having apparent authority to consent to entry; it was unrealistic to consider that notwithstanding the spousal relationship this might not be so. Therefore, it was not open to the Judge to conclude as he did on the question of knowledge, absent any explanation why he rejected Constable Smith’s evidence (and of the basis to do so) on this aspect.

The unlawfulness: no risk to safety

[43]              The Judge also found there was no reason requiring immediate entry, as there was no apparent risk to life or property. I agree, as Mr Sinclair submits the Judge’s remark that no reason existed for the constables to depart from “lawful procedures” during their search is confused. Entry to avert risk to safety and entry by consent were the relevant powers the constables relied on to carry out their search, and there was only an issue of compliance with the thresholds under ss 14 and 93 of the Search and Surveillance Act.

24     Section 94(c).

[44]              I consider on the facts this enquiry was more nuanced than the Judge found, and does not disclose recklessness. On any view there was urgency—the indication being that two burglars had recently left and it was uncertain whether they (or other co-offenders, or potentially Mr McCreedy) might remain upon the property. The officers did not know they were victims of a ruse. There is force in Mr Sinclair’s submission that considered from another angle the police might fairly have been criticised for failing to clear the house, had the burglary report been genuine.

[45]              In broadly analogous circumstances, an unlawful entry by police responding to an urgent report of a burglary was considered in Mackey v New Zealand Police.25

[46]              In that case, an informant reported a burglary by three men at a neighbouring house. By the time police arrived it was known the men had left in a car. It was also known, “to the Police as a cohort”, that the resident was not home, as the informant had reported that also. The officers checked whether the house was secure. One of them tried the front door and found it open. That officer looked inside and saw things which made him think there had been a struggle and that he should check that any occupants were alright. This led to the discovery of a cannabis operation including 235 immature plants (mostly seedlings), heat lamps and ventilation, and the diversion of electricity.

[47]              As in the present case, it was accepted that the entry was unlawful. However, contrary to the first instance assessment that there was a “grave” breach, and the police actions were “deliberate and reckless”, Simon France J concluded on appeal that the impropriety involved was generally low.26

[48]              I accept, as Mr Sinclair submits compared with Mackey, the situation the constables faced presented a more compelling case for entry. Again, they did not know they were victims of a ruse. There was a real possibility Mr McCreedy could be inside

25 Mackey v New Zealand Police [2017] NZHC 2567.

26 On a second appeal, the Court of Appeal remitted the case to the District Court to enable the admissibility of the evidence to be reconsidered with evidence from the key police witness. The Court of Appeal found there had been inadequate evidence on the basis of a job sheet record only before the Courts below and thus no opportunity to the defence to cross-examine the officer: Mackey v New Zealand Police [2018] NZCA 124 at [21]. Simon France J’s analysis remains relevant given the procedural error addressed by the Court of Appeal is not present in this case.

and had been hurt: he was unaccounted for; a burglary had occurred minutes earlier; and his wife had gone there thinking he might be present and urged police to check the property were safe. It was uncertain whether offenders remained on the property, or how many there were. For similar reasons, I do not agree that the police should first have investigated other avenues before looking into the property as Mr Waugh contends—their actions in entering, while unlawful, were not reckless and there is no suggestion of bad faith.

[49]              At worst, I consider, the police acted hastily.27 It is that haste which may explain why Constable Smith did not interrogate further whether Ms Ashwin, who presented as someone with authority to authorise a search, could give lawful consent to the search.28 However, haste is not synonymous with recklessness in this context.

[50]              Nor is it relevant that the search had its genesis in a calculated lie designed to cause Mr McCreedy a run-in with the law when there was no basis whatsoever for police to understand that  information  to  be  false.  No  notion  of  unfairness  of  Ms Ashwin’s conduct is to be imputed to police for this reason.

[51]              Finally, Mr Waugh submits that if the Court finds that there was no bad faith or recklessness on behalf of the officers, the police actions were at the very least casual or even careless. He argues that as held in Wind v Police, that should favour the exclusion of the evidence.29

[52]              As Mr Waugh reminds, none of the officers invoked any powers under the Search and Surveillance Act prior to entering the address notwithstanding that they (at least Constable Smith) had knowledge of the marijuana before arriving at the address. But although the Judge noted the information conveyed to the dispatcher about drugs and inferred a likelihood the officers heard that from police communications, the constables were not challenged on the basis of any ulterior motive in entering, nor to suggest that safety and the location of any remaining offenders were not genuine

27     R v Williams [2007] NZCA 52.

28  On the factual matrix I agree that although Police omitted to advise Ms Ashwin under s 93 that   she was not required to give consent, it is unrealistic and artificial to suggest this was necessary given she requested they enter.

29 Wind v Police [2024] NZHC 1907 at [55(b)].

purposes. It was not put to the officers or submitted that police entered on a pretext to search for drugs. The Judge made no adverse credibility findings on their reasons for entry or belief in consent. Further, even if the constables had heard about cannabis, it cannot be inferred from the discovery of a commercial operation that this is what they suspected might be present (as opposed to a minimal amount related to personal use, inconsequential to the decision to enter).

[53]              I conclude, having regard to all these matters, the Judge omitted adequately to consider the nature of the impropriety which I find was at the lower end. It is low-end impropriety to check a house immediately after a reported burglary. It is lower still when an occupant is unaccounted for, other offenders may be present and there is consent to enter from a purported owner.

Issue two: seriousness of the allegations

[54]The Judge considered the allegations were “relatively serious”.

[55]              Mr McCreedy is charged with cultivation of cannabis, possession of cannabis for supply, theft, unlawful possession of ammunition, and money laundering. A co- defendant, Mr McCready-O’Neil, is charged with money laundering. A third co- defendant, Ms Signal, is charged with cultivation of cannabis and possession of cannabis for supply.

[56]              Mr McCreedy is alleged to have laundered $23,000 between 14 February and 12 March 2024. Combined with the seized cash, this indicates a turnover of nearly

$100,000. Including the $40,000 laundered into accounts belonging to Liam McCready-O’Neil, the figure is $139,850.

[57]              The allegations here involve greater amounts of cannabis than in a case cited by Mr Waugh, Schaaf v Police.30 The allegations are also quite different than the further case cited, Wind, which concerned a low quantity of methamphetamine indicative of street-level dealing to fund an addiction, an offensive weapon (being a hammer) and a modified paintball gun.31

30     Schaaf v Police [2019] NZHC 179.

31     At [55(d)].

[58]              Considered in the round, the alleged offending is serious and there is no proper basis to depart from  that  view  because  it  involves  (only)  Class  C  drugs.32  As Mr Sinclair submits, the alleged offending would fall within category three—the most serious category of offending—of the tariff judgment. Aside from the sheer quantities involved, the other evidence of the alleged operation at the address indicates clear commerciality.

Conclusion

[59]The Judge described he found it a finely balanced decision.

[60]              Weighing all matters and having regard to the nature of the impropriety and the seriousness of the offending, I conclude the balance clearly tips in favour of admission. I am satisfied that exclusion of the evidence would be disproportionate to the impropriety.

Result

[61]The appeal is allowed.

[62]The evidence is admissible.

………………………………………

Preston J

Solicitors:

Crown Law Office, Wellington

Counsel:
Crowley Waugh, Barristers & Solicitor, Whanganui

32     In Mackey v New Zealand Police, above n 25, at [21] Simon France J had no difficulty in treating comparable offending of a less significant nature as serious for the purposes of s 30.