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…

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 Police v McCreedy

Details

AGLC: Police v McCreedy [2025] NZHC 1721
Case: [2025] NZHC 1721
Decision Date: 27 June 2025

CaseChat Overview and Summary

The New Zealand Police appealed against a District Court decision to exclude evidence obtained from a warrantless search of Mr. McCreedy’s house. The search was conducted in response to a report of the flight of two burglars from the address, which led to the discovery of a commercial scale cannabis operation. The District Court judge found the entry unlawful and, in a finely balanced decision, determined that exclusion was a proportionate response to the impropriety. The police accepted the unlawfulness of the search but argued the exclusion was disproportionate and the evidence should be admitted. The Court of Appeal considered the nature of the impropriety and the seriousness of the alleged offending. The Court found the nature of the impropriety was low-end, as police acted hastily in response to a reported burglary and the presence of an unaccounted-for occupant. The seriousness of the alleged offending was significant, given the quantities involved and evidence of a commercial operation. The Court concluded that the balance tipped in favour of admission, and the evidence should be admitted. The appeal was allowed.

Orders