R v A - [2019] NZHC 293

ORDER UNDER SS 204(1), 205(1) AND 205(2) OF THE CRIMINAL PROCEDURE ACT 2011 SUPPRESSING ALL DETAILS OF THIS COURT MARTIAL APPEAL, INCLUDING THE NAME OF THE ACCUSED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-882

[2019] NZHC 293

UNDER the Court Martial Appeals Act 1953

BETWEEN

THE QUEEN

Appellant

AND

A

Respondent

Hearing: 20 February 2019

Counsel:

L M Ferris and N T O’Brien for Appellant M Mason and L Tucker for Respondent

Judgment:

28 February 2019

JUDGMENT OF THE FULL COURT

Introduction

[1] A, a member of the Royal New Zealand Navy, is facing seven charges against the Armed Forces Discipline Act 1971 (the AFDA) in relation to offering to supply a Class B controlled drug. These charges rely exclusively on evidence obtained from a cellphone seized during a search of G, a fellow member of the Navy, in relation to possession of cannabis and a bong.

R v A [2019] NZHC 293 [28 February 2019]

[2] At a pre-trial hearing on 5 November 2018, A successfully challenged the admissibility of this evidence gathered from G’s cellphone, Judge Harvey ruling the evidence inadmissible.1

Background

[3] On the morning of 17 August 2017, at about 8.37 am, two members of the Military Police, including Warrant Officer Master at Arms (WOMAA) Mathers, identified what appeared to be a bong in G’s car which was parked within Devonport Naval Base. Upon questioning under caution, G confirmed that a bong and cannabis were in the car and that they belonged to him.

[4] When Leading Military Policeman (LMP) Coates arrived at the scene, WOMAA Mathers left for the Maritime Warfare Training Centre. At about 9.07 am, he spoke with Lieutenant Commander (LTCDR) Damien Gibbs, Commanding Officer (CO) of HMNZS Wellington (G’s CO), informing him of his observation of G’s car and that G had confirmed that the items located inside the car belonged to him, that the item observed by WOMAA Mathers was, in fact, a bong and that there was cannabis in the car.

[5] Permission having been obtained from LTCDR Gibbs, G’s person, vehicle and cabin were searched. A bong, container with plant-like material believed to be cannabis, knife, grinder and empty box for synthetic urine were located in the car and seized. A urinalysis test was also undertaken, returning a “not negative” result. At some point during these searches, G’s cellphone came into the possession of the Military Police. It was not clear, on the evidence before the Court, exactly how this occurred but it may be that G had the cellphone on his person.

[6] Section 95 of the AFDA confers on a CO powers of search and seizure of property, providing relevantly:

95 Search in connection with suspected offence

(1)If a commanding officer has reasonable grounds to suspect that a person subject to this Act has in his possession any property which

1 R v Archer [2018] CMNZ.

has been unlawfully obtained or any article or thing…

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 R v A

Details

AGLC: R v A [2019] NZHC 293
Case: [2019] NZHC 293
Decision Date: 28 February 2019

CaseChat Overview and Summary

The appeal in this case was brought by the Crown against the Court Martial's decision to exclude evidence obtained from a cellphone belonging to G, a fellow member of the Royal New Zealand Navy, which was seized during a search of G's person, vehicle and cabin. The evidence derived from the search was relied upon to bring charges against A, the respondent, of offering to supply a Class B controlled drug. The Court Martial found that the evidence was improperly obtained and therefore inadmissible. The Crown appealed that decision. The appeal raised two issues: whether the search of G's cellphone was lawfully permitted by s 95 of the Armed Forces Discipline Act 1971 (AFDA), and if it was not permitted, whether the evidence discovered should be admitted pursuant to s 30 of the Evidence Act 2006. The Court found that the search of G's cellphone was not lawfully permitted by s 95 of the AFDA as the Commanding Officer (CO) did not have reasonable grounds to suspect that G had in his possession property which might be evidence relating to the commission of an offence. The Court found that the CO had approved the search on the basis of information provided by the Military Police which was false. The Court concluded that the search was unlawful and the evidence improperly obtained. The Court also found that excluding the evidence was proportionate to the impropriety and, accordingly, the appeal was dismissed.

Orders