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R v Antonievic

R v Antonievic

Case [2015] NZHC 230 20 February 2015

Improperly Obtained Evidence

Unfairness

Proportionality

Seriousness of Charges

Criminal Law

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ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-042-000869

CRI-2011-042-000876 [2015] NZHC 230

THE QUEEN

v

TAYLOR IVAN ANTONIEVIC THOMAS JOSEPH BASHFORD NATALIE JEAN BUSCH
COLIN CHINNOCK JORDAN JOHN DALY

JASON PETER GEORGE FRIEND JASON PAUL GRIFFITHS GRANT ROY HAYWARD TERRY JONES
HAYLEY JOANNE KIRKWOOD MARK JAMES LEE
RUSSELL PHILLIP LLOYD JOSEPH MARK PAHL GREGORY JOHN PAGE ROGER PAUL PATRICK
GLYN PATRICK RUTLEDGE CRAIG PETER SMITH DAMIAN JOHN STACEY ROBERT JOHN STEWART GLEN ROSS THOMPSON

R v ANTONIEVIC [2015] NZHC 230 [20 February 2015]

Hearing: 3-4 February 2015

Counsel:

J M Webber for Crown
P B H Hall QC for Defendants Bashford, Lee and Stacey
K H Cook for Defendants Griffiths and Kirkwood
J R Rapley for Defendant Patrick
C W Stevenson for Defendant Thompson
S W Rollo for Defendants Friend and Pahl
C P Stevenson and T H A Spear for Defendant Hayward
A J D Bamford for Defendants Jones, Lloyd and Page
J C S Sandston for Defendant Rutledge

Judgment:

20 February 2015

JUDGMENT (No 1) OF COLLINS J

[Pre-trial ruling on improperly obtained evidence]

Introduction

[1] This judgment is the first of two I am delivering in relation to applications brought by the defendants to have evidence excluded from their trials pursuant to s 30 of the Evidence Act 2006 (the Act).1

[2] In this judgment I explain why I intend to exclude evidence which was improperly obtained by the police in relation to a number of the charges. Exactly which charges are affected by this judgment will be explained in the second judgment which will be delivered after I conduct a further hearing in the Nelson High Court on 6 March 2015.

[3] The evidence which is to be excluded was obtained by the police as a consequence of the police embarking on a fictitious scenario which involved a false search warrant, a fictitious prosecution of an undercover officer and abuses of the District Court criminal process by the police (false warrant and prosecution
scenario).

1 I explain s 30 of the Evidence Act 2006 in paragraphs [84] to [88].

[4] I am, however, not excluding evidence in relation to two categories of charges, namely:

(1)a small number of charges and parts of charges based on evidence obtained by the police prior to them engaging in the false warrant and prosecution scenario; and

(2) the “serious” charges faced by some defendants even though

improperly obtained evidence underpins those charges.

[5] The issue as to which charges are “serious” will be the focus of my second judgment. That decision will require a careful analysis of the allegations. The nature of a charge will not necessarily be determinative of whether or not a charge is “serious”.2

[6] In Part I of this judgment I explain the background to the defendants’ applications. The defendants are all members or associates of the Red Devils…

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 Antonievic

Details

AGLC: R v Antonievic [2015] NZHC 230
Case: [2015] NZHC 230
Decision Date: 20 February 2015

CaseChat Overview and Summary

The case R v Antonievic involved a group of defendants, all members or associates of the Red Devils Motorcycle Club in Nelson, who were charged with a wide range of offences including drug possession and distribution, firearms offences, and conspiracy to cause grievous bodily harm. The defendants sought to have evidence obtained by the police excluded from their trials on the grounds that it was improperly obtained. The police had embarked on a fictitious scenario involving a false search warrant, a fictitious prosecution of an undercover officer, and abuses of the District Court criminal process. The court was required to decide whether the evidence obtained by the police should be excluded under section 30 of the Evidence Act 2006. The court also needed to consider whether there were any other grounds for excluding the evidence under section 8(1) of the Act or under the common law. The court concluded that evidence obtained by the police after the commencement of the false warrant and prosecution scenario should be excluded in relation to charges that were not "serious". The court found that the false warrant and prosecution scenario was a pivotal feature of the police investigation and had a significant impact on the evidence obtained. The court also found that the police had breached enactments and had acted unfairly when they forged the search warrant and filed in court the false information alleging the undercover officer had committed an offence. However, the court determined that evidence in relation to any serious charges should not be excluded, as it was in the overall interests of society that the defendants charged with serious offences should be brought to justice. The court also dismissed the applications to exclude evidence under section 8(1) of the Act and under the common law.

Orders