R v Avenell - [2007] NZCA 532

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA488/07 [2007] NZCA 532

THE QUEEN

v

MATTHEW JOHN AVENELL

Hearing: 15 November 2007
Court: Wilson, Chisholm and Potter JJ Counsel: D G Young for Appellant
S B Edwards for Respondent

Judgment: 22 November 2007 at 10.30am

JUDGMENT OF THE COURT

A Leave to appeal is granted. B The appeal is dismissed.
CNot to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law
report or law digest permitted.

R V MATTHEW JOHN AVENELL CA CA488/07 22 November 2007

REASONS OF THE COURT

(Given by Chisholm J)

[1] Mr Avenell faces four charges laid in the District Court at Auckland: possession of MDMA for supply; possession of methamphetamine; and possession of a pipe (two). The Crown case relies on evidence arising from a search of Mr Avenell’s motor vehicle. In the District Court he unsuccessfully challenged the admissibility of this evidence.

[2] Leave is sought to appeal against Judge Hubble’s ruling that the evidence is admissible. While the appellant does not dispute that he consented to the vehicle being searched, he claims that his consent was not freely given because he was not told of his right to refuse consent and that in all the circumstances his consent should be considered ineffective. If the Court determines that his evidence was properly obtained, he argues that the balancing process under s 30 of the Evidence Act 2006 should render the evidence inadmissible.

Background

[3] At about 1am on 10 July 2006 a police constable went to a residential address at Hatfields Beach which shared a long driveway with several other properties. He was looking for a Mr Brough. As the constable was leaving the address, having failed to locate Mr Brough, he noticed a vehicle drive down the driveway, stop, and then quickly reverse out again.

[4] In the belief that Mr Brough was in the vehicle, the constable gave chase. As it happened, Mr Brough was a passenger in the vehicle which was driven by the appellant. However, while the appellant’s vehicle was out of sight of the pursuing police officer, Mr Brough left the appellant’s car and made good his escape.

[5] Eventually the police officer stopped the appellant’s car and spoke to the appellant. It was the constable’s evidence that when he asked the appellant if he had his driver’s licence on him the appellant “kept going into a bag” on the front passenger’s seat of the car and appeared to be “extremely agitated and nervous”.

The police officer then asked the appellant whether he had anything that he should not have and the appellant replied “No”.

[6] It is not disputed that the constable then asked the appellant if he would consent to his vehicle being searched, to which the…

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 Avenell

Details

AGLC: R v Avenell [2007] NZCA 532
Case: [2007] NZCA 532
Decision Date: 22 November 2007

CaseChat Overview and Summary

In the case of R v Avenell, the appellant, Matthew John Avenell, faces four charges related to possession of MDMA for supply, methamphetamine, and possession of a pipe. The Crown's case against him is based on evidence obtained from a search of his motor vehicle. Avenell appealed against the ruling of Judge Hubble in the District Court, who found the evidence to be admissible. Avenell contended that his consent to the search was not freely given because he was not informed of his right to refuse consent, and that under the circumstances, his consent should be deemed ineffective.

The court had to determine whether the evidence obtained from the search was admissible under the New Zealand Bill of Rights Act 1990 and the Evidence Act 2006. The legal issues included whether the appellant's consent to the search was given freely and whether the evidence should be excluded under s 30 of the Evidence Act. The court examined the circumstances surrounding the search and the interaction between the appellant and the police officer.

The Court of Appeal found that Judge Hubble's findings of fact were not erroneous and that the appellant had indeed been informed of his right to refuse consent. The court also concluded that the search was reasonable given the lawful stopping of the vehicle and the appellant's consent to the search. The court found that the facts of this case differed from the case of R v Anderson, as there was no indication that the police request to search the vehicle was a demand. Consequently, the appeal was dismissed, and leave to appeal was granted.

The final orders of the court were that leave to appeal was granted, and the appeal was dismissed. The decision was not to be published in the news media or on the internet until the final disposition of the trial, but publication in a law report or law digest was permitted.

Orders