R v Chadd CA114/06 - [2006] NZCA 449

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN PARA [43]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT
OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/06

THE QUEEN

v

CHE LESLIE CHADD

Hearing: 24 July 2006
Court: Robertson, Goddard and Gendall JJ Appearances: R J Stevens for Applicant
B J Horsley for Crown

Judgment: 4 September 2006 at 3pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

BThe appeal is allowed and the evidence of the applicant’s statements is excluded.

COrder prohibiting publication of the judgment and any part of the proceedings (except the result as set out in para [43]) in News Media or

R V CHADD CA CA114/06 4 September 2006

on Internet or other publicly available database until final disposition of

trial. Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Gendall J)

[1] The applicant is awaiting trial in the District Court at Wellington on a count of being a party to the offence of possession of the class B controlled drug ecstasy for the purpose of supply, through tampering with the evidence against a principal party in order to enable that person to escape conviction. He seeks leave to appeal against a pre-trial ruling that two statements he made to separate police officers should be admitted in evidence.

Background

[2] On 24 April 2004 a man named Paul Richard Connolly was admitted to Wellington Hospital and found to be in possession of a large amount of cash and drugs. Upon execution of a search warrant by the police at Mr Connolly’s flat, they found the door ajar. In the apartment a bag was found containing a syringe, three glass methamphetamine pipes, drug point bags, a quantity of cannabis material, a chemical substance later found to be ecstasy, together with labels which suggested the bag was the applicant’s. ESR analysis identified some of the drugs in the bag as being the class B drug MDMA (ecstasy) together with a small amount of the class A drug methamphetamine and plant material being the class C drug cannabis.

[3] Mr Connolly was charged with possession of ecstasy for the purpose of supply and pleaded guilty on 2 September 2004.

[4] About three months after the execution of the search warrant, on 28 July

2004, the applicant was arrested in relation to fraud charges arising from his occupation of a hotel room, together with possession of methamphetamine and

utensils apparently found on him at that time. He was later to plead guilty to those charges.

[5] The present appeal arises from the following events. On the morning of

29 July 2004 a police officer Detective Constable Barnard (who had executed the search warrant on 25 April), became aware that Mr Chadd had been arrested and was in police custody. He was directed by Sergeant…

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.

Keep reading for free

Create a free CaseChat account to read R v Chadd CA114/06 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NZCA 449
Decision Date: 4 September 2006

CaseChat Overview and Summary

The applicant, Che Leslie Chadd, is awaiting trial for his involvement in the possession of ecstasy for the purpose of supply. Chadd is appealing against the pre-trial ruling that his statements to two police officers should be admitted in evidence. On 24 April 2004, Paul Richard Connolly was found in possession of drugs and cash, and a search of his flat revealed a bag containing drugs, drug paraphernalia, and plant material. The bag was identified as belonging to Chadd. Connolly pleaded guilty to the possession charge, and Chadd was later arrested for fraud and drug possession. Chadd was interviewed by two police officers before appearing in court, and he is challenging the admissibility of his statements to the officers.

The court must decide whether Chadd's rights under the New Zealand Bill of Rights Act 1990 (NZBORA) were breached and whether the evidence should be excluded. The District Court found that there was a breach of Chadd's right to be taken before the court as soon as possible under s 23(3) NZBORA but that there was no breach of his right to silence under s 23(4) NZBORA. The court also found that there was no breach of Rule 9 of the Judges' Rules, which requires that statements be recorded in writing and signed by the person making them. The District Court admitted both statements into evidence.

The Court of Appeal found that there was a breach of Chadd's right to be taken before the court as soon as possible under s 23(3) NZBORA. The court found that Chadd's statement to Detective Constable Barnard was not made in breach of his right of silence, as he had received legal advice and chose to partially waive that right. However, the court found that Chadd's statement to Sergeant McMeeking was taken in breach of Rule 9 of the Judges' Rules because the sergeant did not take contemporaneous notes. The court found that there was a causal connection between the breach of s 23(3) and both statements, as Chadd was physically shaking and sighing during the interview, indicating that the coercive effects of custody played a real part in his decision to make the statements. The court found that the evidence should be excluded because the breach was not at the minor end of the scale, and the police actions crossed the requisite threshold. The appeal is allowed, and the evidence of both statements is to be excluded at trial.

Orders