R v Collins - [2009] NZCA 388

IN THE COURT OF APPEAL OF NEW ZEALAND
CA643/2008
CA157/2009
[2009] NZCA 388
THE QUEEN
v
RICHARD DONALD COLLINS
Hearing:30 July 2009

Court:Baragwanath, Venning and Winkelmann JJ
Counsel:M W Ryan for Appellant

M A Woolford for Crown

Judgment:4 September 2009 at 12.30pm

JUDGMENT OF THE COURT

AThe appeal against conviction and sentence on count 30 of the amended indictment presented 10 November 2008 (cultivation of cannabis at Ridge Road) is allowed and the conviction and sentence are set aside.
B In all other respects the appeals against conviction and sentence are dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
Table of Contents

Para No

(I)     8 JUNE 2004 – RUPEKE PLACE, HENDERSON, AUCKLAND  [2]
(II)     25 FEBRUARY 2005 – RUPEKE PLACE  [4]
(III)    3 AUGUST 2005 – WEST COAST ROAD, GLEN EDEN  [7]
(IV)    8 MAY 2007 – RIDGE ROAD, COATSVILLE  [10]
THE CONVICTIONS  [11]
GROUNDS OF APPEAL  [12]
GROUND (A): THE WEST COAST ROAD SEARCH AND S 61 OF THE ARMS ACT           [13]
Discussion  [16]

GROUND (B): THE SEARCH IN THE RIDGE ROAD PROPERTY ON 8 MAY 2007
was performed without a warrant and the evidence obtained
   during that search should have been ruled inadmissible  [29]
GROUND (C): THE COUNTS FROM THE FOUR EPISODES SHOULD HAVE BEEN
tried at separate trials  [36]
GROUND (D): THE VIDEOTAPED INTERVIEW OF THE APPELLANT USED TO
sustain the cannabis charges should not have been admitted                   [37]
GROUND (E): THE TRIAL JUDGE’S REFUSAL TO DISCHARGE A JUROR WHO
   COMPLAINED OF BEING UNWELL  [45]
Ground (f): Hugh Williams J’s refusal to adjourn the trial  [47]
Sentence  [48]
Decision  [57]
[1]       Richard Donald Collins appeals against convictions and sentences to an effective fifteen years six months with a minimum term of nine years resulting principally from four episodes of alleged manufacture of methamphetamine. In the following chronology those episodes are highlighted.
(i)     8 June 2004 - Rupeke Place, Henderson, Auckland
[2]       On 8 June 2004 the police were called to warehouse premises in Rupeke Place following an explosion which had partly blown out an upper floor window. A clandestine methamphetamine laboratory was found in an upstairs bedroom occupied by the appellant who was not then located.
[3]       On 14 June 2004 the appellant was interviewed by the police in the presence of his solicitor. A subsequent Institute of Environmental Science and Research Ltd (ESR) report evidencing the presence of methamphetamine had not then been completed.
(ii)25 February 2005 - Rupeke Place

[4]       On execution of a search warrant on 25 February 2005 at the same Rupeke Place address police again found a clandestine methamphetamine manufacturing laboratory together with a rifle concealed in a sofa and live rounds of ammunition. Again the appellant was not found, but he remained in occupation of the premises.
[5]       On 7 March 2005 the appellant pleaded guilty to two charges of cultivating cannabis in January and March 2004, which are unrelated to this appeal, and was sentenced to community work.
[6]       Following the appellant’s breach of community service…

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 Collins

Details

AGLC: R v Collins [2009] NZCA 388
Case: [2009] NZCA 388
Decision Date: 4 September 2009

CaseChat Overview and Summary

Richard Donald Collins appeals against convictions and sentences that result in an effective fifteen years six months with a minimum term of nine years, stemming from four episodes of alleged methamphetamine manufacture. The appeal concerns the legality of police searches, the admissibility of evidence, and the appropriateness of the sentence. The Court of Appeal finds that the search under s 61 of the Arms Act was lawful, and that the evidence obtained from the search of the Ridge Road property was admissible. The Court sets aside the conviction and sentence on count 30 of the amended indictment, relating to cultivating cannabis, due to the improper obtaining of evidence during a police interview. The Court also considers the refusal to discharge a juror and the refusal to adjourn the trial, finding no merit in those grounds of appeal. Regarding the sentence, the Court agrees that certain aggravating factors were already considered in setting the starting point, but it is satisfied that the total sentence was not excessive for such grave and sustained offending. The Court concludes that the appeal against conviction and sentence is dismissed in all respects except for the cannabis count, which is set aside.

Orders