R v Fountain CA176/05

The appellants in this case sought leave to appeal against a ruling by Winkelmann J that evidence seized during a search of a property at 50 Sycamore Drive, Sunnynook, Auckland, was admissible. The appellants, two of whom were occupiers of the address, were indicted on multiple counts including possession of precursor substances, manufacturing and selling methamphetamine, receiving stolen property, and cultivating cannabis. The appeal was based on three grounds: the illegality of an earlier search of a vehicle driven by Mr Blair Taylor and of a passenger in his vehicle, Ms Jodie Allen; the flawed affidavit evidence submitted by Detective Lunjevich in support of the application for a warrant to search for evidence relating to methamphetamine; and the illegality of the seizure of items of allegedly stolen property located during the search of 50 Sycamore Drive.

The Court of Appeal examined the sufficiency and accuracy of the material contained in Detective Lunjevich’s supporting affidavit and whether it contained tainted material as alleged. Winkelmann J found that while there were deficiencies in the affidavit, there was sufficient material before the judicial officer to justify granting the warrant. The Court of Appeal concurred with Winkelmann J’s assessment that the warrant would still have been granted without the inclusion of the tainted material and that the search of 50 Sycamore Drive was reasonable. Therefore, the evidence obtained during that search is properly to be admitted at the appellants’ trial.

In relation to the premature removal of some items from the property some 17 minutes prior to the second warrant being issued, the Court of Appeal agreed with Winkelmann J's finding that, despite the unreasonableness of the premature seizure, the Police were lawfully in the premises and searching pursuant to a valid warrant, so that the premature seizure amounted only to a trivial breach. The evidence of those items is therefore properly to be admitted at the appellants’ trial.

Leave to appeal was granted, and the appeal was dismissed.