R v Gray - [2007] NZCA 227

THE JUDGMENT AND REASONS THEREFOR ARE NOT TO BE PUBLISHED IN THE NEWS MEDIA, OR ON THE INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL. PUBLICATION IN A LAW REPORT OR LAW DIGEST IS, HOWEVER, PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA112/07 [2007] NZCA 227

THE QUEEN

v

ANTONY FREDERICK GRAY

Hearing: 16 May 2007
Court: Chambers, John Hansen and Priestley JJ Counsel: R M Mansfield for Applicant
K B F Hastie for Respondent

Judgment: 6 June 2007

Reasons: 6 June 2007

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted, but the appeal is dismissed.

BAn order is made that this judgment and the reasons therefore are not to be published in the new media, or on the internet or in any other publicly

R V GRAY CA CA112/07 6 June 2007

accessible database until final disposition of the trial. Publication in a law report or law digest is, however, permitted. [See [9] of reasons].

REASONS OF THE COURT

(Given by Chambers J)

[1] On 21 February last year, the police charged Antony Gray with a number of charges, the most serious of which was possession of the class A controlled drug methamphetamine for the purpose of supply. The charges followed a search of Mr Gray’s car and person, purportedly pursuant to s 18 of the Misuse of Drugs Act
1975.

[2] Mr Mansfield, for Mr Gray, advised the Crown he challenged the admissibility of what was found on the search on the basis that the search had been unreasonable and had breached Mr Gray’s rights under s 21 of the New Zealand Bill of Rights Act 1990. The Crown then applied under s 344A of the Crimes Act 1961 for an order that the evidence of what was found in the car and on Mr Gray’s person was admissible. Baragwanath J heard the application. In a reserved decision, he ruled that, notwithstanding the unreasonableness of the search, the evidence obtained from it was admissible: HC AK CRI 2006-044-1207 8 March 2007.

[3] Mr Gray sought leave to appeal against that decision. We heard that appeal on 16 May.

[4] Because Mr Gray’s trial was pending, we delivered our judgment on 23 May. We were satisfied that the disputed evidence was admissible, but we required further submissions from counsel before giving our reasons. Those further submissions have never been received, as Mr Mansfield has advised that, following our decision, Mr Gray decided to plead guilty. In those circumstances, detailed reasons are unnecessary and it would be a waste of public money to require counsel to file the further submissions we requested.

[5] We considered the evidence admissible for the following reasons.

[6] First, we think it arguable, contrary to the view formed by Baragwanath J, that the search of the car and its occupants was lawful. We do not go into the reasons for that tentative view, as that was the topic on which we required 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 Gray

Details

AGLC: R v Gray [2007] NZCA 227
Case: [2007] NZCA 227
Decision Date: 6 June 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Antony Frederick Gray (CA 112/07) was heard on 16 May 2007, and judgment was delivered on 6 June 2007. The applicant, Antony Frederick Gray, sought leave to appeal against a ruling by Baragwanath J that the evidence obtained from a search of his car and person was admissible. The search was conducted under section 18 of the Misuse of Drugs Act 1975, and the applicant argued that the search was unreasonable and violated his rights under section 21 of the New Zealand Bill of Rights Act 1990. The Crown argued that the evidence obtained should be admitted, and the Court of Appeal heard the application for leave to appeal on the same day as the initial hearing.

The legal issues before the Court of Appeal were whether the search of Gray's car and person was lawful and, if not, whether the evidence obtained should still be admissible. The Court of Appeal considered the evidence admissible for the following reasons: first, it was arguable that the search was lawful, and second, even if the search was unlawful, the evidence was still admissible under the test set out in R v Williams [2007] NZCA 52. The Court of Appeal also noted that both counsel had difficulties with certain paragraphs of the High Court's judgment, but since counsel chose not to engage with those views, the Court of Appeal did not consider it appropriate to go any further.

The Court of Appeal granted leave to appeal, but dismissed the appeal as Gray had pleaded guilty, and the disputed evidence was now irrelevant. The Court of Appeal made an order that the judgment and reasons for judgment were not to be published in the media or on the internet until the final disposition of the trial, but publication in a law report or law digest was permitted.

Orders