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THE JUDGMENT AND REASONS THEREFOR ARE NOT TO BE PUBLISHED IN THE NEWS MEDIA, OR ON THE INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL.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BAn order is made that this judgment and the reasons therefore are not to be published in the new media, or on the internet or in any other publicly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 further submissions.

[7]      Even  if,  contrary  to  that  tentative  view,  the  search  was  unlawful  and unreasonable under s 21 of the Bill of Rights, we nonetheless were clear that the evidence was admissible on an application of the test set out in R v Williams [2007] NZCA 52. Williams was decided after argument in the High Court in the present case and just the day before Baragwanath J delivered his decision and represents a fundamental reassessment by this court of the admissibility of evidence flowing from an illegal or unreasonable search or seizure.   We see no point in setting out our Williams analysis, as it may be the search was not in breach of the Bill of Rights at all.

[8]      We mention just one further matter.   Both Mr Gray’s counsel and Crown counsel, Ms Hastie, had difficulties with [26]-[28] of Baragwanath J’s judgment.  In those paragraphs, His Honour seemed to consider that various appellate authorities, by which he considered himself (albeit reluctantly) bound, were in breach of s 1 of the Bill of Rights 1688.  It may be Baragwanath J’s concerns in this regard are now assuaged by Williams.  We mention this point, however, because we would not want our dismissal of the appeal to be taken as acceptance of the views expressed by the judge in [26]-[28].  Since counsel chose not to engage with His Honour’s views in those paragraphs, however, we think it inappropriate to go any further.

[9]      Part  of  the  judgment  of  the  court  was  an  order  suppressing  publication (order B).   Since Mr Gray has now pleaded guilty, that order can be regarded as spent.

Solicitors:

Crown Law Office, Wellington