R v Iwihora - [2007] NZCA 2

IN THE COURT OF APPEAL OF NEW ZEALAND

CA463/06 [2007] NZCA 2

THE QUEEN

v

MALCOLM ERNEST IWIHORA

Hearing: 1 February 2007
Court: O’Regan, Robertson and Arnold JJ Counsel: H E Juran for Appellant
J C Pike for Crown

Judgment: 5 February 2007 at 2.00pmat 2 pm

JUDGMENT OF THE COURT

The application for leave to appeal is granted but the appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

R V MALCOLM ERNEST IWIHORA CA CA463/06 5 February 2007

[1] The appellant faces trial in the High Court on five charges, possession of methamphetamine for supply, possession of equipment capable of being used in the manufacture of a controlled drug, possession of material capable of being used in the manufacture of a controlled drug, unlawful possession of a pistol and unlawful possession of ammunition. The prosecution relies on evidence obtained as a result of a search of a car which had been driven by the appellant. This search took place after the car had been involved in a collision. The appellant was a disqualified driver at the time, and had driven away from the scene of the collision, but had been later stopped by the actions of the driver of the other vehicle who alerted the police.

[2] The appellant was arrested for driving while disqualified and his vehicle was seized. The police officer who remained with the vehicle, waiting for the arrival of the tow truck, noticed in the pocket of the driver’s door (which had been left open) two plastic point bags with what appeared to be crystallised powder inside of them. He then invoked the search power under s 18(2) of the Misuse of Drugs Act, and the resulting search yielded methamphetamine, phosphorous acid (used in manufacturing methamphetamine), digital scales, equipment commonly used in manufacturing methamphetamine, mobile phones (on which were text messages said to indicate methamphetamine dealing), tick lists and a loaded firearm.

[3] Counsel for the appellant, Mr Juran, challenged the admissibility of the evidence obtained as a result of this search, and the Crown applied for an order under s 344A of the Crimes Act 1961 that the evidence was admissible at the appellant’s trial. That application was heard by Harrison J, and he ruled the evidence admissible: R v Iwihora HC AK CRI-2006-055-403 29 November 2006. The appellant seeks leave to appeal against that decision. The appellant’s High Court trial is due to start on Wednesday 7 February 2007, and in order to avoid any delay to the trial, the application was heard on 1 February 2007.

[4] The appellant’s case is that the search was both unlawful and unreasonable, and that, in applying the balancing test mandated by the decision of this Court in R v Shaheed [2002] 2 NZLR 277, the evidence ought to have been excluded. The main focus of the argument in this Court was the application of Shaheed to the present case, but we will deal briefly with the lawfulness and reasonableness of 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 Iwihora

Details

AGLC: R v Iwihora [2007] NZCA 2
Case: [2007] NZCA 2
Decision Date: 5 February 2007

CaseChat Overview and Summary

The appeal in the matter of the Crown versus Malcolm Ernest Iwihora was heard by O'Regan, Robertson, and Arnold JJ in the Court of Appeal of New Zealand. The appellant, Iwihora, faces trial on five charges related to drug possession and firearm offenses. The central issue in this appeal is the admissibility of evidence obtained from a search of Iwihora's vehicle following a traffic collision. Iwihora was a disqualified driver at the time of the incident, having fled the scene of the collision. The police officer who remained with the vehicle noticed two plastic bags containing a crystallized substance and invoked a search power under the Misuse of Drugs Act. The appellant's counsel argued that the search was unlawful and unreasonable, and thus the evidence should be excluded under the balancing test established by the Court in R v Shaheed.

The court first examined whether the search was lawful, focusing on whether the police officer had reasonable grounds to believe there were drugs in the vehicle. The officer's observation of the plastic bags with a crystalline substance, combined with the information from the other vehicle's occupants, was deemed sufficient to establish reasonable grounds. The court also found that the officer's belief related to a Class A drug, thus satisfying the requirements of Hill v Attorney-General.

Next, the court considered whether the search was reasonable. Although the appellant argued that the search was unnecessary as the vehicle was already secured, the court proceeded on the assumption that the search was unreasonable. Moving to the Shaheed analysis, the court assessed several factors, including the seriousness of the privacy breach, the nature of the offending, and the reliability of the evidence. The court found that while there was an intrusion into Iwihora's privacy, it was relatively minor given the circumstances. The seriousness of the alleged offenses and the reliability of the evidence strongly favored admissibility. The court concluded that excluding the evidence would not serve the public interest, given the circumstances.

The Court of Appeal granted leave to appeal but dismissed the appeal, upholding the High Court's decision to admit the evidence. The appellant's trial proceeded with the contested evidence being admissible.

Orders