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R v Kissling

R v Kissling

Case [2008] NZCA 559 10 December 2008

Appeal

Search Warrant

Informant Information

Admissibility of Evidence

Jurisdiction

Causation

Criminal Law

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ORDER PROHIBITING THE PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN THE NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL SAVE THAT PUBLICATION IN A LAW REPORT
OR LAW DIGEST IS PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA577/2008 [2008] NZCA 559

THE QUEEN

v

STEPHEN PAUL KISSLING

Hearing: 10 December 2008
Court: William Young P, Robertson and Ellen France JJ Counsel: C L Mander and S J M Mount for Crown
S K Ellis for Respondent

Judgment: 10 December 2008

ORAL JUDGMENT OF THE COURT

A We grant leave to appeal.

BWe allow the appeal and rule that the search warrant was valid and the evidence obtained when it was executed is admissible.

R V STEPHEN PAUL KISSLING CA CA577/2008 [10 December 2008]

CWe prohibit publication of the judgment and any part of the proceedings (including the result) in the news media or on the Internet or other publicly available database until final disposition of the trial save that
publication in a law report or law digest is permitted.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1] On 31 August 2007 the police executed a search warrant on a semi-industrial property at 13B Bancroft Crescent, Glendene, Auckland. Mr Stephen Kissling occupied a flat on the first floor of the premises. During the search, the police located a complete laboratory for the manufacture of methamphetamine together with precursor chemicals and materials and an AK47 firearm.

[2] As a result of what was found during the search, Mr Kissling was arrested and he was to stand trial this week in the High Court at Auckland on five counts:

(a) count one – manufacturing methamphetamine;

(b)count two – being in possession of precursor substances intending that they be used for the manufacture of methamphetamine;

(c) count three – having in his possession equipment with the intention that it be used for the manufacture of methamphetamine;

(d)count four – having in his possession materials with the intention that they be used in and for the manufacture of methamphetamine; and

(e) count five – the possession of an AK47 firearm without lawful, proper and sufficient purpose.

[3] This trial was aborted as a result of a ruling delivered on 10 September 2008 in which Wylie J, in the context of a Crown application for an admissibility ruling under s 344A of the Crimes Act 1961, ruled that the search warrant in question was invalid. His primary reasons for this conclusion were:

(a) What he regarded were a large number of departures from the guidelines set out in R v Williams [2007] 3 NZLR 207 (CA); and

(b)An insufficiency of evidence to bring the issuing officer to the requisite state of belief.

The Judge concluded that all evidence obtained in the search was inadmissible. He also discharged (or purported to discharge) Mr Kissling under s…

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 Kissling

Details

AGLC: R v Kissling [2008] NZCA 559
Case: [2008] NZCA 559
Decision Date: 10 December 2008

CaseChat Overview and Summary

In the case of R v Kissling, the Court of Appeal of New Zealand was called to consider the validity of a search warrant and the admissibility of evidence obtained from its execution. The police had executed a search warrant on a property occupied by the respondent, Stephen Paul Kissling, leading to the discovery of a methamphetamine laboratory, precursor chemicals, and an AK47 firearm. Kissling was arrested and faced multiple charges related to drug manufacturing and possession. The trial was aborted when the trial judge ruled that the search warrant was invalid and the evidence inadmissible. The Crown sought leave to appeal this ruling.

The central legal issues were whether the search warrant was invalid and, if not, what orders were appropriate given the apparent discharge of Kissling under s 347 on count one. The Court found that the warrant was valid as it was supported by evidence that provided the issuing officer with reasonable grounds to believe that evidence associated with the commission of an offence was at the stated location. The Court emphasised that the identification of informers is not required in search warrant applications, and the guidelines in R v Williams were intended as guidance rather than a test for determining the validity of warrants. The Court also held that the evidence was sufficient to support the issuance of the warrant and that the police were not required to disclose all peripheral details of related cases.

The Court granted leave to appeal, allowed the appeal, and ruled that the search warrant was valid and the evidence obtained admissible. The Court refrained from expressing a view on the effectiveness of the apparent discharge under s 347 as it was not properly before the Court. The ruling permits the evidence to be used in Kissling's trial on the remaining counts.

Orders