R v Machirus - [2007] NZCA 120

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA359/06 [2007] NZCA 120

THE QUEEN

v

PETER LLOYD MACHIRUS

Hearing: 8 March 2007
Court: Hammond, O’Regan and Arnold JJ Counsel: Appellant in Person
B M Stanaway for Crown

Judgment: 4 April 2007 at 11.30 am

JUDGMENT OF THE COURT

A Leave to appeal is granted, but the appeal is dismissed.

BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly accessible database until final disposition of trial.
Publication in law report or law digest permitted.

R V MACHIRUS CA CA359/06 4 April 2007

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

Introduction [1] Background [3] The objections in the District Court [9] The grounds of appeal [12] What consent was given? [18] Did Ann Pelenato consent? [27] A right to an informed consent? [30] Conclusion [32]

Introduction

[1] Mr Machirus faces a substantial number of charges for receiving and conspiring to receive in relation to an alleged large-scale burglary and receiving ring in Christchurch. His trial commenced on 9 October 2006. It was aborted near the close of the Crown case due to Mr Machirus’ ill health. The re-trial has been rescheduled to commence on 30 July 2007.

[2] On 25 September 2006 Judge MacAskill, in a pre-trial ruling, held that certain evidence relating to incriminating items identified after searches of a house and garage, was admissible at Mr Machirus’ trial. Mr Machirus now applies for leave to appeal against that ruling.

Background

[3] Mr Gary Morell was the owner of a property at 512 Worcester Street, Christchurch. Nardia Pelenato and the appellant were the tenants of that property.

[4] The police were looking for a male M ori youth who was in possession of a knife, and who was said to have threatened someone with it. Sergeant Leach thought the description of this person sounded very much like a young person he knew as Tony Pelenato. The sergeant had previously arrested Mr Pelenato in relation to an incident involving knives and threats to kill. He was aware that Mr Pelenato was bailed to reside at 512 Worcester Street. So the sergeant went to that address.

[5] The Judge found that, on arrival, Sergeant Leach approached the front door of the residence. He spoke to Ms Ann Pelenato, the 17-year-old sister of Mr Pelenato. She told him that Mr Pelenato was not there, but agreed he could look around the house and property. Subsequently he did so.

[6] Senior Constable Greenland had also been despatched to this address, with his police dog. He said he also went up to the door, spoke to Ann Pelenato, was given permission to look through…

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 Machirus

Details

AGLC: R v Machirus [2007] NZCA 120
Case: [2007] NZCA 120
Decision Date: 4 April 2007

CaseChat Overview and Summary

The case of R v Machirus involves the appeal by the defendant, Peter Lloyd Machirus, against a ruling made by Judge MacAskill in the District Court. Machirus faces a substantial number of charges for receiving and conspiring to receive in relation to an alleged large-scale burglary and receiving ring in Christchurch. The appeal concerns the admissibility of certain incriminating evidence obtained during a search of a house and garage. The trial was aborted due to the defendant's ill health and is scheduled to recommence on 30 July 2007. The Court of Appeal was required to determine the admissibility of evidence obtained through warrantless searches and whether the consent given by Ms Ann Pelenato, the defendant's sister, was valid.

The Court of Appeal found that the defendant's appeal points were not well-founded. First, the Court found that it was open to the District Court Judge to conclude that the police officers had obtained separate and relevant consents for their searches. Second, the Court upheld the District Court Judge's finding that Ms Pelenato was a de facto occupier of the property and, therefore, had the authority to give consent for the searches. Lastly, the Court dismissed the defendant's argument that the police had a duty to inform Ms Pelenato of her right to refuse consent and the possible consequences of a search. The appeal was dismissed, but leave to appeal was granted.

The Court of Appeal's decision maintains the ruling of the District Court regarding the admissibility of the incriminating evidence obtained through warrantless searches. The Court emphasised the importance of ensuring that there has not been a miscarriage of justice, but found that the defendant's appeal points were not persuasive. The Court also expressed concern about the extent of the search of a vehicle parked on the property, but noted that it had no direct application to the charges in this case.

Orders