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R v McMahon

R v McMahon

Case [2007] NZCA 71 16 March 2007

Unlawful Search

Breach of Privacy

Admissibility of Evidence

Balancing Test

Privacy Interest

Criminal Law

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN NEWS MEDIA OR ON 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

CA291/06 [2007] NZCA 71

THE QUEEN

v

CRAIG ANTHONY MCMAHON

Hearing: 20 February 2007
Court: O’Regan, Chisholm and Rodney Hansen JJ Counsel: R J Stevens for Appellant
M F Laracy for Crown

Judgment: 16 March 2007 at 4 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe evidence obtained as a result of the search of the appellant’s address is inadmissible at trial.

COrder prohibiting publication of the judgment in news media or on internet or other publicly accessible database until final disposition of
trial. Publication in Law Report or Law Digest permitted.

R V CRAIG ANTHONY MCMAHON CA CA291/06 16 March 2007

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] The appellant, Craig McMahon, is charged with cultivating cannabis, selling cannabis, possessing cannabis for supply and possessing equipment capable of being used for cannabis cultivation. He was charged after a search of his address in the eastern suburbs of Wellington. During that search the police found two rooms which had been set up for growing cannabis hydroponically. Fourteen plants were growing and a considerable amount of hydroponic growing equipment was found. During the search Mr McMahon returned to the address and a search of his vehicle revealed
49 cannabis tinnies and $1,100 in cash. Mr McMahon admitted he had been growing cannabis with the intention of selling it and that the $1,100 was proceeds of cannabis sales.

[2] Mr McMahon’s counsel indicated to the Crown that a challenge would be made to the admissibility of the evidence obtained as a result of the search, and the Crown therefore applied under s 344A of the Crimes Act 1961 for a ruling that the evidence was admissible. In a judgment dated 1 August 2006, Judge N Mathers ruled that the evidence was admissible. She found that the search and seizure at the appellant’s address was unlawful, but not unreasonable.

[3] The issues before us are:

(a) Was the search unlawful?

(b) Was the search unreasonable?

(c)If the search was unreasonable, should the evidence be admitted under the balancing test referred to in R v Shaheed [2002] 2 NZLR
377 (CA)?

Was the search unlawful?

[4] The search of Mr McMahon’s address was authorised by a search warrant. The validity of the search warrant was challenged on two separate bases, namely:

(a) The application for the warrant omitted relevant information and contained incorrect information which had the effect of misleading the issuer of the warrant; and

(b)The application did not provide the issuer with reasonable grounds to believe that there was evidence of cannabis cultivation or supply at the appellant’s address.

[5] In order to deal with those arguments, it is necessary to consider first the details of the application for the search warrant.

Application for search warrant

[6] 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 McMahon

Details

AGLC: R v McMahon [2007] NZCA 71
Case: [2007] NZCA 71
Decision Date: 16 March 2007

CaseChat Overview and Summary

In the case of R v McMahon, the Court of Appeal of New Zealand was called upon to determine the admissibility of evidence obtained through an unlawful search of the appellant's residence. Craig McMahon was charged with cultivating cannabis, selling cannabis, possessing cannabis for supply, and possessing equipment capable of being used for cannabis cultivation. The evidence against him was derived from a search conducted under a warrant which the appellant argued was unlawful and unreasonable. The central legal issues were whether the search was unlawful and unreasonable, and if the evidence obtained should be admitted under the balancing test.

The Court found that the search was indeed unlawful. The application for the search warrant contained significant deficiencies, including incorrect and misleading information. For instance, the application inaccurately described the make of McMahon's vehicle and failed to include the dates of his previous convictions. Additionally, the application did not provide reasonable grounds to believe that evidence of cannabis-related activities would be found at McMahon's address. The Court concluded that these deficiencies were serious and could have misled the issuer of the warrant, rendering it unlawful.

Further, the Court determined that the search was unreasonable. Despite the District Court's ruling to the contrary, the Court found that the unlawfulness of the search warranted its characterisation as unreasonable. The Court adopted the approach from R v Maihi and R v Williams, which held that an unlawful search is generally unreasonable unless there are countervailing factors. No such factors were present in this case.

The final issue was whether the evidence obtained should be admitted under the balancing test from R v Shaheed. The Court considered the seriousness of the breach, the nature of the privacy interest, and public interest factors. The unlawful search represented a serious breach of privacy, partly due to police sloppiness. The nature of the privacy interest was significant given it involved a citizen's home. The public interest factors, such as the seriousness of the offence and the quality of the evidence, pointed towards admission of the evidence. However, the Court concluded that exclusion of the evidence was necessary to uphold the rule of law and protect privacy rights. The compelling nature of the evidence and the serious breach of privacy led the Court to rule that the evidence obtained from the unlawful search would be inadmissible at trial.

Therefore, the appeal was allowed, and the evidence obtained as a result of the search of McMahon's address was deemed inadmissible at trial.

Orders