R v Petricevich - [2007] NZCA 325

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL, PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED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

CA236/07 [2007] NZCA 325

THE QUEEN

v

MICHELLE PETRICEVICH

Hearing: 18 July 2007
Court: Arnold, Potter and Venning JJ Counsel: C S Cull for Appellant
M D Downs for Crown

Judgment: 30 July 2007

Reasons: 6 August 2007

JUDGMENT OF THE COURT

A. The appeal is dismissed.

B. An order is made that this judgment and the reasons are not to be published in the news media or on the Internet or in other publicly accessible database until final disposition of the trial. Publication in a
law report or a law digest is permitted.

R V PETRICEVICH CA CA236/07 30 July 2007

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The appellant faces one charge of possession of the Class C controlled drug cannabis for supply and one charge of offering to sell the Class C controlled drug cannabis.

[2] On 28 March 2007 Judge D G Harvey ruled that the evidence of Detective Harris was to be admissible against the appellant at trial. This appeal is against that ruling.

Background facts

[3] On 1 April 2006 the police at Kaitaia seized a cellphone in the course of an inquiry unrelated to this appellant. The cellphone was the property of the accused in the unrelated matter. The accused in that matter was known to the appellant.

[4] The police sent the cellphone to the electronic crime laboratory in order to retrieve information from it, including picture and text messages. The cellphone was then returned, still switched on, to the police at Kaitaia on or about 2 or 3 May 2006. When Detective Harris received it back, he noticed an envelope icon on the screen which indicated to him that a text message had been sent or received by the cellphone. The detective opened the message to determine whether the message received would advance the investigation against the other accused. The message was dated 20 April. It said:

Kia ora whanäu jus a lil txt 2 say I got sum scores if u intrestd. Kia pai to koutou nei ra Mitch-l.

The concluding passage translates to “have a good day everybody”. The text message was sent by the appellant. Detective Harris used the cellphone to reply:

Will take 10 pound bro can you deliver it to the police station?

Shortly afterwards he received a text in response:

Smart fulla aye? Wot u up 2 cuz? Mitch-l.

[5] On the next day, 4 May 2006, Detective Harris continued to send and receive text communications with the appellant to arrange a drug deal. The appellant agreed to meet the detective at the Kaitaia rugby clubrooms to complete the deal.

[6] At about 2 o’clock that afternoon Detective Harris and Detective Sergeant Robertson travelled to the Kaitaia rugby clubrooms. Detective Harris continued to text…

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 Petricevich

Details

AGLC: R v Petricevich [2007] NZCA 325
Case: [2007] NZCA 325
Decision Date: 30 July 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Michelle Petricevic, challenged the ruling by Judge Harvey that evidence obtained through text messages sent from a police detective's cellphone should be admissible at her trial. The appellant faces charges of possessing cannabis with intent to supply and offering to sell the drug. The central legal issue was whether the evidence obtained via the cellphone was unfairly or improperly obtained, and if so, whether it should be excluded from the trial. The appellant argued that the use of the cellphone without the owner's consent constituted unfair treatment and that the deception involved rendered the prosecution inappropriate. The Crown contended that the police conduct did not amount to entrapment or misconduct warranting exclusion of the evidence.

The Court of Appeal found that the appellant's rights under the New Zealand Bill of Rights Act 1990 were not engaged as the complaint was about police conduct rather than the rights of the appellant. The evidence obtained was relevant and probative, and the Court had to consider whether its admission was fair. The Court held that while the use of the cellphone was wrongful, it did not render the evidence unfairly obtained. The Court noted that undercover operations inherently involve deception and that the police conduct in this case did not amount to misconduct requiring the evidence to be excluded. The Court concluded that the evidence was admissible as it was fundamental to the prosecution, and excluding it would not be proportionate to the degree of impropriety.

The Court dismissed the appeal, finding no error in Judge Harvey's ruling to admit the evidence. The judgment also included an order restricting its publication until the final disposition of the trial.

Orders