R v Whimp

The Court of Appeal of New Zealand heard an appeal by Bernard Terence Whimp against a decision by Judge Crosbie, which rejected his application under section 344A to challenge the legality of the actions of the Official Assignee (OA) regarding the companies Henry Holdings (Huntly) Ltd (HHL) and Barberra Holdings Ltd (formerly Capital Management Services Ltd (CMS)). The primary issue was whether the actions of the OA in accessing and removing documents from the Manchester Street premises were lawful, and if not, whether the evidence obtained should be admissible under the balancing test established in R v Shaheed [2002] 2 NZLR 377 (CA). The OA had entered the premises without a warrant and removed documents and computers related to HHL and CMS, which led to objections from Mr Whimp.

The Court found that the OA, as liquidator, had the legal authority to access and retrieve documents relating to HHL and CMS from the premises, as the lease was in the name of CMS. However, the OA's actions went beyond what was lawful when they intruded into areas occupied by other companies and individuals. The searches were unlawful as they involved personal belongings and areas not obviously related to HHL and CMS. While the Court acknowledged that the OA's actions were not done in bad faith, they were too vigorous and intrusive, and there was insufficient regard for the rights of third parties. The Court concluded that the searches on both visits breached section 21 of the New Zealand Bill of Rights Act 1990.

Applying the balancing test from R v Shaheed, the Court found that disallowing the evidence about the documents present on the premises on 16 March would be a disproportionate response to the breaches. The Court dismissed the appeal and confirmed the order under section 344A as to admissibility. The Court also made an order prohibiting publication of the judgment and any part of the proceedings (except the result) in the news media or on the internet or other publicly available database until final disposition of the trial, with publication in law reports or law digests permitted.