R v Yeh - [2007] NZCA 580

ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR 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

CA468/07
CA469/07
CA470/07
CA471/07
CA472/07 [2007] NZCA 580

THE QUEEN

v

CHU-WANG YEH JUNWEI REN
LU JING WANG CHU HENG CHENG ZHI TONG ZHAN

Hearing: 21 November 2007
Court: Hammond, John Hansen and Miller JJ Counsel: B J Horsley for Crown
P F Wicks for Respondents Yeh and Zhan
S J Bonnar for Respondent Ren
R M Mansfield for Respondent Wang
S J Lance for Respondent Cheng

Judgment: 14 December 2007 at 10 am

JUDGMENT OF THE COURT

R V YEH AND ORS CA CA468/07 14 December 2007

A. The Solicitor-General’s application for leave to appeal is granted.

B. In relation to the search of the car the appeal is allowed and the evidence is admissible.

C. In relation to the search of Mr Ren and the apartment the appeal is dismissed.

D.An order is made prohibiting publication of this judgment or the reasons therefor in news media or on the internet or in any other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by John Hansen J)

[1] The Crown seeks leave to appeal against a pre-trial ruling of Courtney J pursuant to s 344A of the Crimes Act 1961, ruling as inadmissible evidence obtained from three searches conducted on 11 February 2006.

Background

[2] Just before 4 a.m. on that day, Sergeant O’Neill, and Constables Fischer and Arapai were conducting licensing checks in the general area of the Auckland Casino. The sergeant and Constable Fischer were proceeding on foot from the Dispensary Bar to the Palace Bar, with Constable Arapai following in a police van. As they approached that bar they observed a white Mitsubishi vehicle double-parked on Federal Street. The driver was Mr Cheng. Although there was some dispute as to the exact sequence of events, another respondent, Mr Zhan, was near the Palace Bar and described as looking “nervous” at the approach of the police officers. He ran to the car and opened the passenger door, saying “Go, go.” All three police officers approached the car. Mr Cheng was asked by the sergeant to get out of the vehicle

and to produce his driver licence. The sergeant gave evidence he was aware of intelligence information suggesting Mr Cheng was a member of a Taiwanese gang involved with methamphetamine dealing. Mr Cheng was described by the police officers as nervous, anxious and fidgety, with glazed eyes and constantly licking his lips. Constable Fischer gave evidence of Mr Zhan presenting in a similar way but he was also said to be emaciated. There was evidence that such appearance is consistent with methamphetamine use.

[3] As a consequence, Sergeant O’Neill determined to invoke his search powers under s 18(2) and (3) of the Misuse…

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 Yeh

Details

AGLC: R v Yeh [2007] NZCA 580
Case: [2007] NZCA 580
Decision Date: 14 December 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by the Crown against a pre-trial ruling by Courtney J, which had ruled evidence obtained from three searches conducted on 11 February 2006 inadmissible. The searches occurred as a result of police officers conducting licensing checks in the vicinity of the Auckland Casino, where they observed a white Mitsubishi vehicle double-parked on Federal Street. The Crown argued that there were reasonable grounds for the police to believe there were drugs in the vehicle, which justified the search, and that the subsequent searches of an apartment were lawful. The respondents argued that the searches were unlawful and the evidence obtained should be excluded.

The Court of Appeal found that the combination of factors identified by the Crown was sufficient to give reasonable grounds to believe there were illegal drugs in the vehicle. The Court held that the evidence obtained from the search of the car was admissible. However, the Court found that the entry into Shed 19 and the subsequent search of the apartment were unlawful and the evidence obtained from these searches was inadmissible. The Court held that the exclusion of the evidence was not disproportionate to the breaches.

The final orders were that the Crown's application for leave to appeal was granted, the appeal was allowed in relation to the search of the car, and the evidence was admissible. The appeal was dismissed in relation to the search of Mr Ren and the apartment, and the evidence obtained from those searches was inadmissible. An order was also made prohibiting publication of this judgment or the reasons therefor in news media or on the internet or in any other publicly accessible database until final disposition of trial. Publication in law report or law digest was permitted.

Orders