Rimine v R - [2010] NZCA 462

IN THE COURT OF APPEAL OF NEW ZEALAND
CA503/2010
[2010] NZCA 462
BETWEENDEAN WALLACE RIMINE

Appellant

ANDTHE QUEEN

Respondent

Hearing:7 September 2010

Court:O'Regan P, Stevens and Simon France JJ
Counsel:C W J Stevenson for Appellant

H Ebersohn for Respondent

Judgment:11 October 2010 at 2.30 pm

JUDGMENT OF THE COURT

AAn extension of time to apply for leave to appeal is granted.
BLeave to appeal is granted.
CThe appeal is dismissed.

_______________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
[1]        Mr Rimine faces trial in the District Court on two charges, one of supply of methamphetamine and one of possession of methamphetamine for the purpose of supply. Mr Rimine challenged the admissibility of evidence obtained from a search of his motor vehicle. That evidence provided the basis for the charges against him. The Crown sought a pre-trial ruling under s 344A of the Crimes Act 1961. That application was heard by Judge Barry and he ruled that the search and seizure was lawful and that the evidence thereby obtained was admissible at Mr Rimine’s trial.[1] Mr Rimine now seeks leave to appeal against that decision.
[1]      R v Rimine DC Wellington CRI-2009-032-4901, 21 July 2010.
[2]        The application for leave was filed out of time but only by a small margin. The Crown accepts there was no resulting prejudice and in the circumstances we grant an extension of time. We heard submissions on the application for leave and the intended appeal together and this judgment deals with both.
Issues on appeal
[3]        The search was carried out pursuant to the power of search conferred by s 60 of the Arms Act 1983. That section empowers a police officer to search, among other things, a vehicle, without warrant if he or she “has reasonable grounds to suspect” that a person is carrying or is in possession of a firearm. The first issue on appeal is whether the police officer who invoked this power of search, Senior Constable Todd, had such reasonable grounds to suspect.
[4]        In the event that we determine that Senior Constable Todd did not have such reasonable grounds to suspect, then we will need to consider whether the evidence obtained as a result of the search and seizure should nevertheless be admissible under s 30 of the Evidence Act 2006. That is the second issue.
Was the search lawful?
[5]        The determination of the first issue requires a careful consideration of the circumstances leading to the search and, in particular, the information that was known to Senior Constable Todd when he invoked the power of search under s 60.
Facts
[6]        The vehicle being driven by Mr Rimine was stopped at an alcohol check point at around 10.20 pm on 26 November 2009. He passed a passive breath screening test, but his vehicle was pulled over because the rear tail lights were not working correctly. The police officer dealing with Mr Rimine, Constable Satherley, checked the vehicle and sought information about the appellant from the police communications…

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 Rimine v R

Details

AGLC: Rimine v R [2010] NZCA 462
Case: [2010] NZCA 462
Decision Date: 11 October 2010

CaseChat Overview and Summary

The appeal before the Court of Appeal of New Zealand involved Dean Wallace Rimine, who was facing trial on charges of supplying and possessing methamphetamine for the purpose of supply. Rimine challenged the admissibility of evidence obtained from a search of his motor vehicle, which formed the basis for the charges against him. The Crown sought a pre-trial ruling under section 344A of the Crimes Act 1961, which was heard by Judge Barry. The Judge ruled that the search and seizure were lawful and that the evidence was admissible at Rimine's trial. Rimine sought leave to appeal against this decision.

The primary legal issue the Court of Appeal needed to decide was whether the police officer who invoked the power of search, Senior Constable Todd, had reasonable grounds to suspect that Rimine was carrying or in possession of a firearm, as required by section 60 of the Arms Act 1983. A secondary issue was whether the evidence obtained as a result of the search and seizure should be admissible under section 30 of the Evidence Act 2006, even if the search was found to be unlawful.

The Court of Appeal concluded that the information known to Senior Constable Todd at the time he invoked the power of search was not sufficient to found the reasonable suspicion required by section 60. The combination of the outdated flag in the police intelligence system, Rimine's refusal to exit the car, and his relationship with Porky Rimine did not provide sufficient grounds to invoke the search power. However, the Court of Appeal found that the evidence obtained should still be admitted under section 30 of the Evidence Act. The balancing exercise required by section 30(2)(b) revealed that exclusion of the evidence would not be proportionate to the impropriety by which it was obtained, given the relatively minor nature of the impropriety, the difficult circumstances in which events unfolded, the seriousness of the offending, and the importance of the evidence.

The Court of Appeal granted an extension of time for the filing of the application for leave, granted leave to appeal, but dismissed the appeal. The admissibility of the evidence obtained from the search of Rimine's motor vehicle would stand.

Orders