IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-11
[2019] NZHC 2371
BETWEEN ROSS HENRY SMITH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 June 2019
2 July 2019
7 August 2019 – further documents receivedAppearances:
M J Phelps for the Appellant
M J M Mitchell for the Respondent
Judgment:
19 September 2019
JUDGMENT OF CULL J
[1] The police undertook a warrantless search of Mr Smith’s property under ss 18 and 20 of the Search and Surveillance Act 2012 (SASA), to seize unlawful firearms in circumstances where the officers believed they could not obtain a warrant under s 6 of the Act. The District Court ruled that the police search of Mr Smith’s property was lawful and the evidence seized during the search was admissible.1
[2] Mr Smith now seeks leave to appeal against the pre-trial ruling in the District Court. The evidence seized consisted of two military-style semi-automatic firearms and 39 cannabis plants and dried cannabis material.
1 New Zealand Police v Smith [2019] NZDC 2111.
SMITH v NEW ZEALAND POLICE [2019] NZHC 2371 [19 September 2019]
[3] Mr Smith submits the search was unlawful and the evidence was improperly obtained in breach of his rights. He argues the evidence should be excluded under s 30 of the Evidence Act 2006. He faces two charges of being unlawfully in possession of military-style semi-automatic firearms,2 a charge of cultivation of cannabis,3 and a charge of possession of cannabis.4 He challenges the District Court Judge’s factual finding that the police officer had reasonable grounds to suspect that Mr Smith was incapable of having proper control of firearms in his possession or under his control due to his mental condition under s 18(2)(b) of SASA.
[4]The Crown opposes the appeal.
[5] I adjourned the first hearing of this appeal to allow counsel to file further submissions on the requirements of s 6 of SASA which provides for the issue of search warrants, the ambit of ss 18 and 20 of SASA which provide for warrantless searches, and the Court of Appeal decision on the warrant preference rule.5
[6] During the second hearing, Mr Phelps for Mr Smith pointed to the similarity of the grounds for obtaining a production order under s 72 of SASA, which the police obtained in these circumstances, with the grounds under s 6 of SASA. He submits there is an inconsistency in the police applying for a production order, but not a warrant in these circumstances. As the application and order for production of Vodafone records were not available to the Court, those documents were supplied by the Police following the second hearing.
[7]The issues to be determined are:
(a)did the Judge err in finding the search of Mr Smith’s property was lawful and reasonable in respect of the unlawful firearms under s 18 of SASA?
2 Arms Act 1983, s 50(1)(c); maximum penalty is three years’ imprisonment or a fine of $4,000.
3 Misuse of Drugs…
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