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Smith v Police

Smith v Police

Case [2019] NZHC 2371 19 September 2019

Unlawful Search and Seizure

Warrantless Search

Reasonable Suspicion

Urgency and Exceptional Circumstances

Admissibility of Evidence

Unjust Enrichment

Criminal Law

Administrative Law

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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 received

Appearances:

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…

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 Smith v Police

Details

AGLC: Smith v Police [2019] NZHC 2371
Case: [2019] NZHC 2371
Decision Date: 19 September 2019

CaseChat Overview and Summary

In Smith v New Zealand Police, the appellant challenged the lawfulness of a warrantless search of his property under the Search and Surveillance Act 2012 (SASA). The search, conducted by police, resulted in the seizure of unlawful firearms and cannabis. The District Court found the search was lawful, and the evidence was admissible. The appellant sought leave to appeal the pre-trial ruling, which was granted. The High Court found the warrantless search for firearms under s 18 of SASA was unreasonable because the police had not considered whether there were exceptional or urgent circumstances requiring immediate action. The search was not justified under the warrant preference rule, and the warrantless power was not exercised in the intended circumstances. The evidence of the firearms was admitted under s 30 of the Evidence Act 2006, as it was in the interests of public safety. The warrantless search for cannabis under s 20 of SASA was unlawful and unreasonable because the police did not consider whether it was practicable to obtain a warrant. The evidence of cannabis was excluded under s 30 of the Evidence Act.

Orders