Speight v Police - [2019] NZHC 1919

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-131

[2019] NZHC 1919

BETWEEN
FLOYD JOHN SPEIGHT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 August 2019

Appearances:

C Mitchell for the Appellant

H Macdonald for the Respondent

Judgment:

8 August 2019

JUDGMENT OF GORDON J

This judgment was delivered by me
on 8 August 2019 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor Auckland Counsel: C Mitchell, Auckland

SPEIGHT v POLICE [2019] NZHC 1919 [8 August 2019]

Introduction

[1] This is an appeal against a pre-trial ruling regarding the admissibility of evidence obtained from a warrantless search of the appellant’s vehicle by the Police under s 29 of the Search and Surveillance Act 2012 (SSA). The appellant, Floyd Speight, appeals the District Court Judge’s decision that the evidence is admissible.1

[2]Mr Speight is charged with:

(a)possession of a knife in a public place;

(b)possession of a Class C controlled drug (cannabis);

(c)possession of a pipe for consumption of methamphetamine;

(d)possession of methamphetamine; and

(e)failure to answer District Court bail.

[3] The basis of the appeal is that the search was unlawful and in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). Therefore, Mr Speight submits the evidence was improperly obtained and should be excluded under s 30 of the Evidence Act 2000. The Police oppose leave to appeal and the appeal in substance.

Background

[4] Mr Speight and his associate were in Mr Speight’s vehicle parked in a car park in the Henderson area. Mr Speight’s associate removed a lighting unit from the soffit adjacent to an Internet cafe and fled in Mr Speight’s vehicle. The event was witnessed by a member of the public who called the Police.

[5] Sergeant Burrell was notified and was provided with a description of Mr Speight’s associate. The sergeant arrived at a nearby gas station where Mr Speight

1 Police v Speight [2019] NZDC 3147 [Decision on appeal].

and his associate were located. The associate was arrested and dealt with by another constable. Sergeant Burrell then spoke with Mr Speight, who said he did not know who the other person (his associate) was. But he said he knew where the light was and pointed to an item in a nearby bush.

[6] Sergeant Burrell considered the associated cabling (also stolen property) might be in Mr Speight’s vehicle. He invoked the search powers under ss 29 and 110 of the SSA. He was uniformed and identified himself. Sergeant Burrell explained the reason for the search and gave Mr Speight his rights as he was detained pursuant to the SSA. No further evidence related to the theft was found. But the sergeant found drugs, drug- related paraphernalia and a knife.

District Court decision

[7] The pre-trial issue to be determined was whether the search undertaken was lawful and reasonable in the circumstances.2 The District Court Judge held the search…

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 Speight v Police

Details

AGLC: Speight v Police [2019] NZHC 1919
Case: [2019] NZHC 1919
Decision Date: 8 August 2019

CaseChat Overview and Summary

Floyd Speight appealed a pre-trial ruling by the District Court that evidence obtained from a warrantless search of his vehicle by the Police under s 29 of the Search and Surveillance Act 2012 (SSA) was admissible. Mr Speight was charged with possession of a knife in a public place, possession of a Class C controlled drug (cannabis), possession of a pipe for consumption of methamphetamine, possession of methamphetamine, and failure to answer District Court bail. The appellant contended that the search was unlawful and in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). He argued that the evidence was improperly obtained and should be excluded under s 30 of the Evidence Act 2000. The Police opposed leave to appeal and the appeal in substance.

The legal issues in the case were whether the warrantless search was lawful and whether it breached s 21 of the NZBORA. The court had to decide whether Sergeant Burrell had objectively reasonable grounds to believe that there was stolen property in the vehicle. It also needed to determine whether the warrantless search was in accordance with the SSA and related provisions such as s 118. The court had to consider whether there was a breach of s 21 of the NZBORA and if the evidence was improperly obtained.

The High Court found that the warrantless search was lawful and did not breach s 21 of the NZBORA. The court concluded that Sergeant Burrell had objectively reasonable grounds to believe there was stolen property in the vehicle. The reasonableness of Sergeant Burrell's belief was based on the fact that Mr Speight was seen driving the culprit who had taken the light, and Mr Speight denied knowing the culprit. The High Court also found that the proposed grounds of appeal lacked merit. Therefore, the court refused leave to appeal.

In conclusion, the High Court found that the evidence seized in the warrantless search of Mr Speight’s vehicle was admissible. The court refused leave to appeal and dismissed the appeal on the merits.

Orders