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Tararo v R

Tararo v R

Case [2010] NZCA 287 5 July 2010

Jurisdiction

Identification Evidence

Admissibility of Evidence

Implied Terms

Limitation Periods

Criminal Law

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ORDER PROHIBITING PUBLICATON OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA609/2009 [2010] NZCA 287

BETWEEN TREMAINE MANAIA TARARO Appellant

ANDTHE QUEEN Respondent

Hearing: 24 February 2010
Court: Chambers, O'Regan and Randerson JJ Counsel: B J Hunt and M J Dyhrberg for Appellant
B J Horsley for Respondent

Judgment: 5 July 2010 at 4 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is allowed in part.

CThe decision of the District Court Judge declaring the identification evidence to be admissible at trial is quashed. The admissibility of that evidence under s 45(2) is to be determined in the District Court.

D In all other respects, the appeal is dismissed.

TREMAINE MANAIA TARARO V R CA CA609/2009 [5 July 2010]

EWe make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the Internet or other publicly available database until final disposition of trial.
Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by O’Regan J)

Table of Contents

Para No

Introduction [1] Issues on appeal [7] Facts [13] Did the officer have an implied licence to enter the property? [18] Was there a search? [51] Was the “search” unreasonable? [65] Conclusion and comment [66] Admissibility of the sweatshirt evidence [67] Identification evidence: s 45 [68] Section 30 of the Evidence Act 2006 [85] Result [86]

Introduction

[1] The appellant and three others face trial on charges of conspiracy to sell cannabis, sale of cannabis and possession of cannabis for the purpose of sale. Two of the co-accused are the appellant’s brothers.

[2] The Crown case is that the four accused were operating a tinnie house (i.e. they were selling cannabis tinnies to those who came to the house and sought to buy them). The charges relating to sale of cannabis arise from specific purchases made by an undercover police officer. The officer also observed the accused in possession of additional tinnies of cannabis, and the transactions with the undercover police officer were followed by a police search of the house. The charges of possession for supply relate to those observations and evidence obtained from the search.

[3] The appellant challenged the admissibility of certain proposed police evidence and the Crown made an application under s 344A of the Crimes Act 1961 for an order that the challenged evidence was admissible. In a decision delivered on
21 December 2009, Judge J M Kelly found that the evidence was admissible.1 The

appellant seeks leave to appeal against that ruling.2 The Crown did not oppose the granting of leave.

[4] There were three categories of evidence covered by the District Court decision. The first…

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 Tararo v R

Details

AGLC: Tararo v R [2010] NZCA 287
Case: [2010] NZCA 287
Decision Date: 5 July 2010

CaseChat Overview and Summary

The case involved an appeal against the District Court's ruling on the admissibility of certain evidence in a drug-related case. The appellant, Tremaine Manaiah Tararo, challenged the admissibility of photographic stills from a video recording made by an undercover police officer, the identification of the appellant by the officer, and the evidence of a sweatshirt seized during a search of the appellant's property. The Crown opposed the granting of leave to appeal but did not oppose the ruling on the admissibility of the evidence.

The Court of Appeal addressed several issues: whether the undercover officer had an implied licence to enter the property to purchase cannabis; whether the officer's actions constituted a search; if the search was unreasonable; and whether the identification evidence complied with the statutory requirements of the Evidence Act 2006. The Court found that the officer had an implied licence to enter the property for the purpose of purchasing cannabis and that the covert filming of the transaction was lawful. The Court held that the identification evidence did not comply with the statutory requirements, and the admissibility of this evidence should be determined at trial. The Court allowed the appeal in part, quashed the District Court's decision on the admissibility of the identification evidence, and directed that the matter be determined at trial. The appeal was dismissed in all other respects.

Orders