The Queen v Hallewell

[2008] NZCA 176

IN THE COURT OF APPEAL OF NEW ZEALAND

CA161/2008
[2008] NZCA 176

THE QUEEN

v

CHRISTOPHER MICHAEL HALLEWELL

Hearing:29 May 2008

Court:William Young  P, Randerson and Harrison JJ

Counsel:S G Vidal for Appellant

S B Edwards for Crown

Oral

Judgment:29 May 2008 

JUDGMENT OF THE COURT

ALEAVE TO APPEAL IS GRANTED.

BTHE APPEAL IS ALLOWED AND A REHEARING IS ORDERED.

CBOTH PARTIES ARE GRANTED LEAVE TO ADDUCE FURTHER EVIDENCE AT THE REHEARING.

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REASONS OF THE COURT

(Given by Harrison J)

[1]       Mr Christopher Hallewell seeks leave to appeal against the decision of Judge K J Phillips in the District Court at Invercargill on 20 March 2008 dismissing a challenge to the validity of a search warrant issued on 7 August 2007.  The decision records that an affidavit sworn by a police officer in support of the application was the basis for issuing the warrant.

[2]       It has become apparent on appeal, and is properly accepted by Ms Edwards for the Crown, that the affidavit is in material error.  Ms Edwards further accepts that as a consequence the warrant was issued unlawfully and thus unreasonably.

[3]       Accordingly the decision cannot stand.  We grant Mr Hallewell leave to appeal, allow the appeal by setting aside the decision of the District Court made on 20 March 2008 and remit the proceeding to that Court for rehearing.  We are advised that a further s 344A application is pending. 

[4]       The rehearing in the District Court will have to consider the discrete question of whether or not the evidence obtained improperly on execution of the warrant is nevertheless admissible: s 30 Evidence Act 2006.  Both parties are granted leave to adduce further evidence at the rehearing. 

Solicitors:

Crown Law, Wellington