The Queen v Horsfall - [2008] NZCA 449

IN THE COURT OF APPEAL OF NEW ZEALAND
CA2/2008
[2008] NZCA 449
THE QUEEN
v
MUCKUNDA HORSFALL
Hearing:16 September 2008

Court:Robertson, Wild and Cooper JJ
Counsel:G J King for Appellant

P K Feltham for Crown

Judgment:30 October 2008 at 9 am

JUDGMENT OF THE COURT

A         The appeal is allowed.
B         The convictions are quashed and acquittals are entered on each count.
REASONS OF THE COURT
(Given by Cooper J)
[1]        The appellant was tried on two representative counts alleging respectively that he manufactured and sold the Class A controlled drug methamphetamine. In addition, he faced three further counts alleging that he possessed equipment, precursor substances and materials for the purpose of manufacture of methamphetamine.
[2]        He was convicted on all five counts and sentenced by Woodhouse J, who had presided at the trial, to an effective term of four and a half years’ imprisonment. He now appeals against his conviction and the sentence.
[3]        Although a number of issues were raised in support of the conviction appeal the argument that assumed most prominence at the hearing was that the evidence on which the Crown relied at the trial was obtained in an unlawful and unreasonable search of property. The appellant also contended that exclusion of the evidence was the proper and proportionate response with the result that his conviction could not be sustained.
[4]        The admissibility of some of the evidence in question had been the subject of an application by the Crown under s 344A of the Crimes Act 1961, dealt with by Stevens J prior to the trial. After hearing different arguments to those presented in this Court, he granted the Crown’s application and held admissible evidence obtained when the police forcibly opened a container to reveal various components of a clandestine methamphetamine laboratory.
[5]        Our account of the background facts which follows is largely based on the judgment delivered by Stevens J on the pre-trial application, dated 3 September 2007. We did not understand the appellant to dispute any of the findings as to primary facts in that judgment. Where necessary to supplement the findings made in the High Court reference has been made to the evidence that was called at the pre-trial application.
Background
[6]        There had been ongoing issues between Waitakere City Council and a Mr Gordon, who owned two properties situated within the Council’s district. Those properties are referred to as Nos. 184 (also known as 186) and 202 Shaw Road, Oratia. Both were substantial, comprising respectively 3.7967 and 7.4446 hectares, a total of approximately 11.2 hectares. Apart from a comparatively narrow strip in its north-eastern corner, the land at No. 202 lay to the south of No. 184/186. The properties were not separated by a fence or any other obvious physical boundary. Developments on them included a commercial plant nursery, and a number of workshops and other buildings, some of which were used as dwellings. There were paddocks, and substantial areas of bush occupied about two-thirds of the properties’ combined area.
[7]…

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 The Queen v Horsfall

Details

AGLC: The Queen v Horsfall [2008] NZCA 449
Case: [2008] NZCA 449
Decision Date: 30 October 2008

CaseChat Overview and Summary

In this appeal, Muckunda Horsfall seeks to overturn his convictions for manufacturing and selling methamphetamine, as well as possessing equipment and substances for the purpose of manufacturing methamphetamine. The appeal was allowed, and the convictions were quashed. The central issue was whether evidence obtained during a search of Horsfall's property was admissible under the Evidence Act. The Court found that the evidence was obtained unlawfully and therefore inadmissible. The search warrant authorised the execution of the warrant by specified enforcement officers of the Waitakere City Council, accompanied by a constable. The police officers who encountered Horsfall were not in the company of the enforcement officer executing the warrant, rendering their actions unlawful. The Court held that the police officers' subsequent actions, including the opening of a container and the discovery of the methamphetamine laboratory, were unlawful and that the evidence obtained as a result was improperly obtained. The Court found that excluding the evidence was a proportionate response to the unlawful actions of the police officers. The Court also noted that there were no alternative remedies to exclusion that would adequately provide redress to the defendant. The appeal was allowed, and Horsfall's convictions were quashed.

Orders