Thomas v The Queen - [2005] NZCA 182

IN THE COURT OF APPEAL OF NEW ZEALAND
CA173/05
THE QUEEN
v
MALCOLM MATTHEW THOMAS
Hearing:21 June 2005

Court:Anderson P, Williams and Doogue JJ
Counsel:G R Anson for Appellant

M D Downs for Crown

Judgment:7 July 2005

JUDGMENT OF THE COURT

THE APPEAL AGAINST A PRE-TRIAL RULING THAT CERTAIN EVIDENCE IS ADMISSIBLE IS DISMISSED.
____________________________________________________________________
REASONS
(Given by Williams J)
Issue
[1]       On 6 May 2005 Laurenson J delivered a reserved judgment granting the Crown’s application that evidence of Police finding 524 tablets of morphine sulphate in a car on 21 May 2004 was admissible.
[2]       The appellant, Mr Thomas, appeals to this Court against that ruling.
Facts
[3]       On 13 February 2004 the Police executed a search warrant under the Misuse of Drugs Act 1975 s 18(1) at an address in Kaitaia occupied by the appellant and his co-accused, a Ms Hetaraka. Drug paraphernalia was seized as were cannabis plants, seedlings and growing equipment. Some was in a Holden car at the address.
[4]       A second search warrant, the one in contention on this appeal, was obtained by Police on 20 May 2004 authorising them to “search the … building, carriage, vehicle, box, receptacle, premises, place or person” at the appellant’s address for drugs, drug paraphernalia, firearms and ammunition.
[5]       On 21 May 2004 Police executed the second search warrant at the appellant’s address. Cannabis seeds and stolen property were found in the house. The Holden car was still present. A Mazda car was also present with window etchings recording the original VIN number obliterated and false VIN plates attached. The Holden had been stolen from Auckland on 22 April 2003. The Mazda had been stolen from Auckland on 26 February 2004. The registration plates had been changed between the time of the thefts and when the cars were seen by Police on 21 May 2004.
[6]       Police searched the Holden at the appellant’s premises on 21 May 2004. They did not find the morphine sulphate tablets at that stage. However, after checking the vehicle’s details, they ascertained it had been stolen and arranged for it to be towed to local secure storage. There, later that day, they searched it more thoroughly and found a package containing the tablets secreted in the engine bay.
Judgment under appeal
[7]       After briefly reviewing the background, Laurenson J noted the omission of any reference to stolen vehicles in the search warrant, the unsuccessful initial search, the removal of the Holden to secure storage and the further successful search undertaken at that location. He noted that “no explanation has been provided as to why the further search was carried out”. From that the Judge concluded :
[14]     The search warrant in this case did not authorise the police to search the vehicle for the purpose of determining whether it had been stolen. The police did search it for this purpose as well as the purpose authorised under the warrant. It was seized because it was stolen. It follows that the seizure was unlawful.

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 Thomas v The Queen

Details

AGLC: Thomas v The Queen [2005] NZCA 182
Case: [2005] NZCA 182
Decision Date: 7 July 2005

CaseChat Overview and Summary

The case of Thomas v The Queen involves an appeal by Malcolm Matthew Thomas against a ruling by Laurenson J that evidence of police finding 524 tablets of morphine sulphate in a car during a search was admissible. The legal issues before the Court of Appeal were whether the seizure of the vehicle was lawful and whether the evidence obtained was admissible. The Court found that the seizure of the vehicle was lawful as the appellant had no proprietary interest in the vehicle, and therefore, no legitimate expectation of privacy. The Court also found that the evidence was admissible as the seizure and search were carried out without infringing any legitimate interests of the appellant. The appeal was dismissed, and the decision of the lower court was upheld. The Court of Appeal found that the citation from Horton was an appropriate summary of the situation and that the number of pills found and their value was a significant factor weighing against the appellant in the balancing exercise.

Orders