Tweeddale v Police - [2015] NZHC 1298

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2015-483-5 [2015] NZHC 1298

BETWEEN
WAYNE PAUL TWEEDDALE

Appellant

AND

POLICE Respondent

Hearing: 15 April 2015

Counsel:

S W Rollo for Appellant
H C Mallalieu for Respondent

Judgment:

9 June 2015

JUDGMENT OF THE HON JUSTICE KÓS

[1] A man appears to have assaulted his partner. Before they drive off together, he is heard to say he will kill her. Later his vehicle is stopped at a roadblock by the police armed offenders squad. The woman is now driving a second car, following behind. The man, Mr Tweeddale, is detained beside his vehicle. A search of the vehicle is made to ensure there are no weapons in it. No weapons are found. But some cannabis is.

[2] Is evidence from the search admissible on a charge of cannabis possession?

[3] The police say the search is lawful, required to avert an emergency involving risk to life or safety.1 Mr Tweeddale says that in all the circumstances there was no (or was no longer) risk to life or safety requiring an emergency response.

1 Search and Surveillance Act 2012, s 14(1)(b).

Background

[4] On 5 January 2014 the police at Wanganui received information that Mr Tweeddale had run amok and assaulted his partner, a Ms Corlette. She had spent the night in town. Mr Tweeddale suspected she had cheated on him. He drove into town from their house in the country at Mangamahu, a distance of about 50 kms. He found Ms Corlette. She was next seen sitting in his utility vehicle, with facial injuries. Mr Tweeddale was heard by the informant to say, “I’m going to kill her”.

[5] Mr Tweeddale drove off with Ms Corlette. His driving was wild. He hit a fence. He rear-ended Ms Corlette’s sister’s car. He hit another fence. He has past convictions for violent offending. He was known by the police to possess firearms. He is president of the local Hells Angels motorcycle club chapter.

[6] Before leaving the police station, Sergeant Evans prepared a police safety order. This is provided for in Part 6A of the Domestic Violence Act 1995. Once served it requires the subject – in this instance Mr Tweeddale – to surrender any weapon and to leave any house occupied by the identified “person at risk” – here, Ms Corlette. In short it meant Mr Tweeddale, once served, could not return to the couple’s home at Mangamahu.

[7] The police armed offenders squad were called out. They searched the Mangamahu house. No one was there. Mr Tweeddale’s utility vehicle was then seen driving along Creek Road, near his house in Mangamahu. A police roadblock was established at a one-way bridge. Mr Tweeddale was stopped. Also in his vehicle were two male teenagers.

[8] Behind his vehicle was a sedan. Ms Corlette was behind the wheel. There were a number of children with her. The number is uncertain, but she and Mr Tweeddale have six children aged between 5 and 15 years.…

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 Tweeddale v Police

Details

AGLC: Tweeddale v Police [2015] NZHC 1298
Case: [2015] NZHC 1298
Decision Date: 9 June 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tweeddale v Police involved a dispute over the admissibility of evidence obtained during a search of the appellant's vehicle. The police had stopped the appellant, Mr Tweeddale, at a roadblock and searched his vehicle, during which they found cannabis. Mr Tweeddale challenged the authority of the police to search his vehicle and the admissibility of the evidence obtained from the search. The legal issues in this case were whether the search of the vehicle was lawful and whether the evidence obtained was admissible under section 30 of the Evidence Act.

The Court examined the law governing warrantless searches of vehicles, which is regulated by the Search and Surveillance Act 2012. The Court found that the search was not authorised by the provisions dealing with searches to protect public or police safety, nor by the provisions allowing searches to apprehend illicit items. The Court focused on section 14 of the Act, which allows for entry to avert a risk to life or personal safety. However, the Court found that the police did not have reasonable grounds to suspect a current and continuing risk to life or safety requiring an emergency response at the time of the search. Therefore, the search of Mr Tweeddale's vehicle was unlawful.

Under section 30 of the Evidence Act, evidence obtained unlawfully may still be admissible if exclusion would be disproportionate to the impropriety. The Court weighed various factors in deciding whether to admit the evidence, including Mr Tweeddale's right to be free from unreasonable search, the seriousness of the alleged offending, alternative investigatory techniques available to the police, and the value of the evidential product of the search. The Court concluded that the exclusion of the unlawful search evidence was proportionate to the impropriety of its acquisition and that it should not be received in evidence at trial.

The Court allowed the appeal and found that the evidence obtained in the search of Mr Tweeddale's vehicle was obtained unlawfully and was inadmissible against him at trial.

Orders