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Waite v Police

Waite v Police

Case [2019] NZHC 213 20 February 2019

Appeal

Jurisdiction

Miscarriage of Justice

Search and Surveillance

Admissibility of Evidence

Possession of Offensive Weapons

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-348

[2019] NZHC 213

BETWEEN
MICHAEL WILLIAM JOHN WAITE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 February 2019

Counsel:

J M Grainger for Appellant H E Savage for Respondent

Judgment:

20 February 2019

JUDGMENT OF THOMAS J

This judgment was delivered by me on 20 February 2019 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Solicitor’s Office, Auckland for Respondent

WAITE v NEW ZEALAND POLICE [2019] NZHC 213 [20 February 2019]

[1] In the early hours of 29 July 2017, two police constables were on duty in Mt Roskill, Auckland and observed a car with a smashed windscreen swerving in its lane. They stopped the car, whereupon the driver, the appellant, Mr Waite, emerged and began to behave erratically. The front seat passenger appeared to be under the influence of alcohol and was hostile. One constable noticed an axe in the front passenger seat footwell and, upon being informed of that fact, the second constable decided to search the car. Not only was the axe seized but the police found a homemade knife under the driver’s seat and two glass pipes, used to smoke methamphetamine, in a bag. Mr Waite said he owned the axe and used it for his work.

[2] Following a Judge-alone trial in the District Court,1 Mr Waite was found guilty of two counts of being in a public place with an offensive weapon,2 two counts of possession of utensils for the commission of an offence against the Misuse of Drugs Act 1975,3 and failure to answer District Court bail.4 Mr Waite was sentenced to six months’ supervision and 40 hours of community work.

[3] Mr Waite appeals his convictions for possession of offensive weapons and possession of utensils on the basis the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred. Specifically, the legality of the search, the admissibility of the evidence obtained as a result and the finding of guilt in respect of possession of an offensive weapon (the axe) is challenged.

[4] Mr Waite also appeals his sentence if his appeal against conviction is successful.

The evidence

[5] The prosecution case consisted of evidence from both constables. It is briefly summarised in this section, with the crucial evidence on the two grounds of appeal considered in more detail when those grounds are addressed later in this decision.

1      Police v Waite [2018] NZDC 21926.
2      Crimes Act 1961, s 202A(4)(a). Maximum penalty of 3 years imprisonment.
3      Misuse of Drugs Act 1975, ss 13(1)(a) and 31(3). Maximum penalty of 1 year imprisonment and a $500 fine.
4      Bail Act 2000, s 24. Maximum penalty of 3 months imprisonment or $1,000 fine.

[6] On 29 July 2017, at around 12.45 am, Constables Doak and Toelau were patrolling the Mount Roskill area…

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 Waite v Police

Details

AGLC: Waite v Police [2019] NZHC 213
Case: [2019] NZHC 213
Decision Date: 20 February 2019

CaseChat Overview and Summary

Michael William John Waite appeals his convictions for possession of offensive weapons and possession of utensils for drug use, as well as his sentence. The convictions stem from a police search of his car, during which an axe, a knife, and drug paraphernalia were found. The District Court found Waite guilty of possessing an offensive weapon, possessing utensils for drug use, and failing to answer bail. He was sentenced to six months’ supervision and 40 hours of community work.

The High Court considered whether the search of Waite’s car was lawful and whether the evidence obtained from the search was admissible. The court found that while there were reasonable grounds to suspect an offence under the Crimes Act 1961, the police did not have reasonable grounds to suspect that Waite or his passenger intended to use the axe as a weapon, as required by the Search and Surveillance Act 2012. Consequently, the search was unlawful, and the evidence obtained from the search was improperly obtained. However, the court held that the evidence was admissible because the breach was not deliberate, reckless, or done in bad faith, and the evidence was real, reliable, and critical to the prosecution case.

The court also considered whether Waite was guilty of possessing an offensive weapon, the axe, in light of the statutory requirements of the offence. The court found that the District Court erred in her assessment of the evidence in respect of the charge concerning the axe. While there were circumstances that suggested Waite intended to use the axe to cause bodily injury, the court was not satisfied beyond reasonable doubt that he possessed the axe with the intention of using it to cause bodily injury. Therefore, the conviction on the charge of possession of an offensive weapon is quashed, and all other convictions stand. The sentence is undisturbed.

Orders