Wallace v Police - [2016] NZHC 1952

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-155 [2016] NZHC 1952

BETWEEN
ALEXANDER WALLACE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 August 2016

Counsel:

M J English for Appellant
DMA Wiseman for Respondent

Judgment:

22 August 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 22 August 2016 at 11.00 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Meredith Connell, Auckland
Public Defence Service, Waitakere

WALLACE v NEW ZEALAND POLICE [2016] NZHC 1952 [22 August 2016]

Summary

[1] Mr Wallace faces a charge of permitting premises to be used for the purposes of an offence against the Misuse of Drugs Act 1975 involving a Class C drug, namely cannabis.1 The prosecution relies upon evidence obtained following a search of Mr Wallace’s home on 14 June 2015. Following a hearing in the District Court at Waitakere on 1 April 2016, Judge C M Ryan found that the search was conducted lawfully pursuant to s 14 of the Search and Surveillance Act 2012 (“SSA”) and therefore the evidence would be admissible at trial. Mr Wallace appealed.

Factual background

[2] The District Court judgment includes a detailed, and accordingly lengthy, summary of the relevant factual background. The key factual findings were as follows.

[3] On the afternoon of 14 June 2015, the Northern Communications Centre received a 111 call from a female, who alleged that she had been assaulted earlier that day. Conversations could be heard in the background to the call and the woman said to someone else in the house, “Yeah because I don’t want you to hurt me.” Another person took the phone away from the caller, said that they did not need the Police and hung up. The caller did not give her name, but the operator was able to trace the number used to make the call to a cellphone owned by Karamea Morris.

[4] Constables Roberts and Bishop were dispatched to Ms Morris’ address in Massey. When they arrived, however, another person living at the address told the officers that Ms Morris was probably visiting her boyfriend in Swanson Road. Using her mobile phone, Constable Bishop was able to access Police information which indicated that Mr Wallace was Ms Morris’ last known partner. His address was listed as 20/55A Swanson Road. The officers then travelled to that address. During the journey, Officer Bishop looked into Ms Morris’ background in further detail. She discovered that Ms Morris had been involved in previous domestic
violence incidents.

1 Mr Wallace was initially charged with cultivating cannabis in contravention of the Misuse of
Drugs Act 1975, s 9(1). This was the charge against him at the time of the pre-trial ruling.

[5] Constables Roberts and Bishop arrived at the Swanson Road address approximately 25 minutes after the 111 call was received. They knocked on the door of the flat and identified themselves. Both officers gave evidence that they could hear people talking behind the door and the sound of…

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 Wallace v Police

Details

AGLC: Wallace v Police [2016] NZHC 1952
Case: [2016] NZHC 1952
Decision Date: 22 August 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Alexander Wallace appealed against a decision of Judge Ryan in the Waitakere District Court that upheld the admissibility of evidence obtained following a warrantless search of his flat. The evidence was obtained pursuant to s 14 of the Search and Surveillance Act 2012. Mr Wallace was facing a charge of permitting premises to be used for the purposes of an offence against the Misuse of Drugs Act 1975 involving a Class C drug, namely cannabis. The Police had received a 111 call from a distressed female from a mobile phone number linked to Karamea Morris, whose boyfriend was linked to the flat. The Police were concerned that there might be an injured person inside the flat. Sergeant Wickman forced entry into the flat, where he found cannabis plants. The District Court Judge found that the Police had reasonable cause to suspect a threat to the 111 caller’s safety and that the Police had reasonable grounds for believing that there was a risk to the life and/or safety of any person inside the flat which required an emergency response. Mr Wallace appealed against the finding of admissibility on the basis that the Police did not have reasonable grounds to suspect that there was a risk to the life or safety of any person in the flat which required an emergency response. He also argued that Sergeant Wickman did not have reasonable grounds to believe that a search of the flat was necessary to avert the emergency. In reply, the Police submitted that the Judge was justified in making the findings that she did regarding the existence of a reasonable suspicion and the necessity of searching the flat. The Court held that the Police had reasonable cause to suspect a threat to the 111 caller’s safety and that the Police had reasonable grounds for believing that there was a risk to the life and/or safety of any person inside the flat which required an emergency response. The appeal was dismissed.

Orders