White v Police - [2015] NZHC 1547

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-4 [2015] NZHC 1547

BETWEEN
COLIN JAMES WHITE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 April 2015

Appearances:

W D McKean for the Appellant
M Smith for the Respondent

Judgment:

6 July 2015

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 6 July 2015 at 4 pm pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors:
Mr W D McKean, WRMK Lawyers, Whangarei
Mr M Smith, Marsden Woods Inskip and Smith, Office of the Crown Solicitor, Whangarei

WHITE v NEW ZEALAND POLICE [2015] NZHC 1547 [6 July 2015]

[1] Mr White appeals against his conviction on a charge of cultivating cannabis.1

There was no appeal against the sentence, which was 40 hours community work for cultivating four plants.

[2] The sole issue on the appeal is whether, in terms of s 30 of the Evidence Act, the evidence of cultivation was improperly obtained. The appellant contended that the evidence was obtained in breach of s 93 of the Search and Surveillance Act 2012 (the Act). Section 93 prescribes advice that must be given by an enforcement officer before a “consent search” is undertaken.

The facts

[3] Police were trying to find a young woman who was believed to be at risk of committing suicide. She had earlier been found in Whangarei and was being driven by mental health officers to Auckland. She had disappeared during the journey. Whangarei police searched her car in Whangarei. They found a card with the appellant’s name, address and telephone number on it. The appellant lives at an address at One Tree Point. Police had other information that the young woman had been seen at an address at One Tree Point. Police therefore followed up this lead by going to the appellant’s home.

[4] They arrived at his home in the middle of the morning. The appellant was not there, but his former wife, also living at the property, was there.

[5] There was a discussion between Mrs White and the officer-in-charge. I will come back to some of the detail of this discussion. For the purposes of outline it is sufficient to record that Mrs White, having been advised of the reason for the police visit – the search for the missing woman - willingly consented to two of the police officers having a look around the garden. In the course of that investigation one of the officers lifted a plastic cover off what he described as “a large structure which
appeared to be a white tunnel. Four cannabis plants were found in this tunnel.

1 NZ Police v White DC Whangarei CRI-???

[6] Advice to the officer-in-charge of the finding of the plants in the garden resulted in purported invocation of s 20 of the Act to undertake a search without a warrant of part of the house. It is unnecessary to consider this aspect of the matter any further because Judge Duncan G Harvey…

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 White v Police

Details

AGLC: White v Police [2015] NZHC 1547
Case: [2015] NZHC 1547
Decision Date: 6 July 2015

CaseChat Overview and Summary

Colin James White appeals against his conviction for cultivating cannabis, with no appeal against the 40-hour community work sentence. The sole issue is whether the evidence of cultivation was improperly obtained under section 30 of the Evidence Act. The appellant argues that the evidence was obtained in breach of section 93 of the Search and Surveillance Act 2012, which prescribes advice that must be given by an enforcement officer before a "consent search" is undertaken. Police were searching for a young woman believed to be at risk of committing suicide, and had located a card with the appellant's details in her car. They followed up this lead by visiting the appellant’s home. They arrived at his home in the middle of the morning. The appellant was not there, but his former wife, who also lived at the property, was there. The police officer-in-charge explained the reason for the visit, and the former wife willingly consented to two of the police officers having a look around the garden. One of the officers lifted a plastic cover off what he described as “a large structure which appeared to be a white tunnel” and found four cannabis plants. The statutory provisions, contained in sections 91 to 96 of the Act, were not applicable because the police had a power of entry, not a power of search, and the circumstances did not warrant an emergency response. The court held that Mrs White’s consent was valid, and the police officer who looked around the garden did not exceed the limits of the consent given. The court dismissed the appeal, holding that exclusion of the evidence would have been a disproportionate response.

Orders