Wilkins v Police - [2016] NZHC 328

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-80 [2016] NZHC 328

ANTHONY WILKINS

v

NEW ZEALAND POLICE

Hearing: 16 February 2016

Appearances:

K Preston and Ms V Thursby for the Appellant
I S Auld for the Respondent

Judgment:

2 March 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 2 March 2016 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Wellington. Crown Solicitor, Wellington.

WILKINS v NEW ZEALAND POLICE [2016] NZHC 328 [2 March 2016]

Introduction

[1] This is an appeal by the appellant, Anthony Wilkins, from the pre-trial ruling of a District Court Judge on 8 December 2015. The pre-trial application challenged the validity of a warrantless search of the appellant’s house.1 The application related to two charges to which the appellant has pleaded not guilty: cultivation of cannabis and possession of a utensil associated with illegal drug use.

[2] The issues relate to whether the search was lawful under s 20 of the Search and Surveillance Act 2012 (SSA) and, if the search were unlawful, whether the evidence should be excluded under s 30 of the Evidence Act 2006.

Background

[3] The appellant was stopped by a road policing unit in Wellington for an unrelated reason. When the constable approached the car he could smell cannabis. After a caution pursuant to the New Zealand Bill of Rights Act 1990 was given, the appellant handed over a bag containing cannabis.

[4] In his discussions with the officer, the appellant admitted he had grown the cannabis at his home. He was arrested and transported to the Wellington Central Police Station. The constable became aware during their conversations that the appellant had flatmates who could be expected to arrive home around that time.

[5] The constable decided that it would be impractical for him to obtain a search warrant. In his opinion, by the time he prepared an application, had it checked, located a judicial officer who could consider and grant the application, the appellant would be released on bail because, at that stage, he would only have been charged with possession of cannabis. The officer believed that, once released on bail, the appellant would most likely return home where evidence of the offending would be interfered with, concealed, removed or destroyed. Likewise, the constable said he was concerned that, if there were communication between the appellant and his
flatmates, the flatmates might interfere with the evidence.

1 Search and Surveillance Act 2012, s 20.

[6] In those circumstances, the constable, after consultation with his supervisor, decided to execute a warrantless search. General duty staff were called back in from other duties to accompany the constable conducting the search. This was due to concerns about the potential for the appellant’s uncle to be at the address. At the time, the uncle was being sought by the police in respect of other drug charges and was considered dangerous.

[7] A warrantless search of the appellant’s house…

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.

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Details

Case: [2016] NZHC 328
Decision Date: 2 March 2016

CaseChat Overview and Summary

The appeal in Wilkins v Police was heard by Thomas J and concerns a warrantless search of the appellant's house under s 20 of the Search and Surveillance Act 2012 (SSA). The appellant had been stopped by a police officer who suspected he was in possession of cannabis. The appellant admitted he had grown cannabis at his home, was arrested, and transported to the police station. The police officer decided to execute a warrantless search due to concerns about the potential for the appellant to interfere with the evidence and his flatmates interfering with the evidence. Cannabis was found at the address. The appellant pleaded guilty to charges of possession of cannabis, possession of a firearm and possession of ammunition. The appellant challenged the validity of the warrantless search. The issues were whether the search was lawful under s 20 of the SSA and, if the search were unlawful, whether the evidence should be excluded under s 30 of the Evidence Act 2006. The Court found the search was lawful under s 20 of the SSA and, if the search were unlawful, the exclusion of evidence would not be proportionate to the impropriety.

Orders