Wing v Police - [2022] NZHC 2126

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CRI-2022-435-1

[2022] NZHC 2126

BETWEEN
MATTHEW JOHN WING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (by VMR): 23 August 2022

Counsel:

A Mobberley for the Appellant A Brosnan for the Respondent

Judgment:

25 August 2022

JUDGMENT OF GWYN J

Summary

[1] On 21 May 2020 Mr Matthew Wing was charged with cultivating a prohibited plant (cannabis)1 and supplying a Class C controlled drug (cannabis).2 The charges were laid as a result of warrantless searches of the appellant’s property, including an aerial search and a ground search.

[2] The appellant sought an order under s 30 of the Criminal Disclosure Act 2008 (Act) for disclosure of information relating to those searches, including the costs of the aerial search. The District Court denied the applications on the basis that the information sought was not relevant.3

[3]Mr Wing now appeals that decision.

1      Misuse of Drugs Act 1961, s 9 carries a maximum penalty of seven years’ imprisonment.
2      Section 7 carries a maximum penalty of three months’ imprisonment and a fine of $500.
3      Police v Wing [2022] NZDC 9316.

WING v NEW ZEALAND POLICE [2022] NZHC 2126 [25 August 2022]

Facts

[4] New Zealand Police runs an annual cannabis and crime operation. For 2020, the operation, entitled “Operation Piano”, began in the Wellington District. The first phase included flying an aeroplane over rural areas to spot cannabis plantations. On 11 February 2020, cannabis plants were identified growing on the appellant’s property in South Wairarapa.

[5] As a result, police entered the property to conduct a warrantless search under the Search and Surveillance Act 2012 and located 14 well-tended and healthy cannabis plants on the property, including four budding ones. The police estimate the potential yield of the plants would be 14 pounds, equivalent to $56,000. These facts constitute the basis of the cultivation of cannabis charge.

[6] The supply of cannabis charge arises from text messages between the appellant and an associate during the period 17 July to23 July 2019. The police allege that the text messages show the appellant providing the associate with cannabis.

[7] In explanation, the appellant told police that he suffered from tinnitus and had been growing cannabis for personal use for two years to help with the condition.

[8] The appellant has elected a Judge-alone trial which will be heard in the Masterton District Court. A trial date has not yet been set.

District Court’s decision

[9] Prior to a pre-trial hearing on the admissibility of the evidence obtained through warrantless searches, Mr Wing sought information under s 30:

(a)Aircraft costs: the costs of chartering the fixed wing aircraft, the pilot and all incidental costs incurred by the police for Operation Piano from 10-12 February 2020; and

(b)Copies of the Warrantless Search Notifications4 in relation to searches carried out during 10-12 February 2020 as part of Operation Piano.

[10] The information was said to be relevant to the s…

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 Wing v Police

Details

AGLC: Wing v Police [2022] NZHC 2126
Case: [2022] NZHC 2126
Decision Date: 25 August 2022

CaseChat Overview and Summary

The appellant, Mr Matthew Wing, appeals the District Court decision denying his application under the Criminal Disclosure Act 2008 (the Act) for disclosure of information relating to warrantless searches conducted on his property. The District Court held that the information sought was not relevant to the lawfulness of the searches. The appeal raises the issue of whether the information sought is relevant to the lawfulness of the warrantless searches conducted of Mr Wing’s property. The High Court found that the information was relevant and allowed the appeal. The court ordered disclosure of the costs of chartering the fixed wing aircraft, the pilot, and all incidental costs incurred by the police for Operation Piano from 10-12 February 2020, and copies of the Warrantless Search Notifications in relation to searches carried out on 11 February 2020 as part of Operation Piano. The court concluded that the appellant had established a sufficient basis for the relevance of the information sought, and that a convincing case was not made out for withholding the information. The court held that the information sought was relevant to the broader question of how the police determined that warrantless searches were appropriate and lawful. The court also held that the prosecution had not provided any compelling reason for refusing disclosure. The court found that the information sought was relevant to the planning of the overall operation and the determination of the flight path for the flyover. The court further held that the information sought from the Warrantless Search Notifications may be relevant to the broader question of the lawfulness of the overall operation. The court found that the reasons given in the notifications would be relevant to the broader question of the lawfulness of the overall operation.

Orders