New Zealand Police v Topia [2018] NZDC 20607

Published 12 July 2019

Admissibility of evidence — unlawful seizure — no search warrant — breach of privacy — breach of rights — offering to supply methamphetamine — receiving property — Search and Surveillance Act 2012, ss 112 & 123 — Evidence Act 2006, s 30 — New Zealand Bill of Rights Act 1990, s 21. The defendant challenged the lawfulness of the police seizing a laptop, as well as the admissibility of evidence gained from a Facebook page and the defendant's statements to police. The defendant was facing charges of offering to supply methamphetamine and receiving of stolen power tools. The charges arose from a police search of the defendant's home, conducted in order to retrieve items believed to be in the possession of a different occupant. The police did not find the items they were looking for but upon finding a methamphetamine pipe, they undertook a warrantless search of the address. During the search one of the officers found a laptop belonging to the defendant, which the officer suspected was stolen. The defendant and the officer then returned to the Police Station with the laptop. The officer searched a database for stolen items but could find no record of the laptop. Next the officer opened the laptop and found a Facebook page for an unknown user. After reading messages on the page relating to the sale of power tools and the supply of methamphetamine, the officer questioned the defendant and then charged him. In regards to the lawfulness of the seizure of the laptop, the officer explained that he had seized it because it would be easier to examine it at the police station than at the defendant's address. The Court rejected this explanation, reasoning that there were four officers at the address as opposed to three occupants, who were cooperating. The officers had carried out inquiries about other items while at the address so they could have done the same for the laptop. The Court also considered that a search warrant would not have been granted in the circumstances as there was no evidence to suggest that the laptop was stolen. Given the defendant's high privacy interest in the contents of the laptop and the recklessness of the officer's actions, the Court declined to admit the evidence via s 30 of the Evidence Act. Finally, the officer did not re-administer the defendant's rights before questioning and charging him, so the defendant's statements were also inadmissible. Judgment Date: 19 November 2018. * * * Note: names have been changed to comply with legal requirements. * * *