New Zealand Police v Norling [2018] NZDC 3979

Published 17 April 2019

Legality of warrantless search — admission of improperly-obtained evidence — McGarrett v R [2017] NZCA 204 — R v Williams [2017] 3 NZLR 207 — Search and Surveillance Act 2012, ss 20 & 131 — Evidence Act 2006, s 30. The defendant faced charges of possessing utensils for methamphetamine use, plus unlawful possession of an airgun, ammunition and a knife. The police had stopped the defendant as part of a routine traffic check, and then invoked a search power under the Search and Surveillance Act (SSA) on the belief that the vehicle contained drugs. In his car they found the items forming the basis of the charges. It was common ground between the parties that the evidence was improperly obtained, as the police had failed to observe the identification and notification requirements of s 131 of the SSA. However the police sought to have the evidence admitted under s 30 of the Evidence Act. Section 30 sets out a number of matters that a Judge can consider when deciding whether or not to admit improperly-obtained evidence. Referring to these matters in turn, the police argued that they committed no major impropriety; they had not acted in bad faith and had not seriously breached the law. The items found in the search were central to the police case, and the alleged offending was at a moderate to serious level. Finally, the police submitted that the only alternatives to the warrantless search were to obtain a search warrant or secure the vehicle, and these options were not practicable in the circumstances. The defendant accepted that the police had not acted in bad faith, but argued that in fact it would have been practicable for them to have obtained a search warrant in the circumstances. They had the option of making an oral application, which is much quicker than a written application. Therefore the defendant submitted that the evidence should be excluded. Although the defendant did not cross-examine witnesses on oral search warrant applications, the court found that the process was likely to be very time-consuming, thereby raising the risk that evidence would be destroyed, concealed, altered or damaged. Therefore it was not a practicable option in the circumstances. The Court found that the evidence obtained from the search was admissible. Judgment Date: 5 March 2018.