R v Ruth Wheeler [2016] NZDC 9811

Published 17 August 2016

Whether evidence properly obtained — possession of methamphetamine for supply — Search and Surveillance Act 2012, s 20 — Evidence Act 2006, s 30 — R v Balsley [2013] NZCA 258 — R v Williams [2007] 3 NZLR 207. As a result of a search without warrant the defendant faced charges of possession of methamphetamine for supply. Issues in the case were: (a) whether Section 20 Search and Surveillance Act 2012 being complied with and the evidence properly obtained; (b) if the evidence was improperly obtained, should it nevertheless be admitted, applying the balancing test in s 30 Evidence Act 2006? Evidence was ruled as admissible despite the fact it had been improperly obtained by the Constable. Although the Constable was found to have invoked s 20, the evidence was improperly obtained because the Constable was not acting within the scope of an implied licence and was therefore a trespasser when observing the defendant’s actions (Balsley). However, Judge determined that exclusion of the evidence would have been disproportionate response to the impropriety involved (EA, s 30).