Khalifa v Police

[2021] NZCA 409

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA220/2021
 [2021] NZCA 409

BETWEEN	MOHAMED KHALIFA Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Miller, Thomas and Wylie JJ
Counsel:	A Kashyap for Applicant A J Ewing for Respondent
Judgment: (On the papers)	27 August 2021 at 2.00 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

1. The applicant, Mohamed Khalifa, was tried at the Auckland District Court before Judge Clarkson on 16 December 2020.  He was found guilty of possessing cannabis for the purposes of supply.[1]  He appealed to the High Court.  The appeal was dismissed by Katz J on 1 April 2021.[2]  He now seeks leave to bring a second appeal against his conviction.

Issue in dispute

[1]Police v Khalifa [2020] NZDC 26429 [District Court judgment].

[2]Khalifa v Police [2021] NZHC 746 [High Court judgment].

1. The cannabis was found by the police in the course of a warrantless search.  The only issue is the legality of that search.

2. Judge Clarkson heard from the three police officers who attended the scene.  They had arrived at the property in which Mr Khalifa’s flat was located to deal with an altercation between the occupants of the property.  One of the constables, Constable Allsop, was standing in a courtyard talking to Mr Khalifa.  He could see into Mr Khalifa’s bedroom and he observed a hydroponic apparatus sitting over a plant.  As a result, he conducted a warrantless search of Mr Khalifa’s bedroom under s 20 of the Search and Surveillance Act 2012 and found some 200 grams of cannabis and other indicia of dealing. 

3. Judge Clarkson was satisfied that the search was lawful and that it could not be said that it had yielded improperly obtained evidence.[3]  In addition, she recorded that even if she was wrong, she would have admitted the evidence under s 30 of the Evidence Act 2006.[4]

   [3]District Court judgment, above n 1, at [19]–[20].

   [4]At [30].

4. On appeal, Katz J also found that the search of Mr Khalifa’s bedroom was lawful.  She rejected the submission made for Mr Khalifa that Constable Allsop could not have seen the cannabis before he entered the room.[5]  She found that the police had reasonable grounds to believe that a warrant would be impracticable given that the situation the officers had walked into was “unknown, potentially fast moving, and unpredictable”.[6]

   [5]High Court judgment, above n 2, at [20].

   [6]At [25].

5. Undeterred, Mr Khalifa still wishes to argue that the search was unlawful.

Application for leave

1. Section 237(2) of the Criminal Procedure Act provides that this Court must not grant leave for a second appeal unless it is satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.  The threshold is a high one and not every error creates a risk of miscarriage.[7] 

   [7]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

2. The issue which Mr Khalifa wishes to raise on a second appeal does not involve an issue of general principle or public importance.  He simply wants to argue that both of the Judges below erred in their assessment of the available evidence.  His argument is specific to his circumstances. 

3. Further, there is no risk of a miscarriage of justice.  There are concurrent findings of fact in both the District and High Courts.  The trial before Judge Clarkson was a Judge-alone trial.  As a result, Mr Khalifa has had the benefit of two fully reasoned judgments, both of which clearly articulated the factual and legal findings made.  Moreover, even if the search was unlawful, Mr Khalifa would still face the hurdle imposed by s 30 of the Evidence Act.  The prospects of success in surmounting that hurdle are remote.

4. The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent