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Grower’s legal move

PHOTOS/GETTY IMAGES

A South Wairarapa man found cultivating cannabis in police “Operation Piano” has been granted leave to appeal in the High Court.

Barrister Andra Mobberley successfully argued that the costs involved in an aerial search of Matthew Wing’s property in 2020 was relevant for determining whether the police’s warrantless searches were lawful.

In a decision in Wellington High Court, Justice Cheryl Gwyn said police had not made a convincing case to withhold the information.

In May 2020, Wing was charged with cultivating and supplying cannabis after warrant-less aerial and ground searches of his property.

The charges carried a maximum penalty of seven years imprisonment for cultivating cannabis and a maximum three-month jail-term and a $500 fine for supplying a class C drug.

The searches were conducted as part of the police operation entitled “Operation Piano” in February 2020, which included an initial aerial search of rural areas to spot cannabis plantations.

On February 11, Wing’s South Wairarapa property was identified.

A subsequent warrant-less ground search by police found four budding and 14 “well-tended and healthy cannabis plants” with an estimated 14-pound yield, or the equivalent to $56,000.

Police alleged text messages on Wing’s phone showed he was also supplying cannabis.

Wing maintained he had been growing cannabis for two years to help with a tinnitus condition, and elected a judge-alone trial in Masterton District Court, the date of which is yet to be set.

For his challenge on the lawfulness of the searches, Wing sought an order under section 20 of the Criminal Disclosure Act 2008.

He asked for police disclosure of both the aerial search costs and copies of the warrant-less search notifications relating to his property.

However, the application was quashed in Masterton District Court in May this year with the judge determining the information was not relevant to the lawfulness of the searches.

Wellington High Court.

In her High Court submissions, Mobberley argued the District Court judge made an error in applying the relevance test to the ground searches only.

She said the aircraft costs would become relevant in future cross-examination, as there was evidence to suggest Wing was a police suspect before the flyover.

She said costs were a police consideration to ensure efficient use of aircraft resources and it was not a coincidence that the flight path happened to cover Wing’s property.

Mobberley said a January 22, 2020 email between police sergeants headed “Op Piano – Fly over considerations” included Wing’s details and address indicating he was a suspect three weeks before the flyover.

“The police should have obtained a search warrant to lawfully conduct a search of Mr Wing’s property when they suspected him of criminal conduct.”

She said the application for the warrant-less search applications would establish whether the police practice of assuming warrant-less searches, proven unlawful in another South Wairarapa case last year, was ongoing.

The prosecution maintained the information was not relevant to Wing’s case and said disclosing the information of the warrantless search notifications would involve redacting others’ personal information.

Justice Gwyn however said she was not satisfied that the interest of withholding the information outweighed other considerations such as public interest.

“The prosecution has not provided any compelling reason for refusing disclosure.”

She said the information sought by the defence was only in relation to Wing’s property search on February 11, 2020.

“This is not an onerous obligation.”

Gwyn granted Wing leave to appeal and ordered police to disclose all aircraft costs relating to Operation Piano from February 10-12, 2020 and copies of the warrant-less search notifications relating to the search of Wing’s property on February 11, 2020.

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