Barrett v Police

[2013] NZHC 1416

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-000002 [2013] NZHC 1416

BETWEEN  PETER HEMARA BARRETT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   5 June 2013

Appearances:           Appellant in person

J M O'Sullivan for Respondent

Judgment:                13 June 2013

JUDGMENT OF KEANE J

This judgment was delivered by  on 13 June 2013 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Hamilton

BARRETT v POLICE [2013] NZHC 1416 [13 June 2013]

[1]      On 20 June 2012, after a summary hearing in the District Court, Thames, Judge Marshall convicted Peter Barrett of possessing cannabis for supply on 15

February 2012. The Judge dismissed a related charge of possessing utensils. He discharged Mr Barrett without conviction on a charge of obstructing the police when they searched his house under warrant.

[2]      On 14 January 2013 the Judge sentenced Mr Barrett to 180 hours community work for the possession for supply offence, and for a simple possession offence also arising from the 15 February 2012 search, to which he had pleaded earlier. On the possession for supply offence he also ordered Mr Barrett to undergo nine months supervision.

[3]      Mr Barrett appeals his conviction on grounds first set out in a notice of general appeal, dated 16 January 2013, and enlarged by notice filed on the day of the appeal. His first ground is that the Judge did not on the day of the summary hearing, or later, issue any minute recording his decision that day. That ground, I explained to Mr Barrett on the appeal, rests on a misapprehension.

[4]      On 20  June 2012 all  the Judge did,  and  needed  to  do,  was  to  note  his decisions as to each of the three charges on the informations under which they were laid. Mr Barrett had been sent, as he agreed, the Judge’s full oral decision given that day, and his remarks on sentence, and the notes of evidence. Mr Barrett’s further grounds of appeal reduce to three.

[5]      First, Mr Barrett contends, the Judge wrongly upheld the warrant and the lawfulness of the search, even though the warrant was only partly disclosed and, he argues, issued on insufficient grounds. Furthermore, on the search the police showed him only an incomplete copy of the warrant. On any basis, he contends, the warrant was invalid, the search was unlawful, and the evidence obtained inadmissible.

[6]      Secondly, while Mr Barrett did not contest that he and Ms McCaskill, who was charged with him equally, possessed the cannabis found on the search or its amount, he puts in issue the consequence in law. He contends that under s 6(6) of the Misuse of Drugs Act he discharged any onus on him of negating possession for

supply by the explanation he and Ms McCaskill gave that they possessed it for their use as medication and pain relief. The Judge was wrong, he contends, to reject that explanation. He should have accepted it and required proof of actual supply.

[7]      Thirdly, he contends, on her own appeal Ms McCaskill succeeded in having her conviction for possession for supply set aside on the basis that despite her guilty plea she had an arguable defence; and the police later elected not to pursue the charge against her by rehearing. His defence has equal merit.

Appeal jurisdiction

[8]      This is a general appeal under s 115 of the Summary Proceedings Act 1957. It is by way of rehearing on the evidence taken in the District Court.1 On an appeal this Court may confirm or set aside the conviction as it thinks fit.2

[9]      To succeed Mr Barrett must establish that Judge Marshall made an error of fact or law but I must also assess that for myself on a contrast between the Judge’s decision and the evidence, always remembering that he had the advantage of seeing and hearing the witnesses.3

First ground - search warrant

[10]     In order to search the property occupied by Mr Barrett and Ms McCaskill the police obtained a search warrant on 13 February 2012 from a Deputy Registrar of the District Court, Hamilton.

[11]     The warrant applied for was to search for cannabis in various forms, for items associated with its sale, for utensils, for cash and documentation, for electronic recording devices and surveillance equipment, for documents consistent with money laundering and for weapons. The application therefore began by setting out standard information about cannabis and drug dealing,  the cash  generated  and  the likely

related evidence.

1      Summary Proceedings Act 1957, s 119.

2      Section 121(1), (2).

3      Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 at [16]; O'Neil v Police HC Auckland CRI 2007-404-405, 9 October 2008 at [5].

[12]     Then the application moved to the aspect Mr Barrett puts in issue. It stated the reason why the police were confident that a search of the address Mr Barrett and Ms McCaskill shared was likely to reveal evidence of drug dealing and related offending. An informer, who had proved reliable, had said that the two were running a tinnie house.

[13]     The application then set out what was known about Mr Barrett and  Ms McCaskill and that included call data and text messaging records obtained under an earlier warrant. None contained frank evidence of drug dealing. But a large number of texts were to establish whether Mr Barrett was at home.

[14]     The Judge accepted at the outset that if, as Mr Barrett contended, the warrant was a nullity then the search was unlawful and the evidence obtained ought to be held inadmissible and the charge dismissed. In the event the Judge sustained both the warrant and the search.

Incomplete and insufficient application

[15]     Blanked out from the copy of the search warrant application disclosed to Mr Barrett was information concerning the informer. At the hearing, the Judge compared that incomplete copy with the complete application and held that the latter gave the Registrar reasonable grounds to issue the warrant, authorising the search made.

[16]    On this appeal Mr Barrett contends he should have been given the full application and been able to question the informer. He was denied wrongly, he contends, any proper opportunity to test the sufficiency of the warrant under which the evidence against him was obtained.

[17]     The police were only entitled to withhold from Mr Barrett the part of the application blanked out if that was justified under s 16 of the Criminal Disclosure Act 2008, which entitled them to withhold information on specified grounds, and as

long also as they otherwise disclosed to Mr Barrett the balance of the application.4

4      Section 16(2).

[18]     The two grounds on which the police were entitled to rely to protect the anonymity of the informer were that disclosure was ‘likely to prejudice the maintenance of the law  including the prevention,  investigation  and  detection  of offences’,5 or was ‘likely to endanger the safety of any person.’6

[19]     By those grounds s 16 affirms the public interest immunity that has always been accorded to information about informers and the section as a whole ensures that this is not to be at the expense of the right of a person charged with an offence to a fair trial. The common law principle, with which s 16 is consistent, is as set out in R v McNicol:7

... there is a long-standing and strong common law principle that public interest requires the withholding of the names or identities of police informers. ... Common law however provides a safeguard ... namely that the Judge should allow disclosure if it would help to show that an accused is innocent of the offence.

[20]     In that case the Court of Appeal confirmed that, to strike the balance called for in the interests of justice, the trial Judge must compare the complete application with the redacted version and decide whether what has been withheld goes beyond protecting the identity of the informer and might assist the defence. Any aspect that goes that further distance must be disclosed. That is now called for by s 16.

[21]     The Judge does not say whether he compared the full and redacted copies of the application from that perspective. On my own review, I am able to say however, that the blanked out part did no more than protect the anonymity of the informer. There is nothing in the part blanked out that would have assisted Mr Barrett in his defence.

[22]     I agree also with the Judge that, once the application is seen in its complete state, the Registrar did have reasonable grounds for the issue of the warrant.

5      Criminal Disclosure Act 2008, s 16(1).

6      Section 16(1).

7      R v McNicol [1995] 1 NZLR 576 at 580.

Incomplete warrant

[23]    The warrant Mr Barrett was shown on the search was incomplete. The Registrar’s name and signature had been deleted. The officer, who showed him the warrant, said in evidence that normally the Court issues a search copy without the Registrar’s name and signature. He did not say why.

[24]     The reason is presumably to protect the Court officer, who issues the warrant, but that practice does not square with s 198(8), which says that ‘It is the duty of everyone executing any search warrant to have it with him and to produce it if required to do so.’ That duty can only serve one purpose: to oblige officers to establish the lawfulness of their search if challenged. Resort to a warrant devoid of the signature and name of the issuing officer cannot serve that purpose or discharge that duty.

[25]     The result, as the Judge may well have accepted, is that the search itself suffered from that irregularity. But, as the Judge held, that did not touch the validity of the warrant authorising the search. It was issued on sufficient grounds. In its complete state it complied with the law. Section 204 of the Summary Proceedings Act 1957 then came into play. It says:

No ... warrant ... and no process ... shall be ... held invalid ... by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

[26]     Plainly, as the Judge held, no miscarriage of justice resulted from the fact that the copy of the warrant shown Mr Barrett was incomplete. But the fact that it was incomplete  did  give  Mr  Barrett  some  ground  to  question  the lawfulness  of the search. The Judge was right to discharge him without conviction on the related obstruction charge.

Second ground - onus as to supply

[27]     At the hearing there was no issue as to the cannabis discovered on the search. Mr  Barrett  conceded  that,  in  a  small  office  in  the  home  he  shared  with  Ms McCaskill, there were two separate quantities of cannabis. In a red plastic container

there were three ziplock bags containing loose cannabis weighing 37 grams; the cannabis charged as simply possessed. In two old tobacco tins there were 61 tinnies, weighing 61 grams; the cannabis charged as possessed for supply.

[28]     The Judge accepted, as to the contested possession for supply charge, that only the 61 tinnies were in question. The loose cannabis, simply possessed, was irrelevant. He accepted also that, in evidence, Ms McCaskill had distanced herself from her statement on the day that she and Mr Barrett had purchased cannabis in

$350 - $400 bags to sell as tinnies for $20 each; that Mr Barrett had rolled the tinnies and she had made the sales.

[29]     The fact that the 61 tinnies exceeded 28 grams, the Judge held however, obliged Mr Barrett to establish to the balance of probabilities that he did not possess that cannabis for supply. He then rejected Mr Barrett’s evidence and that of Ms McCaskill that they owned it jointly, Ms McCaskill for medication and Mr Barrett for pain relief for his established back injury.

[30]     Their evidence was that Mr Barrett had rolled the 61 tinnies to give Ms McCaskill two months’ supply at a precise daily dose, one tinnie a day divided into three smokes. The Judge described such packaging and unwrapping as ‘illogical and

... pointless’. He accepted instead the expert opinion of the senior police officer in the  case  that  the  tinnies  were  what  they normally  are;  a  common  unit  of  sale prepared precisely for that purpose.

[31]     Mr Barrett contends, relying on Hansen v R,8  that once he advanced to the Judge an inherently reasonable explanation for possessing the cannabis, medication for Ms McCaskill and pain relief for himself, the Judge was obliged to accept that and it was then for the prosecution to prove an actual supply.

[32]     That misreads s 6(6) of the Misuse of Drugs Act 1975. Once Mr Barrett was fixed with in excess of 28 grams of cannabis and he was certainly fixed with 30 grams, if not the full 61 grams, he came under the reverse onus s 6(6) imposes. As

the Supreme Court confirmed in Hansen, he had then to prove to the balance of

8      R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.

probabilities that he did not possess the cannabis for supply. It was not enough for him to raise a reasonable doubt about whether that was his purpose. Nor did s 6(6) then shift the onus back to the prosecution to prove an actual supply.

[33]     The Judge was obliged to conclude that Mr Barrett possessed the cannabis for supply, therefore, unless Mr Barrett negated that purpose to the balance of probabilities; and the Judge was entitled to conclude, as he did, that Mr Barrett had not  discharged  that  burden.  Mr  Barrett  then  became  fixed  not  simply  with possession, but possession for supply.

Third ground - Ms McCaskill

[34]     Mr Barrett’s third ground, which is related to his second, is that on her own appeal Lang J quashed Ms McCaskill’s conviction for possession for supply, despite her guilty plea, holding that she had entered that plea at a sentencing indication hearing believing that she was pleading to simple possession.9

[35]     Mr  Barrett  relies  especially  on  Lang  J’s  description  of  Ms  McCaskill’s

defence, which the Judge held to be arguable:10

This arises out of the explanation Ms McCaskill gave to the police when they interviewed her after searching her address. At that time she told the police that she and others in her area purchased cannabis together on a bulk basis. They did so because it was cheaper to do that rather than to purchase cannabis individually. The cannabis purchased in that way was then divided between those who contributed to the cost of its purchase.

[36]     In granting Ms McCaskill’s appeal, however, and quashing her conviction despite her plea, Lang J made no finding as to the merit of her defence. She had then to undergo a full summary rehearing. The fact that the police then elected not to proceed further against her does not assist Mr Barrett.

Conclusion

[37]     In the result I find that Mr Barrett’s grounds of appeal do not assist him. His appeal against conviction is dismissed. Mr Barrett appeals his sentence, contending

9      McCaskill v New Zealand Police [2012] NZHC 2941.

10 At [7].

that his last material conviction was in 1999. His sentence, however, was well within

the Judge’s discretion to impose.11 That appeal also is dismissed.

P.J. Keane J

11     R v Terewi [1999] 3 NZLR 62, R v Gray [2009] NZCA 31.