Blackler v The King

[2024] NZHC 1248

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-028

[2024] NZHC 1248

BETWEEN

SEAN ANTHONY BENNETT BLACKLER

Appellant

AND

THE KING

Respondent

Hearing:

15 May 2024

Appearances:

Appellant in person

M J R Blaschke for Respondent

Judgment:

17 May 2024

JUDGMENT OF GRAU J

[Pre-trial appeal]

Introduction

[1]    Mr Sean Blackler faces a Judge-alone trial (JAT) on 24 June 2024 on one charge each of possession of methamphetamine and possession of a pipe.1 He appeals a pre-trial decision of Judge Harrop in the Wellington District Court ruling evidence admissible at his trial. The evidence was obtained following the execution of a search warrant by Police on 22 December 2020 at Mr Blackler’s home.2

1      Misuse of Drugs Act 1975, ss 7(1)(a) and (2) (maximum penalty of six months’ imprisonment or

$1,000 fine or both); and Misuse of Drugs Act, ss 13(1)(a) and (3) (maximum penalty of one year’s imprisonment or $500 fine or both) respectively. Mr Blacker originally also faced a cultivation of cannabis charge which has since been withdrawn by Police; see R v Blackler DC Wellington CRI-2020-085-2747, 2 April 2024 (Minute of Judge P A Hobbs).

2      R v Blackler [2024] NZDC 4754 (Reserved Judgment of Judge S M Harrop: Challenges to Admissibility of Evidence  obtained  on Execution  of  Search Warrant)  [Decision  on Appeal]; R v Blackler [2022] NZDC 14114 (Oral decision of Judge B Davidson: Application for disclosure) [Decision of Judge Davidson].

BLACKLER v R [2024] NZHC 1248 [17 May 2024]

[2]    Because this is a pre-trial appeal, Mr Blackler requires leave, which is opposed by the Crown. The Crown position is that any appeal is better heard following the JAT.

Jurisdiction for the appeal

[3]    There is a preliminary jurisdictional issue. Mr Blackler originally elected trial by jury, when he was also facing a charge of cultivation of cannabis. The pre-trial decision of Judge Harrop that is the subject of this application (and a prior pre-trial decision of Judge Davidson declining disclosure) were conducted on this basis. However, the  Crown  withdrew  the  charge  of  cultivation  of  cannabis  after  Judge Harrop’s ruling. Therefore, Mr Blackler no longer faced any charges that could proceed to a jury trial. On 2 April 2024, Judge Hobbs recorded that the matter was to proceed to a JAT.3 Mr Blackler’s notice of appeal against Judge Harrop’s decision was filed after the transfer to a JAT proceeding (on 11 April 2024), making this Court the appropriate appeal Court.4 The matter is now to be treated as if a jury trial had not been elected.5

Background

[4]    On 16 December 2020, Police obtained a warrant to search Mr Blackler’s property in Karori. The warrant was almost entirely based on informant information. A month earlier Police had obtained a production order for his phone but the application for the search warrant had made no reference to that. The search warrant was executed on 22 December 2020.6 Police found 1.346 kilograms of cannabis, five cannabis plants, items associated with growing cannabis, half a gram of methamphetamine and a pipe.7

[5]    Mr Blackler sought disclosure of the unredacted warrant and production order applications. Judge Davidson appointed independent counsel to review the unredacted applications and supporting material. After considering two reports by counsel, on

3      Minute of Judge P A H Hobbs, above n 1, at [5]

4      Criminal Procedure Act 2011 (CPA), s 219.

5      CPA, s 219(2).

6      Decision on Appeal, above n 2, at [2].

7      Decision of Judge Davidson, above n 2, at [5].

25 July 2022, Judge Davidson declined to order disclosure, finding it had been legitimately withheld, and if now disclosed would make no difference to any pre-trial challenge to the validity of the production order or search warrant.8

[6]    Mr Blackler then challenged the admissibility of the evidence obtained from the search. After a hearing on 6 March 2024, at which Judge Harrop heard evidence from four Police officers who were involved in the warrant preparation and execution and Mr Blackler, his Honour dismissed Mr Blackler’s challenges to the admissibility of the evidence and the manner of execution of the search.9

Judge Harrop’s decision

[7]    Mr Blackler had asserted that the officer who applied for the warrant, Sergeant McKendry had breached his duty of candour by failing to include any reference to the telecommunications data obtained from the production order. He also challenged the conduct of the search, on the basis of his belief that the officers who executed the warrant were looking for evidence, particularly firearms, relating to a homicide, rather than for drugs.10

[8]    Judge Harrop accepted the duty of candour on Police preparing a search warrant to include all relevant information, whether favourable or not.11 However, as he explained, there will be cases where non-disclosure of relevant information can have made no difference.12 Sergeant McKendry’s evidence was that he did not know the raw data had been analysed and so did not include it in the warrant application because he did not know if it included anything relevant.13 Detective Craig, the officer in charge, had analysed the data which he had recorded in a job sheet revealed no direct indication of Mr Blackler’s involvement in drug dealing, but numerous text messages from different numbers asking if they could “come over” supported the information police had received that Mr Blackler was dealing drugs from his address.14 Sergeant McKendry had also been unaware of any enquires made with

8      Decision of Judge Davidson, above n 2, at [17]–[19].

9      Decision on Appeal, above n 2.

10 At [6].

11 At [14].

12 At [17].

13 At [18].

14 At [19].

KiwiRail and Blue Bridge. Detective Craig could not recall what was requested or if anything relevant was received.15

[9]    The Judge said he was “prepared to accept, at least for present purposes” that Sergeant McKendry should have included in the search warrant application that the Police had sought telecommunications data to support their case. He should have also asked the officer in charge whether there had been any analysis of it, so that he could have advised the issuing officer of Detective Craig’s conclusion that it supported an inference of drug dealing. The Judge did not, however, accept there was any bad faith involved.16

[10]   Nor did the Judge consider the failure to disclose the telecommunications data and its analysis had any potential consequence for the issue of the warrant. As the Judge concluded:

[23]      … It could not have made any difference to the issuing officer that there was, at least directly, no evidence that Mr Blackler had been involved in drug dealing. It was merely the absence of potentially helpful supporting information, but that could not have undermined the informant information which was the critical basis for the issue of the warrant …

[24]      Although I am not aware of the informant information and consider I do not need to be for present purposes, it is highly unlikely that it expressly said evidence of drug dealing would be found in text messages if these were obtained; it is far more likely that it simply referred to the informant’s knowledge of the presence at the house of drugs and related items and of   Mr Blackler’s activities generally.

[25]      In all the circumstances I consider it inconceivable that the application for the search warrant would have been declined, or even that it would have led to further inquiry by the issuing officer under s 98(2)(a) of the Search and Surveillance Act 2012, had the analysed (or raw) telecommunications data and Detective Craig’s comments about it been supplied.

[11]   This led the Judge to conclude that there was no unreasonable or unlawful search as a result of the non-disclosure of the telecommunications data in the application for the search warrant. There was therefore no need to consider a potential application of s 30 of the Evidence Act 2006.17

15 At [21].

16 At [22].

17 At [26].

[12]   The Judge also accepted the Crown submission that the duty of candour cannot require the Police to include reference to all unsuccessful inquiries, such as from KiwiRail and Blue Bridge. It would only be necessary for such inquiries to be referred to where the absence of information or the lack of success of an inquiry would have a potential bearing on the issuing officer’s assessment of whether the warrant should be issued.18

[13]   As to the conduct of the search, leaving aside what Mr Blackler had said about it, the evidence the Judge heard was of an “unremarkable drug search” and there was “nothing at all in the evidence” that would impugn the conduct of the officers. There was “simply no basis” on which it could be said the search was conducted in breach of s 21 of the New Zealand Bill of Rights Act 1990 (the NZBORA).19

[14]   Nevertheless, Mr Blackler had argued that the search was unreasonable and unlawful because the drug search was a ruse and that in truth the Police were searching for firearms.   Mr Blackler believed the real purpose of the search was to connect   Mr Blackler to a recent murder the Police suspected Mr Blackler had ordered.20 Detective Craig had rejected these allegations, being adamant that if there had been a search warrant for firearms, he would have been aware of it as the officer in charge and would have disclosed it.21

[15]   In his decision Judge Harrop had recorded that Mr Blackler’s evidence included a number of serious allegations against another officer, Senior Sergeant Richardson, that had not been put to him. It was not possible to recall him either, so that he could respond. The allegations included that Senior Sergeant Richardson had initially handed Mr Blackler a search warrant for firearms, not drugs, but that when Mr Blackler returned home after his release on bail the firearms search warrant was gone, and had been replaced with the drugs search warrant, and that that Mr Blackler had been accused of five murders. Judge Harrop considered he would have been

18 At [27].

19 At [28].

20 At [29].

21 At [30].

entitled to exclude this evidence, but noting the officers would inevitably have rejected the allegations, he admitted the evidence but placed reduced weight on it.22

[16]   The Judge rejected Mr Blackler’s evidence that the Police told him he was suspected of involvement in a murder and the contention of a separate firearms warrant which had been replaced  with  a  drugs  warrant  during  the  search.  Apart  from Mr Blackler’s claim, there was no evidence at all of any warrant other than the drugs search warrant.23 His Honour also accepted the Crown submission that if the Police truly had been investigating a murder or looking for firearms, they would have made sure everything was very thoroughly documented, because acting in the way alleged by Mr Blackler would not only have been of no advantage, but would have been counterproductive to an investigation of the most serious of charges.24

[17]   Judge Harrop said it was clear from Mr Blackler’s evidence that he “strongly believes that the police generally were out to get him, assisted by his vengeful former partner as informant”. He accepted the Crown submission that Mr Blackler sees things through an “institutional conspiracy lens”. The Judge found Mr Blackler’s evidence “unreliable, indeed unbelievable” and rejected it when it conflicted with the evidence of the officers involved.25 Again, no question of s 30 of the Evidence Act arose, and Mr Blackler’s application was dismissed.26

Approach on appeal

[18]   Pursuant to s 215 of the Criminal Procedure Act 2011 (the CPA) a defendant may, with leave of the first appeal court, appeal to that court against a pre-trial decision regarding admissibility of evidence. Section 216(2) provides that a first appeal court may refuse to give leave “if the court considers that it is expedient for the appeal to be determined by way of an appeal at the conclusion of the trial”. This does not limit the court’s power to refuse leave for any other reason.27 The overall criterion for a grant of leave is the interests of justice.28

22     At [8]–[13]

23 At [31].

24 At [32].

25 At [33].

26 At [34].

27     CPA, s 216(3).

28     W v R [2023] NZCA 397 at [52].

[19]   If leave is granted, the appeal is conducted by way of rehearing. If this Court comes to a different view on the evidence, the trial judge will necessarily have erred, and the appeal must be allowed. However, the appellate court is not to consider the issues de novo. It is for the appellant to show that an error has been made, taking into account the advantages a trial judge may have had in assessing the evidence.29

Mr Blackler’s position

[20]   Mr Blackler maintains his strongly held belief that he is the victim of a conspiracy that appears to extend beyond the police (together with their informant, his ex-partner, whom he believes had put a “spy app” on his phone), to include his former lawyers, the Crown, and as I understood him to say, possibly also the District Court and the Attorney-General. He is preoccupied with his belief that there is a second undisclosed search warrant for firearms that the Police replaced with the search warrant that is the subject of this appeal.   A good proportion of the submissions    Mr Blackler made at the hearing of the appeal consisted of evidence (his, and hearsay evidence of other people) that he said proved what had really happened in this case.

[21]   Mr Blackler also raised allegations about the conduct of persons involved in the pre-trial hearing before Judge Harrop. He alleges Detective Craig slandered him when he requested information from KiwiRail and Blue Bridge, the Crown lawyer made false statements in Court about surveillance evidence showing people coming to and from Mr Blackler’s property, and about cannabis collected from the property that was said to have been “accidentally destroyed”, when Mr Blackler knows the plants were destroyed on purpose.

[22]   In terms of matters that directly relate to the decision under appeal, Mr Blackler says that the informant information was not sufficient to issue a search warrant in this case, given the informant’s criminal history and because she (his ex-partner) is essentially out to get him. Mr Blackler disagrees with the Judge’s conclusion that the telecommunications data would have had no bearing on the issuance of the warrant.

29     See the discussion on general appeals in Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]–[5].

Discussion

[23]   I start by making the general observation that this Court is unable to deal with all of Mr Blackler’s allegations and complaints that relate to the search warrant executed at his house in 2020, many of which were not the subject of evidence in the District Court. My task is to decide whether Mr Blackler should be granted leave to pursue a pre-trial appeal against Judge Harrop’s ruling that the search warrant was properly issued, and the search was lawfully executed.

[24]   The Crown is correct that a search warrant application only needs to demonstrate there are “reasonable grounds to suspect” an offence specified in the application and punishment by imprisonment is being, has been, or will be committed.30 It is possible for informant evidence to reach this threshold on its own.31

[25]   Judge Harrop did not review the informant information that supported the making of the application for a search warrant. I agree that he was not required to, when the challenge by Mr Blackler was to the omission by Police to include telecommunications data they had previously obtained and analysed. Judge Harrop was prepared to accept that the warrant application ought to have included reference to the Police having sought the telecommunications data. I agree with the Judge that it would not have made any difference to the issuing officer, when it was either neutral or slightly supported the Police case. Mr Blackler’s allegations that the telecommunications data itself is suspect have not been tested by evidence in the Court below and, as above, I am not prepared to deal with it on this application nor would it be appropriate to do so.

[26]   The various allegations Mr Blackler made at the hearing in the District Court about the conduct of the search were roundly rejected. The very experienced District Court judge had the advantage of hearing evidence on that issue. Having read the decision and the evidence, I would not disturb those findings.

30     Search and Surveillance Act 2012, s 6(1)(a).

31     See, for example, Graham v R [2015] NZCA 568.

[27]   The considerations guiding an application for leave to appeal are set out in the Court of Appeal’s decision of W v R.32 The Court is to take an “overall approach” when determining whether leave to appeal should be granted.33

[28]   I accept that the validity of a search warrant would have a very material bearing of the outcome of Mr Blackler’s trial but, as above, the merits of the appeal do not appear to be strong.

[29]   I also note Judge Davidson’s ruling on Mr Blackler’s application for disclosure in which he concluded that the production order and warrant would have still been granted even if the warrant issuer knew of the informant’s criminal convictions and “axe to grind” with Mr Blackler.34 There has been no appeal against that decision.

[30]   Most importantly, however, Judge Harrop’s pre-trial ruling could be revisited by the trial Judge if evidence emerges at trial suggesting that Mr Blackler has been the victim of a miscarriage of justice as he asserts, or at the least that there was some deficiency in the warrant application, or a concern about the manner in which the search was conducted. If Mr Blackler adduces admissible and relevant evidence at trial to support his position, he would be in a much-improved position to be able to argue that the relatively minor nature of his remaining charges should result in the exclusion of any evidence obtained from the search warrant—which would be fatal to the Crown’s case. As noted above, however, there is currently no evidence beyond assertion that points to Police (or anyone else) having acted in such a manner. Nor is any novel issue or point of law, or issue of wider significance being raised.

32     W v R, above n 28.

33 At [55].

34     Decision on Appeal, above n 2, at [16].

Result

[31]   For the reasons above, I consider it is not in the interests of justice to grant leave to appeal the pre-trial ruling of Judge Harrop.

Grau J

Solicitors:

Crown Law, Wellington for Respondent cc:     S A B Blacker