Dumolo v The Queen

[2013] NZCA 223

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/2012 [2013] NZCA 223

BETWEEN	DAVID DUMOLO Appellant
AND	THE QUEEN Respondent

Hearing:	16 May 2013
Court:	Randerson, Rodney Hansen and Lang JJ
Counsel:	A J Haskett for Appellant M D Downs for Respondent
Judgment:	12 June 2013 at 12 noon

JUDGMENT OF THE COURT

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A        The appeal is allowed. 

B        The convictions are quashed. 

CThere is no order for retrial.

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REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

1. After trial by judge and jury in the District Court at Rotorua, Mr Dumolo was found guilty of importing and selling a Class C controlled drug, mephedrone, and of attempting to import mephedrone.  He was acquitted of one count of attempting to import a Class C controlled drug, namely napthylpyrovalerone.  Mr Dumolo was sentenced to 300 hours community work. 

2. Mr Dumolo appeals against conviction on the ground that the convictions depended on evidence obtained pursuant to unlawful searches which trial counsel (not Mr Haskett) had failed to challenge.  It is submitted that the wrongful receipt of that evidence has led to a miscarriage of justice. 

3. In the absence of a prior challenge to the search warrants, this Court is without the benefit of pre-trial evidence and a decision of the lower Court.  It is, nevertheless, accepted by the Crown that s 385(1)(c) of the Crimes Act 1961 requires the Court to undertake an enquiry into the validity of the search warrants in order to determine whether a miscarriage of justice has occurred.[1]  For this purpose the Court has received affidavits from trial counsel and Detective Karin Staunton, the police officer who applied for the search warrants.  She also gave oral evidence.

Further background

[1]As in R v Savelio CA234/96, 5 August 2005 where the validity of a search warrant had not been challenged at trial.

1. On 2 June 2010, Detective Staunton, who was working in the Rotorua Organised Crime Unit, was advised by telephone that Customs staff at the Auckland International Mail Centre had intercepted three packages sent from overseas to a Rotorua address.  Detective Staunton was provided with some of the relevant information, including the name David Dumolo; a date of birth; the address to which the mail had been directed; and the date of the interceptions.

2. Detective Staunton was subsequently sent a dossier described as an “intel summary”.  This contained a great deal of supporting information regarding the intercepted mail and previous instances in which controlled drugs consigned to Mr Dumolo had been intercepted.

3. The three recent interceptions were the subject of detailed reports by the Customs officers concerned.  In chronological order, they comprised:

   (a)An envelope intercepted on 16 April 2010 addressed to David Dumolo at 313 Eason Street, Rotorua, found to contain six grams of a light cream crystalline powder which the Customs officer concerned said she suspected to be mephedrone.

   (b)An envelope intercepted on 3 May 2010 addressed to Jonathon Adams at 313 Eason Street, Rotorua, containing 10 grams of a white powder which the Customs officer concerned said he suspected to be napthylpyrovalerone.

   (c)An envelope intercepted on 23 May 2010 addressed to David Dumolo of 313 Eason Street, Rotorua, containing two ziplock plastic bags, one of which contained 10 grams of white powder, the other, two grams of white powder.  Following testing and further enquiries, the Customs officer recorded that he believed the white powders were mephedrone and napthylpyrovalerone.[2]  (The respective quantities of each drug was not disclosed.)

   [2]We discussed the nature of the testing and the results below at [22]–[25].

4. Detective Staunton made further enquiries.  She established that the address of 313 Eason Street did not exist.  She obtained evidence from a real estate agent, in the form of a tenancy agreement, which indicated that Mr Dumolo resided at 3/13 Eason Street, Rotorua.  She also established that he ran a martial arts academy at a central city location.

The search warrants

1. On 27 July 2010, Detective Staunton applied for a search warrant to search Mr Dumolo’s residential and business addresses.  The application contained information about the development and use of mephedrone and napthylpyrovalerone.  Both are synthetic drugs which act as stimulants.  Mephedrone has become increasingly popular overseas – Detective Staunton deposed that in 2009 it was the fourth most popular street drug in the United Kingdom – while napthylpyrovalerone was described as a novel designer drug which emerged as a new legal high in the United Kingdom only months after mephedrone had been banned.

2. The application went on to say:

   20.      ... Customs reported that on the 16/04/10 a package containing 6 grams of Mephedrone was intercepted at the Auckland International mail centre.  The package was addressed to David DUMOLO 3/13 Eason Street, Rotorua.

   21.      On the 03/05/10 a second package containing 10 grams of Napthylpyrovalerone was intercepted at the Auckland International mail centre addressed to Jonathon ADAMS, 3/13 Eason Street, Rotorua.

   22.      On the 23/05/10 a third package containing 12 grams of Mephedrone and Napthylpyrovalerone was intercepted at the mail centre addressed to David DUMOLO, 3/13 Eason Street, Rotorua.

   23.      All of the packages had originated from the United Kingdom.

3. The application went on to refer to four previous occasions on which Customs had intercepted controlled drugs consigned to Mr Dumolo.  On two occasions he had been spoken to by Customs officers who had warned him of the consequences of importing Class C controlled drugs.

4. A warrant was issued authorising the search of 3/13 Eason Street and Mr Dumolo’s business premises. When, on 23 August 2010, police executed the search warrant at 3/13 Eason Street, Rotorua, they found capsules which on analysis were found to contain mephedrone.  They retrieved from his computer a number of emails, produced in evidence at his trial, referring to orders placed with overseas suppliers for mephedrone and to an order for NRG1, a product which the Crown alleged contained napthylpyrovalerone.  In one of the emails Mr Dumolo said he had “established a clique of regular customers who loved the meph”.

5. In the course of the search the police found a Washington driver’s licence bearing the name Jonathon Adams and using Mr Dumolo’s photograph.  They also found a security card in Jonathon Adam’s name and a letter addressed to Jonathon Aaron Adams.  When questioned, Mr Dumolo admitted importing health supplements but denied the purchase of illicit drugs.  He would not discuss the driver’s licence and, when later interviewed, denied knowledge of Jonathon Adams. 

6. Detective Staunton then applied for a search warrant to search the accounts of Mr Dumolo with Kiwibank.  She relied on the information contained in the application for the earlier warrant and the further evidence obtained in the course of the search of Mr Dumolo’s house.  A warrant was issued and Mr Dumolo’s bank records were searched.  The police found evidence of an international money transfer to a United Kingdom bank account and Visa card payments at the time of the alleged importations.

7. It was never established that the drugs seized by Customs were mephedrone and napthylpyrovalerone.  The items seized by Customs were never tested and were destroyed in September 2010.

Trial

1. At trial the Crown acknowledged that it had not been established that the substances seized by Customs were mephedrone and napthylpyrovalerone.  The Crown relied on the emails located on Mr Dumolo’s computer to establish that he had placed orders for the drugs and, in one case, referred to payment by telegraphic transfer.  That was confirmed by evidence from the Kiwibank records.  The documentation in the name of Jonathan Adams was relied on to establish that Mr Dumolo had used that name for one of the orders.  The email which referred to “a clique of regular customers” was relied on to establish that Mr Dumolo had sold mephedrone.

2. Trial counsel swore an affidavit confirming that he did not advise Mr Dumolo to challenge the validity of the search warrants.  He said that, from disclosure materials, he saw no basis to challenge the validity of the warrants.  He sought to defend the case on the basis that the substances had not been shown to be the drugs in question.

3. It appears that on the charge of which Mr Dumolo was acquitted, the jury were indeed left in doubt that the substance referred to as NRG1 was or contained napthylpyrovalerone.  The Crown case on that charge was seriously undermined by the evidence of an ESR witness who said that NRG1 samples tested were often found not to contain napthylpyrovalerone.

Validity of search warrants

1. Mr Haskett, for Mr Dumolo, was critical of the way in which the search warrants dealt with the previous occasions on which Customs had intercepted controlled drugs consigned to Mr Dumolo, but his main criticisms were directed to the passage quoted above.[3]  Specifically he said that the applications:

   (a)Wrongly asserted that the intercepted packages contained mephedrone and napthylpyrovalerone.

   (b)Wrongly stated that they were addressed to 3/13 Eason Street, Rotorua.

   (c)Failed to provide a sufficient level of disclosure to enable the issuing officer to assess the reliability of the information.

Mr Haskett submitted that, had the true position been put before the issuing officer, the first warrant would not have been issued.  As a result, there would have been no basis for the further application for bank records and the Crown could not have mounted a case against Mr Dumolo.

[3]At [9].

1. Mr Downs acknowledged that there was, as he put it, some obvious compression and carelessness in the way the applications were drafted.  However, Mr Downs contended that the available evidence, if properly presented, would have provided sufficient grounds for the issue of the first warrant and, necessarily, the second warrant as well.  In our view, however, the application was critically deficient and misleading in the way it was expressed.  It did not fairly convey the information available to the police.

2. As we have said, none of the substances in the three packages intercepted by Customs were tested and found to be a controlled drug.  The intel summary recorded that the Customs officer who intercepted the package on 16 April 2010, found a light cream crystalline powder which she “suspected to be mephedrone”.  She went on to say that she consulted with a Medsafe officer, James Oughton, who, she said, also “suspected” the powder to be mephedrone.  There is no record of any testing having been carried out.

3. The Customs officer who intercepted the package on 3 May 2010, recorded his investigation in a more or less identical way.  He said the envelope contained a white powder “suspected” to be napthylpyrovalerone.  He said he consulted with Mr Oughton who “also suspected” the powder to be napthylpyrovalerone.  Again, there is no reference to any testing having been undertaken.

4. The report of the Customs officer who intercepted the package on 23 May 2010, states that the envelope contained two ziplock plastic bags, one containing approximately 10 grams of white powder, the other, two grams of white powder.  She said she was advised to carry out a “StreetLab test” to confirm the identity of the white powder.  She recorded the results as follows:

   Street lab machine showed 70% positive for Alprazolam for the 10gs white powder, 67% positive for baking soda for the 2gs white powder.

5. The Customs officer said she then obtained a second opinion from Mr Oughton.  She then stated:

   He believed the white powder were (sic) Mephedrone and Napthylpyrovalerone.  By the physical smell and the previous intercepts, I also believed they are Mephedrone and Napthylpyrovalerone.

6. This part of the report also contained the following passage:

   StreetLab

   While analysing the recent interceptions, it was noted that StreetLab does not appear to be able to identify mephedrone and napthylpyrovalerone and from an unrelated interception, methylenedioxypyrovalerone (MDPV).  It is important that the drug identification library of StreetLab is current as possible to ensure that Customs has accurate information informing its target prioritisation and drug seizure statistics.  Operations Strategy has been advised that StreetLab drug identification library requires updating.

7. Plainly there was no basis for the assertion that the intercepted packages contained mephedrone and napthylpyrovalerone.  The Customs reports in relation to the first two packages put it no higher than that the substances were “suspected” to be mephedrone and napthylpyrovalerone.  The expression of belief in relation to the third package was directly contradicted by the earlier StreetLab test.  The salient parts of the report showed that at the time reliable scientific methods of detecting the presence of mephedrone and napthylpyrovalerone had not been developed.  Customs was obliged to rely on visual and olfactory tests which were shown by the StreetLab test to be unreliable.

8. In simply asserting that the intercepted packages contained the drugs in question, the applications failed to discharge the primary duty of setting out the facts that will be relevant to the issuing officer’s decision.[4]  The source of the applicant’s belief that the substances in the intercepted packages were illicit drugs should have been disclosed and, to the extent her belief relied on the view of the Customs officers, the basis for their belief set out.[5] 

   [4]R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [214]. See also R v McColl (1999) 17 CRNZ 136 (CA) at [19]–[20].

   [5]Williams, above n 4, at [215]. See also R v Rock [2008] NZCA 81 at [15]–[18].

9. This is not to suggest that police are not entitled to rely on non-scientific methods of identifying drugs.  In cases involving drugs of which enforcement officers have had long experience, it may well be sufficient to rely on appearance, smell or taste.  Such methods are, however, unlikely to be sufficient in identifying newly developed drugs which lack obvious distinguishing features.  There should be full disclosure of the evidence relied on to identify such drugs.

10. The warrant applications were factually incorrect in stating that the packages were addressed to 3/13 Eason Street.  They were addressed to 313 Eason Street.  Having established that there was no number 313 Eason Street and that a David Dumolo lived at number 3/13, Detective Staunton drew the obvious inference that the packages were intended for delivery to that address.  She said in evidence that she decided to say the packages were addressed to what she believed to be the correct address, rather than explain why she believed that to be the case.

11. This was an error of judgement on Detective Staunton’s part.  It was an unwise shortcut.  If evidence relied on for the purpose of a warrant needs explaining in order to be understood, the facts should be set out and any explanation offered.  The applicant’s duty is to put all relevant information in the application and not to state conclusions without saying why.[6]  It is for the issuing officer to decide what conclusions can be safely drawn from the evidence.

    [6]R v Williams, above n 4, at [223(b)] and [223(e)].

12. The information gathered by Detective Staunton pointed strongly to an error in the address on the packages.  That should have been squarely confronted in the application.  The failure to do so was contrary to the basic requirement to disclose all relevant information.  An incomplete and misleading picture was presented to the issuing officer.

Consequences of defects

1. Defects, even quite serious defects, in an application will not automatically invalidate a warrant.  If, despite deficiencies, reasonable grounds for the issue of a warrant existed and there were not material misstatements or omissions, a warrant issued pursuant to a defective application may survive.[7]

   [7]R v T [2008] NZCA 99 at [9], quoted in R v Kissling [2008] NZCA 559, [2009] 1 NZLR 641 at [18].

2. The first application plainly does not meet those criteria.  The misstatements and omissions were material.  The evidence available to the police did not in fact provide reasonable grounds for believing that evidence associated with the commission of an offence would be found at the premises.  It did not provide grounds for believing that the substances in the intercepted packages were controlled drugs.  The first warrant was accordingly unlawful and unreasonable and the second, inevitably, unlawful and unreasonable too.

3. Mr Downs, realistically, did not press a submission that the exclusion of the evidence would not be proportionate to the impropriety in terms of s 30 of the Evidence Act 2006.  Although the evidence obtained pursuant to the warrants was critical to the prosecution case, the relatively minor nature of the offending and the seriousness of the right breached tell emphatically against admission of the evidence.

4. It is common ground that, without the inadmissible evidence, the convictions could not be supported.  A miscarriage of justice has accordingly occurred.

Result

1. The appeal is allowed.  The convictions are quashed.  In the circumstances, there is no order for retrial.

Solicitors:
Crown Law Office, Wellington for Respondent