J v Police HC Christchurch CRI 2008-409-66
[2008] NZHC 1097
•11 July 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008-409-000066
BETWEEN J
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 10 July 2008
Counsel: A J Bailey for the Appellant
K A White for the Respondent
Judgment: 11 July 2008
JUDGMENT OF WILD J
Introduction
[1] The appellant appeals against her conviction on one charge of receiving, and another of cultivating cannabis, on the grounds that:
•The search warrant that produced the evidence against her should have been ruled unlawful, and the evidence excluded.
• The Judge relied upon inadmissible hearsay evidence.
• The Judge reversed the onus of proof.
• The receiving conviction was not supported by the evidence.
J V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000066 11 July 2008
[2] The conviction was entered by Judge Noble in the Christchurch District
Court at the conclusion of the hearing on 7 February.
Factual background
[3] Footage from security video cameras and reports from alert members of the public indicated that a Mazda car registration no. XX2927 was used by thieves who broke into a number of motor vehicles around Christchurch and stole valuables from them on the afternoon of 20 March 2007.
[4] The report of the last break-in, involving a car parked in Harry Ell walkway on Dyers Pass Road, was that there was a female passenger in the back seat of the Mazda, although a man was doing the actual breaking-in. The other thefts appear to have been committed only by two men.
[5] The Mazda was registered to a Ms Harrington at 62 Northcote Road in
Christchurch.
[6] The Police executed a search warrant at Ms Harrington’s home on 2 April
2007. None of the property reported as stolen from the vehicles was found in Ms Harrington’s home. She told the searching Police that she had been lending her Mazda car to the appellant, and had lent it to her on 20 March 2007.
[7] Later on 2 April, the Police applied for a warrant to search the appellant’s home at 8 Camden Street, Northcote. When the warrant was executed on 3 April the Police found:
a) Cannabis plants and seedlings being grown under artificial lights in various places.
b)The grey Roughning handbag and Diesel brand purse reported stolen from the vehicle which had been broken into in Harry Ell walkway, Dyers Pass Road, on 20 March. That was the theft during which a female passenger was seen in the back of the Mazda car.
[8] For the sake of completeness, I mention that a further (third) warrant was applied for later on 3 April to enable the Police to recover the Roughning handbag. Unsure whether that handbag was the one reported stolen in the Harry Ell walkway break-in, the Police had left it in the appellant’s home.
Legal principles
[9] Section 198 Summary Proceedings Act 1957 provides that an issuing officer must be satisfied on reasonable grounds that evidence of the commission of an offence will be present at an address before issuing a warrant to search that address.
[10] Section 30 Evidence Act 2006 governs the admissibility of improperly obtained evidence, outlining the now familiar balancing process the Judge must undertake to determine whether or not to exclude the improperly obtained evidence.
[11] Both counsel referred to the Court of Appeal’s lengthy judgment in R v Williams [2007] NZCA 52, in particular [208]-[225] where the Court dealt with search warrant applications, and [226]-[245] where it summarised search and seizure principles.
[12] More recently, in R v HVT [2008] NZCA 99, William Young P, delivering the Court of Appeal’s judgment, stated:
[9] Guidance as to best practice for those who apply for search warrants is provided in R v Williams [2007] 3 NZLR 207 (CA) at [208]-[225] (and particularly at [224]). Obviously the greater the departure from best practice, the greater the risk of a warrant being set aside (see [225]). But the courts must not lose sight of the fundamental principle that an application for a warrant under s198 of the Summary Proceedings Act 1957 must be supported by evidence which affords the issuing officer with reasonable grounds to believe that evidence associated with the commission of an offence is at the stated location. Where the application provides such evidence with reasonable specificity, the material supplied is not misleading or selective and the power of search which is sought is not unduly wide, there will be little or no scope for a successful challenge.
[13] That passage re-focuses attention on s198 Summary Proceedings Act which, after all, is the statutory provision dealing with search warrants. I interpret the passage as frowning upon a pedantic, overly pernickety approach to the legality of
search warrants, and as encouraging an approach which looks in a sensible and realistic way at the s198 requirement.
[14] That is the approach I intend taking in dealing with the first part of this appeal.
Application of the principles here
[15] Mr Bailey submitted there were nine defects in the applications for the two successive search warrants to search the appellant’s home. He listed them. I have compared his list with the applications for the two successive search warrants. I have also considered the departures from the Williams guidelines which Judge Noble set out in [27] of his decision. I agree with the Judge that these search warrants – or more strictly the applications for them – easily survive scrutiny. I see the main points as these:
•The applications cannot be criticised for a lack of detail about the alleged offending, and they contained sufficient detail of the connection between that offending and the appellant to explain to the issuing officer why a warrant was being sought. In short, the reason was that the owner of the Mazda reported as involved in the thefts had told the Police that she had been lending that car to the appellant.
•The applications were not misleading, nor selective as to the information they provided in a way which might have misled the issuing officer. Certainly, things were left out that could – and perhaps should - have been included. Mr Bailey instanced the fact that the Police had searched Ms Harrington’s home earlier that day but found none of the stolen property there. Ms White makes the point that the same officer issued both the Harrington warrant and the two warrants in respect of the appellant, and would readily have inferred that the Police had not found the stolen property in Ms Harrington’s home. But I think the important point is that the Police explained to the issuing officer why they wanted to search the
appellant’s home: it was because Ms Harrington had told the Police the appellant had been borrowing her Mazda car. The applications should obviously have included the important item of information that Ms Harrington had told the Police that she had lent her car to the appellant on 20 March, the day on which the thefts were committed. The effect of including that information would have been to strengthen not weaken the applications. Confronting an argument that inclusion of omitted facts would have made no difference, the Court of Appeal in Director of Serious Fraud Office v A Firm of Solicitors [2006] 1 NZLR 586 at [43] stressed “that the judgment as to the materiality of the information was to be exercised by the issuing officer, not by us (the Court)”. But the Court’s concern in Williams was very much with the omission from a search warrant application of information which might have meant that the issuing officer was less likey to issue the warrant. See, for example, Williams at [111] and [214].
•Although the applications were to search a private home, with the invasion of privacy that that involves, they were specific as to the property that was being searched for. It was listed in the appendix to the applications.
[16] A specific criticism Mr Bailey made of the two applications was that they did not give the issuing officer any information about the reliability of Ms Harrington. Mr Bailey founded this criticism on [216] in Williams where the Court said:
[216] There is often a particular difficulty with warrant applications based on information provided by informants. In such cases, there has to be some accompanying evidence in the application suggesting why the informant should be considered reliable and why the informant’s assertions are solidly grounded in more than mere suspicion, rumour or gossip …
The Court then referred to a number of cases: R v Condren CA233/96 10 September
1996; R v Burns (Darryl) [2002] 1 NZLR 204 at [16] (CA); R v Hepi & Anor CA382/03 5 April 2004 and R v Debot (1986) 30 CCC (3d) 207 (Ont CA), upheld by the Canadian Supreme Court at [ 1989] 2 SCR 1140.
[17] All those cases involved information provided to the Police by Police informers, in the ‘technical’ sense that that description is used by the Police. In each of the cases the information provided was about drug dealing. Ms Harrington was not a Police informer of the type considered in those cases, and therefore I do not think the comments at [216] in Williams apply to her. Why the Police came to be speaking to Ms Harrington, and what she had said to them, emerged clearly from the applications:
21. That police checks reveal that the registered owner of the Mazda
Familia XX2927 a Leanne HARRINGTON who resides at 62
Northcote Road, Northcote, Christchurch.
22.That I have driven past the address and seen HARRINGTON standing in her drive way and also the Mazda XX2927 parked in the drive way.
23.That on the 2nd April 2007 I spoke (to) the registered owner of the Mazda Familia XX2927 and she informed me that she has been lending her Mazda Familia to an associate Zara JONES of 8 Camden Street, Casebrook, Christchurch.
[18] The appellant has not established defects in the applications for the search warrants of her home, rendering those warrants and the searches consequent upon their execution unlawful. I uphold the Judge’s decision to that effect.
[19] It is thus unnecessary for me to consider s30 Evidence Act, or the Judge’s comment that, had he been required to do so, he would have found little difficulty in concluding that the s30 balancing process fell in favour of admissibility.
Judge relied upon inadmissible evidence
[20] To understand this ground of appeal, and the next two also, I need to set out the following part of the Judge’s decision:
[31] Having regard to the facts therefore, I take account of the defendant’s explanation about Mehalia. I find that the thief of these particular items on Dyers Pass Road was a male I find that there was a female in the car, but there is no evidence that was the defendant. Even, arguably, the female in the car may not have been a thief as a party, but no more than mere spectator.
[32] The issue then is whether the appropriate inference can be drawn to the requisite standard in relation to the finding 13 days later of those two stolen items in the defendant’s possession. An inference is susceptible to being drawn in circumstances where an unacceptable explanation is given. In other words the position is unless an explanation which might reasonably be true is proffered for possession of the stolen goods, in the particular circumstances of the case and given the proximity to the theft the court is entitled to draw adverse inference.
[33] I reject the defendant’s explanation regarding Mehalia. Mehalia of course could not be expected to give evidence if she in fact existed, but there is no independent evidence at all before the court that a Mehalia was at the defendant’s home, that she had those items and that she must have inadvertently left them behind.
[34] I reject that explanation. The only rational inference which can be drawn from all the circumstances is that the defendant must have known at the time of receiving them that they had been stolen, or was reckless as to that aspect, and I find that charge to be proved.
[21] Mr Bailey submitted there was no admissible evidence before the Judge to support the findings he made in [31]. The cyclist who witnessed the thieves breaking into the car parked in Harry Ell Walkway on Dyers Pass Road was not called as a witness. The Judge must have based those findings on the contents of the two applications for warrants to search the appellant’s home What was deposed in those applications by Constable Adams, as to the information the Police had received from the witness to the Dyers Pass break-in, was hearsay.
[22] I think it arguable that the Constable’s evidence is admissible, but I prefer to avoid that argument because I do not see that those findings are essential or even necessary to the Judge’s decision on the receiving charge.
[23] The elements of receiving which the Police needed to prove were:
• The appellant received the Roughning handbag and Diesel purse.
• Those two items were stolen before the appellant received them.
•At the time the appellant received the two items, she was reckless as to whether they had been stolen.
[24] The first element was proved: the handbag and purse were found by the Police in the appellant’s home. Mr Bailey pointed out that the appellant was not the only person there, and asserted the house was occupied by transients. I doubt that the evidence goes that far: it indicated that the appellant and also her brother had been living in the house for some time, and that two visitors from Hamilton were staying there as well. Whatever the position was, Ms White was able to torpedo any doubt that the two items were in the appellant’s possession (as opposed to that of other people living in the house) by pointing to the evidence of Constable Adams. As I have pointed out, the Constable executed a second warrant at the appellant’s home on 3 April, in order to uplift the Roughning handbag. He deposed that he subsequently found makeup, perfume and a paua shell necklace in the handbag. On
28 May (i.e. about two months later) he returned those items to the appellant who identified them as hers.
[25] The second element was also proved, and there is no contest about that.
[26] The third element was the contentious one, and the next ground of appeal focuses on that.
[27] The point is that proof of receiving by the appellant did not require the Crown to prove who had stolen the two items, or when, or how. So the Judge’s findings in [31] of his decision were superfluous to his decision.
Reversing onus of proof; receiving conviction not supported by the evidence
[28] These last two appeal points can be dealt with together.
[29] Having found the handbag and wallet, the Police asked the appellant about them. The Police first cautioned the appellant and explained her rights to her. She said that a person called Mehalia had brought the two items around to her house and left them there. She said she did not know Mehalia’s surname or her address or have any details about her. The appellant did not give evidence at her trial and did not call Mehalia to say that she had indeed left the two items in the appellant’s home.
[30] The two items had been stolen on 20 March and the search warrants were executed at the appellant’s home about two weeks later, on 3 April. That is proximate enough to the theft to give rise to the doctrine of recent possession. Essentially, that doctrine involves reasoning that if something that has been stolen is found in the accused’s possession shortly after the theft, it suggests that either the accused had something to do with the theft or obtained the property knowing it had been stolen, or reckless as to whether it had. Obviously, the longer the time lapse, the weaker the line of reasoning. Recent possession permits inferences where they can safely be drawn.
[31] Here, I can see no fault with the Judge’s reasoning in his [32]-[33], or with the inference he drew in [34] adverse to the appellant, because he considered her explanation to the Police unacceptable i.e. not believable.
Result
[32] The appeal is dismissed. The two convictions stand.
Solicitors:
Crown Solicitor, Christchurch for the Respondent
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