McCartin v R
[2016] NZHC 1807
•5 August 2016 at 3:00 pm
IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-164 [2016] NZHC 1807
UNDER the Court Martial Appeals Act 1953 IN THE MATTER
of an appeal on a question of law by A1030791 Sapper Jacob Dane McCartin, RNZE
BETWEEN
JACOB DANE MCCARTIN Appellant
AND
THE QUEEN Respondent
Hearing: 25 July 2016 Court:
Brewer J
Judge D McGregor
Judge J R Billington QCAppearances:
P L Murray for Appellant
Colonel L Ferris, NZALS, for RespondentJudgment:
5 August 2016 at 3:00 pm
JUDGMENT OF THE COURT
A Leave to appeal is granted. B The appeal is dismissed.
C Judge Gaskell’s ruling is confirmed.
MCCARTIN v THE QUEEN [2016] NZHC 1807 [5 August 2016]
REASONS OF THE COURT
(Given by Brewer J)
Introduction
[1] The appellant is a soldier. On 28 April 2015, he was searched by Military Police on the authorisation of his Commanding Officer. His cellphone was seized and examined. It contained text messages which clearly implicated him in drug- related offending. Later that day the appellant was interviewed under caution. He made significant admissions.
[2] In reliance, in large part, on the text messages and on his admissions, the appellant is charged with nine offences related to his involvement with controlled drugs.
[3] The appellant protested the admissibility of the evidence of the text messages and of his interview. On 26 February 2016, Judge AE Gaskell ruled the evidence to be admissible.1 The appellant now seeks leave to appeal Judge Gaskell’s ruling and for the appeal to be determined.2
Background
[4] A Commanding Officer has powers of search and seizure of property conferred by s 95 of the Armed Forces Discipline Act 1971. This section provides, relevantly:
95 Search in connection with suspected offence
(1) If a commanding officer has reasonable grounds to suspect that a person subject to this Act has in his possession any property which has been unlawfully obtained or any article or thing which is or may be evidence relating to the commission of an offence (whether against this Act or otherwise), the commanding officer may—
(a) detain and search that person; or
(b) search any premises within the limits of his command occupied or used by that person; or
1 McCartin v R (Ruling of Judge AE Gaskell on application as to admissibility of evidence),
26 February 2016.
2 Court Martial Appeals Act 1953, ss 7 and 8.
(c) take possession of any property or any article or thing previously referred to in this subsection, in which event the property, article, or thing shall, subject to this section, be disposed of in accordance with section 99.
(2) The powers conferred on a commanding officer by subsection (1) may be exercised by him personally or by any person authorised or ordered by him in that behalf.
…
[5] On 23 April 2015, Staff Sergeant Packer of the Military Police made a written request to the appellant’s Commanding Officer for authority, under s 95, to (among other things) search the appellant and to seize and forensically examine any electronic devices he might have. The reason given for the request was that the Military Police had obtained confidential informant information identifying the appellant as being involved in committing offences against the Misuse of Drugs Act
1975. A brief of evidence for Staff Sergeant Packer was referred to in the request and accompanied it. Since it is pivotal to this appeal, we reproduce it:
MILITARY POLICE IN CONFIDENCE
ENCLOSURE 1 TO NZDF MP MINUTE DATED 23 APR 15
23 Apr 15
NZDF MP BRIEF OF EVIDENCE: A1030791 SPR J. McCARTIN, RNZE, SME
1. Military Police have obtained confidential informant information that identities SPR McCARTIN as being involved in committing offences against the Misuse of Drugs Act 1975. The information relates to the procurement and selling of a synthetic LSD substance, commonly referred to as NBomb.
Information/circumstances/evidence in support of this request:
·At Linton MP Station, on 19 March 2015, Military Police received information from an anonymous informant in regards to Linton based soldiers possessing, using and offering to sell acid at
18 Morris Street, Palmerston North.
·The informant claims that that (sic) the following soldiers reside at the address and possess and use acid:
A1030791 SPR J. MCCARTIN, RNZE, SME, and
M1033884 SPR M.I WOULFE, RNZE, SME
· The informant also claims that SPR MCCARTIN offered to sell them a sheet of acid tabs for $40. That he has been dealing acid since late 2014, obtaining his stock from Hastings. ·
Source has seen the sheets for sale; they are about the size of half a drivers licence and are covered with small perforated squares with cartoon pictures of Super Mario Brothers on them.
·
At Linton MP Station, on 29 March 2015, Military Police received further information from the same source:
·
Hi there I have some more info regarding the acid. McCartin is not only selling up here but also at the Trentham base too. Woulfe has over a grand’s worth in his room alone. He normally stashes it behind his stereo or under his study books. Just thought you should know since it’s being sold way more than I thought.
2.
Military Police inquiries with NZ Police and NDIB agencies have
identified that the product allegedly being sold by the soldier may in fact be
a synthetic LSD product, known as NBomb.
3. It is likely that any electronic device/media in his possession may contain evidence (texts and messages etc) linking SPR McCARTIN to criminal activity as detailed above and may provide details of other unit members or NZDF personnel engaging in criminal activities.
4. SPR McCARTIN occupies 10 Morris Street, Palmerston North, an address not located on Defence Land. Military Police would require NZ Police assistance to conduct a search of this property; however, it is believed that there may be evidence in regards to offending against the Misuse of Drugs Act 1975 at this location.
K. PACKER SSGT
STN COMD
DTeIN Phone: 369 7903
[6] Also accompanying the request for authority to search were:
(a) An explanatory note on drug dealers’ use of telecommunications to
conduct their business; and
(b)A briefing paper from the Military Police attaching a four-page extract from the National Drug Intelligence Bureau about blotter tabs which contained either LSD or a psychoactive substance referred to as NBOMe, a potent synthetic hallucinogenic drug. The paper confirms
$40 to be in the price range for a blotter tab.
[7] The appellant’s Commanding Officer granted the request on the day he
received it.
[8] The appellant’s argument on appeal, as it was before Judge Gaskell, is that the Commanding Officer did not have sufficient information to justify authorising the search.
Appellate Review
[9] This is an appeal against a Judge’s ruling on a question of law. We may:3
(a) confirm the ruling; or
(b) vary the ruling; or
(c) set the ruling aside.
[10] If we were to set the ruling aside, we may make any other ruling that could have been made in the first place and which we think appropriate.4
Issues
[11] There are, potentially, two issues of law for us to determine:
(a) Was the evidence obtained from the search and the subsequent interview improperly obtained?
(b) If so, should the evidence be excluded?
Was the evidence improperly obtained?
[12] The appellant’s argument is that the information provided to the
Commanding Officer was insufficient to provide reasonable grounds for him to suspect that the appellant had in his possession any article or thing which could be
3 Court Martial Appeals Act 1953, s 7(3).
4 Section 7(4) and (5).
evidence relating to the commission of any offence. This is the threshold for the exercise by the Commanding Officer of his powers under s 95.
[13] Judge Gaskell appears to have accepted that the binding authority on what is meant by “reasonable grounds to suspect” is R v Williams.5 That case focused on applications for search warrants under (the then pertaining) s 198 of the Summary Proceedings Act 1957. In that context the Police had to provide evidence that would afford the issuing officer with reasonable grounds to believe that items that will be evidence of an offence will be found at a stated location. The majority commented
that “reasonable grounds to believe” is a higher standard than “reasonable ground to suspect”:6
Having “reasonable grounds to believe”, the test under s 198 of the Summary Proceedings Act, is a higher standard to meet than “reasonable ground to suspect”, the test under s 60(1) of the Arms Act for example — see R v Karalus. Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant (see Laugalis at 354 - 355), while suspicion means thinking that it is likely that a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists — see Sanders at
461.
[14] Judge Gaskell pointed out that obtaining a search warrant under s 198 of the Summary Proceedings Act is very different to obtaining authorisation to search under s 95 of the Armed Forces Discipline Act:7
In contrast, the search powers under s 95 AFDA are warrantless. There is nothing in s 95 to suggest that a particular form or content is required for a request for authority to search. Mr Murray has referred the Court to no authority in legislation or case law that would lend support to his submission that the guidelines set out in Williams should be applied to s 95 requests. The defence argument on this point is without merit, and accordingly must fail.
[15] The Judge went on to describe her task as:8
The Court needs to consider the information provided and decide, on an objective basis, whether it was sufficient to provide the commanding officer with reasonable grounds to suspect that the accused had in his possession any article or thing that “is or may be evidence relating to the commission of an offence”.
5 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.
6 At [213] (footnotes omitted).
7 McCartin v R, above n 1, at [15].
8 At [20].
[16] Her Honour’s analysis continued:
22.It was the defence submission that, because the information had been given by a single, anonymous informant and could not be independently verified, it was insufficient to provide the reasonable grounds to suspect required before authority could be granted under s 95.
23.The information was quite specific as to the identity of the soldier, his address, as to the type of drugs he sold, the source of his drug supply, the length of time he had been dealing in drugs, and that he sold drugs in both Linton and Trentham camps. The informant had been offered the opportunity to buy acid from him, at a price of $40, had seen a sheet of the drugs he had for sale, and was able to describe in considerable detail the way it looked. This last item of information came from the informant’s personal observation and was not something he/she had heard from others. An eyewitness account is usually more reliable than information passed through multiple sources. The informant gave personal details about the accused, such as his address and the name of a soldier who shared the address with him. Those details were capable of being verified, and if they were, that would tend to enhance the credibility and reliability of the informant.
[17] On this analysis, Judge Gaskell concluded that the Commanding Officer was entitled, pursuant to s 95, to authorise the search of the appellant and the seizure and search of his cellphone.
[18] The appellant accepts that Williams does not apply directly to the decision which the Commanding Officer had to make in this case. The submission is that the guidance given in Williams is a useful tool for this Court in assessing whether the information supplied to the Commanding Officer gave him reasonable grounds to suspect that the appellant had in his possession any article or thing which is or may be evidence relating to the commission of an offence. We agree.
[19] Counsel emphasised a number of points which, in his submission, mean that, viewed objectively, the Commanding Officer cannot have had reasonable grounds to found the necessary suspicion. The point he stressed is that the Commanding Officer had to rely on reports of information provided by a single, anonymous informant.
No additional information about the informant was provided such that the
informant’s reliability could be assessed:9
… The Military Police could not make any inquiries as to the informant’s reliability and his or her relationship with the Appellant. Nor could they examine any potential motive held by the informant. The informant’s reliability could only be verified by conducting a search. The ends cannot be used to justify the means.
[20] Counsel for the appellant also criticised the information supplied to the Commanding Officer because it contained no detail as to who received the information from the informant and the circumstances in which that occurred. Not all of the information is in the informant’s own words.
[21] Counsel for the appellant does not consider the inquiries made by the Military Police which resulted in obtaining the briefing paper on drugs to be useful. There is no information as to who in the New Zealand Police was spoken to, or their level of expertise.
[22] The other document provided, the information about telecommunications material, is not specific and its origin is not stated. Counsel relies on Dotcom v Attorney-General10 to found a criticism that there was no information provided directly to the Commanding Officer on cellphones. In Dotcom, the Supreme Court held that for a search of any computer to be reasonable pursuant to a mutual assistance warrant, the warrant must give specific authorisation for the computer to be searched. (We pause to note that we do not find this submission helpful. Dotcom relates to an entirely different jurisdiction and factual circumstances.)
[23] There are other criticisms, but they go to form rather than substance. Counsel for the appellant acknowledged this but argued for an overall effect:
36.It is acknowledged that some of these points (such as the accompanying brief of evidence not being signed or the test in s 95 not being articulated) may, when taken individually, be seen as inconsequential. However, it is submitted that the cumulative effect of all of these points gives real and legitimate cause for concern with the request and the subsequent granting of authorisation.
9 Submissions of counsel for the appellant in support of appeal against pre-trial ruling on admissibility of evidence, dated 30 June 2016, at para 35.1.1.
10 Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745.
Discussion
[24] First, we set the context. Military law and civil law overlap but are nevertheless distinct. While it is true that a soldier has not abandoned his or her rights as a citizen, they are subject to a regime of discipline that can modify access to those rights. We will return to this later when we discuss the relevance of s 21 of the New Zealand Bill of Rights Act 1990 to the search.
[25] The procedures and principles that protect the rights of a civilian against intrusion by the State do not necessarily apply to a soldier who is on duty and on Defence land. For example, none of the formal procedures set out in the Search and Surveillance Act 2012 apply to the appellant’s Commanding Officer when he had to decide whether to authorise a search under s 95 of the Armed Forces Discipline Act
1971. Objectively, as Judge Gaskell stated, he had to decide whether he had reasonable grounds to suspect that the appellant had in his possession any article or thing which is or may be evidence relating to the commission of an offence.
[26] Second, “reasonable grounds to suspect” is not a high threshold. We are not bound by the explanation of that test as set out in Williams. That is because it was an aside made obiter dicta by the Court of Appeal while it was considering a different jurisdiction which had a higher test. But, even if “to suspect” means “to think it is likely”, that is not a high threshold.
[27] We start with the obvious point that the meaning of “likely” depends on the
context:11
As reference to dictionaries and judicial discussions of the word confirms, “likely” has a variety of meanings ranging along a continuum depending on the context from a degree of probability even higher than more probable than not, to a possibility sufficient to be recognised. As Davison CJ put it in Air New Zealand Ltd v Commerce Commission [1985] 2 NZLR 238, 342, “On a graduated scale one might place expressions of likelihood in the following order of certainty – possible, distinct or significant possibility, reasonably probable, probable, highly probable”.
11 R v W [1988] 1 NZLR 35 (CA) at 38.
[28] The context given by the Court of Appeal in Williams, by way of example, was the test used in the Arms Act. This was commented on by the Court of Appeal in the later case of Rimine v R as follows:12
… We note that the requirement that the officer have only a reasonable ground for suspicion that arms are in the vehicle is not a particularly exacting standard. It was set at this lower level than other search powers because of the obvious danger involved in possession and use of firearms.
[29] The context for s 95 is a Commanding Officer exercising military powers of command, and the obvious dangers of soldiers acting against their obligations of discipline.
[30] For our part, we agree with the dicta in R v Sanders that:13
… suspicion probably goes beyond mere recognition that something is possible to the point that, while final judgment must be suspended pending proof, the proposition in question is regarded as inherently likely.
[31] However, there has to be a practical and real world meaning. We respectfully repeat the observation of Haslam J with reference to the test of whether an officer had good cause to suspect, that he hoped the phrase would “escape the refinements of verbal analysis which may tend only to reduce a clear simple passage in the
section to an unworkable subtlety”.14
[32] In Police v Anderson, North P, with reference to the test “good cause to suspect”, accepted that it means no more than “a reasonable ground of suspicion upon which a reasonable man may act”.15 That seems to us to be a good workable approach to the issue.
[33] We accept most of the criticisms made by counsel for the appellant. In particular, it would have been better if Staff Sergeant Packer had provided the Commanding Officer with an assessment of the reliability of the informant. It would
have been better if Staff Sergeant Packer had provided more details about the
12 Rimine v R [2010] NZCA 462 at [21].
13 R v Sanders [1994] 3 NZLR 450 (CA) at 461.
14 Gorrie v Police (unreported, Wellington, 22 October, 1969) referred to in Police v Anderson
[1972] NZLR 233 at 242.
15 At 242.
circumstances in which the informant had approached the Military Police. For example, did the informant appear to be a mature person or not? How extensive were interactions between the informant and the Military Police? Did the informant appear to be a member of the New Zealand Defence Force?
[34] However, it is insufficient to identify areas of information which could have been better provided unless they demonstrate that the information upon which the Commanding Officer relied was inadequate for meeting the statutory test.
[35] We have little doubt that the information provided would not have satisfied the higher test of reasonable grounds to believe. At that level, the Williams guidelines would have real applicability. But we agree with Judge Gaskell that the information provided gave the Commanding Officer reasonable grounds to suspect. For the reasons given by the Judge (quoted at [16]), we accept that there were reasonable grounds for the Commanding officer to suspect – in the sense that there were reasonable grounds of suspicion upon which a reasonable Commanding Officer could act – in terms of s 95 to allow him to authorise the search.
[36] We feel compelled to observe, however, that this finding is by a fine margin. The decision to authorise a search under s 95 is a command decision for the Commanding Officer. It is the Commanding Officer who must be satisfied that he or she has reasonable grounds to suspect. There is no evidence here that the Commanding Officer made any inquiry of his own. He did not test the reliability of the informant by, say, telephoning Staff Sergeant Packer and asking for more background information. Had he done so, as we discuss below, he would have received information (which should have been in the report) which would have helped him make his decision. As it is, we are satisfied that the material given by the Military Police, for the reasons given by Judge Gaskell, cross the evidential threshold, although not with room to spare.
[37] The appellant relies also on s 21 of the New Zealand Bill of Rights Act:
Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[38] If s 95 is complied with, but s 21 is breached, that would still mean that the evidence is improperly obtained. But, as Williams holds,16 it will be rare that a lawful search is unreasonable. The instances given where it might be go to manner of search. Here there is no suggestion that the search was conducted other than in an appropriate manner. Section 21 is not breached.
[39] These conclusions are sufficient to decide the appeal. However, because counsel addressed the balancing exercise which would have to occur under s 30 of the Evidence Act 2006 if the evidence obtained from the search and the subsequent interview were improperly obtained, we will give our analysis of that issue on the premise that it was.
Section 30 balancing
[40] If the evidence had been improperly obtained, we would have had to determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.17
[41] First, we would consider the importance of the right breached. The right to be free of unlawful or unreasonable search is an important one and is affirmed by s 21 of the New Zealand Bill of Rights Act 1990. This provides a focus for our analysis.
[42] Counsel for the appellant accepts that there are cases where the military context makes a search reasonable when it otherwise would not be. However, he submits that in the situation pertaining there was nothing overtly military that would distinguish the situation from a civilian context. We disagree. Counsel was referring to an operational environment as opposed to a camp environment. But the context is still a military one. It is still the context of the need to maintain a system of
discipline among soldiers.
16 R v Williams, above n 5, at [24].
17 Evidence Act 2006, s 30(2)(b).
[43] In our view, regard has to be paid to s 5 of the New Zealand Bill of Rights
Act which provides:
… the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[44] Plainly, the Armed Forces Discipline Act provides limits prescribed by law to the rights and freedoms of individuals who have joined the New Zealand Defence Force. Those limits, when clearly expressed, must generally be regarded as reasonable since they are enacted by Parliament as part of our democracy. Where there is room for argument as to what are reasonable limits, circumstances which might be held to be unreasonable in a civilian context may not necessarily be held to
be unreasonable in the context of service in the Armed Forces.18
[45] Further, s 95 is not the only provision which makes a soldier’s liability to be searched less constrained than for a civilian. Section 97 of the Armed Forces Discipline Act provides:
The powers conferred on commanding officers by sections 95 and 96 are in addition to the inherent powers of search exercisable by commanding officers under service custom.
[46] Nevertheless, if the search were improper under the s 95 test, and/or unreasonable under s 21, then we would hold that an important right had been breached. But the circumstances of the search – including the greater liability of a solder to be searched – would reduce the seriousness of the intrusion.
[47] We would next consider the nature of the impropriety, in particular whether it was deliberate, reckless, or done in bad faith. If the search were improper, then it would be by a fine margin. Given that the Commanding Officer was acting on a formal report from the Military Police who clearly thought the authorisation was
available for him to give, at most we would say that the impropriety was the failure
18 Jack v R [1999] 3 NZLR 331 (CMAC).
to exercise all due care in making the decision.19 In a statement dated 1 February
2006 and provided to Judge Gaskell, Staff Sergeant Packer gives some of the background that would have fortified the decision of the Commanding Officer if he had asked:
·This information was passed to me by a Military Policeman from my unit, and I instructed him to conduct follow-up inquiries with the informants.
·The informant was known to the Military Policeman, and he determined that she was a reliable source.
[48] The nature and quality of the improperly obtained evidence would be an important factor in this case. The evidence of the text messages and the subsequent admissions made by the appellant are crucial to the bulk of the charges. It is the sort of evidence that was anticipated to be found in the search. It weighs heavily in the balance on the side of admissibility.
[49] The charges against the appellant are serious. Much more serious than if he were a civilian. Soldiers are part of a uniformed and disciplined force trained and equipped to use lethal violence. The use of drugs cannot be tolerated in such an environment. Military law, upon conviction, would treat the appellant more severely than if he were a civilian.
[50] There are no other investigatory techniques not involving any breach of rights that have been identified as known to be available. Further, although the Military Police were criticised for delaying more than three weeks from the informant’s second approach before applying to the Commanding Officer, the latter acted swiftly in granting the authorisation. The command factors set out in [49] would give any Commanding Officer a spur to action.
[51] There are no alternative remedies to exclusion of the evidence which can adequately provide redress to the appellant.
19 The appellant’s submission was that “… there does appear to have been a lack of care in the request for authorisation” and that the speed with which the Commanding Officer authorised the search “… may indicate limited independent evaluation” (Submissions of counsel for the appellant, above n 9, at para 59 and 60).
[52] It follows that if we were wrong to hold that the evidence was properly obtained, we would nevertheless admit it because excluding it would be disproportionate to the impropriety.
Decision
[53] Leave to appeal is granted. [54] The appeal is dismissed.
[55] Judge Gaskell’s ruling is confirmed.
Solicitors: Paul Murray (Palmerston North) for Appellant
Office of the Director of Military Prosecutions (Wellington) for Respondent
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