Mita v Police
[2012] NZHC 3161
•22 November 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2012-470-40 [2012] NZHC 3161
BETWEEN MELISSA MITA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 22 November 2012
Counsel: OJ Brittain for Appellant
HJ Sheridan for Respondent
Judgment: 22 November 2012
ORAL JUDGMENT OF RODNEY HANSEN J
Solicitors: Public Defenders Service, 60 Durham Street, Tauranga for Appellant
(Email: [email protected] )
Ronayne Hollister-Jones Lellman, P O Box 13063, Tauranga for Respondent
(Email: [email protected] )
MELISSA MITA V NEW ZEALAND POLICE HC TAU CRI-2012-470-40 [22 November 2012]
Introduction
[1] Ms Mita faced charges in the District Court at Tauranga, two of possession of cannabis and one of possession of utensils, namely, a bong. She pleaded guilty after Judge Everitt had rejected a challenge to evidence obtained pursuant to a search warrant. She was sentenced to 40 hours community work. Ms Mita appeals against conviction on the grounds that her plea of guilty was induced by a ruling which
embodied a wrong decision on a question of law.1
Background
[2] The search warrant was executed on 20 March 2012 at Ms Mita’s address at
3 Ben Keys Street, Te Puke. The police found a cannabis bong in one of the bedrooms and Ms Mita in physical possession of a tobacco pouch containing five cannabis tinnies and one plastic ziplock bag containing a quantity of cannabis. In a hot water cupboard and in the garage at the property, two small quantities of drying cannabis on stalks were found. The cannabis located in the pouch weighed 24 grams and the drying cannabis weighed 100 grams.
[3] The application for the search warrant relied primarily on information provided by a person who historically has been called an “informant” and is now called a “human source”. The application describes how each human source is given a unique identifier which is used by the police when referring to information provided. The constable making the application described the police practice and procedures relating to human sources, including an assessment of associated risk and the reliability of the human source.
[4] The application referred to an earlier occasion in 2012 when extremely accurate, timely and reliable information provided by the human source concerned
led to an arrest and the recovery of a valuable boat.
1 R v Le Page [2005] 2 NZLR 845.
[5] The application went on to refer to evidence of cannabis dealing at a house in
Seddon Street, Te Puke. The relevant passage in the application stated:
[7] Detective Sergeant GREY spoke to Human Source [ ] on 27th February 2012 and the Human Source advises that a Caucasian female named “Kim”, approximately 40 years old, is selling “tinnies” from her house on Seddon Street and is being supplied by a drug dealer named Mark LLOYD.
[9] Human Source [ ] stated that a lot of the young guys around are buying from “Kim” and that she is selling on behalf of LLOYD who is supplying her with the “weed”. “Weed” is another term used for cannabis plan.
[10] Human Source [ ] further stated that he does not know “Kim’s” surname, however she lives in a house on Seddon Street, and she drives a white Toyota truck.
[6] The application then recited information provided by the human source as to the location of “Kim’s” house and to enquiries which corroborated that information. It included the sighting of a vehicle registered to a woman named Kim.
[7] The application then went on to focus on the person, Mark Lloyd, who had been identified as the person supplying cannabis to Kim. The relevant passage of the application is as follows:
[18] LLOYD is known to Police, his full name is Mark Jeffery LLOYD and he resides at 3 Ben Keys Street, Te Puke. He has numerous criminal convictions dating back to 1981 including assault, driving with excess breath/blood alcohol, driving whilst disqualified, escapes custody, theft, and disorderly behaviour. LLOYD has one previous conviction for possession of cannabis from 1993; and one previous conviction for possession of instruments from 1989. His latest conviction was in 2010 for breaching conditions of intensive supervision.
[19] Previous search warrants have been executed in the past at LLOYD’S address of 3 Ben Keys Street, Te Puke. The last search warrant to be executed there was on the 11th of November 2011. On this occasion Police found 8 grams of Cannabis head material; two Cannabis joints weighing one gram each; Cannabis seeds; and $4020 in cash.
[20] LLOYD’S partner Melissa MITA and her son Tritan LATIMER, who also lives at 3 Ben Keys Street, took responsibility for owning these drug items. MITA pleaded guilty and was convicted for Possession of Cannabis on the 18th of November 2011 at the Tauranga District Court.
[21] LATIMER also pleaded guilty to Possession of Cannabis however is awaiting sentencing on the 27th of August 2012 at the Tauranga District Court.
The applicant went on to state his belief that there would be evidence of cannabis offending at the two addresses.
Judge’s decision
[8] Judge Everitt began by directing himself to the key issue of whether the information in the search warrant provided the issuing officer with reasonable grounds for believing that a search would reveal evidence of offending in terms of s 198(1) of the Summary Proceedings Act 1957.
[9] Judge Everitt discussed evidence directed to the reliability of human source [ ]. He discussed the information relating to the Seddon Road address and noted that the information turned out to be accurate when checked by the police officer. He said that human source [ ]’s statement regarding young guys buying from Kim and her selling on behalf of Mr Lloyd appeared to be based on his personal knowledge, having regard to the detailed information he gave about Kim’s address and the vehicle she drove.
[10] Judge Everitt concluded:
[16] The only criticism that Ms Brittain is making is not as to the reliability of the informant, but as to the reliability of the information that the reliable informant gave to the police officer. I find that to be a rather long bow to suggest that a reliable informant who is aware, and has knowledge of goings on gives unreliable information. The two go hand in hand in my view.
[17] The issuing officer in my view, believed, must have believed, on the information given to the issuing officer that the state of affairs as asserted in the application must have existed. That the issuing officer was presented on the application, with reasonable grounds for belief in that sense, which means objectively there was a credible basis for thinking that the search would turn up the items named. I find it almost impossible to think of any examples that would make the information as distinct from the informant more reliable.
[18] The accompanying evidence of reliability of the information in my view is sufficient otherwise it would be virtually impossible for the police
officer to obtain a search warrant if the type of information and the detail required that Ms Brittain is suggesting, was required on every occasion.
[19] The source of, and nature of the information affect reliability ,and in my view, here we are, very reliable informant, well aware of the scene, having knowledge of the scene and that leads to reliability of the information as well as reliability of the informant.
[20] The police, as I say, checked much of the information and found it to be accurate.
Appellant’s argument
[11] In written submissions, Ms Brittain had criticised Judge Everitt’s analysis as including errors of law. She singled out his suggestion that there is no distinction between the reliability of the human source and the reliability of the information provided by the human source. However, in oral submissions, the argument became somewhat more focused and reduced to the proposition that there was insufficient reliable information in the application to provide grounds for a reasonable belief that cannabis offending was taking place at the address of Ben Keys Street. Ms Brittain submits that there was insufficient evidence in the application to establish that the informant should be considered reliable and why the informant’s assertions are more
than “mere suspicion, rumour or gossip”.2
[12] Counsel was particularly critical that the evidence referred to in paragraphs [7] to [9] of the application3 did not disclose the way in which the human source [ ] acquired the information. That is said to undermine the application as it concerned the address at Ben Keys Street, for which the applicant was, in the first instance, relying on the person identified as the supplier to Kim. The only additional evidence pointing to offending at that address was the historical convictions of Mr Lloyd which are so remote in time as to be of no value, and the information contained in paragraphs [19] to [21] of the application,4 which show only that some
2 or 3 months earlier there had been cannabis at the house in Ben Keys Street.
2 R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 at [216].
3 At [5] above.
4 At [7] above.
Crown submissions
[13] Mrs Sheridan submits, first, that there has not been an error of law which would permit Ms Mita to establish that there had been a miscarriage of justice. She points out that a miscarriage of justice establishes a high threshold for interference and it is only in exceptional circumstances that an appeal against conviction, following the entry of a guilty plea and sentence, will succeed.5 She submits that, even if the information in the application were insufficient to support the issue of a search warrant and the balancing act in s 30 of the Evidence Act 2006 favoured exclusion of the evidence, it could not be said that Judge Everitt’s ruling embodied a
wrong decision on a question of law.
[14] Regardless, Mrs Sheridan argued that the evidence provided in the application was sufficient to found the issue of the warrant. She said the application should be read as a whole. It would be wrong to isolate what the human source [ ] said in relation to Seddon Street from what was provided in relation to Ben Keys Street. While acknowledging that it would have been preferable for the application to disclose how the human source [ ] acquired the information, she argued that the failure to do so was not fatal. There was sufficient to satisfy the issuing officer that the information provided was reliable. In the event that I should take a contrary view, Mrs Sheridan submitted that the s 30 balancing exercise clearly favoured admitting the evidence.
Decision
[15] It would have been preferable for the application to disclose the way in which human source [ ] had acquired the information. However, it does not follow that the application failed to show that the information was reliable and should be regarded as no more than suspicion, rumour or gossip. As the discussion in Williams shows, there are a range of ways in which the reliability of information provided by
an informant can be established. One is that the source has supplied reliable
5 R v Le Page [2005] 2 NZLR 845;Marino v Police HC Napier CRI-2007-441-24, 14 May 2008.
information in the past. 6 Another is that information provided by the source has been verified as reliable by other means.7 A third is the inherent quality of the information provided, the amount of detail and the extent to which it marries with known facts.8 By each of these means the information provided by human source [ ] is shown to be reliable.
[16] The information provided on the previous occasion was described as extremely accurate, timely and reliable and, as it was supplied on a previous occasion in 2012, must have been very recent. The detailed nature of the information regarding Kim, the whereabouts of her house and her ownership of a white Toyota truck is strongly indicative of personal knowledge. It was verified in material respects. A coherent picture emerged containing concrete verifiable (and verified) facts which implicated Mark Lloyd. Through him a direct link to the Ben Keys Street address was established. Evidence of cannabis offending there, a few months earlier, was sufficiently proximate to be relied on as further evidence that cannabis offences were continuing to be committed at that address.
[17] Judge Everitt was correct, in my view, to admit the evidence obtained in the course of the search. No question of error arises and it is unnecessary for me to consider either the balancing exercise under s 30 or whether, had the evidence been wrongly admitted, Ms Mita would have been able to succeed on the basis that she had been the victim of a miscarriage of justice.
[18] The appeal is accordingly dismissed.
6 At [216].
7 At [216].
8 At [218].
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