Police v B HC Palmerston North CRI 2007-015-148

[2007] NZHC 779

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2007-015-148

POLICE

v

B

Hearing:         2 August 2007

Appearances: C Shannon for the Police

G Mason for the Defendant

Judgment:      10 August 2007         at 9 am

JUDGMENT OF MALLON J

Introduction

[1]      Mr  B    applies  for  leave  to  withdraw  his  guilty  plea  to  a  charge  of cultivating cannabis.  The cannabis was found in the execution of a search warrant at his home.  Mr B  , who was represented by experienced counsel, pleaded guilty because  he  thought  he  had  no  possible  defence.     His  counsel  subsequently considered that the search warrant application should be obtained and reviewed to determine whether the search was unlawful.   This followed counsel’s research on developments in the law of which his counsel was not aware at the time of advising Mr B   when his plea was entered.

[2]      The search warrant application having been obtained, the view was formed that the search was unlawful because the application for the search warrant was inadequate.  It was considered that an application under s 344A of the Crimes Act would have resulted in the evidence being excluded. In that event the Crown would have been unable to prove the charges to the criminal standard.  The issue is whether

this provides a basis for the guilty plea to be vacated.

POLICE V B HC PMN CRI 2007-015-148  10 August 2007

[3]      For the police it is submitted that there has been no miscarriage of justice because the guilty plea reflects the truth.   Mr B   is not now saying that the cannabis plants were not his, only that the way they were found was unlawful.

[4]      For Mr B   it is submitted that the interests of justice require that he be permitted to vacate his guilty plea.   Mr  B   was entitled to  be free  from an unreasonable search and the only vindication of his right is for his plea to be vacated and the evidence obtained pursuant to the warrant ruled inadmissible.  It is submitted that Mr B   should not be disadvantaged by the late assertion of his rights when that has not occurred through any fault on his part.

[5]      For the reasons that follow I grant the application to vacate the guilty plea.

Background

[6]      On the morning of 7 March 2007, before Mr B   left for work, the Police arrived at Mr B  ’s house.  Mr B   says that after hearing a bang on his door he looked out the window and saw two or three police officers running to the back of his house.  He opened the front door to see two police officers there.  He was shown police identification and was advised that the police were at his property to search for cannabis.

[7]      There is a difference in recollection between Mr B   and the police as to whether he was shown the warrant at the time or later in the course of the search.  In any event, Mr B   says that there was nothing he could do as the police were already searching his property.

[8]      The search disclosed a large number of cannabis plants.  In the course of the search and as a result of what was found Mr B   made admissions to the police.

[9]      Mr  B    was  charged  with  cultivation  of  cannabis  (laid  indictably), possession of cannabis (laid in the summary jurisdiction) and possession of precursor equipment associated with the cultivation of cannabis (laid indictably).   Mr B   instructed Mr Coles to act for him.  He indicated to Mr Coles that he would plead

guilty to the cultivation of cannabis and possession of cannabis charges but would defend the possession of precursor equipment charges.

[10]     A disclosure request was made.  Included in the disclosure was a copy of the search warrant but not the application for that search warrant.  Neither the warrant nor the application had been specifically requested although the disclosure request was in general terms and arguably covered these documents.

[11]     Mr B   pleaded guilty on the cultivation of cannabis and possession of cannabis charges and appeared in the District Court for sentencing.   The District Court determined that the matter should be transferred to the High Court.  The police summary of facts as to the quantity of cannabis which would be produced from the cannabis operation put the level of seriousness beyond the District Court’s jurisdiction.   Mr B   took issue with the police summary of facts.   The District Court considered it would be better for the High Court to hear the evidence as to quantity and to sentence Mr B   in light of its factual findings.

[12]      Before the disputed facts hearing and sentencing took place Mr Coles read the Court of Appeal’s decision in R v Williams CA 372-382/05 7 March 2007.  That decision was issued the day the warrant  was executed at  Mr B  ’s house but Mr Coles examined it later and only as part of research on another case on which he was working.  As a result of this, he reviewed a number of his files including this one.  He requested and obtained a copy of the search warrant application.

[13]      The application refers to the police  having received  information  from an “anonymous informant” on 17 February 2007.  The informant stated that the accused “has a cannabis plantation on his property and a suspicious number of unsavoury visitors to his property”.  The application refers to Mr B  ’s address and enquiries by the police confirming that Mr B   and his partner own the property at that address.     It  also  refers  to  Mr  B    having  three  previous  cannabis  related convictions between 1986 and 1993.

[14]      There is also reference to  information received  in March and May 2003. That  refers to  Mr B   and his partner running dance parties at their  business

premises and that cannabis, ecstasy and methamphetamine were available/sold at these parties.   An  informant  also  told  the police that  an  illegal bar  operated at Mr B  ’s premises where alcohol and drugs were sold.   Information was also received that young girls were being supplied with methamphetamine and alcohol at Mr B  ’s business premises.   It is not clear from the application whether information about these matters was from different sources or whether any of the sources was the same as the “anonymous informant” referred to above.

[15]      Having received the search warrant application Mr Coles then arranged for Mr B   to receive advice from new counsel (Mr Mason).   This then led to the application to vacate the guilty plea.

Jurisdiction

[16]     Pursuant to s 169 of the Summary Proceedings Act, the guilty plea to the cultivation of cannabis charge may be withdrawn only with the leave of a High Court Judge.  (Where a guilty plea is entered after committal to the High Court, the Court has an inherent jurisdiction to allow an accused to withdraw his guilty plea.  After sentencing the proper approach where a defendant wishes to change his plea is to appeal the conviction to the Court of Appeal on the grounds of miscarriage of justice: R v Le Page [2005] 2 NZLR 845 at [849].)

[17]     This Court does not have jurisdiction to entertain any application to vacate the plea in respect of the possession of cannabis charge.  The District Court retains that jurisdiction under s 42 of the Summary Proceedings Act.  Mr Mason envisages making an application to the District Court in respect of the possession of cannabis charge if the present application is successful.

Applicable principles

[18]     The relevant principles are (see Sharp v District Court at Whangarei [1999] NZAR 221):

a)       The discretion to permit a change of plea may be exercised wherever the interests of justice so require.

b)       The discretion will not lightly be exercised, particularly where the accused is legally represented at the time the plea is made.

c)       Several particular grounds (not intended to be exhaustive) have been recognised as justifying the setting aside of a plea.   One of those grounds (and the one relied on in this case) is where there was a clear defence to the charge.   Other recognised grounds include where the accused acted on a material mistake or where the proceedings were defective or irregular.

The adequacy of the search warrant application

[19]     The search warrant was issued under s 198 of the Summary Proceedings Act. This required the issuer of the warrant to be satisfied that there were “reasonable grounds to believe” there will be evidence as to the commission of an offence (here the cultivation of cannabis) at the address to be searched.

[20]     Williams sets out guidance as to the kind of information required for there to be reasonable belief.  That guidance was provided because “[d]espite the continued exhortations” of the Court of Appeal “woefully inadequate” applications continue to be  drafted  and  warrants  continue  to  be  issued  in  reliance  on  them.     Where information for  a search warrant  application  is obtained  from an  informant, the application should state why the informant is considered to be reliable. There must be some evidence to show that the statements of the informant are based on more than suspicion, rumour or gossip.

[21]     Relying on Williams, for Mr B   it is submitted that the information in the application was inadequate. Because the informant was anonymous the police could not comment on the reliability of the informant.   It is said that it is not apparent whether the information as to Mr B  ’s address came from the informant. The rest of  the  material  in  the  application  could  not  have  justified  the  warrant  –  the

convictions are  old  and  the  other  information  is rumour  and  does  not  relate  to cannabis.

[22]     The police do not oppose the application by contending that the search was lawful.  For the purposes of this application the police concede that “there may be an arguable defence relating to the search warrant application”.  I understand the police to be saying that if an application had been made under s 344A it is arguable that the evidence (the cannabis and the associated admissions) would have been excluded.

[23]     I have looked at the application and accept it is arguable that the information was inadequate.  The information in 2003 is not current and, it would appear, was not relied on at that time for the purposes of obtaining a warrant.   The previous convictions have marginal relevance given their age.  There is nothing in the warrant to indicate the reliability of the anonymous informant.   For example there is no description of the circumstances in which the information was received.  There is no information as to the circumstances in which the anonymous informant came to have this information.   The only potential fact that might indicate its reliability is knowledge of Mr B  ’s address.  It is unclear on the face of the warrant whether that information came from the informant.

[24]     I have not been asked, and am not in a position, to consider whether the evidence  would  in  fact  be  excluded.    The  parties  envisage  that  if  I  grant  the application to withdraw the guilty plea an application would be made for the Court to determine the admissibility of the evidence obtained as a result of the warrant.  In any such application the Court would receive submissions as to whether the search was unlawful and unreasonable in breach of the Bill of Rights.   The Court would need to assess the seriousness of any such breach against the public interest factors that would favour its inclusion.  These matters were not addressed before me and I express no view on them.

[25]     Given the position of the police I proceed on the basis that it is reasonably arguable that the evidence (the cannabis and the associated admissions) would have been excluded. The next question is whether that provides a basis to vacate the guilty plea.

Interests of justice

[26]     Mr B   relies on the ‘clear defence’ criterion set out in Sharp.   If the contested evidence was excluded the Crown would be unable to discharge its burden of proof.  Strictly speaking it is not a defence that Mr B   has and wishes to rely on.  It is not a case of Mr B   having admitted committing an offence which he has  not.    Rather  he  seeks  the  opportunity  to  take  advantage  of  a  procedural mechanism that was available to him and which, if successful, would have resulted in his acquittal. The overall question is whether in these circumstances it is in the interests of justice to allow the plea to be vacated.

[27]     For the police Mr Shannon submitted that it is not in the interests of justice because the guilty plea is an admission that the facts that make up the offence are true.  In support of this submission Mr Shannon referred to Faulkner v The Crown Solicitor at Auckland T 116-121/94 27 July 1995.   In that case the accused was charged with a series of offences on the basis of evidence obtained from an interception warrant and a confession.   Initially he notified the Crown that there would need to be a s 344A ruling on the interception warrant.  He then decided to drop  the  challenge  and  pleaded  guilty.     His  co-accused  were  successful  in challenging the interception warrant and the accused then sought to change his plea.

[28]     The Court said that excluding the evidence from the interception warrant would have not  secured an acquittal.   There  remained  the  confession and  other surrounding evidence.  However the Court refused to allow the plea to be changed “on a more fundamental basis”.  The Court said this:

“… the guilty pleas would not have been entered into this particular case but for the defendant’s knowledge that he was in truth guilty of all the crimes with which he was charged. … the ultimate objective is normally to get at the truth. … When an accused has admitted that he has committed crimes and pleads guilty accordingly and then comes back before this court seeking to take advantage of a technicality to avoid legal responsibility for them it could not be said that there would be any miscarriage if an application to change pleas of guilty is refused.  Evidence is only a means to an end.  The end is the truth.  Once the truth has been admitted, and there are no grounds for thinking that it was falsely admitted, the admissibility of the evidence which the prosecution might in other circumstances have had to rely upon is irrelevant.

[29]     Mr Mason says that this case does not refer to the Bill of Rights.  He says that the end (the truth) does not justify the means (an unreasonable search). If that were not so, Mr Mason says that no evidence obtained in breach of the Bill of Rights would ever be excluded.

[30]     I have looked to see whether there is any more recent authority than Faulkner which assists on this issue.  I have not found anything directly on point but there are two Court of Appeal decisions of some relevance.

[31]     In R v Zhang CA 153/04 13 July 2004 the appellant pleaded guilty to the charges “in protest” after receiving an adverse pre-trial ruling on an application by the Crown to amend the indictment.   By pleading guilty she intended to forgo the trial and appeal to the Court of Appeal against the ruling.   The Court of Appeal considered that it had no jurisdiction to entertain the appeal.  The guilty plea meant that the elements of the offence were admitted.  In the absence of an application to change the plea that was the end of the matter as far as the appeal was concerned. The Court does not indicate whether an application to vacate the plea would have been successful.  It is therefore of limited assistance in the issue before me, except that it indicates that Mr B   is pursuing the correct avenue for raising the issue.

[32]     In R v Le Page [2005] 2 NZLR 845 the accused was unsuccessful on a s 344A application. The accused pleaded guilty to the charges before the appeal could be heard and was sentenced on them, purporting to reserve his right to appeal the s 344A ruling. The accused then sought to appeal his conviction by challenging the s 344A ruling.

[33]     Prior to determining the appeal the Court of Appeal issued a minute in the following terms:

The matter came before this Court as an application for leave to appeal against the pre-trial ruling and as an appeal against sentence.  In conference with counsel it  was  pointed  out  that  the application for  leave to  appeal against the s 344A determination was rendered moot by the guilty pleas and it would appear that the appellant seeks to have the conviction set aside but may be confused as to the available process.  That would seem to lie in s 169

Summary Proceedings Act 1957.

[Emphasis added]

[34]     Again this minute indicates no more than that where a guilty plea has been entered and an accused seeks to challenge a pre-trial ruling he should first apply to set aside his guilty plea.

[35]     The case then came back to the High Court.  The High Court concluded that it no longer had jurisdiction to entertain an application to vacate the plea because sentence had been passed.  The case went back to the Court of Appeal to determine whether a miscarriage of justice had occurred as a result of the pre-trial ruling.

[36]     The Court of Appeal was not persuaded that the s 344A ruling was wrong, but would have dismissed the appeal in any event.  That was because there was an insufficient nexus between the ruling and the decision to plead guilty.   The ruling might have made it harder for the accused to have successfully defended the charges but it was not decisive.  The accused had appreciated the merits of his position and had made an informed decision to plead guilty.

[37]     The Court referred to R v Chalkley [1998] QB 848, in which the English

Court of Appeal said:

…a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal  escape from a verdict of guilty on those facts.   But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless.   A change of plea to guilty in such circumstances would normally be regarded as an acknowledgement of the truth of the facts constituting the offence charged.

[Emphasis added]

[38]     This passage supports the position for the police.  Mr Shannon says how can there be a miscarriage of justice where the conviction reflects the true position – that is, that Mr B   was cultivating cannabis.

[39]     On the other hand, as Mr Mason submits, Mr B   had a right to be free from an unreasonable search.  If that right has been breached the only vindication of that right is the exclusion of the evidence wrongly obtained.   Mr B   has been denied  the  opportunity to  exercise  that  vindication  because  his  counsel did  not

inform him that he had that right.  In the absence of that advice his decision to plead guilty was not an informed one.

[40]     The issue is whether  it  is in the interests of justice are better served by allowing Mr B   to now have that opportunity or allowing the conviction to stand when there is no doubt that the offence has been committed.  On balance I consider that Mr B   should be permitted to withdraw his guilty plea.  He says that if he had been advised about his prospects of succeeding in excluding the evidence he would have instructed his counsel to make the s 344A application.   There is no reason to doubt this.   Having become aware of his rights he has asserted them promptly.  If Mr B   was able to exercise his rights before entering his guilty plea, he should not be disadvantaged by the failure of his counsel to advise him of his rights.

Conclusion

[41]     Mr B  ’s guilty plea is vacated.  The plea was entered without advice that the relevant evidence against him was potentially inadmissible.   Vacating the plea allows Mr B   the opportunity to make the application that he would have made before entering his plea had he been informed that he could do so.

[42]     I emphasise that this case should not be seen as providing a basis for others to apply to vacate guilty pleas merely because they believe that with different advice they would not have pleaded guilty.  In this case there is a credible basis for arguing that the evidence was inadmissible as is conceded by the police and without that evidence the charges could not be proven.

[43]     I also emphasise that in vacating the plea I do not indicate any view on whether the proposed s 344A application will be successful.  That will be a matter for the Court to consider in light of full submissions (which I have not had) on this

issue.

Solicitors:

C Shannon, Vanderkolk and Associates, PO Box 31, Palmerston North, (email: [email protected]) G Mason, Barrister, PO Box 560, Palmerston North (email: [email protected])

Mallon J