Queen v Coleman

[2004] NZCA 446

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA324/04

THE QUEEN

v

[    ] COLEMAN

Hearing:         27 October 2004

Court:             O’Regan, John Hansen and Goddard JJ Counsel:        M I Sewell for Appellant

B M Stanaway for Crown Judgment:    22 November 2004

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

(Given by Goddard J)

R V [  ] COLEMAN CA CA324/04 [22 November 2004]

Introduction

[1]    This is an application for leave to appeal against a pre-trial ruling of Panckhurst J, ruling lawful and admissible a search of three properties in Christchurch pursuant to a search warrant issued on 28 August 2003. The  grounds  of appeal are that an insufficient basis existed to found a reasonable belief that the issue of a search warrant relating to the appellant’s address of [     ] Street, Christchurch was justified; that the finding of a sufficient basis was based on a misinterpretation of the facts available to the detective who swore the supporting affidavit; and that the supporting affidavit was misleading, incorrect and too vague to support a reasonable belief. The search warrants were among a number obtained and executed as part of the termination of an investigation into the drug dealing activities of the Mongrel Mob at Christchurch between July 2002 and 3 September 2003.

[2]    The other addresses named in the search warrant were business premises under the control of the appellant, and a property at [                ] Terrace, Christchurch occupied by a [           ]  Nisbet  and  [  ]  Ryan.  Mr Nisbet had a prior conviction for possession of cannabis and there were reasonable grounds for believing, at the time the search warrant was issued, that he was growing cannabis at the address of [             ] Terrace for supply to an intermediary of the Mongrel Mob for on-sale by the gang as tinnies via another outlet. The appellant was observed visiting Mr Nisbet’s address on 21 August 2003 and only the evening before his car had also been observed parked outside a motel in Cranford Street, Christchurch, from which a [            ] Shand had picked up a plastic package prior to making an  arranged supply of cannabis to a Ms Howie.     Mr Shand had a number of convictions for cannabis offending.

[3]    The warrants were executed on 3 September 2003. A total of 72 cannabis plants were found under cultivation at Mr Nisbet and Ms Ryan’s address in a moderately sophisticated hydroponic operation and loose cannabis head was also found drying at the property. At the appellant’s address of [  ] Street, 42 cannabis plants were found under cultivation, along with a large amount of drying cannabis leaf and head. No cannabis was found at the appellant’s business premises.

[4]    All three were charged jointly with the cannabis cultivation at [         ] Terrace, Christchurch. Mr Nisbet and Ms Ryan have since pleaded guilty to that charge. The appellant now faces trial alone on an indictment containing four counts: two of cannabis cultivation at [              ] Street and [             ] Terrace, Christchurch; one of selling cannabis plant to [              ] Shand; and one count of possession of cannabis plant for supply.

[5]    A number of other persons were also arrested on termination of the police investigation and charged with a variety of offences including cannabis dealing. Those arrested were gang members and their associates, other persons alleged to have assisted in the procurement and delivery of drugs to the gang, and persons who cultivated cannabis for supply through intermediaries to the gang. During the investigation a number of interception warrants had been obtained and telephone conversations intercepted between various persons. In addition there had been surveillance evidence of the movements of a number of persons, as well as observations of the activities of those who participated in, or were spoken of, in conversations intercepted by the police.

The warrant

[6]    The warrant executed at the appellant’s address of [            ] Street, Christchurch was directed inter alia to evidence of dealing in cannabis and cannabis cultivation. There is no challenge to the manner in which the warrant was executed. The challenge to the validity of the warrant was based on inaccuracies in the supporting affidavit sworn by Detective Barrett, which Ms Sewell submitted must have misled the judicial officer who granted the warrant. For that reason she contended that the warrant of itself was invalid and the consequential searches unlawful and unreasonable.

The supporting evidence

[7]    The visit by Mr Shand to the motel occurred shortly after a telephone call from Ms Howie to him was intercepted, in which it was indicated that he was shortly

to supply Ms Howie with more cannabis. This conversation was preceded by intercepted conversations between Mr Shand and the appellant the previous night,

19 August, and between Ms Howie and Mr Shand on 2 August 2003. The  connection between these three persons and the nature of their communications in those three intercepted telephone calls were traversed by Detective Barrett in some detail in his supporting affidavit. Panckhurst J examined these with care and found that Detective Barrett’s affidavit evidence established the following:

[a]that Ms [    ] Howie was a wholesale supplier of cannabis to members of the Mongrel Mob,

[b]that between 1 August and 28 August 2003 Ms Howie was in telephone contact with Mr [     ] Shand, a male aged 53 years who had a number of convictions for cannabis-related offences,

[c]that intercepted conversations between Ms Howie and Mr Shand included reference to a person referred to as “XXXXX ” in terms which conveyed that he was supplying cannabis to Mr Shand,

[d]an analysis of telephone calls made from Mr Shand’s telephone led to the identification of “XXXX” being Mr Coleman of [        ] Street, Christchurch,

[e]on 20 August 2003 an intercepted call between Ms Howie and Mr Shand conveyed that the latter was about to supply some cannabis to Ms Howie, and

[f]that as a result of that call observations were made of Mr Shand’s movements [on 20 August] …

[8]    These aspects of Detective Barrett’s affidavit evidence, which Panckhurst J noted were not disputed, were examined by him in relation to a similar challenge to the warrant by Mr Nisbet and Ms Ryan.

[9]    The inaccuracies in the description of Mr Shand’s movements at the motel following his intercepted call with Ms Howie on 20 August and the time at which the appellant’s vehicle was observed to be also parked at the motel, were based on the observations carried out by Detective Terrell at the motel in Cranford Street. In her deposition statement she described how she had observed Mr Shand drive to the motel and park his vehicle directly outside at 6.10pm. She said that at 6.40pm she observed Mr Shand to walk out of the motel area and back to his vehicle. He walked from the motel units situated on the northern side of the site and was carrying a white plastic bag tucked under his left arm. He got into his vehicle and drove away and

she followed him. She then returned to the motel at 7.55pm, at which time she took note of a vehicle parked outside unit 7, subsequently ascertained as registered in the name of the appellant. This evidence of Detective Terrell’s observations was summarised by Detective Barrett in his supporting affidavit as follows:

On the evening of Wednesday, 20 August 2003, telephone traffic between HOWIE and SHAND was recorded that indicated that SHAND was to supply some more cannabis. SHAND was observed to go to a motel in Cranford Street and enter a unit, outside which was parked a vehicle registered to COLEMAN. SHAND was seen to leave a short time later carrying a small plastic package.

[10]Panckhurst J noted the inaccuracies to be as follows:

… Whereas the extract quoted above conveys that Mr Coleman’s car was parked outside the unit which Mr Shand entered at the time of the suspected transaction, the observation evidence did not go that far. Mr Shand was observed to go to the motel at 6.10pm and to leave at 6.40pm, whereas the observation confirming that Mr Coleman’s car was parked outside the motel was made at 7.55pm.

[11]   Detective Barrett’s affidavit evidence also recorded that on the following day, 21 August 2003, the  appellant’s vehicle was seen outside Mr Nisbet’s  address of  [               ] Terrace, Christchurch. Mr Shand had also been observed visiting that address. The power consumption at the address was abnormally high, indicating that it housed a hydroponic cannabis set-up. Although Panckhurst J found some criticism of the police estimate of the volume of power consumption at the property, he was satisfied that the evidence was sufficient to support the grant of a warrant to search [           ] Terrace because it demonstrated a connection between the appellant and Mr Shand (who in turn “was demonstrated to  be  a  supplier  of  cannabis  to  Ms Howie”) and the address at [          ] Terrace. On the basis of all of those matters Panckhurst J found:

… In my view, on the basis of these factors there is enough evidence to found a reasonable belief that cannabis was being grown at the address which was, incidentally, the conclusion expressed in the affidavit and therefore the reason given for seeking the warrant. …

[12]   When Panckhurst J came to deal with the same warrant in relation to the appellant’s home address of [              ] Street, Christchurch, he found his analysis

of Detective Barrett’s affidavit as it related to Mr Nisbet and Ms Ryan “equally relevant” to the appellant:

… Put shortly I am satisfied that the affidavit established that Mr Shand was as at August 2003 supplying cannabis to Ms Howie. With that conclusion in mind, the further paragraphs of direct relevance to Mr Coleman are as follows:

15      It is clear from the content of these calls that SHAND is supplying HOWIE with cannabis, and that SHAND is sourcing this from a third party.

16      At 12.08pm on Saturday, 2 August 2003, HOWIE phoned SHAND and discussed whether their cannabis transaction for the following day was still on. SHAND stated that ‘XXXXX ’ was broke and might start selling it himself.

17      An analysis of SHAND’s telephone calls has identified ‘XXXX’ as [             ] COLEMAN of [         ] Street, Christchurch.

18      COLEMAN has previous criminal convictions, but none for drug related offences.

19      At 9.54 on Tuesday, 19 August 2003, SHAND called COLEMAN and tells him that he has had ‘a slack night’ and ‘no one’s home’.

20      I believe SHAND is referring to debt collection for cannabis debts.

21      On the evening of Wednesday, 20 August 2003, telephone traffic between HOWIE and SHAND was recorded that indicated that SHAND was to supply some more cannabis. SHAND was observed to go to a motel in Cranford Street and enter a unit, outside which was parked a vehicle registered to COLEMAN.  SHAND was seen to leave a short time later carrying a small plastic package.

22      I believe the package was cannabis that SHAND had obtained from COLEMAN.

[13]   Panckhurst J then dealt specifically with the inaccuracy in paragraph 21 of the affidavit relating to Detective Terrell’s observation of the appellant’s car in the motel in Cranford Street. He said:

… To be accurate paragraph 21 should have conveyed that it was not established who Mr Shand visited at the motel between 6.10pm to 6.40pm, but that a subsequent observation revealed Mr Coleman’s car parked there at 7.55pm. Ideally it should also have been stated whether any check was  made in relation to parked vehicles at the earlier point in time.

Bearing that inaccuracy in mind was the affidavit evidence sufficient to provide a reasonable belief that Mr Coleman was cultivating cannabis at his home address? No evidence relevant to power consumption at that address was provided.

[14]Panckhurst J then found:

In my view the affidavit contains sufficient evidence to found a reasonable belief that Mr Coleman was in possession of cannabis for the purpose of supply. There was, I think, a solid basis for the conclusion that Mr Coleman was an associate of Mr Shand (a known cannabis supplier) and that on 2 August 2003 Mr Shand told Ms Howie in an intercepted conversation that Mr Coleman was in possession of cannabis, was short of money and may therefore sell it on his own behalf rather than supplying it to Mr Shand.  This, then, was sufficient evidence to found a belief that Mr Coleman was in possession of cannabis for supply at least as at 2 August 2003.

[15]   Panckhurst J was also satisfied that the evidence in Detective Barrett’s affidavit was not stale by 28 August 2003 when the affidavit was sworn and that paragraph 21 remained relevant because it sufficiently supported an inference that the association between the appellant and Mr Shand was a continuing one, and continuing at a time when Mr Shand was intent on obtaining cannabis for on-supply to Ms Howie.

The appeal

[16]   Ms Sewell did not dispute that the reference to ‘XXXX’ in the intercepted telephone conversation between Mr Shand and Ms Howie on 2 August 2003 was a reference to the appellant. However, she submitted that the interpretation of that conversation as containing a reference to the appellant wishing to sell cannabis direct and not through Mr Shand, because he “was broke”, was merely speculative. She submitted that this indicated no more than a possibility of dealing rather than definite dealing. She was also critical of the Judge’s reliance on paragraph 21 as containing evidence of a continuing relationship between the appellant and Mr Shand, when paragraph 21 was tainted because of the inaccurate information it contained about Mr Shand being seen to leave a particular unit of the motel at Cranford Street at a time when the appellant’s car was parked outside that unit. Ms Sewell said that the misstatement of these aspects by Detective Barrett amounted to more than an inaccurate précis of Detective Terrell’s report of her observations and was a misrepresentation. The inaccuracies gave rise to the reasonable inference that the appellant and Mr Shand had met at the motel even though the underlying evidence did not establish that. She submitted that if paragraph 21 were put aside, there was

insufficient evidence on which the judicial officer who issued the warrant could have been satisfied that a warrant was justified. The consequential search of the appellant’s home address was therefore unreasonable and the evidence of cultivation found at the property ought to be excluded.

[17]   Ms Sewell also queried whether the references to a male third party in the intercepted conversation of 2 August 2003 between Ms Howie and Mr Shand could all be construed as references to the appellant. By way of illustration she pointed to the inclusion of the words “as well” in the only express reference to the appellant in that conversation.

[18]   In terms of the  principles  in  R  v  Shaheed  [2002] 2 NZLR 377 (CA), Ms Sewell invited the Court to prefer the dissenting judgment of Elias CJ rather than embarking on any balancing exercise to determine whether exclusion of the evidence was the appropriate remedy to mark the alleged breach of the appellant’s rights.

Discussion

[19]   The relevant legal principles are well established and do not require extensive reiteration here. Panckhurst J referred to them in his ruling, with particular reference to the necessity for a supporting affidavit to contain evidence sufficient to support a reasonable belief (as opposed to mere suspicion) as to the commission of the nominated offence (s 198 of the Summary Proceedings Act 1957). Panckhurst J also noted that it is not the subjective belief of the person who granted the warrant which is determinative; rather, it is whether on an objective assessment the relevant material is of sufficient evidential value to found a reasonable belief.

[20]   In reviewing Panckhurst J’s objective assessment of the relevant material, we too put aside the inaccuracies in paragraph 21 of Detective Barrett’s affidavit evidence and examine the balance of the available evidence to determine what reasonable inference, if any, it is open to draw from that material and whether it was sufficient to found a reasonable belief that evidence of cannabis dealing or cannabis cultivation would be found at the appellant’s address.

[21]   The starting point for scrutiny are the transcripts of the telephone conversations intercepted on 2 and 19 August 2003. Account then needs to be taken of the telephone conversation between Ms Howie and Mr Shand early in the evening of 20 August 2003, indicating that Mr Shand was about to supply Ms Howie with more cannabis. That telephone conversation was immediately followed by Detective Terrell’s observations of Mr Shand driving to the motel in Cranford Street and emerging a short time later carrying a small plastic package.

[22]   Beginning with the transcript of the telephone conversation of 2  August 2003, it is clear that Ms Howie was at that time checking whether an arrangement she had with Mr Shand was “still happening for tomorrow?” and that Mr Shand would find that out when he shortly went “to see him”. Mr Shand was able to give a reassurance in that conversation that “its all there” unless “he’s sold it himself” followed by the explanation that:

Yeah, well XXXXX ’s broke as well, so he’s most probably fucking, selling a bit off.

[23]Ms Howie’s immediate response to this explanation was:

Aw well, get over there and fucking suss it out.

[24]   When this transcript is read as a whole, there is no doubt that the male third party referred to throughout in that conversation is the same person, and that the person is ‘XXXXX ’. Therefore it is ‘XXXXX ’ who Mr Shand is shortly to visit to ensure that it is “still happening for tomorrow” and that he has not sold it all himself. The words “as well” do not alter that interpretation, as Ms Howie’s immediate response in para [23] above makes clear.

[25]   The second intercepted telephone conversation on 19 August 2003 whilst oblique in its references is  clearly  about  an  arrangement  for  the  appellant  and Mr Shand to meet the following day.

[26]   The third intercepted conversation, between Ms Howie and  Mr  Shand  on  20 August 2003 conveyed that the latter was about to supply cannabis to Ms Howie.

It was shortly after that conversation that Mr Shand drove to the Cranford Court Motel and was seen leaving the motel carrying a small plastic package.

[27]   The evidence of those three intercepted telephone calls and the evidence of movements at the Cranford Court Motel are to be considered alongside the further evidence that the appellant was seen visiting Mr Nisbet’s address the following day, an address at which there were reasonable grounds for suspecting that a hydroponic cannabis cultivation was in operation.

[28]   When Detective Terrell’s deposition statement is examined it is clear that she was detailed to keep observations on Mr Shand’s movements following his intercepted conversation with Ms Howie on 20 August and, that until she had concluded her observations on Mr Shand’s movements, she did not make a close check on particular motel units or note the details of any vehicles parked outside those units. However, if her observations at the Cranford Court Motel  are  considered in the context of the three intercepted telephone conversations, the effect is that, the appellant and Mr Shand, both of whom lived in Christchurch, were at a city motel within a relevantly proximate time of each other and within a relevantly proximate time of the telephone call between Ms Howie and Mr Shand indicating that a drug supply was about to be made.

[29]   If all of that relevant evidence had been accurately placed before the judicial officer who granted the warrant then, on any objective assessment, that evidence was sufficient to found a reasonable belief that the appellant was in possession of cannabis for supply during the period 2-20 August 2003.

[30]   Therefore, despite the inaccuracies contained in Detective Barrett’s supporting affidavit, the underlying evidence was sufficient to found a reasonable belief that the  issue  of  a  search  warrant  relating  to  the  appellant  address  of  [             ] Street, Christchurch, was justified. The challenge to the issue of the warrant could, however, have been avoided had more care been taken in the drafting of Detective Barrett’s affidavit. We were advised that this affidavit was but one of a number that had to be prepared on an urgent basis at the point of termination of the police operation. Nevertheless, the summary given of Detective Terrell’s

observations was misleading and also unnecessary because an accurate reiteration of her deposition statement would have satisfied the judicial officer that the issued warrant was justified.

[31]For these reasons we dismiss the application for leave to appeal.

Solicitors:
Crown Law Office, Wellington