R v Bendall CA320/06

[2006] NZCA 470

NOTE: ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST

PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA320/06

THE QUEEN

v

GLENN DESMOND BENDALL

Hearing:         11 October 2006

Court:            Arnold, Gendall and Venning JJ Counsel:       A N Isac for Appellant

M D Downs and E V Lamont-Messer for Crown

Judgment:      26 October 2006         at 3 pm

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is dismissed.

REASONS OF THE COURT

R V BENDALL CA CA320/06  26 October 2006

(Given by Venning J)

Introduction

[1]      Mr Bendall faces two charges of having possession of a precursor substance. The charges arise out of evidence obtained during a search of his property at Foxton on  18  July  2005.  He  challenged  the  admissibility  of  the  evidence  before  the District Court at Palmerston North.   In a decision delivered on 23 August 2006

Judge N R Dawson ruled the search lawful and the evidence admissible.  Mr Bendall seeks leave to appeal that decision.

Background

[2]      In the late evening of 10 July 2005 an inmate, Kerry Taylor, escaped from Manawatu Prison.  Taylor was a sentenced prisoner.  He also faced active charges of attempted murder and wounding with intent.  He had a significant criminal history including a large number of convictions for offences of serious violence. Taylor was regarded by the police as very dangerous. He was known to have a large number of associates within the lower North Island.

[3]      Detective Braybrook of Palmerston North was appointed officer-in-charge responsible for the recapture of Taylor.  In the course of carrying out that role he had ongoing contact with police in other areas including Wellington, Wanganui and the Horowhenua.   Extensive inquiries were also made within Palmerston North city itself.

[4]      On  15  July  Constable  Bull  was  working  day  shift  in  Foxton.    He  was approached by a person who had previously given him very reliable information. The informant told Constable Bull that another person, B, had been to see him that morning  and  that  B  was  friends  with  a  third  person  C.    The  informant  told Constable Bull that B had told the informant that in the course of a conversation with C, C had said he had told another person not to go to the appellant, Glenn Bendall’s place because Kerry Taylor was staying there and that it would be too dangerous for

them to go there.  B did not say when C told B this but it sounded quite recent.  The informant was unable to supply any further details as that was all that was said on the subject.   Constable Bull advised Detective Braybrook of the information.   Both Constable Bull and Detective Braybrook considered the informant and the information to be reliable.

[5]      The next day, Saturday 16 July at about 11 pm another officer stationed at Foxton, Senior Constable Brannigan, was processing an offender on an unrelated matter.  The offender volunteered information that Kerry Taylor had been in Foxton the night before, and had actually driven into a forecourt at BP Foxton when two police   cars   were   there.      The   offender   said   Taylor   was   driving   a   white Holden Commodore.  Glenn Bendall was with him and another couple of guys were in the car as well.   The offender said that Taylor had been staying off and on at Bendall’s  place  and  was  in  Foxton  a  lot,  and  was  coming  and  going.    After processing the offender the constable contacted Palmerston North CIB and passed on the information.   On the Monday morning, 18 July, that information came to Constable  Bull’s  attention  who  in  turn  again  passed  the  information  on  to Detective Braybrook.

[6]      The   police   held   an   arrest   warrant   for   Taylor.      On   18   July   2005

Detective Braybrook  briefed  the  Armed  Offenders  Squad  (AOS)  supervisor  by relaying the information that he had received from Constable Bull on the Friday. The AOS entered Mr Bendall’s property in order to execute the arrest warrant later that day.   Taylor was not found there.   Nor was Mr Bendall present.   But in the course of searching for Taylor the AOS members opened a large cabinet about 8 foot by 6 on one wall and 8 foot by 4 or perhaps 3 on the other side. The cabinet was searched as it was large enough for a man to have hidden in.  While Taylor was not inside, the AOS located a number of items of glassware which they considered suspicious.  Both Detective Braybrook and Constable Bull were part of the search operation, but were not present at the property when the AOS first entered.  When the glassware was found, the AOS called in Constable Bull.  He invoked s 18(2) of the Misuse of Drugs Act 1975 and conducted a search of the appellant’s property under that Act.  During the subsequent search of the property the police located the

containers of pseudoephedrine which form the basis of the charges the appellant faces.

[7]      When  Detective  Braybrook  gave  evidence  he  said  he  could  not  recall receiving  the  second  piece  of  information  from  Constable  Bull  on  18  July. Detective Braybrook also explained that the police had not searched the appellant’s home on the Friday when he received the first piece of information as the police were following a number of other leads relating to Taylor.  Also there had been a serious aggravated robbery of a TAB at the Cloverlea Tavern on the evening prior and the police simply did not have sufficient staff available over the weekend to explore every avenue.

District Court judgment

[8]      The   appellant   challenged   the   admissibility   of   the   evidence   in   the District Court on the basis that the police had no reasonable cause to believe that Taylor would be at the accused’s address in the first place, as required by s 22(2) of the Summary Proceedings Act 1957.  The Judge concluded on that submission that:

… The Crown had received the same information from two independent informants.  The “reliable” informant may well have been passing on to the police information that was double or triple hearsay but this information was corroborated by the other usually less reliable informant.  The police’s belief of the danger to the public posed by Taylor must also be considered.   It could be said that the police would have been derelict in their duty if they had failed to act on the information they had received.  I find the police had reasonable cause to believe that Taylor was on the accused’s premises and the search of the accused’s address was lawful.

[9]      The Judge also rejected the further submission that the search should have ceased upon the armed offenders squad members being satisfied Taylor was not found on the property.  He considered it was logical for the AOS to call upon other police officers or to bring the evidence of drug offending to their attention.  He found that such rights of entry and search held by the police were not exhausted at the time that the precursor substances were found on the accused’s address.

[10]     While it was not strictly necessary in the circumstances, the Judge went on to find that the search was not unreasonable and, applying the Shaheed test, held that

even if the search was unreasonable he would have ruled the evidence admissible under the balancing test in Shaheed.

The appellant’s case

[11]     Mr Isac submitted that the entry and subsequent search was unlawful as the police had no reasonable cause to believe Mr Taylor was at the appellant’s home. He further submitted the search was unreasonable.  Mr Isac conceded, as he had in the District Court, that once the AOS found the drug paraphernalia, it was reasonable for  them  to  call  in  Constable  Bull  and  for  him  to  invoke  s  18(2)  of  the Misuse of Drugs Act 1975.

[12]     Mr Isac developed his argument with five propositions.

•   First, that s 22(2) of the Summary Proceedings Act 1957 required as a pre-condition to the exercise of the power of entry, reasonable cause to believe that the person was on the premises.

•    Second, that the plain words of the section required the police officer(s)

actually exercising the power of entry to have that reasonable belief.

•   Third, in the alternative, if the power to make the assessment extended beyond those police officers who entered and exercised the power the “deliberative process” leading to the reasonable cause to believe must repose in the person who made the decision to enter.

•   In this case that officer was Detective Braybrook.  Mr Isac submitted that as a matter of fact there was considerable doubt whether the second piece of information was ever relayed to Detective Braybrook.  He submitted the first piece of information was insufficient in itself to provide reasonable cause to believe Taylor was at the property.

•   Finally, Mr Isac submitted in any event, neither piece of information rose above conclusory statement, gossip or hearsay.  The information was, in his submission, insufficiently reliable.

[13]     In the event the Court held the search illegal he submitted that it was also unreasonable in reliance on the authority of R v Pineaha (2001) 19 CRNZ 149 (CA).

The respondent’s submissions

[14]     For the Crown Mr Downs submitted that (even without the second piece of information) there was sufficient information available to Detective Braybrook for him to have reasonable cause to believe Taylor would be at the appellant’s property on 18 July 2005.

[15]     Next, Mr Downs submitted that if the information from the first informant was insufficient, all the information (including the second piece of information) available to the police involved in the operation was, on any view, sufficient to provide reasonable cause to believe.  He submitted that the information did not have to be held solely by the directing officer but could be held by other police officers involved in the operation.   In short he submitted the information held by different officers could be aggregated.

[16]     In the alternative Mr Downs submitted that even if unlawful, the search was reasonable in all the circumstances of this case.

Decision

[17]     The authority for the search was s 22 of the Summary Proceedings Act.  It reads:

22     To whom warrant to be directed and power of person executing warrant to enter premises

(1)      Every warrant to arrest a defendant or warrant for the appearance of a person required as a witness shall be directed either to any constable by

name or generally to every constable. Any such warrant may be executed by any constable.

(2)       For the purposes of executing any warrant referred to in subsection (1) of this section, the constable executing it may at any time enter on to any premises, by force if necessary, if he has reasonable cause to believe that the person against whom it is issued is on those premises:

Provided that, if the constable executing the warrant is not in uniform and any person in actual occupation of the premises requires him to produce evidence of his authority, he shall before entering on the premises produce the warrant or his badge or other evidence that he is a constable.

[18]     The first issue is who must have the “reasonable cause to believe” under s 22(2).   The logical consequence of Mr Isac’s first two propositions is that each constable entering the premises would have to consider all the available evidence and to have independently concluded there was reasonable cause to believe that Taylor was at the premises before entry.  We are not able to accept that submission. In our view s 22 contemplates that a police officer must have satisfied him or herself that there is reasonable cause to believe the defendant is on the premises before either entering or directing others to enter in order to execute the arrest warrant. Often, the officer making that decision will also be the one making the entry.  But where, as here, there were safety issues, the officer in charge of the operation, and who made the decision to enter to execute the warrant, may not be the officer who actually physically enters the premises, or at least may not be among the first to enter under s 22.

[19]     In the present case Detective Braybrook was the officer charged with locating and arresting Kerry Taylor.   Information regarding Mr Taylor’s whereabouts was channelled to him from a variety of sources.   He was the person who made the decision as to the steps to be taken to locate and arrest Taylor.  Detective Braybrook was the officer who had to have reasonable cause to believe Mr Taylor was at the appellant’s premises before authorising the entry under s 22.

[20]     Given Taylor’s criminal history, the charges he faced and the risk to members of the public and police, Detective Braybrook was justified in directing the AOS to enter the premises to search for Taylor.  Putting to one side for the moment whether Detective Braybrook himself could have had reasonable cause to believe from all the information available to him, once he had briefed the supervisor of the AOS then the

supervisor and members of the AOS had reasonable cause to believe based on what they were told by Detective Braybrook that Taylor was present at the premises.  We do not accept Mr Isac’s submission, which is based on a literal interpretation of s 22(2), that each officer entering the premises must have considered all of the available information and made an independent decision about it.  We consider the interpretation of s 22 must be approached in a purposive rather than an unduly literal way.

[21]     Such a purposive approach to the  interpretation  of  s  22  is  supported  by reference to the following authorities.  In R v Grace [1989] 1 NZLR 197 (CA) this Court referred to a decision of the Ontario Court of Appeal in R v Debot (1986) 30

CCC (3d) 207 and at 202 approved the following statement by Martin JA:

Frequently in modern times the particular police officer making an arrest or conducting a search, is not the only officer concerned in the investigation out of which the search or arrest arose.  It seems to me to be unrealistic and incompatible with effective law enforcement and crime prevention, when a police officer is requested  by  a  superior  or  fellow  officer  to  arrest  or  search  a person suspected of the commission of a crime and to be fleeing from the scene, to require that police officer to obtain from his or her superior or fellow officer, sufficient information about the underlying facts to enable him or her to form an independent judgment that there are reasonable grounds upon which to arrest or search the suspect.   A dangerous offender might escape in the interval if this were required.

[22]     Although Grace was decided before the New Zealand Bill of Rights Act

1990 Debot was decided under the Canadian Charter of Rights and Freedoms.  Debot went on appeal to the Supreme Court of Canada. The Supreme Court dismissed the appeal.  In doing so it held inter alia:

56       The Court of Appeal further suggested at p. 221 that Constable Birs could  also  have  relied  on  the  order  from  his  superior  officer,  Sergeant Briscoe, to stop and search the appellant.   In my opinion, Constable Birs must rely on Sergeant Briscoe’s order.  Since the decision to stop and search the appellant was made by Sergeant Briscoe and not by Constable Birs, it is immaterial, in my view, what knowledge Constable Birs had when executing Sergeant Briscoe’s request.  Constable Birs was simply following orders;  he had no decision to make upon which to bring his own knowledge and belief to bear.  It would have made no difference had he known nothing about the case and had merely been on patrol in the area at the opportune time.

57       The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched.  That officer may or may not perform the actual search.  If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable  grounds  for  doing  so.    Of  course,  this  does  not  prove  that reasonable grounds actually existed.  It does make clear, however, that the pertinent question is whether Sergeant Briscoe, and not Constable Birs, had reasonable and probable grounds.  …  Sergeant Briscoe did not testify at the appellant’s trial. …

[23]     Such an approach is also consistent with the observations of this Court in the recent decision of R v Coveny CA351/05 11 April 2006 at [27] and [28].

[24]     To support his submission Mr Isac suggested that the test under s 22 was the same as the deliberative process required for the issue of a search warrant under s 198 of the Summary Proceedings Act 1957.  We observe that the wording of the sections  is  different,  although  not  materially.    Section  198  requires  the  issuing judicial officer to be “satisfied that there is reasonable ground for believing” as opposed to the wording of s 22(2) which requires the constable to have “reasonable cause to believe”.   More significantly, however, the processes are quite different. Section 198 requires the police to set out in sworn form sufficient information to satisfy the judicial officer considering the application for search warrant that there is such reasonable ground.  The process requires a formal application and independent consideration by a judicial officer.   The judicial officer’s consideration, and the Court’s subsequent review of the legality of the warrant, is limited to the information set out in the application.

[25]     By contrast, the execution of a warrant under s 22(2) occurs in an operational context.   The section requires an officer such as Detective Braybrook to have objectively had reasonable cause to believe that Taylor was on the premises.  That involves consideration of all the information available to Detective Braybrook as officer  in  charge  of  the  operation,  and  from  all  sources.  We  do  not  consider Mr Isac’s reference to the test for issue of a warrant takes the matter any further.  We conclude that the issue in this case is whether Detective Braybrook had reasonable cause to believe.  If, as officer in charge, he had such reasonable cause to believe, then the AOS members who entered on his direction can also be said to have had reasonable cause to believe.

[26]     We turn to the next and principal issue, namely whether the information in the present case was sufficient.

[27]     In R v Pou [2002] 3 NZLR 637 this Court considered what was required to satisfy the test of “reasonable cause to believe”. At paragraph 38 of the decision the Court said:

[38] Plainly, the police must have reasonable grounds to believe that the suspect is there and not merely that he might be there. It is not necessary for the police to prove that the suspect is in fact on the premises but there must be reasonable evidence to support a belief that he is there. Any such belief must go beyond mere suspicion and the reasonableness of the grounds to support that belief is to be viewed objectively: compare R v Laugalis (1993)

10 CRNZ 350; 1 HRNZ 466 (CA), at pp 354-355; p 472 in the context of the similar language of s 18(2) of the Misuse of Drugs Act and R v Loh (1997)

14 CRNZ 649; 3 HRNZ 504 (CA), at p 653; p 507 in relation to s 202B of

the Crimes Act.

(emphasis added)

[28]     Detective Braybrook says that he had the first piece of information from Constable Bull when he made the decision to enter the premises in order to execute the warrant.

[29]     Mr Downs accepted that it was a “line call” whether that information on its own could be sufficient for Detective Braybrook to be satisfied there was reasonable cause  to  believe  that  Taylor  would  be  at  the  appellant’s  property  on  18  July. However,   in   addition   to   the  information   passed   on   by  Constable   Bull   to Detective Braybrook the following factors are, in our view, also relevant to the issue of whether Detective Braybrook had reasonable cause to believe Taylor was at the property that day.  By 18 July Taylor had been at large for a week.  He was known to have associates in the lower North Island and particularly in the Foxton area.  The Foxton community is a relatively small community where people are more likely to know each other’s business than in a large metropolitan centre.   We have had the advantage, that Mr Isac has not had, of seeing the unedited job sheet which discloses the identity of the relevant parties behind the first piece of information.  In light of those details we can understand why Detective Braybrook would be satisfied the information the informant received from B as to what C had said and that was passed on by the informant was likely to be credible.  It was from a person who was likely

to have known.  In addition, although the entry to the appellant’s property was not until 18 July, as Detective Braybrook said, during the preceding weekend the police followed through on a number of other inquiries.  By that process, other possibilities were eliminated.  We note that the Judge found as a matter of fact that the police were not aware of any other possible addresses where Taylor might be at the time of the search as they had eliminated all other nominated addresses before attempting to locate Taylor at the accused’s address.

[30]     While the information was hearsay (based on hearsay), that does not itself render  the  warrant  illegal  if  the  information  is  otherwise  generally  reliable: R v Condren CA233/96 10 September 1996.

[31]     While, as Mr Downs accepted, the information was marginal, in all of the circumstances of this case we consider that Detective Braybrook had reasonable cause to believe that Taylor would be located at the appellant’s property and thus the entry was lawful.

[32]     There is an additional matter which counsel did not directly refer to in this context.   As Pou confirms, the test in s 22 is an objective one.   The additional information from the second informant passed on by Constable Bull on the morning of 18 July to Detective Braybrook, taken with the first information would, on any view   of   it,   satisfy   the   test   for   reasonable   cause   to   believe.      While Detective Braybrook fairly said in evidence that he could not recall receiving that information he accepted that it was possible he had the information at the time the warrant was executed.  Constable Bull by contrast was quite definite in his evidence that he had a second conversation with Detective Braybrook on the Monday morning a few hours before the search was organised at which time he passed on the second piece of information.  We note that in the course of his decision the Judge found as a matter of fact that the information from the second informant was communicated to Detective Braybrook on the morning of 18 July.

[33]     As  the  test  is  an  objective  one,  then  on  the  evidence  before  the  Court, Detective Braybrook objectively had sufficient information to have reasonable cause

to believe Taylor was at the appellant’s property at the time he authorised entry onto the property.

[34]     For those reasons we find that the entry on to the appellant’s property by the AOS under the direction of Detective Braybrook was lawful and in accordance with the provisions of s 22(2).

The augmentation issue

[35]     It is strictly unnecessary to consider Mr Downs’ alternative argument that even  if  Detective  Braybrook  did  not  have  the  second  piece  of  information, Constable Bull had that information and was present and part of the operation when the AOS entered the appellant’s property so that the information he held could effectively augment the information available to Detective Braybrook when he made the decision to enter the premises.

[36]     There is some support for Mr Down’s submission.   In R v Grace [1989]

1 NZLR 197 the Court of Appeal went on to state in relation to the citation from

Debot:

We agree with the above statement of principle.   Knowledge of a fellow police officer, even though not communicated in its entirety to the officer conducting the search, may be added to the knowledge of the searching officer  for the  purposes  of  deciding whether that  officer  has  reasonable grounds to suspect.

[37]     However, as we do not need to decide the issue to determine this appeal we prefer to leave full consideration on the point for a case when the issue is, or may be, determinative.

Was the search unreasonable?

[38]    Again it is unnecessary to consider this issue given our finding on the preliminary point in the case.

Result

[39]     Leave to appeal is granted but the appeal is dismissed.

Solicitors:

Fitzherbert Rowe Lawyers, Palmerston North for Appellant
Crown Law Office, Wellington