R v Colligan

[2012] NZHC 876

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2008-086-00388 [2012] NZHC 876

THE QUEEN

v

BLAIR MATTHEW COLLIGAN JOSEPH TOBIN

PAUL LAIDLAW KARL GRANT SHANE SAUNDERS ROBINA SAUNDERS KYLEE DUGGAN PETER CAIN

Hearing:         1 May 2012

(Heard at Wellington)

Counsel:         P J Shamy, B Hawes and N M Robson for Crown

P H Surridge for Colligan

K Jefferies for Shane Saunders (in support) Judgment:  2 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3:00pm on the 2nd May 2012.

JUDGMENT OF WILLIAMS J

Solicitors:

Surridge & Co, PO Box 50525, Porirua 5240

Jefferies & Raizis, PO Box 10641, The Terrace, Wellington 6143

Raymond Donnelly & Co, Christchurch

R V BLAIR MATTHEW COLLIGAN HC GRY CRI-2008-086-00388 [2 May 2012]

Background and arguments

[1]      Mr Surridge for Blair Colligan applies under s 28J of the District Courts Act to transfer this trial from the District Court to this court.   He is supported in that regard by Mr Jefferies for Shane Saunders.

[2]      Mr Surridge wants to test the legality of interception warrants granted in the High Court in this proceeding.  He argues that the warrants can only be challenged in this court. The Crown opposes.

[3]      A pre-trial hearing was held in the District Court at Greymouth on 13 April

2012.   These challenged search warrants that had been issued.   I understand His Honour, Judge Neave, advised that evidence from the warrants would be admitted at trial and that reasons would follow.

[4]      There was a discrete challenge to evidence in relation to cannabis growing gear located inside a hangar on the property of Mr Saunders’ father-in-law.   No warrant was obtained for that search and the police were admitted into the building by someone whose authority to so admit was doubtful at best.  I am not sure whether the learned Judge will be ruling on that matter, but it seems that the Crown no longer wants to use evidence gained from that search.  Mr Hawes accepts that legality is an issue but says the Crown’s view is that evidence of growing gear located at the property of a relation of Mr Saunders is of dubious relevance anyway.

[5]      Mr Surridge leverages this application under s 28J off evidence in relation to the hangar search.  Constable Slee searched the hangar in April 2007.  He confirms that he made subsequent searches in February, August and November 2008.

[6]      Mr Surridge says there was another search in November 2007 but Mr Slee is hiding it.   Mr Surridge relies on a spreadsheet provided in disclosure.   That spreadsheet has an entry on 1 November 2012 as follows: “Constable Slee advised that the grow room gear has been removed from the building.”

[7]      Mr Surridge says that shows Constable Slee must have searched the building again on that day and is not admitting it.  Mr Surridge wants to find out more about this  search  because of  the possibility that  it  will taint the interception  warrants granted subsequently.

[8]      Mr Surridge also points to what he says is a significant discrepancy between that constable’s evidence and the evidence of his superior, Detective Greer.  He says Constable Slee gave evidence that he reported what he had found in the hangar in April 2007 when he found it but Detective Greer denied receiving any report until February 2008 (following the second search of the hangar).

[9]      All of this leaves Mr Surridge (supported by Mr Jefferies) with a strong suspicion, he says, that the police misled the learned High Court Judge who granted the interception warrants by swearing false affidavits.  He wants an opportunity to explore this further with the officers in person in a further pre-trial application.

[10]     Mr Hawes says none of that is correct.   He points me to the unredacted version of the interception warrant affidavits.   He says these show the source of Constable Slee’s intelligence on 1 November 2007 was not a further search of the hangar.  It was from an entirely different origin.

[11]     Defence counsel do not have, and are not permitted access to, this unredacted material, so it falls to me to check whether the Crown is right in this respect.

[12]     Mr  Hawes  also  argues  that  a  careful  assessment  of  Constable  Slee’s committal statement and the transcript of the 13 April hearing before His Honour Judge Neave, demonstrate that there is no actual inconsistency between the evidence of the two officers.   Rather, it is argued, Mr Surridge is reading meaning into the evidence that is not there.

Analysis

[13]     This matter comes before this court at the last minute.  The trial should have begun this week but was put off to deal with this application.  Mr Surridge says pre-

trial applications had been set down late by the District Court, and that may be so, but the fact that a fixture awaits resolution of this issue focuses the mind on the real justice of the situation here.  It is for Mr Surridge and Mr Jefferies to establish that justice requires that the trial be transferred to this court so that the legality of the interception warrants can be tested before a court of competent jurisdiction.

[14]     The cases are consistent that the s 28J discretion is broad.   It involves a balancing of the accused’s interests with wider concerns in the fair and efficient disposal of court business.[1]   I should mention also the decision of Winkelmann J in

R v Bailey[2]  in which the defendants successfully sought to transfer proceedings to

the  High  Court  in  order,  as  here,  to  challenge  interception  warrants.    Those challenges were ultimately upheld in the Supreme Court in that case.  So the remedy sought in the present case is not unheard of.

[1] See for example R v O’Brien [1992] 3 NZLR 464; Verschafelt v R CRI 2006-044-008239, HC Auckland, 8 February 2010.

[2] CRI 2008-404-000342, HC Auckland, 25, 27 March 2009.

[15]     In this case however, it is not necessary for me to resolve the merits of the legality argument in order to address this application.  That is because there is no evidence on the material before me to suggest that Mr Surridge’s contentions are even arguable.

[16]     With the benefit of viewing an unredacted version of paragraph 5.2 of the Crown’s  affidavit  in  support  of  the  April  2011  application  for  an  interception warrant, it is clear that the source of Constable Slee’s information on 1 November

2007 – the intelligence that the growing gear had been moved out of the hangar –

was not the result of a search at all.  I am not in a position to explain this further.

[17]     Secondly, while Mr Surridge is correct that the transcript of the 13 April voire dire has Constable Slee indicating that he reported his initial find in April 2007 to Detective Greer, he does not say when he did this.   The record of the cross- examination of Constable Slee by Mr Surridge is as follows:

Q:       You referred to a report or what you’d found in the hanger on the

first visit in April 2007 on to Detective Greer?

A:       Yeah.

Q:       And did he then request that you return to the hanger at a later date as you recall?

A:       I don’t know if he requested me or not.

[18]     There   is   no   inconsistency   between   Constable   Slee’s   evidence   and Detective Greer’s.  There is no whiff of a conspiracy or cover up sufficient to delay this trial further.

[19]     Accordingly, I am not persuaded that it is in the interests of justice to transfer this proceeding to the High Court because I am not persuaded that the grounds advanced by Mr Surridge and Mr Jefferies in support, are even arguable.

[20]     The application is dismissed.

Williams J