R v Darwish CA190/05

[2005] NZCA 387

ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF THE TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA190/05

THE QUEEN

v

AHMED MOHAMMED DARWISH

Hearing:         27 October 2005

Court:            Chambers, Williams and Keane JJ Counsel:     M D Downs for Crown

M S Gibson for Respondent

Judgment:      9 November 2005

JUDGMENT OF THE COURT

A        Leave to appeal is granted and the appeal is allowed.

BAn order that the evidence derived from the first interception warrant is admissible.

CAn  order  prohibiting  publication  of  this  judgment  and  the  reasons therefor in the news media or on the internet in any or other publicly

R V DARWISH CA CA190/05 9 November 2005

accessible database until completion of the trial. Publication in a law report or law digest is, however, permitted.

REASONS

(Given by Chambers J)

Introduction

[1]      On 4 September 2003, a senior commissioned officer of the New Zealand Police applied for an interception warrant under s 14 of the Misuse of Drugs Amendment  Act  1978.     The  application  related  to  one  Jason  Suttie  and  to Ahmed Mohammed Darwish, the current respondent.  Rodney Hansen J granted the application.   So far as the current respondent is concerned, the warrant authorised Detective Inspector Stuart Allsopp-Smith, “and every other member of the Police or Customs Officer for the time being assisting [him]”, to “use a listening device to intercept [Mr Darwish’s] private communications”.   The authority was valid for

30 days, that being the maximum period permissible: s 16(3).   The warrant was subsequently renewed on 1 October 2003, 30 October 2003, and 27 November 2003.

[2]      In due course, the police arrested and charged Mr Darwish with a number of offences.   The indictment presented against him now contains 19 counts.   These comprise importing and possession of the class B drug hashish, conspiring to export the class C drug cannabis, being in possession of falsified passports, and money laundering.

[3]      Mr Darwish's lawyer, Mr Gibson, advised the Crown that he considered the evidence derived from the first interception warrant to be inadmissible because, he said, the warrant was “a nullity”.  The Crown disputed that, and accordingly applied under s 344A of the Crimes Act 1961 for an order that the disputed evidence was admissible.

[4] Winkelmann J heard that application (and a number of other pre-trial applications) on 17 February and 7 April this year. She delivered a reserved judgment on 25 May: HC AK CRI 2003-004-44644. The issue before Winkelmann J was whether the warrant was defective because it did not specify Mr Darwish’s address. Her Honour held that it was defective on that account but, contrary to Mr Gibson’s submission, the defect was not one of substance, but merely a defect in form: at [80].

[5]      The normal result of an unlawful telephone tap is that any evidence derived from it is inadmissible: Misuse of Drugs Amendment Act 1978, s 25(1).  But there is an   exception   to   that,   if  the   conditions   specified   in   s   25(2)   are   satisfied. Winkelmann J held that they were.  But that finding renders the evidence admissible only in respect of “drug dealing offences” and “prescribed cannabis offences”, both terms defined in the legislation.  The net effect of this part of Her Honour’s judgment was that evidence derived from the first interception warrant would be admissible with respect to the conspiracy to export cannabis charge, but not with respect to any of the other counts.   That is because the other offences are neither “drug dealing offences” nor “prescribed cannabis offences”, as defined.

[6]      The Crown seeks leave to appeal against this part of Her Honour’s decision. The Crown’s contention was and is that the first interception warrant was valid and that evidence obtained pursuant to it is admissible with respect to the case in general.

Issue on the appeal

[7]      There is only one issue on this appeal: was the first interception warrant defective? The Crown submits that the judge was wrong to find that the first interception warrant was defective.  Mr Gibson, for Mr Darwish, seeks to uphold the judge’s decision.  He no longer seeks to argue, as he did before Winkelmann J, that the  warrant  was  “a  nullity”.     He  accepts  that  the  defect  –  the  absence  of Mr Darwish’s address in the warrant - was one of form and he accepts that the conditions specified in s 25(2) were satisfied.  Mr Gibson therefore does not dispute the admissibility of the evidence with respect to the conspiracy to export cannabis charge.  But with respect to all other counts, the evidence is inadmissible.

[8]      There is no challenge to the evidence obtained pursuant to the later warrants. That is because the police by then knew where Mr Darwish was living and accordingly  included  his  address  in  their  applications,  and  accordingly  it  was recorded in the warrants.

[9]      There is no dispute that, if the Crown is right that the first interception warrant was valid, then evidence of private communications intercepted under it may be given in respect of all counts in the indictment, as every count is either “a specified offence” or a “drug dealing offence” in terms of s 26(1).

Was the interception warrant defective?

[10]     As at the date of Rodney Hansen J’s decision, s 14 of the 1978 Act read as follows:

(1)An application may be made in accordance with this section to a Judge of the High Court for a warrant for any member of the Police to intercept a private communication by means of a listening device in any case where there are reasonable grounds for believing that-

(a)     A  person  has  committed,  or  is  committing,  or  is  about  to commit, a drug dealing offence; and

(b)     It is unlikely that the Police investigation of the case could be brought to a successful conclusion without the grant of such a warrant.

(2)Every application under subsection (1) of this section shall be made by a commissioned officer of Police, in writing, and on oath, and shall set out the following particulars:

(a)     The facts relied upon to show that there are reasonable grounds for believing that a person has committed, or is committing, or is about to commit, a drug dealing offence; and

(b)     A description of the manner in which it is proposed to intercept private communications; and

(c)     The name and address, if known, of the suspect whose private communications there are reasonable grounds for believing will assist the Police investigation of the case, or, if the name and address of the suspect are not known, a general description of the premises or  place  in respect  of  which  it  is  proposed  to intercept private communications, being premises  or a  place believed to be used for any purpose by any person involved in the drug dealing offence; and

(d)     The period for which a warrant is requested; and

(e)     Whichever of the following is applicable:

(i)      The other investigative procedures and techniques that have been tried but have failed to facilitate the successful conclusion of the Police investigation of the case, and the reasons why they have failed in that respect; or

(ii)    The reasons why it appears that other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case, or are likely to be too dangerous to adopt in the particular case; or

(iii)     The reasons why it is considered that the case is so urgent that it would be impractical to carry out the Police investigation using only investigative procedures and techniques other than the interception of private communications.

[11]     Section 16 of the 1978 Act was concerned with the contents and term of the warrant.  It provided as at 4 September 2003 that every interception warrant was to be issued in the prescribed form.  The prescribed form at that time was Form 1, as contained in the Schedule to the Misuse of Drugs (Interception Warrant) Regulations

1997.  Section 16 specified the matters which the warrant had to cover.  For present purposes, what is important is that the warrant had to state “the name and address of the suspect, if known, whose private communications may be intercepted”.   If the suspect’s name and address were not known, then the warrant had to state “the premises or place in respect of which private communications may be intercepted, being  premises  or  a  place  believed  to  be  used  for  any  purpose  by  any  person involved in the drug dealing offence”: s 16(1)(d)(i).

[12]     The scheme of s 14, and of subs (2)(c) in particular, is this.  If the police have a known suspect in their sights, they apply for what was called in R v Honan (1991)

7 CRNZ 473 at 476 (CA) a “personal” warrant.  A personal warrant authorises the police to use a listening device to intercept the suspect’s private communications, wherever the suspect has them.  The other type of warrant is known as a “premises” or “basket” warrant.  This is what the police apply for when they do not know who is involved in the suspected drug dealing, but where they believe they know the premises from which the drug dealing is being undertaken or planned.  A premises warrant authorises the police to intercept all communications to or from or within the

specified premises.  It is, of course, possible to include both a personal warrant and a premises warrant in the same interception warrant: Honan at 476.   This sort of warrant  is  applicable  in  cases  where  the  police  know  some  suspects  (who  are named), but believe others are also involved in the drug ring, and these others are operating from premises identified in the warrant.

[13]     Evidence obtained pursuant to a lawfully intercepted communication may be given in a trial.   Conversely, evidence derived from unlawfully intercepted communications is generally inadmissible: s 25(1).   There is an exception to this, however, when the criteria of s 25(2) are satisfied:

(2)Even though certain evidence is inadmissible in criminal proceedings by virtue of subsection (1), a Court may admit that evidence if the following conditions are satisfied:

(a)     The proceedings are for-

(i)     A drug dealing offence; or

(ii)     A prescribed cannabis offence; and

(b)     The evidence is relevant; and

(c)     The evidence is inadmissible by virtue of subsection (1) merely because of a defect in form, or an irregularity in procedure, in-

(i)  The  application  for  or  the  granting  of  the  interception warrant or emergency permit; or

(ii) The manner in which the evidence was obtained; and

(d)     The defence in form or irregularity in procedure- (i)   Was not substantive; and

(ii)     Was not the result of bad faith.

[14]     In the present case, the police had information which caused them to suspect that Messrs Suttie and Darwish were involved in drug dealing.   Accordingly they applied for and were granted a personal warrant, authorising the interception of communications of Messrs Suttie and Darwish.

[15]     So why is the evidence relating to Mr Darwish’s intercepted communications said to be inadmissible?  Mr Gibson argued before Winkelmann J and again before

us that that evidence is inadmissible because the warrant pursuant to which it was obtained was defective in that it failed to give Mr Darwish’s address.  Instead, the warrant  simply  referred  to  Mr  Darwish  as  being  “of  whereabouts  unknown”. Mr Gibson submitted that a personal warrant must contain a name and an address.

[16]     Winkelmann J accepted this argument, apparently considering herself bound by views expressed by this court in Honan and by Williamson   J’s views in R v Rowling (1985) 1 CRNZ 648.  But she went on to hold that the defect was one of form, which enabled the evidence derived from it to be admissible to the extent permitted by s 25(2).

[17]     With respect to Her Honour, we do not accept her conclusion that the first interception warrant was invalid or in any way defective.  Section 14(2)(c), and its mirror provision in s 16, make clear that the application for a personal warrant must specify an address only if it is known.  Here, there is evidence (given on oath) that the police did not know where Mr Darwish was living at the date of the application. That was explained by Detective Inspector Allsopp-Smith at some length in his 352 paragraph    application.    Detective    Inspector    Allsopp-Smith    explained    how Mr Darwish had arrived in New Zealand on 27 August 2003, about a week before the application was made.   Mr Darwish was searched by Customs officers at Auckland  International  Airport.    After  he  was  released  from  Customs,  police followed him to a named motel in Remuera.  Police kept watch on that motel, but did not see Mr Darwish again.  Detective Inspector Allsopp-Smith concluded that it was “possible  he  has  moved  from  the  motel”.    He  said  accordingly  Mr  Darwish’s “current whereabouts cannot be confirmed”.    In those circumstances, the police correctly recorded Mr Darwish as being “of whereabouts unknown”.   It was not possible to put in an address, because they did not know a current address.

[18]     This is precisely the situation Parliament envisaged when enacting that an application for a personal warrant needed to contain an address only “if known”.  It is not the case that the police cannot get a personal warrant unless they know both name and address.  To hold that would be to ignore the words “if known”.  Those words qualify only “address”, not “name and address”.  If the police do not know the

name of the suspect, then obviously they will not apply for a personal warrant.  In those circumstances, they will be able (at best) to get only a premises warrant.

[19]     Further, it is clear that the address (if known)  is  included  in  a personal warrant solely for identification purposes.  There is no suggestion in the Act or the Regulations that the police are limited, in the case of personal warrants, to intercepting communications of the suspect only at his or her stated address.  Once a personal warrant is issued, the police can intercept the named person’s communications anywhere.  Mr Gibson accepted that.  He also accepted that, if the named suspect moved address, that would have no effect on the validity of the warrant.  The police would not have to return to the High Court to have it amended.

[20]     We now turn to consider the two cases which caused Her Honour to treat the absence of an address as a defect.  The first was Honan.  In that case, the interception warrant included both a personal warrant (in respect of Ian Cameron McCluskie) and a premises warrant (in respect of 44 Hayr Road, Mount Roskill).   So far as the personal warrant was  concerned,  this  court  held  that  it  was  defective in  that  it omitted Mr McCluskie’s address.  That was known to the police and indeed had been included in the application: 7 CRNZ 473 at 475.   But, by error, it had not been carried over to the warrant itself.  This, this court held, was an omission, but it was “no more than a defect of form, curable…under s 25(2)”: at 477.  We respectfully agree with that decision, but it is, of course, distinguishable from the present case. There Mr McCluskie’s address was known, but by error omitted from the warrant. Here, Mr Darwish’s current whereabouts were not known, as carefully explained in the application.

[21]     This court in Honan then went on to consider alleged deficiencies in the premises warrant in that case and discussed the circumstances in which a premises warrant can be obtained.  That discussion, valuable though it is, has no bearing on the present case, as the police did not seek a premises warrant in this case.

[22]     The  circumstances  in  the  present  case  are  quite  different  from  those  in Rowling, the other case on which Winkelmann J relied.   There, the interception warrant had a number of defects:

(a)     It was not in the form set out in the Schedule to the 1978 Act, in breach of s 16(1);

(b)    It named three known suspects, but failed to give their addresses, even though they were presumably known;

(c)     The warrant purported to include unknown persons who “are not suspected at the date hereof” in the same paragraph as named suspects (and as part of a purported “personal” warrant).

[23]     None of those defects is present in this case.   Notwithstanding all these defects, Williamson J concluded that the defects were not substantive but merely “defects of form”.   He accordingly ruled the evidence obtained under the warrant admissible pursuant to s 25(2).

[24]     Thus, both Honan and Rowling are distinguishable, because in those cases the police did know the addresses of the named suspects, but failed to ensure that those addresses were included in the personal warrants.  That is not the situation here.  In both those cases, the defect was found to be one of form, and the warrants were effectively “saved” under s 25(2).  That is how Winkelmann J “saved” the warrant in the present case, although the constraints of s 25(2) meant that the evidence obtained could be used only with respect to one of the counts Mr Darwish faces.  We do not need to rely on s 25(2), because we have found that there was no defect of any kind in either the application or the warrant.  But we would observe in passing that, had Her Honour been right that a personal warrant must contain a name and an address, then the warrant here could not have been saved under s 25(2).   To say that an application and the warrant based on it are “defective in form” must mean that, with a little more care, the identified defect could have been remedied.  But the alleged defect here – the absence of the suspect’s address – could not be remedied, because the police did not know Mr Darwish’s address, for reasons they gave.  If it is right that the police cannot get a personal warrant without knowing the name and address of the suspect, then a personal warrant should not have been issued in this case at all. If that is the law, this warrant was substantively defective, not merely defective in form.  But, for the reasons we have given, that is not the law: a personal warrant can

be issued in respect of a named suspect, even if the police do not know the address of that suspect.

[25]     In a “second memorandum” Mr Gibson filed after his written submissions and shortly before the hearing before us, Mr Gibson sought to raise obliquely two new issues which had not been raised in the High Court.

[26]     The  first  of  these  issues  was  that  the  police  might  in  fact  have  known Mr Darwish’s address as at the date of their application for an interception warrant. Mr  Gibson  referred  to  a  Crown  exhibit  produced  at  the  preliminary  hearing, exhibit 59.    Mr Gibson  said  that  exhibit  59  is  “a  bond  lodgement  form  dated

1 September 2003 [relating] to 1/4 Dilworth Avenue, Remuera”.  Mr Gibson submits that “this confirms the date when [Mr Darwish] rented the property”.   From this Mr Gibson submits that the police knew or ought to have known Mr Darwish’s address as at 4 September 2003.

[27]     While we have not been shown exhibit 59, there is nothing in this point. There is no affidavit evidence to support the contention that Mr Darwish started to live at 1/4 Dilworth Avenue from 1 September.  Still less is there any evidence at all that the police were aware of it as at 4 September.  Presumably this bond lodgement form was obtained by the police at a much later stage.

[28]     Mr Gibson also raised for the first time a contention that the warrant should not  have  been  applied  for  when  it  was;  the  police  should  have  tried  other investigative procedures and techniques first.   See s 14(2)(e).   There is nothing in this point.  Detective Inspector Allsopp-Smith’s affidavit contains a full account as to  other  investigative procedures  which  had  been  tried  but  which  had  failed  to facilitate the successful conclusion of the police investigation.   He also explained why other investigative procedures were unlikely to facilitate the successful conclusion of the police investigation.   Having read the application, we can quite understand why Rodney Hansen J was satisfied on that aspect.

[29]     Neither of these new points assists Mr Darwish.

Result

[30]     We allow the Solicitor-General’s application for leave to appeal and we order that the evidence obtained as a result of the first interception warrant will be admissible at Mr Darwish’s trial.

Solicitors:

Crown Law Office, Wellington