R v Fountain CA176/05

[2005] NZCA 358

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA176/05
CA177/05
CA178/05

CA179/05

THE QUEEN

v

MATTHEW ANTHONY FOUNTAIN SARAH PENELOPE PUNNETT AMANDA JAYNE CARMODY GREG MURRAY COLLINGS

Hearing:         21 July 2005

Court:            Glazebrook, Randerson and Goddard JJ Counsel:       P S Neutze for Appellants

H D M Lawry and A M Jones for Crown

Judgment:      10 August 2005

JUDGMENT OF THE COURT

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

BNot to  be published  in  news  media  or on  internet  or  other  publicly accessible database until final disposition of trial.   Publication in law report or law digest permitted.

R V FOUNTAIN, PUNNETT, CARMODY, COLLINGS CA CA176/05 10 August 2005

REASONS

(Given by Goddard J)

Introduction

[1]      The appellants seek leave to appeal from a pre-trial ruling of Winkelmann J, declaring admissible evidence seized during a search of a property at 50 Sycamore Drive, Sunnynook, Auckland.

[2]      The  appellants,  two  of  whom  were  occupiers  of  the  address,  have  been indicted on 10 counts of possession of precursor substances, three counts of using altered documents, one count of manufacturing methamphetamine (when classified as  a  class  B  controlled  drug),  one  count  of  selling  methamphetamine  (when classified   as   a   class   B   controlled   drug),   one   count   of   manufacturing methamphetamine (classified as a class A controlled drug), one count of selling methamphetamine (classified as a class A controlled drug), two counts of receiving stolen property and one count of cultivating cannabis.

[3]      The appeal is advanced on three bases: first, that an earlier search of a vehicle driven by Mr Blair Taylor and of a passenger in his vehicle, Ms Jodie Allen, was illegal.   The appellants’ contend that these earlier searches tainted the search of

50 Sycamore Drive the following day, rendering both the search and the seizure of items from that address unlawful and unreasonable; secondly, that affidavit evidence submitted by Detective Lunjevich in support of the application for a warrant to search  for  evidence  relating  to  methamphetamine  was  flawed  to  a  degree  that rendered  the  warrant  invalid;  thirdly,  that  the  seizure  of  a  number  of  items  of allegedly stolen property located during the search of 50 Sycamore Drive was illegal because it preceded the issue of a warrant directed to the seizure of those particular items of property.

Background facts

[4]      The background to the appeal is that on 6 March 2004 at about 9.00pm Detective Lunjevich was carrying out a mobile patrol in an unmarked vehicle when he decided to stop a motor vehicle driven by Mr Taylor pursuant to s 114 of the Land Transport Act 1998.   Before he could do so however the vehicle turned into a carpark adjacent to a fast food restaurant and parked between two already parked vehicles.   Detective Lunjevich stopped his patrol car behind Mr Taylor’s vehicle. Mr Taylor got out of his vehicle and approached Detective Lunjevich, who requested his name.   Mr Taylor apparently manifested some agitation and nervousness and when asked what the matter was said “I am sorry, boss, I have just had a smoke”. Detective Lunjevich then advised that he would be searching Mr Taylor’s vehicle under  s  18(2)  of  the  Misuse  of  Drugs  Act  1975  and  asked  whether  there  was anything in the vehicle that he needed to know about.  Mr Taylor removed a black belt bag from inside the vehicle and handed it to Detective Lunjevich.  Inside were syringes and a pipe of a type used for consuming drugs.  At this point, Mr Taylor grew more agitated and shortly after fled from the scene.   Two police constables, who had been called to provide back-up assistance, assisted Detective Lunjevich in chasing Mr Taylor, who was apprehended.   His vehicle was then searched  and various items located, including a set of electronic scales and a set of small weights. Some small snap-lock bags, commonly used as point bags for methamphetamine were also found, together with more pipes of a type used in the consumption of methamphetamine and a glass condenser tube wrapped in a cloth.

[5]      Ms Allen was taken to Takapuna Police Station.   There her handbag was searched and found to contain a pencil burner of a type commonly used in the consumption of  methamphetamine,  a  shopping list  of  precursor  substances  with prices, a small  snap-lock  plastic bag containing  a  white  powder  that  resembled methamphetamine and a false driver’s licence bearing Ms Allen’s photograph but in the name of another person.  When interviewed the following day Ms Allen said that the substance in the snap-lock bag was, she thought, brewing sugar and it was a joke that had been played on a friend.   When questioned about the list of medicines containing precursor substances in her handbag she said that a person, whose name she could not remember, had given her the names of the medicines to write down for

her ex-boyfriend.  She denied any knowledge of the snap-lock bags and drug related paraphernalia found in Mr Taylor’s vehicle.   She did however admit to having used the driver’s licence in a false name when purchasing a pseudoephedrine product but said she had done that only once.

[6]      The  substance  in  the  snap-lock  bag  in  Ms  Allen’s  handbag  was  not forensically tested while she was at Takapuna Police Station although it was suspected to be methamphetamine.   Detective Lunjevich accessed Police records relating  to  Ms  Allen  and  the  other  occupants  of  the  address  that  she  gave  of

50 Sycamore Drive, Sunnynook.  On the basis of the information available, decided to apply for a search warrant for that address under the Misuse of Drugs Act 1975. The affidavit he swore in support of the application was in the following terms:

On the 6th March 2004 at about 9.00pm I stopped a Toyota Motor Vehicle on Constellation Drive in Mairangi Bay.   On speaking to the driver who identified himself as Blair Donal Taylor he admitted consuming cannabis. He was subsequently placed under arrest for Consuming Cannabis.   The vehicle was searched and drug paraphernalia located including scales, weights, syringes, needles and pipes used to smoke Methamphetamine.

A passenger in the car was also spoken to.   She has identified herself as Jodie ALLEN  of  50  Sycamore  Drive  in  Sunnynook.    When  searched a container of approx. 6 grams of Methamphetamine was located in her handbag.  Also located was a shopping list of Precursor chemicals with their street prices outlined and a Pencil Burner used in the consumption of Methamphetamine.

I believe that ALLEN is involved in the Manufacture and Distribution of Methamphetamine.   Police records indicate she has previously purchased Precursor Chemicals in the past.

Police  records  also  indicate  that  other  occupants  at  the  address  of

50 Sycamore  Drive  Sunnynook  are  also  involved  in  the  purchase  of

Precursor Chemicals used in the manufacture of Methamphetamine.

I believe that a search of 50 Sycamore Drive Sunnynook will locate Methamphetamine, Money and documents related to the sale or supply of controlled drugs, Drug related paraphernalia and Precursor Chemicals or materials which will be evidence to prove the offences of Possession of Class A Controlled Drugs for Supply, Possession of Precursor Chemicals and Materials.

[7]      The warrant was obtained at about 7.45pm on 7 March and  executed at

50 Sycamore Drive immediately after.  The four appellants were all present in the house at the time.  Various items that appeared to be connected with the manufacture

of methamphetamine were located and seized.   Mr Collings and Ms Punnett were arrested but Messrs Fountain and Wilson permitted to leave.   A scene guard was posted overnight.

[8]      During a more thorough search of the property the next day (8 March 2004), a substantial number of expensive electrical items were  also  found.    The  sheer volume of these items (which included five televisions, 16 palm computers, six cell phones,  five  printers  and  seven  cameras)  led  the  police  officers  searching  the property to believe that they were stolen goods.  A preliminary check revealed that one of the laptop computers, labelled as the property of Long Bay College, had been stolen from the College in a burglary exactly one month prior.  A schedule of these items was made and a second warrant sought on the basis that there were reasonable grounds for believing that items at the Sycamore Drive address related to the commission of an offence of “burglary/Manufacturing and selling the class A controlled drug methamphetamine”.   The warrant was not however signed until approximately 4.32pm that day, after a truckload of the suspected stolen items had been  removed  at  4.15pm.    A  second  truckload  of  suspected  stolen  items  was removed after the warrant was issued.

The pre-trial ruling

[9]      The challenge to the search warrants before Winkelmann J was advanced on two   general   grounds:   first,   that   the   initial   search   warrant   directed   to methamphetamine offending was invalid because its supporting affidavit contained material deficiencies, rendering the resultant search both illegal and unreasonable; alternatively, that the entire course of police conduct from the time Mr Taylor’s vehicle was stopped and searched on 6 March 2004 through to the obtaining of the second warrant on 8 March 2004 was unlawful or improper to such a degree that any evidence obtained as a result ought to be excluded.  In relation to the latter it was specifically argued that Mr Taylor’s vehicle had been stopped unlawfully and he and Ms Allen unlawfully detained by Detective Lunjevich’s action in parking behind their vehicle.  Further that Detective Lunjevich could have no reasonable grounds for believing that Mr Taylor’s subsequent conduct or his utterance pointed to evidence

of cannabis use in his vehicle, rendering the search of that vehicle unlawful and evidence of the paraphernalia found in it inadmissible.   Consequentially, that insufficient grounds existed on which to arrest Ms Allen or to search her handbag. The submission was that Detective Lunjevich’s reliance on this tainted material to support his obtaining of the first search warrant on 7 March 2004 rendered that warrant invalid and consequentially any evidence found pursuant to it should be ruled inadmissible and likewise the second warrant was a nullity.

[10]     Dealing with the primary ground of challenge (the sufficiency and accuracy of the material contained in Detective Lunjevich’s supporting affidavit and whether that affidavit contained tainted material as alleged) Winkelmann J first reminded herself that an application for a search warrant must disclose reasonable grounds for believing that an offence punishable by imprisonment has been  committed; that specified things will be found at or in the named place; and that those things will be evidence as to the commission of the specified offence.  She accepted that the source of information referred to in a supporting affidavit ought to be disclosed, including any advice that a source is a confidential informer, and that hearsay material should be identified as such.  She referred to the approach that the Court should take when considering the validity of a warrant obtained in reliance on an affidavit containing material tainted by non-disclosure or inaccuracy (citing R v McColl (1997) 17 CRNZ

136 at [22]).  She noted that the Court is required to consider whether the judicial officer would or should have declined to issue the warrant if the tainted material had not been included or material facts omitted, observing:

… If on the untainted material there was inadequate material to disclose a reasonable ground for belief with respect to one or more of the three ultimate issues, the warrant will be invalid, as it will be a nullity.   If however the defect falls short of nullification, it is necessary to consider s 204 of the Summary Proceedings Act.

[11]     The Judge also observed that where it is established that a warrant has been obtained in reliance on inadequate or misleading information:

… the applicant may not point to other information that was available but not placed before the Judicial Officer to bolster the application, or to contend that  the  search  was  in  any  event  reasonable.    (R  v  McManamy  (2002)

19 CRNZ 669)”.

[12]     Winkelmann  J  then  turned  to  analyse  each  of  the  criticisms  directed  to Detective Lunjevich’s affidavit.   In relation to paragraph 2 she found it irrelevant whether or not Mr Taylor’s vehicle had been stopped by Detective Lunjevich. Therefore, any inaccuracy relating to that was immaterial.  She found however that Mr Taylor’s admission as to ownership of the condenser tube ought to have been included in paragraph 2, as it bore upon ownership of the balance of the  drug paraphernalia  found  in  his  car.     Commensurately,  Ms  Allen’s  denial  of  any knowledge of those items ought to have been included in paragraph 2, as exculpatory of her involvement.

[13]     The challenge to paragraph 3 of the affidavit was directed to the omission of Ms Allen’s explanation about the source of the information on the shopping list in her handbag and to the overstatement that the pencil burner in her handbag was “used in the consumption of methamphetamine”.   Also to Detective Lunjevich’s unqualified assertion that 6g of methamphetamine was located in her handbag when that was simply a matter of suspicion.   The Judge accepted that Ms Allen’s explanation about the shopping list ought to have been included in the affidavit (even if improbable); that the statement about the pencil burner was ambiguous and could have been better expressed; and that Detective Lunjevich’s unqualified assertion that

6g of methamphetamine had been located in Ms Allen’s handbag was misleading.

[14]     Paragraph 4 of the affidavit was  criticised as being both conclusory and misleading.   Police records produced at the hearing had disclosed that only one previous purchase of a product containing pseudoephedrine had been made by an occupant of 50 Sycamore Drive and Detective Lunjevich had omitted to include Ms Allen’s admission that she had used the false driver’s licence in her handbag to purchase a pseudoephedrine product on one other occasion.  That latter information could  not  assume  any relevance  in  assessing  the  sufficiency  of  the  material  in paragraph 4 and Winkelmann J found that Detective Lunjevich had not “fairly and fully disclosed the basis for his belief as to Ms Allen’s involvement in the manufacture and distribution of methamphetamine” in paragraph 4.

[15]     Paragraph 5 was objected to on the basis that it was conclusory.   Also, because some of the information on which the conclusion was based had come from

a confidential informer and that fact was not disclosed.  Nor was any evidence about the likely reliability of that information included.   Winkelmann J found that this information ought to have been placed before the judicial officer and that it could not “now be called in aid to bolster the affidavit”.   Thus, she found the statement in paragraph 5 fell well short of the standard required.

[16]     In summary, Winkelmann J found there were numerous deficiencies in the material placed before the judicial officer concerned.   Overall, however, she was satisfied that even if Detective Lunjevich’s affidavit had not contained the identified deficiencies there was adequate material before the judicial officer upon which he could be satisfied of the requirements of s 198(1) of the Summary Proceedings Act

1957.  In reaching this view, she made it clear that she:

… had no regard to the other material available to the Detective, but not referred to in the affidavit, for example the false driver’s licence which Ms Allen admitted she had used on a prior occasion to purchase a pseudoephedrine product.

[17]     To illustrate her conclusion, Winkelmann J set out the information that would have been before the judicial officer had there been no deficiencies in the affidavit. That  exercise  was  simply  for  the  purpose  of  demonstrating  that  the  affidavit contained sufficient material to justify granting the warrant without the inaccuracies and without regard to other relevant and available material not included in the affidavit.  Ultimately she found:

In  my judgment, that would have  been  adequate  material for a Judicial Officer to be satisfied of the three ultimate issues.  It follows therefore that the warrant is not a nullity.  I must then consider pursuant to s 204, whether there has been a miscarriage of justice by reason of the deficiencies in the affidavit.  I am satisfied there has not.  There is no material prejudice to the respondents as if the application had not contained the  deficiencies,  the Judicial Officer would still have had a proper basis to issue the warrant.  I am also satisfied that the application for warrant did not abuse the processes of the Court.  Although there were deficiencies in the affidavit there was no bad faith or recklessness on the part of the Police.  The deficiencies were not such as to secure the issue of a warrant that would not otherwise have issued.

[18]     For the sake of completeness, the Judge went on to consider whether, if she were wrong in this conclusion, the search pursuant to the warrant was nevertheless reasonable and, if not, whether the evidence should be excluded on application of the principles in R v Shaheed [2002] 2 NZLR 377 (CA). She concluded that if the

search were unlawful it would not have been reasonable but that the evidence should nevertheless be admitted because there had been no deliberate misconduct by Detective Lunjevich and the deficiencies in his supporting affidavit were simply the result of carelessness.

[19]     Turning to the alternative challenge to the admissibility of the evidence found at 50 Sycamore Drive, Winkelmann J considered and dismissed Mr Neutze’s submission that the Court should exercise its discretion to exclude all of the evidence obtained  during  the  search  on  the  ground  that  the  chain  of  events  which  led ultimately to the seizure of that evidence was unlawful or improper.  The Judge was satisfied however that the catalogue of complaints about the conduct of the police did not establish any abuse of process that should lead to exclusion of the evidence. Of significance was her first finding under this alternative head; that the respondents did not have standing to complain of Detective Lunjevich’s conduct as it related to the search of Mr Taylor’s vehicle and the search of Ms Allen because:

… it is well established that the rights guaranteed under the New Zealand Bill of Rights Act 1990 are essentially personal, and that their vindication through exclusion of the evidence cannot usually be claimed by a person to whom they are not due (R v Wilson [1994] 3 NZLR 257 (CA)).

[20]     Her summary of findings on the matters argued by Mr Neutze as capricious, improper or unlawful behaviour on the part of the police was as follows:

(i)The respondents have no standing to complain of the events leading to Mr Taylor’s arrest (the issue of the Detective’s intention to stop the vehicle, and the alleged unlawful detention) or Ms Allen’s arrest. There was in any event no illegality involved in these events.

(ii)       The search of the Sycamore Drive property was legal, although the preparation  of  the  affidavit  in  support  of  the  application  was careless.

(iii)      The method of conduct of the search at the property did not lead to contamination of the evidence.   Some exhibits were moved to facilitate photographing, but not from room to room.   There is an adequate record of those matters if all photographs are before the jury.    I have  however  ruled  photograph  12  of  the  photographic exhibits produced at depositions inadmissible as unfair and prejudicial.  There was nothing illegal in the method of execution of the search, although aspects of the search did involve breach of Police protocol.

[21]     In relation to the removal of certain alleged stolen items before the second warrant directed to seizure of those items was issued, Winkelmann J found that the removal of these did amount to an illegal search and seizure.   She referred to the principles in R v Grayson and Taylor [1997] 1 NZLR 399 and gave careful consideration to the circumstances in which the seizure was made to determine whether it was also an unreasonable search and seizure. She noted that the police were already on the premises pursuant to a lawful warrant; that they had “strong grounds to believe that the goods were stolen, given the large number of particular items involved (for example 16 computers/laptops)”; that they were dealing with a “very large and complex crime scene” and gathering evidence of multiple offences; and that the seizure occurred only some 17 minutes in advance of the issue of the second warrant. Notwithstanding these circumstances she found that the search for and seizure of these items prior to issue of the second warrant was unreasonable because although the police had reasonable cause to believe that the goods were stolen there was no imminent danger or risk that the evidence would be lost.

[22]     Moving then to a Shaheed balancing exercise, Winkelmann J found that the breach  of  the  appellants’  rights  in  searching  for  and  seizing  the  items  was “moderately serious but no worse than that”.  She found it significant that the police were already in the house lawfully pursuant to a valid warrant and that the goods were not hidden away in a secret place where there may have been increased legitimate expectations of privacy but were located in the course of a lawful search. There had been no deliberate or reckless disregard of the appellants’ rights.   The Judge found the most likely explanation for the premature removal of some of the goods was “confusion or oversight” on the part of the police officers concerned, arising from the complexity of the crime scene and the size of the task with which they were confronted.  In all the circumstances she was satisfied that the evidence ought to be admitted, as to exclude it would not be a proportionate response to the breach of the appellants’ rights.  Her summarised finding was as follows:

(iv)      The seizure of [some of] the electrical appliances was illegal, and unreasonable but the evidence should be admitted.   The failure to wait for the second warrant was the result of carelessness.   There was no bad faith or recklessness on the part of the Police.

The appeal

[23]     The appeal from Winkelmann J’s pre-trial ruling was advanced on the same grounds but with primary emphasis on the alternative ground of unlawful and improper  behaviour  by  the  police  from  the  time  Detective  Lunjevich  searched Mr Taylor’s vehicle and arrested and searched Ms Allen.   That  argument must however fail on the grounds of irrelevance because, as Winkelmann J noted, not one of the appellants has standing to claim a breach of his or her rights by this conduct. None of them were present at the time; there was no interference with their liberty; nor with any of their rights.  Nor did they suffer any breach of their expectation of privacy as a result of the search of Mr Taylor’s vehicle or the search of Ms Allen’s handbag.  The evidence obtained as a result of those searches was irrelevant to their respective cases.  The relevant evidence is that which was found when 50 Sycamore Drive was searched in their presence pursuant to a warrant that Winkelmann J found to have been lawfully issued.  In any event, on the material before us, we consider that the search of the car was clearly justified under s 18(2).

[24]     The relevant questions on appeal are whether Winkelmann J was correct in concluding that the deficiencies in Detective Lunjevich’s supporting affidavit did not render  the  first  warrant  to  search  50  Sycamore  Drive  invalid  and  whether  the resultant search was also reasonable.   If the search was unreasonable due to the invalidity of the warrant, the question then arises as to whether the evidence obtained pursuant to that warrant ought nevertheless to be admitted.

[25]     All of the deficiencies were carefully examined by Winkelmann J.  She found (and it is accepted by the Crown) that the contents of the affidavit could and should have been more precisely stated and that it contained conclusory material that amounted to no more than assertions; also that some matters were overstated.  We find no error in her analysis and see no reason to differ from her conclusion that the affidavit   contained   sufficient   material   to   satisfy  the   judicial   officer   of   the requirements of s 198(1) of the Summary Proceedings Act 1957.  The exercise that she conducted, in deleting the tainted material, was simply to demonstrate that the affidavit contained sufficient untainted material to justify granting the warrant.  The

Judge expressly avoided the inclusion of any information that had been available but was not before the judicial officer to bolster the affidavit reminding herself that such information could not be relied upon to demonstrate that the search was in any event reasonable.

[26]     Despite any defects in the content of the affidavit the judicial officer reading it would have been left in no real doubt as to the purpose of the warrant (R v Sanders [1994] 3 NZLR 468 at line 32-34). Its purpose was plainly to search the address of

50 Sycamore Drive, Sunnynook for evidence that the occupants of the address were involved in the purchase of precursor chemicals used in the manufacture of methamphetamine and also involved in the sale or supply of methamphetamine.

[27]     The discovery of a shopping list of precursor chemicals with street prices, a pencil  burner  of  the  type  used  in  the  consumption  of  methamphetamine  and  a snap-lock  plastic  bag  containing  a  substance  resembling  methamphetamine  in Ms Allen’s handbag on 6 March 2004, together with information that she had made a recorded purchase of a precursor chemical, provided ample foundation for the reasonable belief that a search of her home address would reveal evidence relating to such precursor substances and methamphetamine dealing.  The further fact that she was travelling as a passenger in a vehicle in which drug paraphernalia, including pipes of a type used to smoke methamphetamine were found, lends further weight to such a reasonable belief.  Although, as we have noted, the discovery of those items on

6 March was not evidence admissible against the appellants, it established grounds for the reasonable belief that Ms Allen’s home address of 50 Sycamore Drive would contain similar evidence.

[28]     The Judge was therefore correct in her assessment that the warrant would still have been granted without the inclusion of the tainted material and we are likewise satisfied that the search of 50 Sycamore Drive was reasonable.   Therefore the evidence obtained during that search is properly to be admitted at the appellants’ trial.

[29]     In relation to the premature removal of some items from the property some

17 minutes prior to the second warrant being issued, we concur with Winkelmann J’s finding that, notwithstanding the premature nature of the seizure of those items and any  unreasonableness  implicit  in  that  seizure,  the  Police  were  lawfully  in  the premises and searching pursuant to a valid warrant, so that the premature seizure of the allegedly stolen items amounted only to a trivial breach.  The evidence of those items is therefore properly to be admitted at the appellants’ trial.

Conclusion

[30]     Leave to appeal is granted and the appeal is dismissed.

Solicitors:

Crown Solicitors, Auckland