R v J HC Auckland Cri-2007-004-23328

[2008] NZHC 1261

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-004-023328

THE QUEEN

v

J

Hearing:         7 and 8 August 2008

Appearances: Ms A Pollett for Crown

Mr H Lawry for Accused

Judgment:      8 August 2008

(ORAL) JUDGMENT OF LANG J

[on application for orders pursuant to s 344A Crimes Act 1961]

Solicitors:

Crown Solicitor, Auckland
Counsel:

Mr H Lawry, Auckland

R V J HC AK CRI-2007-004-023328  8 August 2008

[1]      On 18 October 2007, the police executed a search warrant under s 198 of the Summary Proceedings Act 1957 and s 18(1) of the Misuse of Drugs Act 1975 at a residential address situated at 4 Shoreham Street, Blockhouse Bay.    That property consisted of a main dwelling together with a smaller dwelling, or sleepout, situated at the rear of the property.   Several persons were present when the police executed the warrant.   One of those was the accused, J  .

[2]      When the police searched the sleepout they located approximately 30 grams of a white crystalline substance that they believed to be methamphetamine.    That belief has subsequently been borne out by the analysis of the substance.   The police also located the sum of $1,020 in cash.   Most of this consisted of $50 notes.   They also found a set of electronic scales, along with two used glass methamphetamine pipes and snaplock point bags containing remains of a crystalline substance.

[3]      When the police spoke to the accused she acknowledged that she lived in the sleepout.    She denied, however, that she had any knowledge of the items that the police had found.

[4]      As a result of the items found during the search the police charged Ms J   with being in possession of the Class A controlled drug methamphetamine for the purposes of supply.    She has pleaded not guilty to that charge and is due to stand trial on 8 September 2008.

[5]      Ms J   challenges the legality of the police search.    She contends that the material that the police provided to the Registrar in support of their application for the search warrant was insufficient to justify the warrant being granted.   As a result, she says that the search was unlawful and unreasonable in terms of the New Zealand Bill of Rights Act 1990.     For that reason, she contends that it was improperly obtained for the purposes of s 30(1)(a) of the Evidence Act 2006.   She argues that a proportionate response to the breach of her rights is an order excluding the evidence that the police found when they searched the sleepout.

[6]      In order to understand the basis upon which Ms J   advances her argument it  is  necessary to  have  regard  to  the  factual  background  that  led  to  the  police obtaining the search warrant that lies at the heart of the present application.

Factual background

[7]      In October 2007 the police were trying to locate a person by the name of Paul David  Guy.      They  considered  him  to  be  a  serious  offender  and  there  were outstanding warrants for his arrest on numerous matters.    Mr Guy is a member of the Headhunter’s motorcycle gang.   The police believed that they would be likely to find him if they visited his known associates.

[8]      On 6 October 2007 several police officers went to the address at 4 Shoreham Street, Blockhouse Bay.   They knew that that was the family home of the Robarts family.   Mr Laurence Robarts Snr had lived there for many years.   His son Freddie visited there from time and time and his son Philip was residing in the sleepout at the rear of the property with Ms J  .

[9]      When the police went to the address they went to the sleepout.    Sergeant Leslie and Constable Guest went to the verandah area, whilst Constable Hawke remained in the driveway noting the details of various vehicles parked at the address. Sergeant Leslie spoke to Ms J  , who was present in the sleepout.   He asked if she was the partner of Philip Robarts and she confirmed that she was and that he had left earlier that morning.   Sergeant Leslie told Ms J   that the police were looking for Mr Guy.   She said that he was not there and said that she had not seen him for some time.    Sergeant Leslie then asked if he could look around the sleepout to satisfy himself  that  Mr  Guy  was  not  present.      She  agreed  and  Sergeant  Leslie  then undertook a cursory examination of the sleepout.    This is likely to have lasted for only a minute or so.   He was satisfied that Mr Guy was not present in the sleepout and then left.    At present the evidence appears to be to the effect that none of the police officers visited the main dwelling on that occasion.

[10]     After noting the details of the vehicles on the property, Constable Hawke relayed this information to his communications centre.   He had discovered that the

registration label on an Isuzu Bighorn 4 wheel drive motor vehicle differed from the registration plates.    It was bearing registration plates ZI3116, but the registration label displayed in the front windscreen of the vehicle showed that the registration number of the vehicle was BTT828.   The Police Communications Centre advised Constable Hawke that an Isuzu Bighorn vehicle bearing the registration plates BTT828 had been stolen from an address in Central Auckland on 29 August 2007. The police then left the address and went to another address at 123 Whitney Street, Blockhouse Bay.  It appears that that address is only a very short distance away from

4 Shoreham Street.

[11]     They went to 123 Whitney Street because they believed that another known associate of Mr Guy, a man by the name of Patrick Young, lived at that address. When the police arrived, neither Mr Guy nor Mr Young was at the address.  Again, the police checked the registration details of vehicles at the address.  Among these was a Vespa Piaggi motor scooter.   Mr Young arrived a short time later and told the police officers that Mr Guy had brought the motor scooter around a few days earlier and that they had been trying to get it going.    The police officers ascertained the Chassis number of the scooter and discovered from their Communications Centre that this, too, had been stolen - this time on 25 June 2007 from an address in Parnell.

[12]     The police then left one officer at 123 Whitney Street to ensure that the motor scooter did not leave the address.    Two of the police officers, Sergeant Leslie and Constable Guest, then went back to the Avondale police station in order to prepare search warrants in respect of the two stolen vehicles.    The police obtained search warrants in respect of both vehicles on the same day.    When they went back to 4

Shoreham Street, however, they discovered that the Isuzu Bighorn vehicle that they had seen parked behind the house at the address earlier in the day had gone.

[13]     The police went back to 4 Shoreham Street the following day in order to ascertain whether the vehicle had returned.    It was not sitting on the property of 4

Shoreham Street, but the police located it a short time later in a carpark immediately adjacent to 4 Shoreham Street.    That carpark is used by vehicles belonging to the tenants of a Housing Corporation New Zealand apartment complex.   There is a gate

in the fence between 4 Shoreham Street and the carpark in which the Isuzu Bighorn motor vehicle was found on 7 October.

[14]     When they approached the vehicle the police found that it was unlocked. Believing that it was on public land and notwithstanding the fact that they had a search warrant, they elected to open the vehicle and look at the contents.    These included a large black bag that was sitting on the passenger seat of the vehicle. Constable Hawke says that he had noticed the bag in the vehicle on the previous day although he did not record that fact in his notebook.   I do not find it surprising that he did not record the existence of the bag in his notebook because it had little, if anything, to do with the matters that the police were concerned with at the time. When the police opened the black bag they found a methamphetamine kit.    As a result, they sealed off the area and called in the Clandestine Methamphetamine Laboratory Team.

[15]     Also inside the vehicle the police found the correct registration plates for the vehicle.     When they checked the owner of the number plates that were on the vehicle, they discovered that the plates had been issued to Mr Young, the occupant of 123 Whitney Street, Blockhouse Bay.

[16]     The police then applied for a warrant to search the property at 4 Shoreham Street.   They did so because they believed that there was a clear connection between the vehicle and that address.     They drew that connection from the fact that the vehicle was found at the address on 6 October and it was then found parked immediately adjacent to the address the following day.

[17]     They sought a warrant under the Misuse of Drugs Act 1975 because they believed  that  there  was  a  connection  between  the  occupants  or  visitors  to  4

Shoreham Street and the drug related paraphernalia that they found in the black bag. They drew this connection from the fact that Freddie and Philip Robarts have strong connections with 4 Shoreham Street.    Philip Robarts also has one conviction for being in possession of instruments, whilst Freddie Robarts has  several  previous convictions for drug related offences.

[18]     The issue that I need to determine is whether there was sufficient evidence before the Justice of the Peace who issued the warrant to enable him or her to reach the conclusion that the warrant should be issued.   The test, of course, is whether or not the material that the police provided in support of the application for the warrant was sufficient to provide reasonable grounds to believe that the police would find evidence of offending at the address in respect of which the warrant was sought.

The grounds relied upon for the search warrant

[19]     In the application that the police prepared, Constable Guest set out in some detail the events that had occurred on 6 and 7 October 2007.   He also confirmed that when the police had visited the address on 6 and 7 October 2007 Constable Hawke had noticed the large black rectangular bag behind the front passenger seat.    After describing what they found when they searched the vehicle, Constable Guest said:

25.      Patrick  Philip  YOUNG  date  of  birth  17.03.1962  resides  at  123

Whitney Street Blockhouse Bay.   He is known to Police and has 10 previous                 convictions     including:           Possession/     Uses

Methamphetamine,   Possession   Needle/   Syringe,   Possession   & Cultivates Cannabis, Receiving Stolen Property, Theft and Burglary.

26.Philip ROBARTS date of birth 07.02.1963 resides at 4 Shoreham Street, Blockhouse Bay.   He is known to Police and has 28 previous convictions including: 2 x Burglary, 2 x Attempted Burglary, Theft x 2, Receiving, Unlawfully Takes MV, Assault, Possession Instruments for Drugs, Driving related x 8.

27.Freddie ROBARTS date of birth 24.10.1972 frequents his family home at 4 Shoreham Street, Blockhouse Bay.     He currently has Warrants  for  his  arrest  for  failing  to  appear  at  court  on  active charges including: Burglary x 3, Unlawfully Takes MV, Receiving x 4, Possession of Equipment and Material for the Manufacture of Methamphetamine x 3.

28.Freddie   ROBARTS   has   19   previous   convictions   including: Receiving Property x 3, Procure/ Possession Methamphetamine x 2, Possession Class B Drug, Unlawfully Takes MV, Possession Cannabis, Driving related x 8.

29.I believe on reasonable grounds that Patrick Philip YOUNG, Philip ROBARTS and Freddie ROBARTS are all jointly responsible for the theft of the Isuzu Bighorn and the ownership of the Portable Clan  Lab,  due  to  the  Bighorn  being  seen  at  the  address  of  4

Shoreham Road, Blockhouse Bay on the 6th October 2007, and later recovered  adjacent  to  this  address  on  the  7th    October  2007.

YOUNG is linked to the Bighorn as the registration plates ZI3116 are registered to him.

30.The complainant of the stolen Isuzu Bighorn, Wendy Patricia DOUGLAS has been spoken to by me.     She confirms that the portable Clan Lab located in her vehicle is not hers.

The argument

[20]     Counsel for Ms J   submits that the connection between 4 Shoreham Street and the Isuzu Bighorn vehicle was too tenuous to enable the Justice to reach the view that  there  were  reasonable  grounds  for  believing that  material  relating to  drugs would be found if a search warrant was issued in respect of 4 Shoreham Street.   He points out that there is no evidence as to who may have taken the vehicle to 4

Shoreham Street on the previous day, or whether in fact it contained drug related paraphernalia on that date.

[21]     In relation to the latter submission, I bear in mind the evidence of Constable

Hawke that he saw the back on the bag seat when he first saw the vehicle on 6

October 2007.     I accept, however, that there is no evidence to suggest that an occupant of 4 Shoreham Street took the vehicle to the address on 6 October. Notwithstanding  this,  it  is  clear  that  somebody  having  some  connection  to  4

Shoreham Street must have done so.

[22]     In short, counsel submits that the mere fact that the vehicle may have been in and around Shoreham Street and that the Robarts brothers may have had some previous drug related convictions, was not sufficient to give rise to a reasonable ground for believing that the police would find drugs or drug related paraphernalia at

4 Shoreham Street.

Decision

[23]     In my view the evidence was sufficient to justify the Justices issuing the warrant.   I consider that the vehicle had a strong connection with 4 Shoreham Street. It was seen parked outside the house on 6 October 2007.   This suggests at the very least that the person who brought the vehicle to the property had a connection with the property itself or with people who lived there.    The fact that it was found the

following day immediately adjacent to the property is also strongly indicative of that fact.

[24]     I also consider that there is sufficient connection between the drugs and the property by virtue of the fact that both Philip Robarts, who lives in the sleepout, and Freddie Robarts, who evidently visits the property because it is his family home, both have convictions in the past relating to drugs and drug offending.

[25]     The fact that the Robarts brothers have these convictions coupled with the fact that the vehicle was found immediately in the vicinity of their family home, was sufficient, in my view, to enable the Justice to form the belief  that  there were reasonable grounds to believe that drugs or drug related paraphernalia were likely to be found at 4 Shoreham Street if a warrant was granted.

[26]     I  am  therefore  satisfied  that  there  was  sufficient  connection  between  4

Shoreham Street and the items that the police found in the Isuzu Bighorn to justify the warrant being granted.

Order

[27]     I make an order under s 344A of the Crimes Act 1961 that the material that the police found at the address when they executed the search warrant on 18 October

2007 is admissible at trial.

Next event

[28]     In order to ensure that there are no other outstanding issues before this matter proceeds to trial, I will hold a telephone conference on 21 August 2008 at 9.15 am.

Lang J