R v K Ca407/01
[2002] NZCA 369
•18 March 2002
| NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA407/01 |
THE QUEEN
V
[G S J K]
| Hearing: | 18 March 2002 |
| Coram: | Blanchard J Salmon J Chambers J |
| Appearances: | M S Gibson for Appellant J C Pike for Crown |
| Judgment: | 18 March 2002 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
This is an application for leave to appeal against a ruling by a Judge of the District Court at Gisborne, under s344A of the Crimes Act 1961 admitting evidence and exhibits obtained as a result of a search of the appellant’s property at 79 Haisman Road, Gisborne. The appellant faces charges of cultivation of cannabis and possession of cannabis for the purpose of sale. The search of the Haisman Road property was warrantless and purportedly made under s18(2) of the Misuse of Drugs Act 1975. The appellant subsequently challenged the admissibility of evidence and exhibits contending that the search was both illegal and in all the circumstances unreasonable, and thereby constituted a breach of s21 of the New Zealand Bill of Rights Act 1990.
The search
Prior to the search of the Haisman Road address, a police constable, Constable Moore, had executed a search warrant under s198 of the Summary Proceedings Act 1957 at a different address, 24A Sievwright Lane, Gisborne. In the application for that search warrant, Constable Moore asserted on oath that the police had received reliable information that cannabis was being grown by the appellant at the Sievwright Lane address. In fact, Constable Moore’s informant had said the appellant was growing cannabis in an indoor growing unit but had not provided an address where that was occurring. From what he was told the constable believed this was occurring “at Kingston’s address”.
Constable Moore had checked the Wanganui computer which gave a Sievwright Lane address. The constable went to that address before applying for a search warrant. He observed a vehicle outside registered in the surname of Kingston. He also observed cannabis plants in the backyard, making his observation from a public accessway beside the property. He then returned to the police station and obtained a search warrant for the Sievwright Lane address. In the warrant application he referred to that address as if it had come from the informant. He accepted in cross-examination that this was incorrect and misleading.
During the execution of that search warrant 15 cannabis plants were discovered. When spoken to by Constable Moore, the occupant of the Sievwright Lane address, Mr Richard Kingston, stated that he presumed that the cannabis plants belonged to his brother, Mr Gareth Kingston, the appellant. He was unable to give an address for his brother. But later he informed his brother that the police wished to speak with him. The appellant went to the Gisborne police station some 13 days after the Sievwright Lane search and spoke with Constable Moore.
Constable Moore obtained from the appellant his address at Haisman Road, and, deciding that there was insufficient evidence to charge the appellant with the cultivation of the cannabis at Sievwright Lane, informed him that he had received information that the appellant was growing cannabis plants. Constable Moore then informed the appellant that he was going to search the Haisman Road address pursuant to s18(2) of the Misuse of Drugs Act. His explanation for deciding to invoke the section rather than apply for a search warrant was that the appellant would be free to leave the police station. It would take about 10 minutes to get to Haisman Road. It would take at least 30 minutes to obtain a warrant before travelling to Haisman Road.
The police arrived at Haisman Road three or four minutes ahead of the appellant. Immediately on getting out of his car, Constable Moore said, he could smell cannabis. He entered the property and went to the back of a shed. He saw mature cannabis plants growing in the backyard. He said they were heavily budded with a very strong sweet smell. When the appellant arrived the constable invoked s18(2) again and accompanied the appellant around the property. When the house was searched further cannabis was found drying or wrapped in newsprint in various rooms.
The District Court judgment
The Judge first considered whether the search of the Sievwright Lane address was lawful and reasonable. He held that the search warrant was insufficient and incorrect in alleging that the informant had specified the Sievwright Lane address. However, “paragraph 2 of the warrant was within the knowledge and belief of the constable as he saw cannabis plants growing on the property”. It was therefore held that the issue of the search warrant was not illegal.
The next question considered by the Judge was whether the search of the Haisman Road address was lawful and reasonable; whether the power under s18(2) had been validly invoked in that the police had reasonable grounds for believing that there was any drug offending being committed at that address. The Judge noted that the informant had stated that the appellant was growing cannabis and had an indoor growing unit. It was a reasonable inference, he said, that these operations were being conducted at the appellant’s address. The appellant gave the constable his address. The Judge concluded that Constable Moore then had reasonable grounds to believe that the appellant was growing cannabis at his present address.
The third issue was whether the constable should still have obtained a search warrant for the Haisman Road address rather than relying upon a warrantless search under s18(2). The Judge held that the constable’s concern that the appellant might destroy evidence if time was taken to procure a warrant was reasonable and justified. The exercise of the power to carry out a warrantless search was therefore reasonable in the circumstances. In the alternative, he held, the smell of cannabis from the Haisman Road address provided a further ground of reasonable belief so as to justify the search.
Decision
Let it be assumed that the search of 24A Sievwright Lane was unlawful, although, if so, that could only be because of the misleading information given to the judicial officer who issued the warrant. But even on that assumption, there was no breach of the appellant’s rights (he was not an occupier of the premises searched) and, even if there had been such a breach, in later searching the Haisman Road address the police relied upon nothing which they had obtained by reason of that search. They learned that Haisman Road was where the appellant was living when he voluntarily went to the police station some 13 days later.
Prior to that time the police had apparently reliable information that the appellant was growing cannabis. They suspected that this would be at his address. That was not an unreasonable conclusion to draw. If the police were correct, it was quite likely that in the time which might elapse before they could obtain a warrant and travel to the property Mr Kingston might return home and remove or destroy all or some of the cannabis. He knew he was under suspicion of growing cannabis at his address. The police had no power to detain him.
It may be arguable that the invocation of s18 (2) at the police station was premature – that the police did not have reasonable grounds for belief at that time, as opposed to reasonable grounds to suspect. It may also be the case that Mr Gibson is right that the police could have sent someone to Haisman Road to keep watch while they obtained the warrant. But on arrival at the Haisman Road property the constable could smell cannabis on getting out of the car. There was no cross-examination of Constable Moore directed to establishing that when that occurred the police were already on the property or that they could not have smelled the cannabis from the road. On the evidence before the Court there was certainly a proper basis for conducting a warrantless search. The use of s18(2) is not confined to emergencies. If Mr Kingston had been present, the proper procedure would have been for the constable to advise him before commencing to inspect the property that he was acting under s18(2) but Mr Kingston did not arrive until a few minutes after the police entered the property and found the plants in the backyard. They told him at that time that they were using s18(2), doing so before entering the house.
We can see no basis upon which it can fairly be said that the search was unlawful and it was certainly not unreasonable. Leave to appeal is refused.
Solicitors:
Crown Law Office
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