R v L HC Palmerston North CRI 2006-054-5597
[2008] NZHC 1355
•1 September 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI 2006-054-005597
THE QUEEN
v
L
Hearing: 29 August 2008 (Heard at Wellington)
Counsel: P S Coles for Accused, in support
B D Vanderkolk for Crown, to oppose
Judgment: 1 September 2008
JUDGMENT OF WILD J
Introduction
[1] Before the Court are three further applications in this proceeding which is for trial on 17 November, having been adjourned upon the accused’s application from a
23 June fixture.
[2] I say ‘further’, because I dealt with a s344A application on 12 December last, ruling admissible evidence obtained by the Police when they executed a search
warrant at the accused’s Woodville café/bar premises on 13 December 2006.
R V L HC PMN CRI 2006-054-005597 1 September 2008
[3] I express my concern and disappointment that this Court is still being required to rule on pre-trial applications at this very late stage. The accused was committed for trial on 12 July 2007.
[4] The accused faces charges of dealing in the Class A drug LSD, cultivating cannabis and a charge of possession of a firearm and ammunition other than for a lawful purpose.
[5] The three applications are:
(i) An application under ss 18 and 22 Evidence Act 2006 seeking a ruling that the accused be able to offer in evidence at his trial the hearsay statements contained in the search warrant application Detective Heald swore on 13 December 2006.
(ii)An application to disallow the Crown’s claim for privilege, pursuant to ss 64 and 67(2) Evidence Act in respect of information relating to the Police informer.
(iii)Anapplication for a stay of this proceeding on the grounds that the accused has been denied his rights to prepare and present his defence, and thus to a fair trial. Those rights are guaranteed by ss 24 and 25
New Zealand Bill of Rights Act 1990.
[6] The Crown opposes applications (ii) and (iii). It does not oppose application (i), provided that the identity of the police informer is protected. It suggests that the hearsay information could be admitted at the accused’s trial pursuant to agreed admissions under s 9 Evidence Act.
Background
[7] These charges result from what the Police found and what was said by the accused and a woman called Maria Sigvertsen at the time of the search and, in Ms Sigvertsen’s case, subsequently at the depositions hearing. When questioned at the
time of the search, Ms Sigvertsen said the LSD which the Police had found was the accused’s, but at depositions she resiled from that.
[8] I see no need to repeat here the more detailed background I set out in [3]-[10]
of my 12 December ruling.
[9] The accused’s defence at his trial will be that the LSD the Police found was
Ms Sigvertsen’s, not his.
Sections 64 and 67(2) Evidence Act 2006 application
[10] Mr Coles dealt with this first. He began with the uncontentious proposition that the right to a fair trial guaranteed to the accused by s 25(a) New Zealand Bill of Rights Act 1990 is an absolute one: R v Condon [2007] 1 NZLR 300 (SC) at [77].
[11] Mr Coles then argued that the accused would be denied a fair trial unless he, as defence counsel, was in possession of all the information that had been provided by the informer to the police, on the basis of which police had obtained the search warrant which resulted in the charges against the accused.
[12] Broadly, the position is that the police searched the accused’s premises having obtained a search warrant on the basis of information from an informer that
‘Maria’ was dealing in LSD, coupled with advice from the Constable-in-Charge of the Woodville Police Station that ‘Maria’ was Ms Sigvertsen, who was living with the accused at his Woodville café/bar premises.
[13] The Crown will call Ms Sigvertsen at the accused’s trial. Given what I have set out in [7] above, Mr Coles submitted that the “Crown cannot believe Ms Sigvertsen’s evidence”. He then contended that he could not properly cross-examine her unless he had the detailed information the informer had provided to the police, and was able to confront Ms Sigvertsen with this. Depending on inquiries the defence could undertake once armed with the informer information, Mr Coles suggested that the defence may wish to call evidence about Ms Sigvertsen’s dealing in LSD.
[14] Mr Coles made the point that, given the way in which Ms Sigvertsen had altered her story, no one could be sure what she was going to say in evidence at the accused’s trial. Should Ms Sigvertsen decline to answer questions on the basis that they might incriminate her in LSD dealing, Mr Coles accepted that he could invite the jury to draw an appropriate inference. But he submitted that that inference was not a substitute for direct evidence about Ms Sigvertsen dealing in LSD.
[15] I indicated to Mr Coles that I did not understand the impact of some of these submissions, and I did not accept that they established a proper basis for me to disallow the Crown claim to privilege in respect of the identity of the informer.
[16] It is common ground that the s 64(1) privilege in respect of the informer’s identity is qualified by s 67(2) which gives me a discretion to disallow the claim to privilege if I consider that evidence of what the informer told the police
…is necessary to enable the (accused)…to present an effective defence.
[17] As I have pointed out, the accused’s defence will be that the LSD the police found in his sleeping quarters was Ms Sigvertsen, not his. She was the LSD dealer, not him.
[18] I accept, as does the Crown, that evidence to the following effect will assist the accused in his defence:
• A Mäori woman in her early 30s with long, curly, dark hair and of slight build was dealing in LSD. This woman’s first name was Maria and she lived in Woodville.
• Maria was dealing at least two times a week with a particular individual who was buying LSD tabs from her for $15 and on-selling for $40.
• The design on the LSD tabs Maria was selling was a ‘40 licks’ picture from the Rolling Stones.
[19] When coupled with the following evidence that will be available from police witnesses to be called by the Crown at the accused’s trial, that hearsay evidence of what the informer told the police obviously adds strength to the defence:
• ‘Maria’ was Ms Sigvertsen who was living with the accused at his
Woodville café/bar premises.
• The 201 tabs of LSD, mainly in two sheets, found hidden in a book in the accused’s sleeping quarters had the same ‘40 licks’ Rolling Stones motif on it.
[20] I do not see what more would be added to the accused’s defence if the identity of the informer was disclosed to the accused and/or the identity of the third person who supplied the information to the informer. This third person was the person the informer said was regularly buying LSD from ‘Maria’.
[21] It follows that I do not consider that the information sought by this application is necessary to enable the accused to present an effective defence.
[22] Accordingly I disallow this application.
The ss 18 and 22 Evidence Act 2006 application
[23] Counsel are agreed that this application may be disposed of by my recording the Crown’s agreement that the hearsay statements contained in Detective Heald’s search warrant application relating to Ms Sigvertsen (‘Maria’) dealing in LSD are to be part of the evidence at the accused’s trial. Those hearsay statements include all the statements in the redacted version of the search warrant application that Mr Coles has, plus para [9] redacted as follows:
9 The informant stated that met with Maria at least two times a week and that he purchased tabs of acid for $15 and then sold them for $40.
no one is a tst
[24] I can confidently leave it to counsel to agree whether those hearsay statements are introduced by agreed admissions under s 9, or by Detective Heald producing an appropriately redacted version of her search warrant application.
Stay of proceeding
[25] Mr Coles accepted that this fell away, consequent upon my rulings on the first two applications, in particular the s 67 Evidence Act application.
[26] Lastly, I can advise counsel that, as presently rostered, the trial Judge on 17
November will be Ronald Young J. Judicial rosters occasionally change.
“J R Wild J”
Solicitors:
Peter S Coles, Palmerston North for the Applicant
Crown Solicitor, Wellington for the Respondent
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