R v McMahon

[2007] NZCA 71

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT 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

CA291/06 [2007] NZCA 71

THE QUEEN

v

CRAIG ANTHONY MCMAHON

Hearing:         20 February 2007

Court:            O’Regan, Chisholm and Rodney Hansen JJ Counsel:   R J Stevens for Appellant

M F Laracy for Crown

Judgment:      16 March 2007         at 4 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe evidence obtained as a result of the search of the appellant’s address is inadmissible at trial.

COrder prohibiting  publication  of  the judgment 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 CRAIG ANTHONY MCMAHON CA CA291/06  16 March 2007

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]      The appellant, Craig McMahon, is charged with cultivating cannabis, selling cannabis, possessing cannabis for supply and possessing equipment capable of being used for cannabis cultivation.  He was charged after a search of his address in the eastern suburbs of Wellington.  During that search the police found two rooms which had been set up for growing cannabis hydroponically.  Fourteen plants were growing and a considerable amount of hydroponic growing equipment was found.  During the search Mr McMahon returned to the address and a search of his vehicle revealed

49 cannabis  tinnies  and  $1,100  in  cash.    Mr  McMahon  admitted  he  had  been growing cannabis with the intention of selling it and that the $1,100 was proceeds of cannabis sales.

[2]      Mr McMahon’s counsel indicated to the Crown that a challenge would be made to the admissibility of the evidence obtained as a result of the search, and the Crown therefore applied under s 344A of the Crimes Act 1961 for a ruling that the evidence was admissible.   In a judgment dated 1 August 2006, Judge N Mathers ruled that the evidence was admissible.  She found that the search and seizure at the appellant’s address was unlawful, but not unreasonable.

[3]      The issues before us are:

(a)       Was the search unlawful?

(b)       Was the search unreasonable?

(c)If  the  search  was  unreasonable,  should  the  evidence  be  admitted under the balancing test referred to in R v Shaheed [2002] 2 NZLR

377 (CA)?

Was the search unlawful?

[4]      The search of Mr McMahon’s address was authorised by a search warrant. The validity of the search warrant was challenged on two separate bases, namely:

(a)      The application for the warrant omitted relevant information and contained incorrect information which had the effect of misleading the issuer of the warrant; and

(b)The application did not provide the issuer with reasonable grounds to believe that there was evidence of cannabis cultivation or supply at the appellant’s address.

[5]      In order to deal with those arguments, it is necessary to consider first the details of the application for the search warrant.

Application for search warrant

[6]      The applicant for the search warrant was a detective from the organised crime unit.  The essential points made in the application were:

(a)The  police  had  been  conducting  a  surveillance  operation  at  a hydroponics business in the eastern suburbs of Wellington, which was owned by a husband and wife who both had a number of cannabis- related  convictions,  and  lived  at  an  address  which  had  been  the subject of successful search warrants resulting in cannabis seizures;

(b)The police checked registration numbers of the vehicles driven by visitors to the business, and found that a high proportion of the registered owners of those vehicles had cannabis-related convictions;

(c)       One of the vehicles visiting the premises was a white Nissan Sentra.

A check of the registration number revealed that the vehicle  was registered to Mr McMahon.   The vehicle visited the hydroponics business on three separate dates in February and March 2004;

(d)The detective’s inquiries revealed that Mr McMahon was the owner of the address in respect of which the search warrant was sought;

(e)Mr  McMahon  was  known  to  the  police  and  had  five  previous convictions, including two for possession of cannabis;

(f)On  the  last  occasion  when  Mr  McMahon’s  car  was  seen  at  the hydroponic  business,  Mr  McMahon  was  present  and  was accompanied by the driver of a Toyota van.  They loaded the Toyota van with hydroponic growing equipment, and when it was full they also loaded equipment  into  Mr  McMahon’s  car,  after  which  both vehicles left together;

(g)The Toyota van belonged to a Palmerston North resident who was known to the police and had three previous convictions;

(h)Inquiries of the power company revealed that the power consumption for Mr McMahon’s address was high – variations ranging from nine units a day to up to 50 units a day; and

(i)It is common for people growing cannabis using hydroponic or indoor growing operations to have high power consumption.

[7]      The applicant stated a belief that Mr McMahon was growing cannabis at his address which he based on the above information.  The application asked the judicial officer to form the view that there were reasonable grounds for such a belief.

Deficiencies in the application

[8]      Counsel  for  Mr  McMahon,  Mr  Stevens,  argued  that  the  application  was incorrect and potentially misleading in a number of respects.  He said this indicated that the applicant had been careless in the preparation of the application for the warrant, and suggested that there may have been an intention on the part of the applicant to mislead the judicial officer considering the application.

[9]      There is no dispute that an applicant for a search warrant must make full disclosure of all facts relevant to the application: R v Poelman (2004) 21 CRNZ 69 at [14] (CA); R v McColl (1999) 17 CRNZ 136 at [20] (CA).   This requirement has recently been reiterated by this Court in R v Williams [2007] NZCA 52 at [209]- [224].

[10]     We now turn to the criticisms of the application made by Mr Stevens.

[11]     The applicant described Mr McMahon’s vehicle as a Nissan Sentra, but the record of surveillance at the hydroponics business described it as a Toyota.   The District Court Judge placed no weight on this error, and we do not believe she was wrong in that regard.   The evidence before her established that Mr McMahon’s vehicle is, in fact, a Nissan Sentra, so the application was correct.  In our view the applicant  was  entitled  to  proceed  on  the  basis  that  the  white  vehicle  with  the specified registration number seen at the hydroponics business was Mr McMahon’s vehicle, notwithstanding what appears to have been an error in identifying its make by the officer recording the surveillance.

[12]     The   application   refers   to   Mr   McMahon   having   two   convictions   for possession of cannabis, but does not specify the dates of those convictions.  In fact the convictions were entered in 1990 and 1992, which meant that they were 14 and

12 years old respectively.  We agree that the dates of the convictions should have been included, given that the information about the convictions was intended to support   a   proposition   that   there   were   reasonable   grounds   to   believe   that Mr McMahon was currently involved in cannabis-related activities at his address.

[13]     The application refers to Mr McMahon visiting the hydroponics business on

30 March 2004, and assisting with the loading of the Toyota Hiace van and his own vehicle.   In fact, no identification of Mr McMahon was made.   The application should, therefore, have stated that “the person driving Mr McMahon’s car on the day in question” had assisted with those activities.   Or, alternatively, inquiries should have been made to establish whether that person was Mr McMahon.  The District Court Judge did not see this as a significant matter, but we disagree with her assessment.

[14]   The application says that the power company has advised that power consumption at the address is high, with variations ranging from nine units to up to

50 units a day.  There was much contention about the source of this information in the District Court.  An email from an employee of the power company to a colleague of the applicant used the figures nine and 50 units, but did so in the context of an address other than that of Mr McMahon.  It seemed probable that this information had mistakenly been transposed to Mr McMahon’s address.  On one reading of the email that may have been justified, but the actual figures for the consumption of power at the address do not support that interpretation.

[15]     The applicant stated that he had separately telephoned the power company and received this information.  But there was no record of that having occurred.

[16]     Having considered the evidence before the District Court Judge, including an affidavit from the revenue assurance manager of the power company setting out the actual figures for  power  consumption  at  the  premises,  we  are  satisfied  that  the information provided to the judicial officer about power consumption at the address was incorrect, though this appears to have been as a result of a mistake rather than an intention to mislead.

[17]     Mr Stevens also criticised the failure of the applicant to state the period to which  the  power  consumption  figures  related.    We  see  this  as  a  subset  of  the previous issue, but in principle we agree that, where reliance is placed on abnormally high power usage, the applicant should specify in the application the period during which that power usage has been calculated.

[18]     We   accept   the   appellant’s   submission   that   these   deficiencies,   when considered cumulatively, are serious.  It was incumbent on the applicant to ensure that the judicial officer considering the application for the warrant was properly informed.

[19]     The applicant sought to convince the judicial officer that the combination of the cannabis-related activities of the hydroponics business and of the appellant himself, the appellant’s visit to of the hydroponics business and his loading of gear into the Toyota van, and the abnormally high power use at his home, gave reasonable cause to believe he was cultivating cannabis at his home.  It is implicit in that theory that the Toyota van was thought to have transported the hydroponic equipment to his address.   In fact it was not known that the appellant had visited the hydroponics business at all, his convictions were dated, and the information about electricity usage was flawed.  And there was no indication that the Toyota van had delivered anything to his address.

[20]     In our view, the result of the errors in the application is that the issuer of the warrant in this case was not properly informed of matters that were relevant to his or her  consideration  of  the  application  and  those  deficiencies  may  have  had  a significant impact on the judicial officer’s evaluation of the application.

Reasonable grounds to believe

[21]     Mr Stevens argued that the issuer of the warrant did not have reasonable grounds to believe that evidence of cannabis related offending would be found at the appellant’s  address.    He  said  the  issuer’s  consideration  of  the  application  was affected not only by the discrepancies identified above, but also by the fact that the application contained conclusionary statements without establishing the  basis  on which those statements were founded.  In particular he noted:

(a)The  basis  of  the  statement  that  the  owners  of  the  hydroponics business were growing and selling cannabis plants was not stated;

(b)The basis of the statement that a high proportion of the registered owners of vehicles visiting the hydroponics business had cannabis- related convictions is not stated; and

(c)The nature of the inquiries establishing that Mr McMahon was the owner and occupier of the address to be searched is not stated.

[22]     While  conclusionary  statements  in  applications  for  warrants  are  to  be avoided, we do not think there is much doubt that the information leading to the identification of McMahon’s address could arise from basic research such as reference to electoral rolls or telephone books (the applicant said it was the latter in this case), and the statements as to the past record of the owners of the hydroponics business and the records of the owners of the vehicles visiting that business can be taken to have been ascertained from the police’s own records.  We do not, therefore, see any particular concern about about any of these aspects of the case, although it would have been preferable for the sources of the information to be stated.

[23]     However, we do think there is a real issue as to whether the application provided a sufficient basis for the judicial officer issuing the warrant to be satisfied that there were reasonable grounds for belief.  This was not an aspect dealt with by the District Court Judge and we therefore deal with it afresh.  In doing so we put to one side matters which were stated in the application, but for which there was no proper foundation.

[24]     Taking that approach, the information available to the judicial officer was that the hydoponics business was operated by persons with cannabis-related offences and was visited often by drivers of vehicles owned by persons with cannabis-related convictions.  The appellant’s vehicle visited the business three times, but there was no evidence as to whether the appellant himself had been the driver of the vehicle on those occasions.  On one of the occasions the driver of the appellant’s vehicle had assisted the loading of a van with hydroponic equipment, and had loaded some into the appellant’s vehicle.   The owner of the van had convictions, but it is not clear whether these were related to cannabis and when they were entered.  The appellant had two cannabis-related convictions, but none since 1992.  He had no convictions

for cultivating or selling cannabis.  It was not clear whether the van which had been loaded with hydroponic equipment was being taken to the appellant’s address or to the address of the owner of the van (or somewhere else). There was some variation on the amount of power used at the appellant’s address.

[25]     When the matter is looked at in that light, it is clear to us that the most that can be said for the application was that it established a suspicion of some form of cannabis growing operation at the appellant’s address, but not reasonable grounds to believe that there was one.

[26]     In that respect, we reach a similar view to that taken by this Court in R v Lerm CA52/05 23 May 2005, which involved a search undertaken in the course of the same operation as the present case.  In that case, the Court found there were no reasonable grounds to believe that evidence of cannabis offending would be found at the search address.  The application for the warrant stated that Mr Lerm had had a previous conviction for cannabis cultivation only three years before, and had been seen visiting the hydroponics business and purchasing material from it.  Thus there was a much closer association of Mr Lerm with the hydroponics business in that case than there was in the present case (he himself had visited it, rather than just his vehicle) though there was nothing to indicate high electricity usage at the search address.

Conclusion: unlawfulness

[27]     We conclude that:

(a)       the application for the warrant was deficient in a number of respects;

and

(b)when the information which  could  properly have  been  before  the issuer is considered there were not reasonable grounds for the issuer to believe that a search of the appellant’s address would reveal evidence of cannabis-related offending.

[28]     Judge Mathers found that the search, though unlawful, was reasonable.  She noted that the search was carried out properly and that, with the benefit of hindsight, the police were correct (in that the search was successful).  She said it was not a case of mere suspicion.

[29]     We take the approach adopted by this Court in R v Maihi (2002) 19 CRNZ

453 on this issue.   In that case at [31], this Court said that the unlawfulness of a search invited the conclusion that it was also unreasonable, unless there was some countervailing factor or combination of factors allowing the Court to say that, although the search was unlawful, it was not appropriate to characterise it as unreasonable.   There were no such factors in this case.   The Maihi approach has recently been upheld and extended in Williams.

[30]     On the approach adopted in Maihi and Williams we are satisfied that the search in this case was unreasonable.  We acknowledge that this is inconsistent with the approach taken by this Court in Lerm and with the outcome of that case, which, as noted earlier, related to the same police surveillance operation.  It does, however, reflect the comments about that decision in R v Karalus (2005) 21 CRNZ 728 at [30] (CA) and Williams at [121].

Should the evidence be admitted under the Shaheed balancing test?

[31]     We now turn to the Shaheed balancing exercise.  Many of the factors which, in cases prior to Maihi, were considered in the context of the assessment of unreasonableness are now considered in the context of the Shaheed balancing exercise.   We will adopt the framework for this analysis suggested in Williams at [104]-[153].

[32]     The starting point is the seriousness of the breach of the New Zealand Bill of Rights Act 1990.  We consider that under three headings: the extent of the illegality of the search, the nature of the privacy interest and factors reducing or increasing the seriousness of the breach.

Extent of the illegality

[33]     In the present case we have found that the warrant was unlawful both because of the deficiencies in the application and because, once those deficiencies were factored into the analysis, the application did not provide a basis for the judicial officer to have reasonable grounds to believe that evidence of cannabis related offending would  be  found  at  the  address.    In  other  words,  the  application  was deficient and the warrant ought not to have been granted.

Nature of the privacy interest

[34]     In this case the search involved the home of a citizen, in respect of which there is a significant expectation of privacy.

Factors reducing or increasing the seriousness of the breach

[35]     This Court described the application for the warrant in Lerm as “shoddy”, and we believe it is fair to describe the application in the present case in similar terms. We acknowledge that the applicant had only just begun working for the organised crime squad and appeared to be unfamiliar with some of the processes which needed to be followed.  While that may make it unfair to blame the applicant personally, it does not absolve the police as an organisation from what appears to have been very poor practice in this case.  There is no indication that these matters are attributable to any urgency.  The end result was that a warrant was issued in circumstances where it ought not to have been, and a search was undertaken when not lawfully authorised.

[36]     We  conclude  that  the  breach  was  serious  in  this  case,  because  of  the significant intrusion into a citizen’s privacy in circumstances where the unlawfulness of the search arose, at least in part, from sloppiness on the part of the police officers involved.

Public interest factors

[37]     We now turn to the public interest factors pointing towards admission of the evidence.  These are the seriousness of the offence and the nature and quality of the evidence.

Seriousness of the offence

[38] The allegation against the appellant is of cannabis cultivation and sale on a small commercial basis. While we do not underestimate its seriousness, it is not serious drug offending when considered against offending involving more serious drugs. Nevertheless, the appellant admitted at the end of the search that he had been undertaking cannabis cultivation and sale for some time, and the Crown wishes to pursue action against him under the Proceeds of Crime Act 1991 in relation to both his house and car.

Nature and quality of the evidence

[39]     The evidence of the search is very important evidence, and without it the prosecution will be in jeopardy.

Is exclusion in proportion to the breach?

[40]     We now turn to the balancing exercise.  The starting point is that there has been a breach of the Bill of Rights, at least partly due to the sloppiness of the police

officers involved.  This has led to a serious intrusion into the privacy of a citizen. The evidence which has been obtained as a result of the search is compelling, and discloses drug offending with a commercial element, albeit in relation to a class C drug rather than a more dangerous narcotic.

[41]     In our view, the circumstances which led to the unlawful search, and the seriousness of the privacy breach which occurred as a result of it strongly point towards the exclusion of the evidence.  While we regret that this may mean that the appellant’s offending will go unpunished, we are satisfied that, in the circumstances of this case, the Crown should not be permitted to adduce the evidence obtained from the search.

Result

[42]     We therefore allow the appeal.   The evidence obtained as a result of the search of the appellant’s address is inadmissible at trial.

Solicitors:

Fanselows, Wellington for Appellant

Crown Law Office, Wellington