R v Norgate CA48/04

[2004] NZCA 392

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA48/04

THE QUEEN

v

KEVIN ALISTAR NORGATE

Hearing:         14 June 2004

Coram:Hammond J Paterson J Doogue J

Appearances: C P Brosnahan and D M Goodlet for Applicant A Markham for Crown

Judgment:      21 June 2004

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1]                On 3 October 2002, Mr Norgate was committed to the District Court at Wanganui for a trial on charges of possession of a Class C controlled drug, namely, cannabis for the purposes of sale, and cultivation of cannabis. Through his counsel, he objected to the admissibility of evidence obtained as a result of a search warrant. The Crown applied under s 344A of the Crimes Act 1961 for an order directing that

R V KEVIN ALISTAR NORGATE CA CA48/04 [21 June 2004]

such  evidence  be  admissible.  In  a  judgment  given   on   2   February  2004, Judge Connell held that the evidence was admissible.

[2]                Mr Norgate now applies for leave to appeal against that decision under s379A(1) of the Crimes Act 1961. Leave is also required in accordance with the provisions of s379A(5) of that Act because the application was not brought within the prescribed time limit. As the Crown takes a neutral position, and because the flooding in the lower North Island was a contributing factor to the delay, leave was given at the hearing to extend the time for lodging the application to 24 February 2004.

Background facts

[3]                The real evidence discovered as a result of the search conducted pursuant to the search warrant included a large amount of cannabis leaf, cannabis seeds, six cannabis seedlings, and two knives that were blackened by “spotting.” The charges which Mr Norgate faces arise from this find.

[4]                The affidavit sworn and filed in support of the application for the search warrant relevantly stated:

2.          That recently I received information from a confidential and reliable informant concerning the location of Methamphetamine, Cannabis and Cannabis growing operations.

3.          That this informant has supplied reliable and accurate information in the past, resulting in a successful prosecution on drug related matters.

4.          That this informant’s recent information has been extremely reliable and accurate, resulting in the recovery of several stolen vehicles.

5.          That this informant has supplied information unrelated to this  matter, which I have established as being correct.

[5]                At the preliminary hearing, the detective constable who swore the affidavit deposed that he had previously relied on information from the same informant to obtain three other search warrants. Those warrants were issued on 11 January 2002 (the Hylton Street warrant), and on 28 May 2002 (the Talbot Street warrant and the Pitt Street warrant). This affidavit was sworn on 29 May 2002.

[6]                Each of the three previous affidavits contained a statement that the detective constable had received information from an informant who had previously supplied confidential and reliable information. The affidavits in support of the  applications for the Talbot Street and Pitt Street warrants contained a provision similar to paragraph 3 in the affidavit (see para 3 above), namely, that the informant had supplied accurate and reliable information in the past, resulting in a successful prosecution on drug related matters. This paragraph referred to the search of the Hylton Street property and the subsequent successful prosecution.

[7]                The informant told the police that cannabis was being grown hydroponically at the Hylton Street property. The search of that property discovered cannabis growing under lights along with other materials used in the cultivation of cannabis. A hydroponic system was not found. The occupier of the property was charged with cultivating cannabis and the production of cannabis oil.

[8]                The information relating to the Talbot Street property was that a red Nissan motor vehicle, which was believed to be stolen, and a home made pistol would be found at the location. The search recovered the vehicle but the firearm was not located. The occupier of the Talbot Street property was charged with receiving the motor vehicle.

[9]                In respect of the Pitt Street property the police were advised that a Toyota Liteace van which was believed to be stolen, would be found in the garage. The van was located where the informant had stated it would be found, and was in the condition he specified but due to that condition, its ownership could not be identified. That was because the identification features had been removed and it had been set alight to conceal fingerprints. No charges were subsequently laid in relation to this van.

The judgment

[10]            While the Judge accepted that there was some additional information that could have been supplied to the Registrar who issued the search warrant, he considered it doubtful whether that additional information could reasonably be

regarded as relevant to the Registrar’s task of deciding that there were reasonable grounds for the belief that there had been a commission of an offence punishable by imprisonment. However, even if the omitted information were relevant to the decision, resulting in a defect to the warrant, the Judge did not consider that the defect had caused a miscarriage of justice. His Honour noted authorities in this  Court (including R v McColl (1999) 17 CRNZ 136), which hold that a miscarriage of justice can arise if the defect has caused a significant prejudice to the accused. There is a significant prejudice if, in the absence of the defect, the judicial officer would probably not have issued the warrant. In the Judge’s view, the inclusion of the omitted information in this case would only have provided the judicial officer with a greater amount of information on which to assess the informant’s reliability.  It would have been apparent from that information that in respect of all of the previous warrants, the informant’s information had been proven accurate to a greater degree than it had been proven inaccurate.

[11]The Judge also stated that:

[t]he fact that the informant also has a criminal record and has been paid in some measure while associating with the Police does not negate the fact that the information provided on the previous occasions was essentially correct.

In his view, if the entire factual position as the detective constable knew it, had been set out for the Registrar, it is highly probable that the warrant would have been issued.

[12]            The Judge also considered and rejected the submission that there had been an abuse of process. He noted that an abuse can arise in situations of bad faith; and can also arise where the application for the warrant is materially misleading or fails to disclose material facts, although whether there has in fact been such an abuse is in the latter case a matter of fact or degree. One bad faith allegation made on behalf of Mr Norgate related to a discussion which the detective constable had with the informant several months after the issue of the warrant and the search. It had been submitted that the detective constable demonstrated bad faith in speaking to the informant, and this fact should be taken into account when assessing the detective constable’s candour in his application for the search warrant. In this respect, the Judge held that any suggestion of bad faith almost a year after the application for the

warrant, cannot credibly be retrospectively imposed on the relevant affidavit and the application for the warrant.

[13]            The Judge also considered whether there had been an abuse of process where the affidavit in support of the application was materially misleading or failed to disclose material facts. He held that the information omitted from the relevant affidavit was not material, and that the relevant affidavit did not have the effect of materially misleading the Registrar. The omissions were not such that the affidavit no longer presented reasonable grounds for the belief in the elements required under s 198(1) of the Summary Proceedings Act 1957 (the Act). The Judge therefore concluded that the omissions were not of such material importance as to amount to an abuse of the processes of the Court and to lead to a miscarriage of justice within the terms of s 204 of the Act.

The appellant’s submissions

[14]            In his oral submissions to this Court, Mr Brosnahan, for Mr Norgate, stressed as a ground of appeal the Judge’s refusal to allow the detective constable to name the informant or answer questions about him. The relevance of this submission was that Mr Norgate believed that he knew who the informant was, and that person has exercised a waiver of “any confidentiality or information or discussions which I have had with [the police officers].” It was submitted that the defence was in a position to call the informant to give evidence that he had not provided certain information in respect of the Hylton Street warrant, and to place before the Court evidence of the informant’s background which, it was submitted, should have been made known to the Registrar.  If this procedure had been allowed, it would have been possible to  cast doubts on the veracity of the detective constable’s evidence and show bad faith. The denial of the right to know who the informant was had denied Mr Norgate the right to a fair hearing pursuant to s 21(1)(a) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).

[15]            A further submission was that the search warrant was invalid because of the false or misleading information given by the detective constable in his affidavit. Consequently, the Registrar was not in a position to reach an informed view as to

whether there were grounds for the issue of the search warrant. The omissions or misleading evidence said to cast doubts on the accuracy and veracity of the informant were that the cannabis growing at the Hylton Street property was not hydroponically grown, a pistol was not found at the Talbot Street property, and no charge had been laid in respect of the motor vehicle found at the Pitt Street property. Further, the reference to “several stolen vehicles” was incorrect, as the evidence established that there were only two stolen vehicles at the most, and no charge was laid in respect of the vehicle found at the Pitt Street property.

[16]            In addition, it was submitted that the detective constable should have informed the Registrar of the circumstances under which the information was provided so that the Registrar could assess the reliability of the previous information which the informant had supplied. In particular, the informant was in custody at the time some of the information was given, and was paid for providing information. Further, it was submitted that in such circumstances, the offer of bail could have been a “sweetener” which may have been material to the determination of the reliability of the information subsequently given.

[17]            Mr Brosnahan submitted that the invalidity of the search warrant led to a miscarriage of justice. There was prejudice to Mr Norgate because the warrant probably would not have been issued if there had not been omissions in the affidavit and if all the relevant information had been given to the Registrar. Prejudice is established if the Registrar would probably not have issued the warrant.

[18]            It was further submitted that there was an abuse of process because of the failure to provide material information. Mr Brosnahan accepted that this failure was either an oversight or a deliberate act of bad faith. He submitted that the Court should conclude that the latter was the correct position because of the one-sided view provided by the detective constable. It was further submitted that the action of the detective constable in approaching the informant several months after the warrant was issued, were circumstances from which bad faith could be inferred.

[19]            Because there had been a miscarriage of justice, it was submitted that there was an unreasonable search and seizure within the meaning of s 21 of the Bill of

Rights. As such, a balancing act in accordance with the Shaheed principles should  be carried out.

The Crown’s submissions

[20]            Ms Markham, for the Crown, submitted that the fundamental issue in this appeal was whether the information contained in the application for the warrant contained reasonable grounds for believing that there was at Mr Norgate’s property “anything upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed.” In her submission, there was ample evidence in the relevant affidavit to satisfy the statutory requirement in s198 of the Act. She submitted that the assessment of the reliability of the information must be made in the context of the relevant affidavit as a whole.

[21]            In respect of the criticism of omissions and mis-statements in the relevant affidavit, it was submitted that while there is no requirement for 100% accuracy, the information supplied in this case, when assessed in a realistic manner, was appropriate and relevant information. There were no serious omissions that could lead to any possibility of a miscarriage of justice. The track record of the informant was, in the circumstances, irrelevant.

[22]            Ms Markham submitted that the Judge was correct in following established precedent in refusing to allow the detective constable to name the informant. There was nothing to stop Mr Brosnahan, if he had a witness who could give relevant information, to call that witness. It was further submitted by Ms Markham that the witness’s confidentiality was of such a nature that the informant could not waive confidentiality.

Discussion

[23]            The power to issue a search warrant is given in s198 of the Act. The issuing officer was required by the provisions of s198 to be “satisfied that there is a reasonable ground for believing that there is in any building … any thing which there

is reasonable ground to believe will be evidence as to the commission of any offence.” Section 198 required the Registrar to be satisfied first, that there had been  a commission of an offence punishable by imprisonment. Secondly, he was required to be satisfied that there were things present at or in a stated location, and lastly, he was required to be satisfied that the things to be found there will be evidence as to the commission of the offence.

[24]            The   relevant   affidavit   contained   37   paragraphs.   We   agree   with    Ms Markham’s submission that the reliability of the informant can to a large extent be assessed from the nature of the information which was provided in this case.     Mr Brosnahan has not had access to this affidavit. It contains far more explicit information than is often contained in an affidavit in support of an application for a search warrant. In our view, the information in respect of the alleged offence and the things which should be found at the premises was such that there were reasonable grounds for the beliefs which were necessary before the warrant was issued. Further, it is our view that the affidavit, even if it had contained no information as to the previous activities and knowledge obtained from the informant, would have been sufficient to enable the Registrar to form the necessary belief required by s198 of the Act.

[25]            There were inaccuracies in the affidavit but we agree with the Judge that they were not of a character to render the search warrant a nullity. Section 204 of the Act applies. Under that section the search warrant is not to be set aside or held invalid by reason of any defect, irregularity, omission, or want of form, unless the Court is satisfied that there has been a miscarriage of justice. In our view, no miscarriage of justice arises in this case. The matters complained of by Mr Brosnahan are relatively immaterial in the overall assessment of the reliability of the relevant affidavit. The statement that a successful prosecution on drug related matters arose from information supplied by the informant (para 3 of the relevant affidavit), was correct. There was a successful prosecution arising from the execution of the Hylton Street warrant. It is correct that the informant advised the police that a hydroponic system was used at Hylton Street, whereas the cannabis was grown indoors under lights, but not hydroponically. We do not accept that this error necessarily shows that the informant was unreliable. Many of the features of the growing system at Hylton

Street were similar to a hydroponic system. The fact that no pistol was found at Talbot Street does not establish that the information that a pistol had been found there was unreliable. Further, while the reference to “several” stolen vehicles was  not accurate, in that there were at the most only two such vehicles, this reference does not materially undermine the reliability of the affidavit. Although no charge was laid in respect of the second vehicle, there was evidence from which it could reasonably be inferred that it was a stolen vehicle, namely, the removal of the identifying features and the “torching” of it.

[26]            While we accept that the police officer swearing an affidavit has an obligation to be as accurate as possible, and the police officer in this case was inaccurate in some respects, those inaccuracies do not nullify the search warrant because of the provisions of s204 of the Act. As this Court said in R v McColl:

when considering matters under s 204, it is a question of the relative seriousness or otherwise of the error. If the error is so serious as to attract  the description “nullity”, s 204 will not assist. Inevitably questions of degree and judgment arise.

In our view, the errors in this case are not of the necessary seriousness to make the warrant a nullity. There was no miscarriage of justice because even if all the information had been included, the Registrar would, in our opinion, have in all probability issued the warrant.

[27]            In our view, none of the other points raised on behalf of Mr Norgate undermine the warrant. It was lawfully granted. The reliability of the informant can be a factor in assessing the validity of a warrant. However, in this case, the information in the affidavit did provide reasonable grounds for believing that a search warrant was justified notwithstanding the informant’s background: see R v Burns [2002] 1 NZLR 204. There was no abuse of process because of the failure to provide material information. We can draw no inference of bad faith from the information provided. Nor do we see that an approach by the detective constable to the possible informant several months later, after a warning from defence counsel, indicates bad faith. There is no property in a witness and either party may speak to a witness. It does appear as though the police constable may have given the probable

informant some incorrect information but, in our view, that cannot undermine a warrant which was validly issued.

[28]            It is not necessary to determine in the circumstances of this case whether an informant can waive confidentiality. We do not see that the Judge’s ruling, preventing the name of the informant being disclosed, which was consistent with authority, in any way undermines this search warrant. If the defence had information which they believed could undermine the application for the search warrant, the alleged informant could have been called by the defence. No attempt was made to  do this. Further, we note this is a case where, in the context of the relevant affidavit, the search warrant was properly issued and the real evidence discovered verified the accuracy of much of the information contained in the search warrant.

Result

[29]            Leave to appeal is granted under s 379A. The appeal against the pre-trial ruling is dismissed.

Solicitors:

D M Goodlet, Wanganui for Applicant Crown Law Office, Wellington