R v P HC Christchurch Cri-2006-009-15784
[2007] NZHC 2089
•31 August 2007
This case has been anonymized
NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2006-009-015784
REGINA
v
P
Accused
Hearing: 31 August 2007
Appearances: S C Poore for Crown
G M Lynch for Accused
Judgment: 31 August 2007
ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN
[1] Pursuant to s344A of the Crimes Act, Mr P has challenged the admissibility of evidence of a number of witnesses. The heart of the challenge goes to evidence obtained pursuant to a search warrant issued on the basis of an application and affidavit by Detective Syme of the Christchurch Drug Squad.
[2] In particular, there is a challenge by Mr Lynch as to the effect of the evidence mentioned in the affidavit relating to text messages and intercepted conversations and communications, and the statement of belief of the detective concerned. There are a number of peripheral challenges, including the fact that the detective has failed to set out fully his qualifications and knowledge to speak of the matters contained in
the affidavit; that the first portion, under Summary, appears to be yet another cut and
R V PHILLIPS HC CHCH CRI-2006-009-015784 31 August 2007
paste; and that the information contained in the Background section is historical and would have the effect of colouring the approach of the officer responsible for issuing the search warrant.
[3] Since this affidavit was filed the police have had the advantage of the decision of the Court of Appeal in R v Williams & Ors [2007] NZCA 52, which at [224] and following extensively summarises what is expected (indeed required) in a search warrant application.
[4] As I noted in the course of submissions, it seems to me that there is nothing radical contained in Williams: it is an extensive review of authority, including many previous New Zealand decisions. It gives examples of common faults, and in an attempt to assist those seeking the issue of search warrants, summarises what is required. I say “nothing radical”, because it seems to me that there are sufficient decisions of both this Court and the Court of Appeal over a number of years that have spelled out to the police what is required in the affidavits. Notwithstanding that, the police continue to fail to meet the standards that the Courts have set for them, placing at risk the admissibility of important evidence in serious cases. I am sure it is not deliberate, but one has the impression that they are content (or intent) to rely on the necessary balancing act in relation to the evidence.
[5] In this particular case the matters pertaining to the text messages are set out between paragraphs 16 and 21. The closest any of these gets to being of assistance is one of 7 November where it says:
Gidday Rik asked me to ask yaz what time is gd 4 ya 2 do gullz and wht $ if its still all gd 2 do
[6] The problem relating to that is that the officer has made no attempt to explain or interpret what the term “gullz” may mean in the sub-culture with which we are dealing. Mr Poore has very responsibly accepted that the text messages on their own are ambiguous, and that the officer has failed to state grounds for belief. Having set out the text messages:
6 November
Glover to Snow:
He just got back and needs to know how Rik got on with that other
9 November 2006
Snow to Glover:
Just me Riks all gd when uz are
Then Glover to Snow:
Tell your man we cant get a hold of the dude where it is but Ill stop over and see use
Then P to Glover:
are you gona head over these ways like last time he just rang me?
10 November 2006
Glover to Snow:
Has Rik been and sorted that side just dont have hours tonight
Then Snow to Glover:
Hes gna pik up the $ now
Then Snow to Glover
He wants 2 c it like last time whta fckn clown rik said sry but yea
Then Glover to Snow
sweet as Ill be leaving home in about 10 hes just stopped for gas
the officer simply goes on to say:
I believe that the above text messages sent between Kara SNOW and Lynda GLOVER, and Riki PHILLIPS and Lynda GLOVER, are indicative of communications relating to the organising of selling and supplying drugs.
[7] It gives no basis for that belief, and given his failure to explain any of the terms and relate them to some form of shorthand or code for drugs or drug dealing, or drug manufacture, it falls well short of what is required.
[8] Mr Poore has properly said that the text messages should not be read in isolation. He said they should be read in the context of the intercepted communications. They are set out between paragraphs 24 and 26. I note in the context of intercepted telephone conversations they are not set out in full.
[9] In Williams, in the summary at [224](j) it states:
As far as possible, report information from an informant in the informant’s own words. Consider attaching the original notes of the conversation to the application.
[10] With respect, it seems to me that this should extend to intercepted conversations, and they can be added from the log to any affidavit that is filed in support of a search warrant.
[11] In any event, at paragraph 24, on 9 November there is a conversation between Snow and Glover, where Snow asks if it is OK to come over, to which Glover agrees. Snow tells her that Rik (that is, Mr P ) wants to know if Glover “could do the same”. Glover says she will have to wait until Richardson gets home. There is no explanation of what this is supposed to mean, any code or whatever.
[12] At paragraph 25, on 17 November there is part of a conversation between P and Glover which says “He can do that little one”. There is nothing to suggest that “little one” is code, or has some particular meaning.
[13] Mr Poore particularly relied on paragraph 26. Again, the intercepted communication is not set out, it is summarised. It is on the evening of 18 November. Glover telephones Mr P on his cellphone to ask how he got on last night. Mr P said he was heading up there soon to see some unknown male. Mr P then told Ms Glover that this unknown male had “run out of something he had needed to put in it”. The paragraph then goes on with matters that are of no great assistance to the task we are involved in today.
[14] Mr Poore says that “run out of something he had needed to put in it” clearly refers to a methamphetamine cook having run out of some requisite precursor substance. “Something”, it is said, means a precursor substance. If that is the case, again that should have been stated by the detective. It is a word in very common usage, which of course may make it attractive as a code term between people involved in drug manufacture and sale. But if that is the case, it requires the detective to say so. The ambiguity of the text messages, in my view, is not saved in any way by the intercepted communications, and once again, from the few bald statements I have referred to, the deposing officer goes on to say:
I believe that the telephone conversation intercepted on the evening of 18
November between GLOVER and PHILLIPS relates to PHILLIPS going to see his methamphetamine cook and intending to supply some of the finished
product to GLOVER.
[15] That may be so, if the words have meanings other than their literal meanings, but none of that information has been placed before the issuing officer.
[16] It follows, in my view, that this affidavit falls well short of what is required, which then requires the Court to go on an consider the matters set out in s30 of the Evidence Act 2007. Given the manner in which the affidavit has fallen below what is required, the evidence becomes improperly obtained. Counsel, in their written submissions, have referred to the matters set out in s30(3)(a) of the Act, and given its newness I am grateful to them for that. The Court needs to balance firstly the importance of any right breached by the impropriety and the seriousness of the intrusion on it. It is accepted by the Crown that citizens have a high expectation of privacy in private residence, and expect their privacy will only be invaded if the law allows such invasion. The privacy of the home would stand only second to privacy of the person. There is an important right that has been breached here.
[17] Secondly, the nature of the impropriety, in particular whether it was deliberate, reckless, or done in bad faith. Mr Lynch quite properly makes no allegation of bad faith. However, one must say that this affidavit falls so far short of what is required, it must border on the reckless. Frankly, it turns a blind eye to many decisions of this Court and the Court of Appeal as to what is required, and is most unsatisfactory.
[18] The next inquiry is the nature and quality of the improperly obtained evidence, and quite clearly in this case hard evidence of equipment used to manufacture methamphetamine was found.
[19] Next there is the seriousness of the offence with which the defendant is charged. Class A drug manufacture is very serious offending, as Mr Poore has properly noted, carrying with it a sentence of life imprisonment. He has also properly pointed out that in Williams the Court of Appeal referred in this category to public safety issues, and the well known danger which judicial notice can be taken of, of the operation of clandestine laboratories.
[20] The next matter is not relevant. The next is whether there are any alternative remedies, but it is accepted that that is not the case.
[21] Under s(30)(2)(b), the Court must determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice. That is always, of course, a difficult balancing act, because in so many search warrant cases hard evidence of serious offending is obtained. But in my view the impropriety here is serious. The affidavit in support of the application for a search warrant falls well short of what is expected and required. Considering the matters I have set out above, as I am required to do, it seems to me appropriate in this case to rule that the evidence is inadmissible. The affidavits fall so far short that I think that is the response that the Court needs to make. It has led to a very real and serious breach of privacy in this case, and notwithstanding the other matters of public interest, the seriousness of the offending, and the quality of the evidence obtained, in my view the only response is to rule the evidence inadmissible.
[22] Accordingly, in terms of the application before the Court, the evidence of Nikora Jonathan, Vaughn Sweetman, Melanie Noonan, Darryl Sweeney, Craig Lattimore, Jeffrey Attwood, Thomas Lamborn, Bryan Price and Paul Kuppevelt is ruled inadmissible.
Solicitors:
Crown Law Office, Christchurch
G M Lynch, Christchurch
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