R v Van Der Linden CA191/05

[2005] NZCA 384

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA191/05

THE QUEEN

v

MARK ANTHONY VAN DER LINDEN

Hearing:         19 October 2005

Court:            Glazebrook, Panckhurst and Wild JJ Counsel: S J Zindel for Appellant

B J Horsley for Crown

Judgment:      27 October 2005

JUDGMENT OF THE COURT

AThe  application  for  leave  to  appeal  is  granted,  but  the  appeal  is dismissed.

BWe order that the judgment and the reasons therefore not be published in the news media or on the internet or any other publicly accessible database until final disposition of trial.  Publication in law report or law

digest is, however, permitted.

R V VAN DER LINDEN CA CA191/05  27 October 2005

REASONS

(Given by Panckhurst J)

Introduction

[1]      This is another case concerning the adequacy of an affidavit sworn in support of a search warrant application.   The appellant challenges the affidavit in arguing that the requirements of s 198 of the Summary Proceedings Act 1957 and of s 18 of the Misuse of Drugs Act 1975, were not met.

[2]      The appeal involved the complication that one paragraph, and part of another paragraph in the affidavit were not disclosed to the appellant, or his counsel, in order to protect the identity of an informer.  Mr Zindel, therefore, laboured under the not inconsiderable difficulty that he was not privy to information which was influential in relation to the decision of Judge McKegg in the District Court, and no less so in this Court.

The background

[3]      Mr van der Linden awaits trial upon three charges.  The first alleges that he cultivated cannabis at Brightwater in March 2004.   The second is a charge of possession of cannabis for the purpose of supply at his home at Brightwater on

24 March 2004.   The third is a charge that on 8 September 2003 at Auckland he imported cannabis seeds into New Zealand.  This charge is not linked to the subject search warrant, and can be disregarded for present purposes.

[4]      The  affidavit  in  support  of  the  application  for  a  warrant  to  search  the appellant’s home at Brightwater was sworn and dated 20 March 2004.  The warrant was granted that day and executed on 24 March.

[5]      The body of the affidavit contained this:

1.    THAT my full name is Bruce Alan McLACHLAN and I am a Detective stationed at Nelson.  My duties are primarily within the drug field and I have 25 years experience within the Police.

2.    THAT cannabis is a class C controlled drug and it is either grown recreationally in small numbers for the personal use of the grower or in large numbers as a commercial enterprise.

3.    THAT Senior Constable Barry BIRD has received information from a source   that   he   regards   as   reliable   concerning   the   activities   of Mark VAN DER LINDEN.

4.    THAT the informant said that VAN DER LINDEN (six words deleted) was growing large plots of cannabis in the area of Jensens Bridge in the Golden Downs Forest area.

5.    (Two lines deleted)

6.    THAT in February 2004 Constable SAVAGE was an observer in an aircraft involved in Operation Ella, the national cannabis recovery operation.

7.    THAT Constable SAVAGE viewed three large plots of cannabis in the area of Jensens Bridge.

8.    THAT he obtained the GPS co-ordinates and in February 2004 a plot of

30 cannabis plants was recovered by Police.

9.    THAT subsequently two further plots were recovered by Police in the Jensens Bridge area and the construction of the cages that the plants were   contained   in   was   identical   to   the   initial   one   located   in February 2004.

10.  THAT I believe Mark VAN DER LINDEN was the cultivator for these three cannabis plots and that he will be responsible for cultivating cannabis in other locations.

11.  THAT  Mark  Anthony  VAN  DER  LINDEN  resides  at  119  Wairoa Gorge Road, Brightwater.   He has previous convictions but none for cannabis matters.

12.  THAT I believe a search at VAN DER LINDEN’s address will locate amounts of the class C controlled drug cannabis along with equipment or implements used in its cultivation.

13.  THAT I also believe the search will locate other items including maps, diaries and financial records that when analysed will provide evidence as to the cultivation and supply of cannabis.

14.  THAT Cultivation of Cannabis and Possession of Cannabis for Supply are both crimes punishable by imprisonment.

I THEREFORE APPLY for a search warrant to be issued in respect of the said building, carriage, vehicle, box, receptacle, premises or place situated at

119 Wairoa Gorge Road, Brightwater or upon the body of any person or

persons found therein or thereon.

[6]      The belief recorded in paragraph 12 was fulfilled, in that the search of the appellant’s address unearthed over three and a half kilograms of dried cannabis. When questioned concerning the find Mr van der Linden acknowledged that the cannabis was his and that it came from the Jensens Bridge area, but maintained that the cannabis plots did not belong to him.

[7]      Judge McKegg accepted that the affidavit was economical, but said:

It is my view that the affidavit was sufficient to support the beliefs that the judicial officer was required to have, although I accept the kindly criticism from  Mr  Zindel  that  the  affidavit  would  have  perhaps  been  more  user friendly if it had more clearly and perhaps in some different order of events, set  out the circumstances.    Nevertheless,  I find  that there  are  sufficient circumstances and I find that the warrant was properly issued, and the search is therefore properly conducted.

The arguments

[8]      Mr Zindel raised two arguments in support of his major contention that the affidavit was inadequate and that therefore the warrant should not have been granted, which rendered the search unlawful.   These were that the affidavit contained insufficient material to confirm that the informant was reliable and that its contents conveyed that the informant information preceded the aerial search during which the three plots were located.  This, counsel submitted, gave the informant’s information an  air  of  reliability  which  was  unwarranted,  since  as  became  apparent  during cross-examination at the District Court hearing, the information received from the informer in fact post-dated the aerial search.

[9]      On this basis counsel argued that both the real evidence obtained as a result of the search, and the admission which followed immediately upon a finding of the cannabis, should be ruled inadmissible, the latter being derivative evidence or “fruit of the poisoned tree”.

[10]     Mr  Horsley,  essentially  by  reference  to  the  expurgated  portions  of  the affidavit, contended that the affidavit was sufficient.   Hence, he supported the decision  of  the  Judge  below  that  there  was  no  illegality,  nor  was  the  search

unreasonable and, therefore, there was no basis for exclusion of the appellant’s admissions.

Discussion

[11]     We  agree  with  the  decision  of  the  Judge  that  the  affidavit,  although economical, was sufficient to establish the threshold requirement of reasonable belief that a search of the appellant’s home would produce material consistent with his involvement in cannabis cultivation and its sale.

[12]     That said, we are also of the view that the affidavit should have contained more in relation to the reliability of the informant, identified the date when the informant provided information to the police and should have indicated in more detail the circumstances in which the informant obtained the information and passed it on.  However, it is the case that the expurgations from the affidavit are relevant to both the issues of reliability and timing (the order of events).   In its unexpurgated form we consider the affidavit was just sufficient to satisfy the test of reasonable belief.

[13]     As we commented at the hearing, Mr Zindel was in the invidious position of advancing arguments  which  on  the basis  of the material  available to  him  were meritorious, but which suffered in light of the fuller information available both to the Court and to Crown counsel.   This, however, is an unavoidable and unfortunate predicament which arises when the necessity to protect the identity of an informer must prevail.

Result

[14]     For these brief reasons the application for leave to appeal is granted, but the appeal is dismissed.

Solicitors:

Zindels, Nelson for Appellant

Crown Law Office, Wellington