Snow v Police

[2019] NZHC 2782

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000016

[2019] NZHC 2782

BETWEEN

CRAIG ANDREW SNOW

Plaintiff

AND

NEW ZEALAND POLICE

Defendant

Hearing:	23 September 2019
Appearances:	C M Andersen for the Appellant R P Bates for the Respondent
Judgment:	30 October 2019

JUDGMENT OF NATION J

Introduction

[1]    Mr Snow faces charges of possession of cannabis, possession of ammunition and possession of a firearm. The charges were based on evidence obtained on 20 April 2018 pursuant to a search warrant.

[2]    In the District Court, Mr Snow challenged the admissibility of that evidence. Judge Crosbie ruled the evidence was admissible.1 His Honour found that the search warrant was invalid and the evidence improperly obtained. Despite that, his Honour found the evidence was admissible under the balancing test in s 30 Evidence Act 2006. Mr Snow appeals that decision.

1      Police v Snow [2019] NZDC 6039.

SNOW v POLICE [2019] NZHC 2782 [30 October 2019]

Leave to appeal and principles on appeal

[3]    Section 79 Criminal Procedure Act 2011 provides for the making of orders as to admissibility of evidence. Appeals against pre-trial evidential decisions made under s 79 in Judge-alone cases are governed by s 215 Criminal Procedure Act 2011. Leave of the first appeal Court is required.

[4]    The evidence in question is fundamental to the prosecution case against Mr Snow. His is not a case where the issue is best dealt with by an appeal post-conviction. There is no reason why leave should not be granted. There is no opposition to leave being granted. I grant it accordingly.

[5]    The appeal proceeds by way of an oral hearing and, pursuant to s 221 Criminal Procedure Act, the Court has broad powers to confirm, vary or set aside the decision subject to the appeal.

[6]    An appeal under s 221 is a general appeal. Admissibility decisions involve questions of law, not discretion. Accordingly, I must make my own assessment as to the admissibility of the evidence.2

Background

[7]    Section 6 Search and Surveillance Act 2012 provides for an issuing officer to issue a search warrant:

6 Issuing officer may issue search warrant

An issuing officer may issue a search warrant, in relation to a place, vehicle, or other thing, on application by a constable if the issuing officer is satisfied that there are reasonable grounds—

(a)to suspect that an offence specified in the application and punishable by imprisonment has been committed, or is being committed, or will be committed; and

(b)to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application.

2      R v Gwaze [2010] NZSC 52, [2010] 3 NZCR 734; Hodgkinson v R [2010] NZCA 547 at [47].

[8]    An application was made for the issue of three search warrants on 9 April 2018. The application was made for warrants enabling the Police to search places at:

(a)   12 Panmure Avenue, Calton Hill, Dunedin City;

(b)   10 Panmure Avenue, Calton Hill, Dunedin City; and

(c)   14 Grant Dalton Street, Mosgiel, Dunedin City.

[9]    The application was made by an experienced detective in the Criminal Investigation Branch (CIB). The application was supported by information provided by the detective. The application included the normal statement as to verification in which he confirmed the truth and accuracy of the contents of the application. Warrants were granted on 9 April 2018. The warrants were for searches to be executed within 14 days from the date of issue.

[10]   On 19 April 2018, the application for search warrants was resubmitted but sought a warrant for 12 Grant Dalton Street, Mosgiel rather than 14 Grant Dalton Street, Mosgiel. The Police found they had been mistaken in thinking one of the people of interest had been residing at 14 Grant Dalton Street.

[11]   Mr Snow assisted the Police officers in the execution of the search warrant at his address at 10 Panmure Ave on 20 April 2018. As a result of the search, the Police located three grams of cannabis, a sawn-off double barrel shotgun and 39 rounds of 12-gauge ammunition.

[12]   Mr Snow was charged with possession of cannabis, possession of ammunition and possession of a firearm. It is the evidence obtained during that search which led to the charges Mr Snow faces and which he sought to have ruled inadmissible.

[13]   On 12 July 2018, Mr Snow’s counsel advised there would be a challenge to the validity of the warrant. On 20 July 2018, Police applied for an order that the evidence obtained from the search be ruled admissible and filed an application per s 78 Criminal Procedure Act to have the evidence admitted.

[14]   On 27 August 2018, the defence applied to have redactions in the search warrant application dated 9 April 2018 reviewed. His Honour Judge Phillips subsequently directed that Amicus be appointed to do this. On 8 October 2018, a barrister Tim MacKenzie was appointed by the Court. Mr MacKenzie was forwarded all relevant documentation from the Court file, including a copy of the unredacted warrant applications from both 9 April 2018 and 19 April 2018.

[15]   There was a hearing on 11 February 2019 as to the validity of the search warrant and the admissibility of evidence obtained.

[16]   Before the hearing, Mr MacKenzie filed written submissions. At the outset of those submissions, he said he had taken the view he should assume the role of defence counsel in carrying out the task asked of him.

[17]   The search warrant application included information provided by an informant. In relation to the informant’s comments, Mr MacKenzie, in the advocacy role he had adopted, suggested it could be statistically shown that the informant was unreliable.

[18]   The application referred to the informant having provided 120 information reports. It gave specific examples of where those reports had been used to obtain a search warrant which had led to the location of drugs and drug paraphernalia, and a person being dealt with by the Police based on what was found. Mr MacKenzie argued that, of the large number of information reports given by the informant, there had only been a handful of successful searches. He thus sought to dismiss the informant as unreliable.

[19]   Mr MacKenzie referred to information provided by the Police as to there being two security cameras on the outside of the home at 10 Panmure Ave. He was critical of the fact that Police had provided no information as to the type of cameras, when and who had installed them or as to their application. He submitted that, with security cameras now more readily available and installed in normal household situations, the information as to the presence of surveillance cameras added little to justify a suspicion of offending.

[20]   Mr MacKenzie made submissions criticising the Police for the way he argued they had elevated the presence of the cameras as a main plank for their suspicion.

[21]   A major criticism put forward by counsel was that the search warrant stated that Mr Skerten, a person with cannabis convictions, may have lived at 10 Panmure Ave. Mr MacKenzie sought to attack this information on two grounds. First that Mr Skerten had only historical cannabis convictions, and second that the police knew or ought to have known that Mr Skerten was not residing at the address.

[22]   He argued that the information was misleading in that it could have suggested to the issuer that Mr Skerten had recent convictions for cannabis-related offending. Mr MacKenzie had ascertained from the Police that Mr Skerten’s previous convictions were only for low-level cannabis offending and his last conviction was in 1999. He submitted the Police were in breach of the fundamental duty of candour required in making an application for a search warrant. He submitted that, if the Police had disclosed the historical nature of Mr Skerten’s cannabis convictions and the fact they were only for possession and not for supply, on that basis alone, the issuer may not have granted the application.

[23]   Mr MacKenzie referred to relevant authorities in discussing concerns he had as to the information provided by the informant. He submitted the information in the application was capable of misleading the issuer and fell short of leaving the issuer with reasonable grounds to suspect the alleged offending and that evidential material would be found at the address.

[24]   Written submissions were filed by the Police prosecutor. There was nothing in those written submissions to suggest the prosecutor took issue with the submissions made as to the adequacy of the information in the application and the criticisms Mr MacKenzie had made of it. The prosecutor said he would address the information orally at the hearing. The thrust of his written submissions was that, even with the criticisms made by Mr MacKenzie, the warrant could still be ruled valid.

The District Court decision

[25]   In his decision, Judge Crosbie first considered whether the search warrant was valid. He said the warrant was essentially based on three factors:3

(a)   The informant’s comments about being in the vicinity and being aware of matters that indicated offending in the nature of drug supply or availability at 10 Panmure Avenue;

(b)   The fact that there are security cameras on 10 Panmure Avenue; and

(c)   That Mr Skerten, with historical cannabis convictions, may have lived at 10 Panmure Avenue.

[26]   As to the informant’s reliability, the judge said the decision leant in favour of the defendant. Limited information about the informant’s reliability was provided. He said it appeared that most of the information he had previously supplied did not result in searches or charges being laid. He referred specifically to the informant having submitted 120 information reports and these leading to only four searches that had recovered evidence of offending.

[27]   The Judge referred to Mr MacKenzie’s criticism as to the information the Police provided as to a Mr Skerten residing at 10 Panmure Ave, noting the address conflicted with Court records that had Mr Skerten residing outside of Dunedin. The Judge also considered there was some force in Mr MacKenzie’s submission that, had the Police been given a full and correct picture as to his offending, it was unlikely much weight would have been placed on the historical cannabis convictions. He noted the submission made as to the presence of the camera and acknowledged that, while it might be coupled with other evidence, it should not have been posed as a main plank for the suspicion. The Judge concluded:

[21] When viewed globally, the combined effect of the  information  provided in support of the application was on the margins and did not provide information that properly established the necessary linkage between the evidence of a crime, the people and addresses searched, and 10 Panmure Avenue. I do not consider that imprecise and uncorroborated, statements, historical convictions and the presence of a security camera quite reached the “reasonable suspicion and belief” thresholds required for a search warrant, although I accept that an inference might well have been there.

3      Police v Snow, above n 1, at [18].

[28]   The Judge concluded that the search warrant was invalid, and the evidence was therefore improperly obtained. He then moved on to consider whether, under s 30 Evidence Act 2006, the exclusion of the evidence was a proportionate response to the impropriety.

[29]   The Judge set out the importance of the rights breached and focused on the breach of the right to be free of unreasonable search and seizure. He cited Hamed v R where the Court set out the right as protecting the values of property, personal freedom, privacy and dignity.4

[30]   In terms of the nature of the impropriety, the evidence before the Court was that Mr Skerten had an alternative address in Kaitangata although was linked to Panmure Ave. The Judge considered it would have been preferable for Police to have disclosed the Kaitangata address. The Judge added however that it was unlikely the issuing officer’s decision would have turned on that issue. He said there was nothing to suggest the information was intentionally withheld. The judge referred to Mr MacKenzie’s submissions as to the “duty of candour on the Police and how a failure to observe the duty should not be too readily dismissed on the basis of immateriality”. The Judge said that, while there was conduct possibly approaching a “breach of candour” in the way Mr Skerten’s previous convictions were conveyed, it was a matter more of form than of substance. The Judge concluded the breach was not deliberate or reaching the point of being reckless.

[31]   The Judge said the nature and quality of the evidence was crucial to the case proceeding. He said he did not accept Ms Andersen’s submission that the cannabis and ammunition found was not what was sought by Police. It is correct that Police deposed to believing the property was a safe house for storing cannabis for a gang. However, cannabis, a sawn-off firearm and ammunition may be regarded as indicia of dealing. The many cases the Court sees involving drug dealing suggests drugs are often received and disposed of by dealers quite quickly as opposed to them operating storage facilities. With no legitimate explanation being offered by the defendant for possession of a sawn-off shotgun and ammunition, the quality of the evidence obtained

4      Hamed v R [2011] NZSC 101 at [174] and [263].

was strong in relation to a house considered to be used in connection with dealing in drugs.

[32]   The offending was serious. While the cannabis found was offending at a low level, the sawn-off shotgun and 39 shells found were another matter entirely. The Judge did not accept there was a legitimate basis for holding such a firearm. The Judge regarded the Arms Act offending as serious.

[33]   Judge Crosbie concluded that the right breached in this case was important. While the provision of information and evidence surrounding the application was arguably not thorough, the Judge said it did not amount to recklessness or deliberate impropriety. The Arms Act offending was serious, there could be no reasonable explanation for a person holding a sawn-off shotgun and a large amount of ammunition in these circumstances, or likely any circumstances. On that analysis, the Judge ruled the exclusion of evidence would be disproportionate to the impropriety and held the evidence was admissible.

Appellant’s submissions

[34]   Ms Andersen referred to what she said were appropriate criticisms made by Mr MacKenzie of the information provided by the Police in support of the application. Ms Andersen argued that the deficiencies in the application and the Police conduct amounted to gross carelessness. With reference to authorities, she submitted that, with the search warrant being invalid, the impropriety of the Police in obtaining evidence from the search was sufficiently serious to warrant the exclusion of the evidence obtained under the balancing exercise required by the Evidence Act.5

[35]   Ms Andersen referred to the factors which the Court had said in Underwood v R were to be considered in carrying out the balancing exercise. She stressed the need to take a long term view of what public confidence and integrity in the justice system required.6 She argued that what occurred was a serious breach of Mr Snow’s right to be free from an unreasonable search of his home.7

5      Evidence Act 2006, s 30.

6      Underwood v R [2016] NZCA 312.

7      Bill of Rights Act 1990, s 21.

[36]   Counsel submitted the Judge erred in not assessing the likely starting point for the offending with which Mr Snow was charged. In her written submission, she referred to the fact the firearm had not been loaded and was hidden in a hot water cupboard. She suggested there was no evidence from which an immediate risk to public safety could be inferred. She submitted the Court was incorrect in assessing the offending as serious.

[37]   Ms Andersen submitted there had been an error in the Judge having regard to the fact Mr Snow had not provided a reasonable explanation for the possession of a sawn-off shotgun and ammunition. She referred to the judgment in W v R as noting that the assessment of a violation of a person’s right is not dependant on the type of conduct undertaken by the accused.8

[38]   There was no error in the way the Judge referred to Mr Snow having no explanation for having a sawn-off shotgun and ammunition hidden in a cupboard. The firearm was, itself, illegitimate and not stored in a way that would have been lawful of anyone who has possession of a firearm.

Respondent’s submissions

[39]   Mr Bates, for the Crown, submitted the deficiencies in the information provided to the issuer of the warrant might have justified the Judge’s conclusion that there was not sufficient information to justify the issuing of a warrant. However, he said the finding of a lack of validity in the warrant could not be equated with a finding as to gross carelessness on the part of the Police.

[40]   The Crown submitted the Judge’s reference to information being “on the margins” and that “an inference might well have been there” was consistent with the Judge having concluded that the application was not seriously deficient.

[41]   The Crown submitted that, in the context of the s 30 balancing exercise, possession of a sawn-off shotgun and ammunition could rightly be classified as serious offending. The Crown referred to the recent judgment of Downs J in Natua v R as

8      W v R [2017] NZCA 522 (CA597/16).

indicating the starting point for the offending would likely be in the range of two to two and a half years’ imprisonment.9 The Crown submitted the Judge made no error in his assessment of s 30 matters and the ultimate conclusion that the evidence obtained from the search warrant was admissible.

Analysis

[42]   It was important for the Judge dealing with the matter to recognise that Mr MacKenzie was not purporting to provide an impartial, independent view in the submissions he was making.

[43]   It was apparent from the material before the Court that the information supplied by the informant as to the current episode of alleged offending was through a number of discrete communications. Measuring the informant’s reliability by comparing the number of communications with the number of episodes where the Police could confirm the information provided was reliable and have successfully relied on it, was not a reasonable or relevant way of assessing the informant’s credibility. To illustrate the point, an informant might communicate with the Police five different times about a drug dealing operation. The communications might lead to just one prosecution or several prosecutions. It would not be fair to conclude that, with only one outcome as to how the information had been successfully relied on by the Police, the informant was correct as to only 20 per cent of the reports he had made to the Police.

[44]   I do not agree with the Judge’s view that only “limited information about the informant’s reliability was provided”. There was reference to the number of communications from the informant but also reference to a number of occasions when such communications had been relied on successfully by the Police, including a relatively recent occasion.

[45]   I consider the detective’s reasoning in the warrant application was sufficient to satisfy an issuer that the informant’s reports were sufficiently reliable. I also consider those reports provided a basis for a justified reasonable suspicion that people at 12

9      Natua v R [2018] NZHC 3278.

Panmure Ave were involved in cannabis dealing and they had been obtaining or storing cannabis for supply from a person or persons at 10 Panmure Ave.

[46]   I also consider Mr MacKenzie was incorrect in submitting the information from the informant “didn’t specifically raise Mr Snow’s address (10 Panmure Ave) at all”. Similarly, I would not have accepted the criticisms Mr MacKenzie had made as to the failure of the Police to provide more information about the security cameras.

[47]   The Police were applying for a search warrant to go to 10 Panmure Ave. It is hard to see how they could have obtained the information Mr MacKenzie said they should have provided before they had been able to go onto the property and inspect the cameras which had been installed.

[48]   Reading the application, I would also not have accepted his submission that the Police had referred to the existence of the cameras “as a main plank for the suspicion”. The Police did, in their application, refer to the existence of these cameras but as an observation consistent with information provided by the informant.

[49]   The presence of two surveillance cameras could have been consistent with 10 Panmure Ave having a connection to cannabis offending of some sort. The presence of the cameras could also have been for innocent purposes. As Mr MacKenzie submitted, the presence of cameras could be relevant “as one component of many other stronger strands of evidence, leading to a suspicion of offending”. That is how it could reasonably have been considered by the issuer.

[50]   I do not consider there was any lack of candour in the way the Police referred to Mr Skerten who may have been living at 10 Panmure Ave at the relevant time. The Police were not suggesting that Mr Skerten was involved in drug dealing himself. In the application, the Police said it was their belief that “the address of 10 Panmure Avenue is being used to store cannabis and possibly other drugs for the occupants of 12 Panmure Avenue, Dunedin”.

[51]   In the application, the Police provided compelling information that Chelsea Linton was actively involved in cannabis dealing, was an associate of the Mongrel

Mob in Dunedin and was in a relationship with Christine Durham who was living at 12 Panmure Ave. In the application, the Police provided information that indicated Chelsea was obtaining cannabis from her mother Karen Linton who was the flatmate of Garth Tairi, a patch member of the Mongrel Mob Aotearoa, a person with 14 criminal convictions for either possession of cannabis, possession for supply, cultivating and selling cannabis. The Police thus had specific and corroborating information which further indicated the information provided by the informant appeared reliable.

[52]   The thrust of the application was that cannabis was being supplied from 12 Panmure Ave but with cannabis that could have been kept at 10 Panmure Ave. As was appropriate, the Police provided information as to who they understood could have been the occupants at 10 Panmure Ave. They referred to one of those occupants as being Mr Snow and referred to the fact he had only three convictions for driving- related matters. Although the Police referred to Mr Skerten having some convictions for cannabis, they said most of his offending was for dishonesty-related offences.

[53]   The Police could have provided more specific information as to the offending which led to Mr Skerten being sentenced to imprisonment on 21 December 2018. The Police could have referred to the specific nature of Mr Skerten’s cannabis offending but their failure to do so did not, in my view, demonstrate a lack of candour, nor would it have misled the warrant issuer.

[54]   I would not have accepted Mr MacKenzie’s submission that the issuer may have thought, from what was said in the application, that Mr Skerten was sentenced on 21 December 2018 for cannabis-related offending. The issuer could reasonably have assumed that, if that had been the case, it would have been specifically referred to.

[55]   In his decision, the Judge had referred to the Police information that Mr Skerten was residing at 10 Panmure Ave which conflicted with Court records that had Mr Skerten residing outside of Dunedin. The initial application for search warrants was made on 9 April 2018. On the basis of that application, warrants were issued to search 12 Panmure Ave, 10 Panmure Ave and 14 Grant Dalton Street, Mosgiel. On that

application, dated 9 April 2018, the Police told the issuer that Mr Skerten had been dealt with by the Police on 20 December 2017, had given his address as 10 Panmure Ave but said Court records suggested he had a Kaitangata address.

[56]   Later, the Police established that, although they had obtained a search warrant on 9 April 2018 to search 14 Grant Dalton Street, Mosgiel, they had ascertained the address of 14 Grant Dalton Street was not the address of Garth Tairi as they had suspected and that his correct address was 12 Grant Dalton Street. On 19 April 2018, the Police lodged a new application for a search warrant to search that address, but it included all the information which had been in the earlier application.

[57]   The information provided in respect of Mr Skerten was updated. The relevant paragraph then read:

Eric SKERTEN is aged 45 years and is well known to Police. He has a long list of criminal convictions, some of which are for cannabis but most of his offending is for dishonesty related offences. SKERTEN was dealt with by Oamaru Police on 20 December 2017 and appeared in the Dunedin district court on 21 December 2017. He was convicted of the offences he faced and is currently serving a prison sentence at the Otago corrections facility.

[58]   There was thus no reference to Mr Skerten being in prison for any criminal offending when a warrant to search 10 Panmure Ave was first issued but the Police referred to conflicting information as to where he might be living. Consistent with their duty of candour, when the Police filed a new but almost identical application to obtain a search warrant for 12 Grant Dalton Street, Mosgiel, they advised the Police that Mr Skerten was not living at 10 Panmure Ave. He was in prison.

[59]   In the application of 9 April 2018, the Police referred to information given by an informant as to cannabis dealing from 12 Panmure Ave. Information provided by the informant indicated the cannabis being sold from 12 Panmure Ave was being stored at Mr Snow’s property at 10 Panmure Ave. The information connected the supply of cannabis from 12 Panmure Ave with cannabis obtained from North Taieri, close to Mosgiel where one of the people of interest, Garth Tairi, was said to live.

[60]   As is appropriate, the information from the informant was in their own words. The information was provided with detail, in terms and with a consistency that would

have indicated to the issuer that the statements of the informant were genuine and credible. It was based on personal observations, and not vague assertions or hearsay. Provision of the information did not appear to be motivated by malice. In the application, there was a section in which the Police provided information to justify the Police and the issuer acting on information from the informant as reliable.

[61]   On my assessment of the information in the application, I consider the Judge was in error in saying that the application to search 10 Panmure Ave was based on the fact there were security cameras on the house and Mr Skerten, with historical cannabis convictions, may have lived there. I consider he erred in saying limited information about the informant’s reliability was provided.

[62]   The only respect in which I consider it could reasonably have been said there was a lack of candour on the part of the Police was with regard to the lack of information as to the precise nature and timing of Mr Skerten’s previous criminal convictions for cannabis offending but I do not consider any deficiency in the information as to that was either material, deliberate or properly to be categorised as gross carelessness on the part of the Police.

[63]   Contrary to the District Court Judge, I would have found that the information in the application was sufficient to satisfy the issuing officer that there were reasonable grounds to suspect the offences of selling or supplying cannabis had been or were being committed and that cannabis, and evidence of the commission of any offence of supply/possession for supply of cannabis, as detailed in the application, would be found at 10 Panmure Ave.

[64]   Having carefully considered the information in the application, I would not have summarised the information relied on to obtain the warrants as “imprecise and uncorroborated, statements, historical convictions and the presence of a security camera”. For the reasons discussed, I consider the information was more compelling than that.

[65]   The conclusions I have reached as to the adequacy of the Police application are also relevant to the s 30 Evidence Act evaluation which was at issue on the appeal.

[66]   I accept that, if the warrant to search 10 Panmure Ave was in fact invalid, the search of 10 Panmure Ave would have involved the breach of an important right, namely, the appellant’s right to privacy and protection of his home against an unlawful entry and search of the property. There is a public interest that the justice system does not condone serious breaches of rights by the Police committed deliberately or in reckless disregard of a defendant's rights or where Police conduct has been grossly careless. On the other hand, the administration of justice would also be brought into disrepute if any breach leads inevitably to the exclusion of crucial evidence which is reliable and probative of serious crime.10

[67]   To the extent it might be said there were deficiencies in the information the Police put in the application, I do not consider those deficiencies could be categorised as deliberate, reckless or grossly careless. I do not accept there was either a careless, reckless or deliberate lack of candour in the application. I do not consider there was anything misleading in the information included in the application. The information properly and fairly put before the issuer the information which the Police relied on to satisfy the issue that the grounds had been made out for the issuing of the search warrant applied for.

[68]   The evidence obtained from the execution of the search warrant was of high probative value, relevant to the case and reliable. The evidence obtained included the location of three grams of cannabis, a sawn-off double barrel shotgun and 39 rounds of 12-gauge ammunition. The evidence obtained is crucial to the Crown case. Without that evidence there will be no evidence to support the conviction of the charges the defendant faces. There is a public interest in conviction where there is evidence of offending. The public interest in allowing the evidence to be admitted in such a case is stronger the more serious the offending it relates to. Here, there are particularly serious charges as to the possession of the sawn-off shotgun and cartridges.

[69]   I accept that the lack of explanation was not relevant to any assessment of the seriousness of the breach of any rights. It was however relevant to the seriousness of the offence with which Mr Snow was charged.

10     R v Shaheed [2002] 2 NZLR 377 (CA); (2002) 19 CRNZ 165 at [148].

[70]   Ms Andersen, for Mr Snow, acknowledged that the starting point sentence for possession of the sawn-off shotgun and ammunition would be imprisonment and that offending can properly be categorised as serious. In the recent decision of Natua v R, Downs J summarised a number of cases in relation to firearms offending.11 Those decisions indicated that a starting point for the sort of offending that occurred here would be two and a half years’ imprisonment.

[71]   In R v Corner, the Court of Appeal referred to possession of a sawn-off single barrel shotgun and said:12

The possession and use of such weapons is utterly unacceptable and must be discouraged by the Courts. In the absence of special circumstances, it should be appreciated that possession of such weapons would normally lead to the imposition of a prison sentence and the more so if there is evidence to suggest that their use might have been contemplated in a criminal connection.

[72]   In the present case, the appellant was in possession of a sawn-off shotgun and ammunition. As identified by the District Court Judge, the sawn-off shotgun had no legitimate purpose. The possession of such an item is invariably linked with criminal activity.

[73]   I agree with the Judge that, if the warrants were invalid because they should not have been issued, so that the evidence obtained from the search of 10 Panmure Ave was improperly obtained, on the balancing exercise required by s 30, exclusion of the evidence would not be the proportionate response.

[74]   For all those reasons, there was no error in the Judge ruling the evidence admissible.

Conclusion

[75]The appeal is dismissed.

Solicitors:

C M Anderson, Barrister, Dunedin RPB Law, Dunedin.

11     Natua v R, above n 9.

12     R v Corner CA291/87, 17 March 1988.