T v Police HC Wellington Cri-2009-485-81
[2009] NZHC 1396
•8 October 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-485-000081
BETWEEN T
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 6 October 2009
Counsel: R J Stevens for the Appellant
M W C Snape for the Respondent
Judgment: 8 October 2009
JUDGMENT OF WILD J
Introduction
[1] This appeal challenges a ruling given by Judge Ellis in the District Court at Wellington on 29 May admitting evidence obtained after a search warrant was executed on 15 October 2008.
[2] The appellant’s submission is that the application for the search warrant was misleading and deficient, to the extent that the warrant would probably not have been granted had the position been fully and properly disclosed.
[3] The principles as to search warrants are so well rehearsed as to preclude the need for any recitation of them. Judge Ellis identified the leading cases as the Court of Appeal’s decisions in R v Williams [2003] NZLR 207 and R v Kissling [2008] NZCA 559. Section 30 Evidence Act 2008 sets out the procedure a Court must
follow when considering whether to admit improperly obtained evidence.
T V NEW ZEALAND POLICE HC WN CRI-2009-485-000081 8 October 2009
Background facts
[4] On 14 October 2008 a Police Officer applied for a warrant to search a suburban house property in Wellington. The application was based on information from three sources.
[5] First, information provided on 12 October by Informant A, an anonymous telephone caller to the Police. From his balcony, this man said he could see about 30 small cannabis plants growing in a tray in a window of his neighbour’s house. He said the neighbour was a taxi driver who parked his taxi in front of his property. He said he knew what “weed” was, but was “on the straight and narrow now”. This person offered as his reason for calling “if I can’t have (cannabis), he can’t either”. He said he would text his “missus and let her know you (the Police) are coming down”.
[6] Of Informant A the application for the search warrant stated:
11I have had several dealings with Informant “A” during my police career and in the context of my previous dealings with this person I judge the information provided to me as credible.
12 I asked informant “A” what they meant by weed and they replied
“cannabis bro”.
13I have checked the criminal history of Informant “A” and they have two previous criminal convictions for possessing cannabis plant and one for possessing instruments. They have other drug related convictions.
14In my belief this strengthens the likelihood that Informant “A” has correctly identified the plants he has observed at (the address) as being cannabis plant.
[7] Secondly, observations by and further information obtained by the applicant officer when he went to Informant A’s property on 14 October. He spoke there to Informant B, the partner of Informant A. She told the officer that the taxi driver neighbour had just arrived home and that the officer would be able to see the cannabis plants from the balcony. When the officer and Informant B looked from the balcony they could not see the plants. Informant B told the officer that the plants must have been moved, because there were there “just yesterday”. She said that, by
“weed”, she and her partner meant cannabis. Although the officer could not see the cannabis plants, he could see, on the floor in the corner of the room, PVC sheeting similar to that he had seen used for indoor cannabis growing arrangements.
[8] The applicant officer stated that he had checked the criminal history of
Informant B and she also had drug convictions, though not for cannabis.
[9] The officer stated that he had observed, while at the Informants’ property on
14 October, a taxi parked in front of the neighbouring address. He gave the taxi’s registration number and the name of its owner. He listed the type of criminal convictions the taxi owner had: none were for drug offences.
[10] The officer then stated:
36I believe that the information provided by both Informant “A” and Informant “B” is accurate in that they both have a considerable history in the use and handling of various drugs and are both likely to be able to identify cannabis plants on sight.
37 …
38I believe that a search of (the address) will recover cannabis plant or plants, pots, containers, trays or other receptacles used for the cultivation of cannabis, nutrients, fertilizers or other horticultural chemicals and equipment used for the cultivation of cannabis, documents relating to the growth cycle, use, possession of, or disposal of the cannabis plant.
[11] Thirdly, the information provided to the officer by Informant B, as I have detailed it in [5] to [10].
Alleged defects in the application
[12] Mr Stevens submitted the application was defective in three respects. First, the obvious implication in paragraph 11 of the application (set out in [6] above) was that the applicant officer’s previous dealings with Informant A comprised Informant A providing the applicant officer with credible information about (unrelated) criminal activity on previous occasions. Supporting this implication was the fact that the applicant officer had raised Informant A’s criminal history in paragraph 13. This
seems to be a new topic, so that a reader would assume that the “previous dealings” the applicant officer had referred to in paragraph 11 were not in connection with Informant A’s own previous criminal convictions.
[13] Secondly, although paragraph 13 disclosed that Informant A had previous convictions for drug offences, it did not mention that he had:
• A total of 66 convictions (spanning the previous nine years).
•Some 32 convictions for offences involving dishonesty, including 1 for aggravated robbery, 3 for burglary, 8 for theft, 1 for shoplifting, 6 for converting motor vehicles, 1 for breaking and entering and 1 for receiving.
•Several convictions for violence including eight for assaults and two for intimidation.
[14] Thirdly, it did not disclose that Informant B also had convictions for dishonesty, namely 5 convictions for obtaining by deception (all of them involving money or goods exceeding $1,000 in value).
Onus on the appellant
[15] The issuer of the search warrant needed to be satisfied that the application established reasonable grounds for believing that cannabis plants were being cultivated by the informants’ neighbour. Although search warrants are granted constantly, they are never to be granted lightly: R v Briggs [1995] 1 NZLR 196 (CA). For instance, mere suspicion that grounds for belief exist is not enough: Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663 and R v Sanders [1994]
3 NZLR 450 (CA).
[16] In practical terms, the appellant needed to persuade Judge Ellis that, had the full position been disclosed, the application would probably not have been granted, and thus no search warrant issued. Differently expressed, the appellant had the onus
of persuading the Judge that the issue of a search warrant would have been unlikely had the application:
a) Made it clear that no previous information had been provided to the Police by Informant A i.e. that there was no history of Informant A providing reliable information to the Police about criminal activity.
b)Disclosed that both informants had convictions for dishonesty offences.
Was the onus discharged
[17] I am not persuaded that that would have been the probable outcome. I see at least six factors that would likely have persuaded the officer to whom the application was directed to issue a search warrant. First, the information given by Informant A was an “eye witness” account. He was a neighbour of the alleged cannabis cultivator. Informant A disclosed his motive: he had been caught cultivating cannabis, so his neighbour should be too.
[18] Secondly, Informant A clearly knew cannabis plants when he saw them. He had himself been involved with cannabis in the past. Paragraph 36 of the application made that point.
[19] Thirdly, Informant A’s lengthy record of committing offences of dishonesty does not seem to undermine the reliability of the information he gave or his reliability as the informant giving it. It certainly would have established that Informant A had committed a lot of offences involving dishonesty, some of them serious indeed. But it does not follow that information given by Informant A about cannabis he claimed was being cultivated by his next door neighbour should be discarded. While I do not share the applicant officer’s view that Informant A’s history of dishonesty offending was irrelevant, I at least understand why the officer could have held that view.
[20] Fourthly, Informant B’s statements to the applicant officer when he visited her home on 14 October corroborated the information Informant A had given the Police two days earlier. To be weighed against that was the fact that Informant B was the partner of Informant A, and she also had convictions for dishonesty, as well as convictions for drug offences (although they appear not to relate to cannabis).
[21] Fifthly, there were the observations of the applicant officer when he visited the informants’ address on 14 October. Although he could not see any cannabis plants, he could see the window indicated by Informant B from her balcony. And through that window he could see PVC sheeting on the floor of the room, sheeting which the officer recognised as similar to that he had seen used previously for the indoor cultivation of cannabis. Further, though a peripheral point, he saw a taxi parked outside the neighbouring address.
[22] Sixthly, the information from Informant A was very current. He said the cannabis plants were in the neighbour’s window to be seen. This was not a case of stale information being provided, as in Williams or R v Rock [2008] NZCA 81 (although in the latter case the explanation for the 6 months delay was implicit in the application ([59]).
[23] It emerges, from decisions of the Court of Appeal in this area, that evidence of the reliability of the informant will not always be necessary, if other relevant factors are present indicating the reliability of the information. One example is R v Burns [2002] 1 NZLR 204 (CA) where the Court stated:
[16] The issue of informant reliability often arises. It is however but one factor in the broader inquiry whether sufficient information has been presented to entitle the issuing officer to be satisfied there is reasonable ground for believing the necessary matters to justify the issue of a warrant. The information advanced is likely to vary in its reliability. Matters such as the degree of precision of the information, its freshness, the manner and circumstances in which it was obtained, its source and its inherent quality, may bear upon its reliability, as well as the previous reliability of a particular informant. An entirely reliable informant may not previously have provided information to the police, yet information given, such as a clear eye witness account, may well provide reasonable ground for believing a search warrant is justified. Absence of evidence that an informant has proved reliable in the past will not of itself invalidate a warrant. The evidence supporting the application must be assessed as a whole against the statutory requirements.
[24] Another case is R v Jensen CA160/95, 25 October 1995, where (as in this case) the application for a search warrant was made on the basis of information received from two informants. There was nothing in the application on which the issuing officer could assess their personal reliability. One of the informants stated that they had seen a shed which had been converted into a cannabis growing operation, and seen a number of mature plants inside. The Court found that as this information was specific, based on an alleged eye-witness account rather than gossip, and corroborated by the second informant. The Court’s assessment was that the totality of the information before the issuing officer was sufficient for the purposes of s 198 Summary Proceedings Act 1957, notwithstanding the total absence of information about the informants’ personal reliability.
[25] In Williams the Court of Appeal went out of its way to outline, for the benefit of the Police, sound practice for applications for search warrants. I am unsure how many Judges, subsequently, have expressed their disappointment and frustration that applications departing from sound practice continue to be made. The application here should not have been marred by the defects of which Mr Stevens complains. But I have to deal with the application as it was made. I consider the position here is as it was described by the Court of Appeal in R v Norgate CA48/04, 21 June 2004:
[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 s 204 of the Act.
[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.
[26] There comes a point, of course, when an application for a search warrant is so defective that the evidence obtained as a result of its execution must be ruled improperly obtained. R v Rock (referred to in [22]) was such a case. There, the application provided misleading information on a crucial point ([39] and [41]). I have held that that is not the case here, so Rock is distinguishable on its facts.
[27] It follows that I do not accept that it is probable that an application for a search warrant which was marred of which Mr Stevens complained would have failed. I think it likely that it would have been granted.
[28] I therefore do not need to carry out the exercise now mandated by s 30
Evidence Act. I merely record Mr Snape’s concession that the Police would have been in some difficulties had I reached that stage. That is a realistic view. For an unlawful search of a residence yielding the only evidence of fairly minor offending (the sentence imposed was 60 hours community work), the result of the s 30 exercise could only have been exclusion of the evidence.
Result
[29] The appeal is dismissed.
Solicitors:
Fanselows, Wellington for the Appellant
Crown Solicitor, Wellington for the Respondent
0
2
0