The Queen v Anderson

[2006] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA200/06

THE QUEEN

v

KYLE RICHARD ANDERSON

Hearing:31 August 2006

Court:O'Regan, Williams and Heath JJ

Counsel:J P Temm for Appellant

M A Corlett for Crown

Judgment:18 September 2006 at 11 am

JUDGMENT OF THE COURT

The appeal against the pre-trial ruling delivered by Cooper DCJ in this matter on 12 May 2006 is dismissed.

REASONS OF THE COURT

(Given by Williams J)

Introduction

[1]       The appellant, Mr Anderson, faces an indictment in the Rotorua District Court charging that on 22 December 2005 he assaulted a Ms Ratahi and also cultivated cannabis, both at Rotorua.

[2]       Ms Ratahi was the appellant’s former partner who was at the address occupied by Mr Anderson on 22 December 2005 and, whilst there, discovered a hydroponic cannabis growing operation in a warehouse.  She also claims to have been assaulted by the appellant on that occasion. 

[3]       On 31 December 2005 she complained to Police about both the assault and the cannabis operation.

[4]       On 10 January 2006 Police obtained a search warrant and searched Mr Anderson’s property and found the premises set up for the indoor growing of cannabis with a number of cannabis plants growing in that room and entries on a computer at the address showing cannabis plants in various stages of cultivation.

[5]       The lawfulness of the search was challenged by Mr Anderson on the basis that the particulars contained in the affidavit in support of the search warrant application were inadequate.  Accordingly, it was said, the search warrant should not have been issued and the following search was unlawful.

[6]       Judge Cooper held the evidence of what was found as a result of the search admissible in an oral judgment delivered on 12 May 2006.

[7]       Mr Anderson appealed to this Court but as a result of exchanges between the Bench and counsel during the hearing and further inquiries undertaken by Mr Corlett for the Crown, Mr Temm, counsel for Mr Anderson, accepted that on the points argued in the District Court no basis had been made out for this Court to interfere with Judge Cooper’s decision.  However, for the reasons later appearing, it was agreed that a further challenge to the search warrant could be mounted in the District Court under the Crimes Act 1961, s 344A.  Mr Corlett accepted that, if further information were not available to the Crown for that further s 344A hearing, the Crown may have little option but to abandon the effort to have the results of the search declared admissible with the likely consequence being dismissal of the charge for cultivating cannabis.

[8]       The above may sound somewhat inscrutable to the reader who does not have the advantage of knowing the background to the appeal and accordingly a little explanation is warranted.

[9]       As mentioned, Ms Ratahi and Mr Anderson had been partners for about two and a half years up until towards the end of 2005.  They parted but she returned to the property on 22 December 2005 to try to regain her possessions.  In her depositions on the assault charge, she spoke of receiving relatively severe injuries as a result of an altercation between Mr Anderson and herself that day.  She left the Rotorua area and went to the Hawkes Bay to live.  There, on 31 December 2005, she made a statement to the Police in which she spoke of going to Mr Anderson’s premises on 22 December 2005 and, during the altercation, running into a warehouse at the premises where she opened a secreted room and “discovered his hydroponics cannabis growing system”.  She then spoke of an exchange between the two in which she was warned not to “tell anyone about the hydroponic system” for fear of retribution. 

[10]     She then said she visited the premises again on 23 December 2005 and went into the “room where the hydroponics were and smashed them up”. 

[11]     Ms Ratahi’s statement was sent by Hawkes Bay Police to their colleagues in Rotorua and on 10 January 2006 Constable Keepin applied for the search warrant for Mr Anderson’s premises, relying, as far as we are aware, entirely on Ms Ratahi’s statement as the basis for the statements in his supporting affidavit. 

[12]     The affidavit relevantly read:

Ratahi was at the address on the 22^nd of September 2005 and spoke personally with Anderson.

During the discussion, Ratahi became fearful for her safety so she ran to the warehouse at the address.

While in the warehouse she discovered a substantial hydroponics operation being used to cultivate cannabis.

The room was located off the main warehouse and is about the size of a bedroom and is full of mature cannabis plants and the equipment associated with growing cannabis.

On Friday 6^th January 2006, Ratahi went back to the address.  Cannabis plants were still there.

Ratahi says that she has seen cannabis plants previously and is confident that the plants she observed at the address of 59/1 Pururu Street, Rotorua are in fact cannabis plants.

I believe a search of the address will reveal a room used for cultivating cannabis, cannabis plants and equipment for cultivating cannabis.

[13]     The District Court Judge noted that the reference to the visit on 6 January 2006 was an error for the 23 December 2005 visit. 

[14]     Mr Temm submitted that a number of the statements in the affidavit were either exaggerations or could not have been based solely on Ms Ratahi’s statement.  Those included the suggestion that it was a “substantial” hydroponics operation in a room “about the size of a bedroom” which was “full of mature cannabis plants”.  He made the point, correctly, that while Ms Ratahi’s statement speaks on several occasions of her seeing hydroponic equipment at the premises, it never expressly refers to her seeing cannabis plants there. 

[15]     He relied on decisions such as R v McColl (1999) 17 CRNZ 136, at [20] that there is a well-settled obligation on those swearing affidavits in support of search warrant applications not to present a “selected or edited version of the facts” and to “present the full picture to the judicial officer”. 

[16]     Whilst Mr Temm emphasised that he made no allegation of bad faith concerning Constable Keepin, he nonetheless relied on the differences between Ms Ratahi’s statement and the affidavit as supporting his argument that the evidence obtained by the search was unlawfully obtained as the affidavit did not comply with the legal obligations of the deponent.  The affidavit, he submitted, contained a certain “anorexia” in its treatment of the facts.  Even though this was a case where, somewhat unusually, the Police informant was named in the affidavit, he submitted the drafting could have been substantially improved so as more accurately to reflect exactly what Ms Ratahi told the Hawkes Bay Police: R v Poelman (2004) 21 CRNZ 69 at[26]-[29].

[17]     For the Crown, Mr Corlett submitted that Judge Cooper’s decision was correct having regard to the way in which the matter was argued in the District Court.  He said the appellant was now presenting the case on a different footing.  The appeal should not be dealt with on the supposition that Ms Ratahi’s statement was the sole source of the information appearing in Constable Keepin’s affidavit. 

[18]     As a result of that submission, the hearing was adjourned over the luncheon adjournment while further inquiries were made.

[19]     When the hearing resumed, we were advised that Constable Keepin was no longer a member of the Police and the Crown had been unable to contact him in the brief period allowed and Constable Wi Repa of the Napier Police, who had taken the statement from Ms Ratahi, was apparently off work sick but had told Mr Corlett he had virtually no recollection of what had occurred.  Mr Corlett said Mr Temm’s initial letter challenging admissibility on the basis that Constable Keepin’s affidavit was “insufficient to meet current legal tests applicable” failed to elucidate the point argued before us and submitted it would not be right for the appeal to be determined on the basis for which Mr Temm now contended when, for all Mr Corlett had been able to discover, there might have been additional information available to Constable Keepin at the time he swore the affidavit which resulted in the affidavit being in the form presented to the issuing officer.

[20]     As a result of that exchange, Mr Temm accepted that, based solely on the material placed before Judge Cooper, there was no basis (apart from the date error) on which he could realistically ask this Court to interfere with the Judge’s ruling that the evidence obtained on the execution of the search warrant was admissible. 

[21]     For those reasons, as mentioned, at the hearing we indicated that we would dismiss the appeal but in the expectation that a further challenge to the admissibility of the evidence obtained on the execution of the search warrant would be mounted by Mr Temm, the facts surrounding the preparation and form of the search warrant affidavit would be more fully investigated and then, if thought appropriate, a further s 344A application would be filed and the new challenge argued afresh in the District Court with, of course, appeal rights preserved depending on the outcome.

Result

[22]     Though it is unfortunate that this matter may have to follow the course just outlined, it appeared to us that the course proposed was the only course realistically open in the circumstances.

[23]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington