The Queen v Black

[2006] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

CA50/06

THE QUEEN

v

MELVILLE BRUCE BLACK

Hearing:17 July 2006

Court:Glazebrook, Chisholm and Wild JJ

Counsel:J H M Eaton for Appellant

A Markham for Crown

Judgment:20 July 2006 

JUDGMENT OF THE COURT

LEAVE TO BRING THIS APPEAL, WHICH IS AGAINST A PRE-TRIAL RULING, IS GRANTED, BUT THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]       This is an appeal against a ruling of Judge MacAskill given in the District Court at Christchurch on 20 January 2006.  Upon an application under s 344A of the Crimes Act 1961, the Judge ruled admissible evidence obtained by the Police when they executed a search warrant at the appellant’s home in Christchurch on 8 April 2005.

[2]       Mr Eaton advanced the appeal on two broad grounds.  The first related to the appellant’s allegation of bad faith by the Police in obtaining the search warrant.  The appellant had alleged to the Judge that there was no informant and no information, the application for the search warrant thus lacking its claimed foundation.  Mr Eaton argued that the Judge should have required the Crown to call the two Police Officers involved in the application for the search warrant so he could cross-examine them.  Alternatively, in the absence of evidence from those two officers, Mr Eaton submitted the Judge should have inferred bad faith, finding that the Police had concocted their evidence of an informant and information, held that the search warrant ought not to have been granted, and excluded the evidence obtained when the warrant was executed.

[3]       Mr Eaton’s second and alternative submission was that the application for a search warrant did not disclose “reasonable grounds to believe” that evidence would be found at the appellant’s home. 

[4]       A difficulty for Mr Eaton in arguing these grounds, both before Judge MacAskill and, on appeal, before us, was that Mr Eaton had only a heavily redacted version of the application for the search warrant.  All those parts of the application which might lead to the identification of the informant had been blacked out.  Judge MacAskill had upheld this, in order to protect the identity of the Police informant.  While Mr Eaton did not challenge that, assuming of course that there was an informant, it made Mr Eaton’s task far from easy, both before the Judge and on appeal to this Court.  This is not a satisfactory position for counsel for an accused.  Where appropriate, it could be overcome by the Court appointing an amicus who could argue the accused’s case in a fully informed way, but free from any obligations of disclosure to the accused.  We are satisfied we can deal with this case without taking that course.

[5]       Before dealing with the two grounds of appeal, we give some factual background.

Factual background

[6]       The Police evidence was that on 7 April 2005 Detective Sergeant Fisher received a telephone call from an anonymous informant.  The informant gave the appellant’s address and a description of him.  Although the content of the information given to the Detective is not in the redacted version of the application, it can safely be assumed that it was information to the effect that the appellant was involved in dealing in cannabis from his home.  We say that because the redacted version of the application first stated:

2.The informant stated that (the appellant) lived at 28 Larch Place, Christchurch. 

[7]       Then, in its paragraph 9, the application stated that the appellant was “well known” to the Police and had four previous convictions for possession for supply of cannabis, six for selling cannabis and one previous conviction for permitting premises to be used contrary to the Misuse of Drugs Act 1975.  Those convictions were between 1989 and 1996. 

[8]       The application then concluded:

10.      The Police believe a search warrant is required so as to enable them to enter and search the addresses of 28A and 28B Larch Place, Christchurch and to seize controlled drugs, namely cannabis, and paraphernalia relating to the cultivation, sale/supply and using of cannabis.

[9]       Without making any note of what the informant had told him, Detective Sergeant Fisher instructed Constable Kyne to apply for a search warrant, which the Constable did.  Constable Kyne did not make any note of the information the Detective had relayed to him.  There was no communication direct between the informant and Constable Kyne.

[10]     The expurgated version of the application discloses that, before applying for the search warrant, the Constable checked:

(a)The appellant’s address and telephone number, presumably against the Christchurch telephone directory.

(b)Police records as to the appellant’s address, the Constable also ascertaining (or confirming) that search warrants had been executed at that address on previous occasions.

(c)The appellant’s previous criminal record.

Allegation of bad faith by the Police

[11]     As with the second ground of appeal, this first ground is founded on the combined effect of several aspects of the Police evidence and/or the content of the application for the search warrant.  We deal with each aspect individually, before considering their combined effect.

The date of the informant’s telephone call

[12]     The application stated:

1.On Wednesday, 6 April 2005 Detective Sergeant Fisher received a phone call from an anonymous informant.  …

[13]     In evidence at depositions Detective Fisher stated that the phone call was on 7 April.  While accepting that there was no evidence of mistake by either Police Officer, the Judge inclined to the view that Constable Kyne was in error, as his affidavit in support of the application was hearsay.  The Judge held:

…  But, whatever the correct position, I do not regard this discrepancy of being of such significance that it calls into question the reliability or sufficiency of the evidence before the issuing officer.

[14]     We agree with the Judge, particularly as there was only one day’s difference between 6 and 7 April.  A different view may have been appropriate if the discrepancy was a longer period.

Lack of notes

[15]     As we have said, neither the Detective nor the Constable made any notes.  The Judge viewed this as unsatisfactory but, having regard to the rapidity with which the application was prepared and sworn, he was satisfied that it accurately recorded the information actually provided by the informant.

[16]     Ms Markham accepted that the lack of any notes by the Police Officers was not ideal police practice.  This is a proper concession, but the rapidity to which the Judge referred is such that the application effectively doubles as a contemporaneous note of what the informant said, albeit in double hearsay form.

Hearsay

[17]     We do not accept Mr Eaton’s criticisms of Detective Fisher for not himself preparing the application.  Few, if any, organisations as large as the Police could function efficiently if tasks were not delegated to the appropriate level.  Provided Detective Fisher fully and accurately briefed Constable Kyne, and provided the Constable accurately summarised the information in the application (and there is no evidence to the contrary), we do not accept that Detective Fisher can be criticised for delegating preparation of the application to the Constable.  The first paragraph of the application (set out in [12] above) made it clear that it was Detective Fisher who had received the telephone call from the informant.  The Deputy Registrar who granted the application was therefore aware that the Constable’s evidence was double hearsay.

Anonymity

[18]     The first paragraph of the application referred to “an anonymous informant”.  At the depositions hearing, Detective Fisher referred to a “confidential” informant.  The Judge said this:

There is no material before the Court to show that the identity of the informant was actually known to the Police, but I am satisfied that, if it was not known, the informant was at least one of a very limited group of persons whose reliability might be sufficiently assessed by the issuing officer, when taken with the limited inquiries made by the Police.

[19]     We agree with this assessment, which the Judge made with the benefit (shared by us) of the unexpurgated application.  The Police were entitled to have confidence in the reliability of the informant and the information given because of the way in which the informant described himself/herself and the detail of the information given.  Whilst we accept the difference between an informant known, and one unknown, to the Police, the informant’s identity may not and need not be the factor most important in the Police assessing reliability.  For example, a very detailed account by an eye witness who claimed to be a member of the offender’s family, or a close friend or colleague, or a neighbour, but who did not wish to identify herself, may be more compelling than sketchy information from a known Police informer.

Appellant’s address

[20]     The application refers in paragraph 2 to the appellant living at 28 Larch Place, in paragraph 6 to 28A Larch Place and in paragraph 7 to Flat B, 28 Larch Place.  The Judge held that:

…  The excised portions of the affidavit sufficiently explain the connection between the defendant and his alleged drug offending and the two addresses searched, Flat A and Flat B, 28 Larch Place.

[21]     We agree.  Expurgated paragraph 8 of the application contains this sufficient explanation.

Failure to take time to make proper inquiries to corroborate informant’s information

[22]     Mr Eaton submitted that the evidence established that no Police Officer made “any inquiries whatsoever” in order to corroborate or otherwise investigate the informant information.  Even on the expurgated version of the application available to Mr Eaton, this is not correct.  The Police checked their records about the appellant:  his address, whether search warrants had previously been executed at that address, and the appellant’s previous criminal record.  And the Police then cross‑checked that address against the telephone directory.

[23]     Mr Eaton also made the point that the Police had not made any attempt to confirm the bona fides of the informant, nor checked with the supplier of electricity to 28 Larch Place, whether high electricity consumption might indicate an indoor cannabis growing operation.  The latter point assumes that the information indicated unlawful activity involving high electricity consumption, which may not be the case.  Mr Eaton also stressed that the information the Police had received was not of the type which demanded an urgent Police response.

[24]     We do not accept these criticisms.  Given the category the informant fell into (as the Judge described it, the “very limited group of persons”) and the detail of the information, we consider the Police were entitled to take their inquiries no further than confirming that the appellant was a known and convicted cannabis dealer who lived at the address given by the informant.  If further inquiries were not called for, the Police cannot be criticised for not taking the time to make them.  We observe that, while Mr Eaton is here criticising the Police for acting immediately, in other cases the converse has been the gravamen of the complaint.  See, for example, R v Cummings CA105/06 6 July 2006.

[25]     We do not consider that these various points, taken in combination, establish that the Police fabricated their evidence of an informant and information provided, to a level which might transfer to or impose upon the Crown an evidentiary burden to disprove fabrication, and/or positively to establish that an informant had telephoned Detective Fisher and given the information deposed to by Constable Kyne in the application.

[26]     It follows that we do not accept that Judge MacAskill ought to have required the Crown to call Detective Fisher and Constable Kyne and to make them available for cross-examination by Mr Eaton.  Similarly, in the absence of the Crown doing that, we do not accept that the Judge ought to have inferred fabrication leading to the exclusion of the evidence obtained when the search warrant was executed.

[27]     The first ground of appeal fails and we dismiss it.

Application did not disclose “reasonable grounds to believe”

[28]     Having considered the unexpurgated application, we agree with the Judge that it contained information which provided reasonable grounds to believe that evidence would be found at the appellant’s home at 28 (A or B) Larch Place.

[29]     As we have indicated, this alternative ground on appeal has a common basis with the first ground, and we need not consider that again.

[30]     Mr Eaton criticised paragraphs in the application as containing conclusory statements of the type this Court held in R v Pineaha (2001) 19 CRNZ 149 (CA) ought not to be included in an application for a search warrant.  Mr Eaton instanced paragraph 6:

Police enquiries reveal that Melville Bruce BLACK is living at 28A Larch Place, Christchurch.  He is currently on the phone to that address and his phone number is 359 6159.

[31]     This is not strictly a conclusory statement, in the sense of stating a conclusion without giving the facts upon which it is based.  Paragraph 6 gives the basis for the statement made i.e. Police enquiries (we accept the application does not explain precisely what they were) and (we have presumed) the telephone directory or inquiries of Telecom’s directory service.

[32]     Mr Eaton also criticised paragraph 10 (set out in [8] above) as employing an impermissible manner of expression.  Judge MacAskill, while stating that this paragraph was “not happily expressed”, considered it must fairly be read as indicating that Constable Kyne believed that the search warrant was required to enable the Police to seize items relating to drug offending – items that might be found at the appellant’s home.  We agree.  We read paragraph 10 as the Constable’s conclusion, or expression of belief, based on the nine paragraphs which precede it, and regard Mr Eaton’s criticism as unjustified.

[33]     We also agree with Judge MacAskill that the failure to delete the words “aircraft, ship” from the application was sloppy.  The same can be said of the word “carriage”.  But the sloppiness was without any consequence or risk of confusion on the part of, or illegitimate prejudice to, the appellant.  Nothing was searched which ought not to have been searched.

[34]     In submitting that the search warrant application was grossly deficient, a point made by Mr Eaton was that only cannabis was found at the appellant’s address, and then not in large quantity.  We have deliberately steered away from any reference to the evidence obtained upon the search warrant.  Mr Eaton criticised the Judge for referring to this evidence, seemingly as an additional reason for upholding the search warrant.  The evidence obtained upon execution of a search warrant granted under s 198 Summary Proceedings Act 1957 cannot have any relevance in determining whether or not there existed “reasonable grounds to believe” that evidence will be found at the location sought to be searched.

[35]     This second ground of appeal also fails and is dismissed.

Result

[36]     Leave to appeal the Judge’s pre-trial ruling is granted.  But, as neither ground of appeal has succeeded, the appeal is dismissed with the result that Judge MacAskill’s ruling on the admissibility of the search warrant evidence stands.

Solicitors:
Legal Services Agency, Wellington for Appellant
Crown Law Office, Wellington