The Queen v Connelly

[2007] NZCA 412

IN THE COURT OF APPEAL OF NEW ZEALAND

CA395/07
[2007] NZCA 412

THE QUEEN

v

ANTHONY JOHN CONNELLY

Hearing:17 September 2007

Court:Hammond, Robertson and Arnold JJ

Counsel:S G Bailey and A J Bailey for Applicant

A M Powell for Crown

Judgment:19 September 2007 at 2.30 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

[1]       The applicant pleaded guilty to one charge of receiving stolen property and one charge of unlawful possession of a firearm in the District Court at Christchurch.  He did so after Judge Green had ruled that certain evidence obtained during the course of a search conducted under warrant was admissible.  The Judge held that the search was illegal, but reasonable: Police v Connelly DC CHCH CRN 40090 36622-24 16 February 2005.  The applicant appealed against his convictions, on the ground that the Judge was wrong to find that the search was reasonable and that the evidence was thus admissible.  John Hansen J dismissed his appeal: Connelly v Police HC CHCH CRI 2006 409 000 230/231 1 May 2007.

[2]       The applicant sought leave from the High Court to appeal to this Court pursuant to s 144(2) of the Summary Proceedings Act 1957.  John Hansen J declined that application on 19 July 2007.  The applicant now seeks a grant of special leave from this Court under s 144(3). 

[3]       The approach to be applied in such a case is undisputed.  As Thomas J said in R v Slater [1997] 1 NZLR 211 at 214 - 215 (CA), the requirements are:

(a)       There must be one or more questions of law;

(b)The question(s) must be one(s) that ought to be submitted to the Court by reason of general or public importance or for some other reason; and

(c)The Court must be of the opinion that the question(s) ought to be submitted.

[4]       In his application the applicant sought leave in respect of three grounds.  At the hearing before us Mr Bailey abandoned the first and second of the grounds identified.  He said that, on reflection, they were fact specific and raised no issue of principle.  We consider that he was correct in that assessment, and that his concession was responsibly made. 

[5]       Accordingly, Mr Bailey focussed on the third ground, which he formulated as follows:

Is a Judge entitled to rely on information solely from the bar, in respect to additional information said to have been known to the Police and the reasons why the information was not included in the search warrant application?

[6]       By way of background, the Police obtained a search warrant under s 198 of the Summary Proceedings Act to search the appellant’s home for property stolen in a number of burglaries.  In the course of the search, the Police found a stolen refrigerator.  They also discovered, incidentally, a semi-automatic pistol fitted with a silencer and a laser sight.  The refrigerator was the subject of the receiving charge and the pistol the subject of the firearms charge. 

[7]       The affidavit which the Police filed in support of the warrant application was deficient.  It alleged that an informant had provided certain material, but did not set out the deponent’s basis for believing that the informant was reliable.  Judge Green held that the warrant was invalid, and the search unlawful.  However, applying the balancing test set out in R v Shaheed [2002] 2 NZLR 377 (CA), the Judge determined that the search was reasonable and therefore did not offend s 21 of the New Zealand Bill of Rights Act 1990.

[8]       Judge Green’s decision was given before the decision of this Court in R v Williams (2007) 23 CRNZ 1 was delivered.  By the time that John Hansen J dealt with the appeal, the governing authority was Williams.  The effect of that case is to equate legality with reasonableness in terms of s 21, but to recognise that the court has a discretion to admit material obtained in an unreasonable search in accordance with the Shaheed balancing process. The Judge dealt with the appeal on that basis. He said (at [44]):

The serious illegality in this case was the failure to provide the necessary information relating to the reliability of the informant.  In this case there is no suggestion the warrant was obtained from misleading or false information.  It is a case where the police officer who prepared the warrant omitted to include relevant information that would have made the warrant lawful.  There is no suggestion, as I see it, of any misleading or false information, or insufficient grounds. 

[9]       The Judge went on to say:

[45]     In this case what occurred is that the police took steps to protect the identity of an informant.  Following Williams, it is now clear that that information must be given to the Court who are to be trusted to protect informants.

[46]     …. Mr Zarifeh [counsel for the Crown] accepted the officer in charge would have, in the light of Williams, dealt with the matter differently, but submitted that there was no gross carelessness, and it was not deliberate.  He submitted the police had the information and should have put more in, but did not do so to protect an informant.  I do not place this defect as seriously as Mr Bailey for the appellant did.  I agree with Mr Zarifeh for the Crown that it sits between a minor breach and a moderate breach.

[10]     Mr Bailey’s objection is that Mr Zarifeh said from the bar that the Police had information going to the reliability of the informant but did not include it in the affidavit to protect the identity of the informant.  He said that the giving of what was evidence in this way is objectionable and the Court should not have accepted and acted upon it.  Mr Bailey said that there was a need for this Court to affirm that basic principle. 

[11]     The difficulty that Mr Bailey faces, as he frankly acknowledged, is that he did not take any objection to what Mr Zarifeh said at the time.  As is clear from John Hansen J’s judgment on the leave application, the Judge considered that the information provided by Mr Zarifeh was uncontested.  The Judge said:

[10]     Finally it is said that the Court was not entitled to conclude that there were matters within the knowledge of the police officer that would, if included in the application for search warrant, have made that warrant lawful.  The Court was advised by the Crown on various matters.  The officer indeed was following what was then the standard pre- various appellate decisions.  There was no challenge to the accuracy, as I understand it, of what Mr Zarifeh had said, and it is common in appellate matters for the Crown to place such information before the Court in this way, absent challenge.

[12]     Mr Bailey accepted that he did not indicate to the Court that he objected to what Mr Zarifeh had said.  Had he done so, the Judge would have been able to deal with the matter in some way, perhaps by giving the Crown an opportunity to lead appropriate evidence, whether by way of affidavit or orally, and for the applicant to challenge that evidence.  From the Judge’s perspective, he simply accepted what the Crown had told him in circumstances where there was no apparent challenge to it. 

[13]     In these circumstances there is no question of law appropriate for consideration by this Court.  Accordingly, special leave to appeal is denied.

Solicitors:

Crown Law Office, Wellington