The Queen v George Te Hore Chadwick
[2002] NZCA 64
•30 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA101/02 |
THE QUEEN
V
GEORGE TE HORE CHADWICK
| Hearing: | 29 July 2002 |
| Coram: | Gault P Robertson J Paterson J |
| Appearances: | B J Horsley for the Crown T M Petherick for the Appellant |
| Judgment: | 30 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PATERSON J |
Introduction
The police, pursuant to a search warrant, searched premises occupied by Mr Chadwick. Cannabis plants were found at the address. Mr Chadwick’s counsel raised issues of admissibility of the evidence obtained from the search. The Crown sought a pre-trial order that the evidence was admissible. In a judgment delivered on 15 March 2002, Adeane DCJ decided two matters. First, he declined to order that further particulars from the affidavit filed in support of the application for the search warrant be disclosed to Mr Chadwick. Secondly, he ordered that the evidence obtained in executing the search warrant be admissible at trial.
The issues
There are two issues raised by the appeal, namely:
(a)Did the Judge err in refusing to order that relevant portions of the affidavit, which had not been disclosed to Mr Chadwick, should not be disclosed to him? and
(b)Did the affidavit in support of the application for the warrant contain sufficient information to justify the issue of the warrant?
Further particulars
Mr Petherick properly conceded that the names or information which may lead to the identification of police informants may be withheld from an accused: see R v McNicol [1995] 1 NZLR 576. Unlike Mr Petherick, we have had the opportunity of considering the information which was not disclosed. In our view, the information may lead to the identification of a police informant. For this reason we are of the view that the Judge did not err when he held:
“in light of matters of time, place and circumstance which are directly or inferentially divulged in the full affidavit, that there is a danger, a real danger of disclosure of the identity of the informant, and I decline to order any further particulars to be supplied.”
Sufficiency of information
Counsel on behalf of Mr Chadwick submitted that the information supplied with the application was insufficient to support the issue of the search warrant, because it incorrectly referred to a relative of Mr Chadwick’s as being an uncle when he was in fact a cousin; the statement that the relative was a member of the Mongrel Mob gang was conclusory; allegations against the relative were tainted because the relative was not the uncle of Mr Chadwick; there were no grounds for the belief that the relative was the cultivator of the cannabis plants found at Mr Chadwick’s address; there was insufficient information as to the reliability of the informant; and a statement that the informant “has supplied reliable information in the past regarding the location and quantity of cannabis at addresses” was also conclusory.
The search warrant was issued under the provisions of s 198 of the Summary Proceedings Act 1957. Under that section, the issuing officer is required to be satisfied that there is reasonable ground for believing that there is in the place in respect of which the warrant is issued:
(a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of being committed; or
(b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or
(c) Any thing that there is reasonable ground to believe is intended to be used for the purpose of committing any such offence.
In this case the issue is whether there was reasonable ground for believing that there was at Mr Chadwick’s place the things referred to in paragraph (a) to (c).
Mr Petherick relied upon discrete matters, including the reliability of the informant and conclusory statements. He concentrated on individual factors rather than on the global picture. This Court said in R v Burns (Darryl) [2002] 1 NZLR 204 at para 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.”
We are satisfied that there was ample information in the supporting affidavit for the issuing officer to be satisfied that there was reasonable ground for believing that cannabis would be found at Mr Chadwick’s property. In coming to this conclusion, we have had the benefit of considering the affidavit in full, including the paragraphs to which Mr Chadwick and his counsel have not had access. Adeane DCJ determined that the information on the informant’s reliability was adequate, and the affidavit contained matters which are quite sufficiently cogent and probative to justify the issuing of the search warrant. We agree. The particulars to which Mr Chadwick did not have access give cogent reasons for satisfying the issuer of the warrant that there were reasonable grounds for believing there was cannabis on the property.
The submission in respect of a mis-statement of the exact relationship between Mr Chadwick and his relative and that relative’s involvement in the Mongrel Mob and his convictions under the provisions of the Misuse of Drugs Act 1975 are background facts. Accepting they are conclusory, they do not undermine the cogency of the reasons upon which the issuing officer would have formed his belief. Further, the fact that some of the deponent’s statements may have been hearsay does not mean they cannot be relied upon: see the decision of this Court in R v Kahika (CA 200/97, 31 July 1997). Although the reliability of the informant is only one factor in the broader issue, there was sufficient in this affidavit to accept that the informant was reliable. Not only was there the statement that he had supplied reliable information in the past regarding the location and quantity of cannabis at addresses, but also there was in the particulars which Mr Chadwick did not see, corroboration of the reliability of the informant.
Result
Leave to appeal is required because the notice of appeal was filed 17 days out of time. There is no adequate explanation for this delay. As there is no sustainable challenge to either of the matters determined by the District Court Judge, leave to appeal is declined.
Solicitors
Crown Law Office, Wellington
Gresson Grayson & Calver, Hastings
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