The Queen v Mills and Hooper

[2009] NZCA 468

IN THE COURT OF APPEAL OF NEW ZEALAND

CA386/2009
CA424/2009
[2009] NZCA 468

THE QUEEN

v

DEMELZA JULIA MILLS
GEOFFREY HOOPER

Hearing:24 September 2009

Court:O'Regan, Venning and Winkelmann JJ

Counsel:R J Stevens for Appellant Mills

C W J Stevenson for Appellant Hooper
G H Allan for Crown

Judgment:12 October 2009 at 11.30 am

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]        Ms Mills and Mr Hooper are jointly charged with one count of possession of fantasy for the purpose of supply and one count of possession of morphine for the purpose of supply.  The charges arise from a search of Ms Mills’ property in Lower Hutt, during which the drugs were found. 

[2]        Ms Mills and Mr Hooper challenged the admissibility of the fruits of the search on the grounds that the application for the search warrant did not disclose reasonable grounds for believing that it would yield evidence of an imprisonable offence and that the search was therefore unlawful and unreasonable. 

[3]        When the matter came before Judge Barry for hearing in the District Court at Wellington, counsel for the appellants argued that an amicus or independent counsel ought to be appointed to assist the Court.  The reason for this was that the copy of the application for the warrant which was provided to counsel for the appellants was heavily edited.  This obviously restricted their ability to support their challenge to the validity of the warrant.

[4]        Judge Barry dismissed the application.  He considered an unredacted copy of the application, which set out the information supporting the issue of the search warrant and found that it provided “very detailed pointed information indicating drug dealing”.  He summarised his reasoning as follows:

[24]       In this case I consider that the information is set out with sufficient specificity and that there is no need to hear argument from separate counsel.  Further that a reading of the affidavit, itself, provides on the face of it very detailed pointed information indicating drug dealing that means that amicus need not be appointed.

[25]       That in turn gives a fair indication of the conclusions that I have reached in this case:

(a)The informant’s reliability per se is not in issue and the informant is clearly set out as a proven performer over a significant period of time.

(b)There is evidence asserted of primary facts amounting to indications of drug dealings by [Ms Mills] at her house.  Her car could be seen as an extension of that.

(c)The scope of the search is not unduly wide and the material supplied is not misleading or selective.

[26]       On that basis I cannot see other than that the judicial officer issuing the warrant had reasonable grounds to believe that evidence indicating this type of offending could be obtained from the search of that house and that car.

[5]        Ms Mills and Mr Hooper have both applied for leave to appeal against Judge Barry’s decision.  The focus of the applications for leave was the refusal of the Judge to appoint an amicus or independent counsel.  But counsel for the appellants, Mr Stevens and Mr Stevenson, acknowledged that the appeal itself would need to be directed towards the finding that the evidence derived from the search was admissible at trial, thus bringing the application within s 379A(1)(aa) of the Crimes Act 1961.

Submissions for appellants

[6]        Counsel for both appellants drew our attention to the following observations made by Glazebrook J in R v Robertson [2008] NZCA 20, which involved an application for leave to appeal in similar circumstances to the present case:

[20]       I would also like to express some concern about the hearing of appeals where the accused does not have a full copy of the search warrant application.  Our system is an adversarial one and all parties have a right to be heard.  This right is curtailed in cases where full information cannot be provided to one of the parties.  While the Crown and the Court do their best to ensure that any arguments that could be made for the accused are considered, this to an extent distorts the role both of the Crown and the Court.  It is not a satisfactory substitute for full argument presented on behalf of an accused.

[21]       I think there would be merit in a system whereby an independent counsel was appointed in cases of this kind.  That counsel would be tasked with:

(a)assessing the reasons for the excisions and, if necessary, presenting argument on whether further material should be disclosed;

(b)assessing whether arguments are available to the accused which would not be able to be put fully on the basis of the excised material; and

(c)if so, presenting those arguments to the Court on behalf of the accused.

[22]       Suitable protocols would of course need to be agreed to ensure the maintenance of confidentiality of the suppressed material in the hands of the independent counsel.

[23]       To a degree the issue can be dealt with currently by the appointment of an amicus to fulfil the role I have suggested for independent counsel.  However, it is not appropriate to appoint an amicus as a matter of routine.  An amicus is only appointed where the Court considers it cannot not deal with the matter fairly without hearing argument from separate counsel.  It cannot be assumed, however, that the Court will always recognise difficulties with the complete search warrant application that may warrant separate counsel, without hearing full argument on behalf of the accused.  The possibility of appointing an amicus does not therefore eliminate my concern.

[7]        Mr Stevens and Mr Stevenson suggested that these comments applied, at least by analogy, to the hearing of applications under s 344A of the Crimes Act in the District Court or High Court.  They said that an amicus should have been appointed by Judge Barry in this case.  They argued that leave should be given for this matter to be fully aired in this Court, arguing that many of the factors identified in R v Leonard [2008] 2 NZLR 218 at [13] (CA) applied. In particular, they argued that the point relating to the appointment of an amicus or independent counsel was novel, there was no definitive authority on the issue, the admissibility of the evidence could be decisive and the grounds of appeal were clearly arguable. In terms of the factors identified at [14] of Leonard, they argued that the issue could not be revisited at trial, the evidence was very significant, no credibility findings were involved and there will not be unnecessary delay. 

Our assessment

[8]        As noted, Crown counsel provided us with an unredacted copy of the application for search warrant.  Having considered that, we consider that any challenge to the admissibility of the evidence obtained as a result of the search made pursuant to the warrant would be futile.  Equally, we see any challenge to the failure to appoint an amicus in this case as equally futile: in that sense this case (both at first instance and on appeal) is similar to Robertson, where Glazebrook J, despite her concerns (set out above) concluded that that was not an appropriate case for the appointment of counsel to assist the Court. 

[9]        The comments of Glazebrook J in Robertson were personal observations. We do not see them as heralding a development of the law in this area by this Court: rather, we consider that Glazebrook J was indicating that this was an area of law which should be given attention by law reformers.  The present state of the law in relation to s 344A applications similar to that in the present case is that the Judge may appoint an amicus where he or she does not consider that the Court can justly deal with the challenge to the validity of the search warrant without the assistance of an amicus to whom access to the unredacted application for the warrant can be provided.  Judge Barry applied that law, in our view correctly, and we can see no possible validity in any challenge to the way he did so.

[10]       In those circumstances we can see no basis for giving leave to appeal.  We therefore decline to do so. 

Solicitors:

Fanselows, Wellington for Appellant Mills

Crown Law Office, Wellington