The Queen v Musgrove
[2006] NZCA 92
•18 May 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA107/06
THE QUEEN
v
BIANCA MARIE MUSGROVE
Hearing:15 May 2006
Court:O'Regan, Panckhurst and Potter JJ
Counsel:C W J Stevenson for Appellant
P K Feltham for Crown
Judgment:18 May 2006
JUDGMENT OF THE COURT
LEAVE TO APPEAL IS GRANTED BUT THE APPEAL IS DISMISSED
____________________________________________________________________
REASONS
(Given by Panckhurst J)
Introduction
[1] Consequent upon the execution of a search warrant in the early hours of 17 August 2004, the appellant awaits trial upon a charge that she cultivated cannabis at Paraparaumu. The Crown case is that cannabis was cultivated indoors at 64 Seaview Road, Paraparaumu Beach.
[2] This appeal represents a challenge to a s 344A ruling, in which the search evidence was ruled to be admissible. The search warrant authorised a search of the Seaview Road because there were reasonable grounds to believe evidence pertaining to the manufacture of methamphetamine would be obtained. It was not, but cannabis plants under cultivation were located. Because he found that the supporting affidavit did not establish reasonable grounds for belief, the Judge concluded the search warrant was unlawful, but the search was characterised as reasonable in all the circumstances and the evidence was admitted.
The application for a search warrant
[3] The primary evidence in support of the search warrant was material anonymously conveyed to the police, which was also second-hand. That is, the informant supplied detailed information derived from another person. Only an expurgated version of the supporting affidavit was supplied to counsel for Ms Musgrove and to counsel for her co-accused. The co-accused is Jonathon David Thomas Merson, who faces an identical charge, and is said to have been the appellant’s partner at the relevant time. Although Mr Merson challenged the search warrant evidence in the District Court before Judge Butler, he is not a party to this appeal.
[4] Mr Stevenson laboured under a considerable disadvantage in having only an expurgated version of the affidavit. Of necessity he was forced to make submissions, absent knowledge of the most important paragraphs in the affidavit. At one point counsel asked rhetorically whether his predicament suggested the need for appointment of an amicus curiae, who would have access to the unexpurgated version of the affidavit. That is a course which has not so far been taken, to our knowledge, in cases of this kind. At least in this instance, where the evaluation of the expurgated material poses little difficulty, we see no need to consider Mr Stevenson’s suggestion further.
[5] The affidavit was sworn by Detective Martin of Paraparaumu.
In its expurgated form, it contained this:
1.At about 1.45pm on Monday 16th August 2004 Detective Dave JONES of the Porirua police received a phone call from an anonymous informant. Detective JONES telephoned Detective Ian MARTIN and passed on the information that he had received.
2.The information received from Detective JONES is as follows. (expurgated)
3.(expurgated). “P” is short for “Pure”, a slang term for the Class A controlled drug Methamphetamine.
4.(expurgated)
5.Methamphetamine is manufactured by a chemical process involving the extraction of pseudoephedrine from pseudoephedrine based products such as Sudafed, Coldral, and Clarinase by soaking those products in various solvents.
6.A three neck round bottom reaction flask is a common item used during the reaction phase where the pseudoephedrine is mixed with other chemicals including iodine and a variety of acids. (expurgated)
7.(expurgated)
8.(expurgated). 64 Seaview Road, Paraparaumu, is rented by a person named John MERSON, however it is rented in the name of MERSON’S girlfriend, whose name is MUSGROVE. Her first name is not known.
9.(expurgated) … house has only been rented for a short time, possibly 1 to 2 weeks and that MERSON and or MUSGROVE go there at night to turn the lights on so as to give the appearance that there is someone living there.
10.(expurgated) … 64 Seaview Road, Paraparaumu Beach, and that chemicals and equipment necessary for the manufacture of methamphetamine are at the address.
11.The informant advised Detective JONES that they were calling from a telephone box and that they had to hang up. They refused to give any further information when questioned by Detective JONES. They refused to identify themselves (expurgated).
12.At approximately 2.28 pm on Monday 16th August 2004 Detective MARTIN observed a white utility registration RM6522 and a red Subaru stationwagon registration BEL464 parked on the address of 64 Seaview Road, Paraparaumu.
13.Records show that the vehicle registration RM6522 is registered to a white Ford Courier utility in the name of Nora Theresa PEARS of 5 Honda Street, Waikanae.
14.Records show that the vehicle registration BEL464 is registered to a red Subaru stationwagon in the name of Kim Alycia TURNER of 18 Eskdale Road, Papakowhai.
15.Police records show that PEARS is the partner, possibly the ex-partner of Jonathon David Thomas MERSON.
16.MERSON has a current active charge of Male Assaults Female. He is bailed to the address of 8 Gavin Road, Raumati. The complainant in that matter is Nora PEARS. He is due to appear in the Porirua District Court on 17th August 2004 to answer the charge.
17.MERSON is a known criminal with 54 criminal convictions. This includes an array of dishonesty convictions, and 2 convictions for possession of cannabis, 1 conviction for possession of cannabis seeds, 1 conviction for possession of prescription medicine and 2 convictions for cultivating cannabis.
18.Police have no records of Kim TURNER, other than a driver’s licence match to the address of 18 Eskdale Road, Papakowhai. Detective Constable Ross MCKAY of the Kapiti police has been involved in the investigation of drugs for 20 years. Detective Constable MCKAY has advised me that through his experience he knows TURNER to be the partner of Karl William BUTTARS. He knows BUTTARS to be involved in the manufacture and supply of methamphetamine.
19.BUTTARS has current active charges including 2 x possess/procure cannabis, 2 x possess/procure methamphetamine, 1 x possess/use utensils for methamphetamine. His address is listed on the police Law Enforcement System as 18 Eskdale Road, Papakowhai. He has criminal convictions for 2 x possession of cannabis, 1 x possession of cannabis resin and 1 x possession of utensils.
20.Detective TALYFORTH of the Kapiti Police has made inquiries with the Ministry of Housing. He has been advised by e-mail that a bond has been lodged with the Ministry of Housing pertaining to the address of 64 Seaview Road, Paraparaumu in the name of Biance Maria MUSGROVE. The tenancy began on 15th July 2004.
21.MUSGROVE is known to police and has 3 active charges of cultivating cannabis, possession of cannabis for supply and producing cannabis oil.
22.I believe a search of 64 Seaview Road, Paraparaumu Beach, 8 Gavin Road, Raumati, 18 Eskdale Road, Papakowhai, a white Ford Courier utility registration RM6522, a red Subaru stationwagon registration BEL464 will locate the Class A controlled drug methamphetamine, chemicals, utensils and instruments for manufacture, supply and use of the same, packaging, documents and money relating to such activity.
23.Manufacturing the class “A” drug methamphetamine, possession of methamphetamine for supply, possession of precursor substances and instruments are offences punishable by imprisonment under the Misuse of Drugs Act 1975.
I THEREFORE APPLY
For a search warrant to be issued in respect of the said dwellinghouse, outhouses, boxes, receptacles, vehicles, premises and place situated at 64 Seaview Road, Paraparaumu Beach, 8 Gavin Road, Raumati, 18 Eskdale Road, Papakowhai, a white Ford Courier utility registration RM6522 within the North Island of the Dominion of New Zealand, a red Subaru stationwagon registration BEL464 within the North Island of the Dominion of New Zealand.
[6] We note two points. The expurgated copy of the affidavit provided to defence counsel in the District Court did not include any of paragraph 11. In our view this paragraph should have been disclosed, save for the last few words, because subject to their deletion the balance of the paragraph did not contain material capable of leading to the identification of the informant or that person’s source. Otherwise, we are in agreement with the expurgations which were made to the document.
[7] Second, it is to be noted that Detective Martin sought a search warrant not only in relation to 64 Seaview Road, but one extending to two other properties and to the two vehicles which were observed at Seaview Road on 16 August 2004. However, the search warrant issued by a Justice of the Peace provided:
THIS IS TO AUTHORISE YOU at any time or times within one month from the date of this warrant to enter and search the said
dwellinghouse, outhouses, boxes, receptacles, vehicles, premises and place, situated at 64 Seaview Road, Paraparaumu Beach with such assistants as may be necessary, and if necessary to use force for making entry, whether by breaking open doors or otherwise, and also to break open the *(box) (receptacle) (any box or receptacle therein or thereon) by force if necessary; and also to seize
(any thing upon or in respect of which the offence has been or is suspected of having been committed)
(any thing upon which there is reasonable ground to believe will be evidence as to the commission of the offence)
The difference between what was sought in the affidavit, and what was granted in the warrant, indicates that the decision-maker brought an independent mind to the task.
[8] We labour under a difficulty not dissimilar to that which Mr Stevenson experienced in mounting his argument. We need to identify the effect of the anonymous information, but at the same time meet the public policy requirement of not disclosing anything capable of leading to the identification of, particularly, the source informant.
[9] In our view the expurgated material was of a highly significant nature in relation to the likely manufacture of methamphetamine. It was fact specific. By that we mean it asserted the time, place and reasons for the understanding of the source person that methamphetamine manufacture was to occur at the subject address.
[10] Perhaps the overall effect of the expurgated material is conveyed by the assessment that, in our view, that evidence standing alone would have justified the grant of a search warrant, provided the reliability of the source could be verified. Of course it could not, because both that person and the intermediary who conveyed the information to Detective Jones, were unknown to the police. On the other hand, we do not doubt that the expurgated material would have enabled some people, other than the police, to identify if not the intermediary, at least the source person.
The District Court decision
[11] On 6 March 2006 Judge Butler heard evidence from Detective Senior Sergeant Dickie who was the officer in charge of the search of Seaview Road on 17 August 2004. His evidence and cross-examination was largely directed to why the search was undertaken in the small hours, commencing at about 1.10 am, and whether the house gave the appearance of being lived in. These aspects in turn became the subject-matter of submissions, and featured in the Judge’s ruling, which was reserved and delivered on 14 March.
[12] With reference to whether the supporting affidavit afforded a basis for reasonable grounds for belief in relation to methamphetamine manufacture, the Judge said this:
[12] The informant told Detective Jones that he or she had been told that materials and equipment used in the manufacture of methamphetamine were at the property. The informant mentioned both accused in connection with the property saying that Merson rented the property although the tenancy was in the name of Musgrove. The informant said Musgrove was Merson’s girlfriend. The informant said that either or both of the accused would go to the property at night to turn the lights on so as to give the appearance of occupancy.
[13] Following receipt of the information, the police mounted a surveillance operation in respect of the property and conducted further enquiries. As a result, they observed or discovered –
(i)A vehicle parked at the property was registered in the name of a partner or former partner of Merson. Merson, as at August 2004, was facing a current charge of assault on that person. His bail address, for that charge, was an address entirely different from that of the property.
(ii)Merson had a criminal history which included six convictions for offending under the Misuse of Drugs Act 1975.
(iii) The bond for the rental of the property had been paid by Musgrove and that she was the tenant. The tenancy had commenced on 15 July 2004.
(iv) Musgrove too was known to the police and, as at August 2004, was facing current charges involving cannabis.
(v) Police observed another vehicle parked at the property. This was registered in the name of a female person known by police to be an associate of a methamphetamine dealer. That person also faced current drugs charges and had previous convictions of relevance.
Then followed reference to some previous decisions of this Court and to the respective arguments of counsel on both sides.
[13] The Judge expressed his conclusion as to the legality of the warrant in this way:
[20] In my view, the Justice ought not to have authorised the search warrant on the basis of the central allegation. It amounted to rumour originating from two unknown and anonymous sources. I agree, accordingly, with the submissions of defence counsel as to the first part of the argument.
[14] The Judge next considered whether the search was unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990. Reference was made to R v Maihi (2002) 19 CRNZ 453, in which this Court said that, while a finding of unlawfulness invited a conclusion that a search was also unreasonable, there may be “some countervailing factor or combination of factors” which dictated otherwise. In this case, the Judge found that the house was unoccupied at the timing of the search and, being satisfied that the time of the search and the use of armed offender officers to force entry into the house was appropriate, the Judge described “the uninhabited nature of the dwelling (as) an appropriate ‘countervailing factor’ making the police execution of the warrant reasonable … .”
[15] On this basis the search evidence was held to be admissible. But in case he was wrong in relation to that conclusion, Judge Butler conducted an evaluation in terms of R v Shaheed [2002] 2 NZLR 377 (CA) and in light of that balancing exercise, reached a similar conclusion.
The arguments in this Court
[16] For the Crown, Ms Feltham revisited the issue whether the search was unlawful. She contested the Judge’s finding in this regard and, in the alternative, supported his conclusion that the search was in any event reasonable, and also the conclusion that the evidence was admissible upon a Shaheed balancing evaluation.
[17] This placed Mr Stevenson in the invidious position of having to reargue the question of lawfulness, when he was bereft of the essential informer information, which is the starting-point and very much at the heart of that inquiry. In that regard Mr Stevenson sought to place reliance on the fact that it was cannabis found on execution of the search warrant, not methamphetamine or methamphetamine manufacture as informed to the police. This fact is, of course, not relevant in deciding whether the search was lawful. That must be determined on the evidence provided in support of the application for the search warrant. In addition counsel challenged the Judge’s conclusions that the search was reasonable and the evidence admissible in terms of Shaheed.
Were reasonable grounds for belief established?
[18] We consider that Detective Martin’s affidavit did disclose reasonable grounds for belief and we therefore disagree with the Judge in this regard.
[19] The starting-point is the effect of the informer information. We have already referred to this (paras [9] and [10]) and recorded our view that, subject to verification of its reliability, such material was in itself sufficient to found a reasonable belief in terms of s 198 of the Summary Proceedings Act 1957, or s 18(1) of the Misuse of Drugs Act 1975. This conclusion does not require amplification, indeed it is difficult to do so without compromising informant anonymity.
[20] But, that said, the informant information suffers from the fact that it was third hand by the time Detective Martin recycled it in his affidavit. This circumstance does not automatically disqualify the material from forming the basis for the necessary statutory belief. However, it does emphasise the need for independent verification of it, before it would be appropriate to grant a search warrant on the basis of it.
[21] Did the independent police inquiries sufficiently establish the reliability of the informant information? The informer’s telephone call to Detective Jones was at about 1.45 pm on Monday, 16 August 2004. It is not exactly clear when the search warrant was obtained, but it is dated 16 August and was executed at about 1.00 am the following morning, which indicates that the warrant itself was obtained in the late afternoon or early evening of the 16th.
[22] At 2.28 pm Detective Martin observed the two vehicles parked at the subject address. Ms Pears was the registered owner of one. She was known to the police as a partner, or former partner, of Mr Merson. Given that he faced a then current charge of assaulting Ms Pears, the latter appeared the more likely. Mr Merson had numerous convictions including some for drug offending.
[23] This information was confirmatory of the informant material. A vehicle, reasonably to be associated with the major suspect, Mr Merson, was found at the subject address inside an hour of receipt of the informant’s telephone call.
[24] The second vehicle at the address was registered to a woman who was known to police officers to be the partner of a man involved in the manufacture and supply of methamphetamine, and who had previous convictions of that nature. While this man had not been implicated by the informant, the fact of the presence of a vehicle at the address, which he could well have been driving and at the same time as Mr Merson, was obviously significant.
[25] The third aspect of the independent confirmatory evidence was from police inquiry to the Ministry of Housing, which elicited confirmation that the appellant was indeed the tenant of Seaview Road and that her tenancy had begun only about one month earlier. Also, at this time Ms Musgrove was facing charges relating to cannabis cultivation and supply, and producing cannabis oil.
[26] This material was strongly supportive of the informant evidence. Unlike Judge Butler, we do not regard a difference of about two weeks in the duration of the tenancy, as significant. The fact remains that Ms Musgrove had only recently assumed the tenancy, and moreover, a vehicle which could reasonably be connected to her partner, Mr Merson, was parked at the address when the police checked it.
[27] These features of the confirmatory evidence, in combination, impress us as striking. The evidence from a visual observation of the address and following inquiry of the Ministry of Housing (perhaps more correctly the Housing Corporation), revealed information which pointed to the reliability of the informer’s account to a significant extent.
[28] Thereby the informant information, although anonymous, second-hand and unable to be verified through past experience, was independently confirmed. This confirmation we view as similar to the reliability with which informant information may be invested by past experience of an informer. For these reasons we conclude that the search warrant was lawfully issued.
[29] It is not, therefore, necessary to consider whether the search was reasonable, nor to embark upon a Shaheed analysis. Central to Mr Stevenson’s argument directed to these aspects was a contention that a forced search of the address at about 1.00 am, involving members of the Armed Offenders Squad, was inappropriate, and in particular relevant to judging the reasonableness of the search. We do not accept these criticisms. The methods adopted were operational issues which were the subject of evidence from, and cross-examination of, Detective Senior Sergeant Dickie. That evidence established the existence of sound reasons for the police approach and actions.
[30] On the other hand our decision is not necessarily to be taken as an endorsement of the Judge’s conclusions on reasonableness and in relation to the balancing exercise.
Result
[31] Leave to appeal is granted but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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