The Queen v Robert Andrew O'Neill

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 542/99

THE QUEEN

ROBERT ANDREW O’NEILL

Hearing:	2 February 2000
Coram:	Richardson P Thomas J Blanchard J
Appearances:	S J Lance for Appellant J C Pike for Crown
Judgment:	2 February 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The appellant, Mr O’Neill, faces charges of conspiring to supply a Class A controlled drug, conspiring to supply a Class C controlled drug, possession of a Class A drug for supply, possession of a Class C drug for supply, and possession of a Class B drug for supply. The Crown applied pursuant to s 344A of the Crimes Act for an order prior to trial that the search of the premises carried out at 5 Old Taupo Road, Rotorua, by Rotorua Police was lawful, and that the evidence obtained as a result of the search was admissible at trial. Fisher J made such an order. Mr O’Neill has now appealed against that decision.
The charges against Mr O’Neill arose out of a large Police operation covering extensive drug-dealing activity in Auckland and Rotorua. The application for a search warrant in relation to the operation referred to over 25 properties and vehicles, among which was premises believed to be the premises of a Robert Trayner and described in the affidavit of the officer in charge supporting the application as “Rotorua Auto Repairs, 1 Old Taupo Road, Rotorua (red/white/green building on south side of Motor Sports Ltd LMVD situated on Koutu corner)”. A warrant was issued in those terms. Incriminating evidence in the form of LSD tabs and cannabis were found at the premises. But the premises where the drugs were discovered is more properly described as 5 Old Taupo Road.
Fisher J was satisfied that the issue of the warrant to search the premises was justified. Police had intercepted a number of telephone conversations between the person alleged to be at the centre of the drug-dealing operation, a Mr Williams, and others referring to a man called “Bob”. In the affidavit in support of the application it is stated that Police have been able to identify “Bob” as being Robert Trayner. It is also stated that Police inquiries had revealed that Mr Trayner had business premises situated at 1 Old Taupo Road. Although the application did not expressly state how Police had been able to discover the identity of “Bob”, or that Rotorua Auto Repairs was in fact Mr Trayner’s business, Fisher J was satisfied that, in the context of the entire application, and all the statements contained in it, there were reasonable grounds to believe that one or more of the things specified in the warrant would be found in the designated place. The learned Judge said, however, that his ruling the warrant was validly issued was not reached without some hesitation.
Before deciding whether the warrant had been validly executed Fisher J heard the evidence of three Police witnesses. The officer in charge clarified what had led the Police to believe that “Bob” was Robert Trayner. During surveillance of Mr Williams, the central offender, a person believed to be “Bob” from the telephone conversations had been observed leaving the Old Taupo Road premises and getting into a vehicle with Mr Williams. A registration check on the vehicle parked at that premises disclosed the details of Mr Trayner. He was then presumed to be “Bob”. The officer in charge said that the Old Taupo Road premises was initially targeted for search because “Bob” had been seen leaving there to join Mr Williams. The premises had been then described by their appearance, the paintwork suggesting that the larger garage at number 1 and the smaller one to the side connected to it were in fact the one premises. The name was taken from the street frontage. There were no identifying street numbers. The Police presumed from what had been discovered that the premises housed Mr Trayner’s business.
The officer in charge of executing the search warrant also gave evidence. He said that, upon arrival at 1 Old Taupo Road, the Police entered the larger garage and discovered a man who identified himself as “Robert Trayner”. He was using part of the area for residential purposes and the remainder was strewn with auto parts. Mr Trayner was contained in one room and the full premises were searched. The Police entered the smaller garage through one of two internal connecting doorways believing it to be occupied by Mr Trayner. The officer who was first to gain entry said in evidence that the connecting door had been locked and that he used force to open it. He said it was only after entry into the smaller garage where the incriminating evidence was found that the Police were told by Mr Trayner that this garage was subleased to the appellant. This was the first the Police knew of the existence of Mr O’Neill and that he, in fact, would be the “Bob” referred to in the telephone conversations.
The learned Judge held that, although the smaller garage had a separate street number, that is number 5, it was reasonable for Police to presume that the building complex was in fact a single premises. Further, the description of the premises in the warrant as the “red/white/green building on south side of Motor Sports Limited … situated on Koutu corner” was apt to include the smaller garage as well. Although the warrant referred to Rotorua Auto Repairs, which was the business of Mr Trayner, it made no reference to Mr Trayner in particular and so it was immaterial which particular individuals were involved. At the time of the search it was not clear that the smaller garage was sublet and not part of Rotorua Auto Repairs. Auto parts were strewn through the smaller garage as well as the larger unit.
Fisher J concluded that the smaller garage reasonably fell within the scope of the search warrant. The execution was therefore a valid one and the evidence recovered in the search was ruled admissible.
Mr Lance, who did not appear earlier, challenged the validity of the search warrant on the grounds that the affidavit in support of the application failed to disclose reasonable grounds for believing that drugs or other incriminating material would be found on the premises.
Mr Lance’s first point was that the telephone conversations between Mr Williams and others in which “Bob” was referred to were not necessarily incriminating. He focused on the fact that in one conversation the word “gear” had been assumed by the Police, and then the Issuing Officer, to be a reference to drugs. The word “gear”, he argued, could bear an innocent or neutral meaning. This point is rejected. Mr Williams was believed to be heavily involved in the drug trade. He was under extensive surveillance. He had a number of telephone conversations in which a “Bob” had been mentioned. Mr Edwards told Mr Williams that “Bob’s taken all his gear into the workshop”. We consider that, when read in context, the reference to the word “gear” is to be taken as a reference to drugs. Certainly, that was not the unreasonable belief of the Police as confirmed in the affidavit in support of the application for the search warrant.
The fact that this belief was stated to be the “Police” belief and not the belief of the officer in charge, who was the deponent, was Mr Lance’s next submission. We also reject this argument. The Police operate as a team. The experience and knowledge of one member is shared with others involved in the investigation. We therefore see nothing exceptional in the deponent reporting the opinion which the Police held at that time.
Mr Lance’s next argument related to the mistake made by the Police in believing that the “Bob” referred to in the telephone conversations was Mr Trayner and not the appellant. Undoubtedly, the Police made a mistake, but we do not consider that this error vitiates the warrant which relates to the premises and not the person. The identification of “Bob” was part of the chain of facts which led the Police to apply for the search warrant of those premises, but the essential focus was on the premises. The critical aspect from the point of view of the Issuing Officer would have been the fact there were reasonable grounds to believe that drugs were stored on those premises. Consequently, the Police error was strictly immaterial to the issue of a warrant relating to the premises.
Finally, Mr Lance urged that the description of the premises was inaccurate in that it referred to “1 Old Taupo Road” rather than 5 Old Taupo Road. This argument also cannot be sustained. To all intents and purposes the premises appeared to be the one premises. They were linked in two places, that part in which the drugs were found being subleased to the appellant. The premises appeared to share the one street number. Moreover, the building was aptly described in the warrant as the “red/white/green building on the south side of Motor Sports Ltd … situated on Koutu corner”. The photographs produced to the Court confirm the conjoint nature of the premises.
We do not overlook the fact that Mr Lance contended that these points should be given cumulative weight. He observed, further, that the warrant related to a range of drugs extending well beyond the drugs for which a warrant had been sought. We do not consider, however, that these points gain in strength when regard is had to them overall. Cumulative weight or strength cannot be obtained when points which are themselves without substance are added together.
For these reasons the appeal is dismissed.

Solicitors
Lance Lawson, Rotorua for Appellant
Crown Law Office, Wellington for Crown

[2000] NZCA 4

2 February 2000