The Queen v Stuart Wayne Rollinson

[2003] NZCA 59

IN THE COURT OF APPEAL OF NEW ZEALAND

CA434/02

THE QUEEN

v

STUART WAYNE ROLLINSON

Hearing:11 March 2003

Coram:Glazebrook J
Hammond J
O'Regan  J

Appearances:  M J Knowles for Appellant

J C Pike for Crown

Judgment:25 March 2003 

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]       The appellant, Mr Rollinson, faces charges of cultivating cannabis, possessing cannabis for supply, receiving stolen goods and careless use of a firearm.

[2]       The charges were laid after police executed a search warrant at his home.  He challenged the admissibility of the evidence obtained as a result of that search in the District Court.  The District Court Judge ruled that the search was lawful and reasonable, and the evidence was therefore admissible.  Mr Rollinson seeks leave to appeal to this Court against that ruling.

Facts

[3]       On 13 November 2001, the police sought a search warrant relating to Mr Rollinson’s home.  It was one of a number of warrants sought by the police about two weeks after the completion of a wide ranging inquiry relating to a number of people suspected of being involved in both drug and dishonesty offences.  This inquiry had included the obtaining of interception warrants permitting interception of telephone communications to and from certain persons.  There was no interception warrant relating to Mr Rollinson’s premises or phone.

[4]       The police interest in Mr Rollinson appeared to be peripheral to the main inquiry.  His stepdaughter was the partner of a person suspected of having a significant involvement in the offending.  Mr Rollinson was referred to in an intercepted telephone conversation between the stepdaughter and her mother (Mr Rollinson’s ex-wife), and two  telephone conversations between him and his ex-wife were  intercepted.

[5]       As a result of the evidence obtained from these interception warrants, the police sought a search warrant.  The police officer presented an affidavit in support of the application which was 118 paragraphs long and contained a detailed account of the alleged offending uncovered as a result of the police investigation.  None of this offending involved Mr Rollinson and, indeed, he is not mentioned in the first 113 paragraphs of the affidavit.  Paragraphs 114-118 say:

114.This warrant relates to Stewart Wayne ROLLINSON who resides at Rapid number ending 326, RD2, Main Road, Tai Tapu, and who is believed to be involved in Operation Cab.

115.ROLLINSON’s involvement consists of being the ex-partner of Elizabeth ROLLINSON who is the mother of Rebecca COUCH, the partner to Ray NEILSON.  Even though the relationship has broken up, there has been considerable contact between and about Wayne ROLLINSON in the electronic phase.

116.These conversations relate to Wayne supplying drugs and prescription medicines to Liz ROLLINSON.  These messages have used the terms such as garlic, which they want before they go out clubbing.  I believe that this conversation relates to the supply of drugs.

117.The crimes of Burglary and Receiving are offences contained in the Crimes Act 1961 and, upon conviction, are punishable by imprisonment.

118.Possession/Supply/Sale of Class C controlled drugs are offences under the Misuse of Drugs Act 1975 and, upon conviction, are punishable by imprisonment.

[6]       The District Court Registrar was presented with a warrant for signing which recited that there were grounds for believing that stolen goods as detailed in a lengthy appendix (which was called ‘Appendix B’) and “Class C controlled drugs, namely, cannabis, correspondence relating to Class C controlled drugs and instruments for using and dealing with controlled drugs” were in Mr Rollinson’s house.  These items were said to be evidence as to the commission of burglary/receiving and possession/supply/sale of Class C controlled drugs.

[7]       The Deputy Registrar took the view that there was nothing in the affidavit indicating the police had  grounds for believing that the stolen items referred to in the appendix were located at Mr Rollinson’s house, and he therefore deleted from the draft warrant the reference to Appendix B.  However, there was no consequential amendment to the remainder of the warrant to delete the references to burglary/receiving.  The warrant (as amended by the deletion of the reference to Appendix B) was signed by the Deputy Registrar and executed the following day.

[8]       The police officer in charge of the wider operation conducted a briefing for all officers executing search warrants on 14 November 2001.  The officer in charge of the search of Mr Rollinson’s property had with him a copy of Appendix B.

[9]       When police arrived at Mr Rollinson’s house he was co-operative.  He let the police in and was shown a copy of the warrant.  As soon as that happened, he led the police officers to a room which had been set up for cultivating cannabis.  Subsequently, in the course of their search, the police found items of property which they believed may have been stolen and also the loaded firearm which was the subject of the firearms charge.  Mr Rollinson did not object to the seizure of the items which the police found during their search.

The District Court decision

[10]     The District Court Judge found there was an evidential basis justifying the issue of a warrant relating to Class C drugs.  He found that the search was not unlawful or unreasonable and that it would have been “irresponsible” for the police to have ignored the firearm which they found in the course of their search for Class C controlled drugs.  He found there was no basis for the Registrar issuing the warrant to infer that there was evidence of stolen property from burglary or receiving at Mr Rollinson’s house.  However, he found that Mr Rollinson had consented to the suspected stolen/received goods being seized by the police for the purpose of establishing if they were stolen goods.  Accordingly, he ruled that all the evidence gathered pursuant to the execution of the search warrant was admissible.

Grounds of appeal

[11]     Mr Rollinson raised three grounds of appeal.  These were:

a)The Judge was wrong to hold that the warrant authorising a search for Class C controlled drugs was lawful;

b)The Judge was wrong in holding that the search for Class C controlled drugs was reasonable;

c)Having regard to the number and nature of the illegalities, the balancing exercise required  by the decision of this Court in R v Shaheed [2002] 2 NZLR 277 should result in the exclusion of the evidence obtained as a result of the search.

[12]     Counsel for Mr Rollinson, Mr Knowles, conceded that, if the search for cannabis was lawful, then the seizure of the firearm and the property suspected of being stolen was reasonable.  The focus of the appeal was on the legality of the search for cannabis.

Was the warrant lawful?

[13]     Mr Knowles argued that the warrant authorised a search for cannabis, and the material in the affidavit supporting the application for the warrant did not disclose any reasonable grounds for suspecting that Mr Rollinson was involved in cannabis offending.

[14]     The warrant referred to “Class C controlled drugs, namely cannabis”, following which were there a number of other references to “controlled drugs” or “Class C controlled drugs”.  Counsel for the Crown, Mr Pike, argued that the warrant authorised a search for Class C controlled drugs generally, not just cannabis.  We are unable to accept that submission.  The use of the words “namely, cannabis” after the first reference to Class C controlled drugs, indicates that the warrant was concerned only with cannabis, not with Class C controlled drugs generally.

[15]     The affidavit had a number of references to cannabis in relation to others involved in the wider operation, but the paragraphs referring to Mr Rollinson, which are quoted in paragraph 5 above, made no reference at all to cannabis.  Paragraph 116 does refer to conversations between Mr Rollinson and his ex-wife Liz Rollinson, which are said to relate to Mr Rollinson supplying drugs and prescription medicines to his ex-wife, but there is no indication that cannabis was involved. 

[16]     Transcripts of these intercepted communications which involved, or referred to Mr Rollinson, were produced to the Court.

[17]     The first transcript is of a conversation between Liz Rollinson and her daughter, Rebecca Couch.  In that conversation, Liz tells Rebecca that she has spoken to Mr Rollinson asking him when he will come over “Cos I need to get the pills off him”.  She also refers to Mr Rollinson owing her money, and there is an indication he has received money from the sale of drugs to third parties.

[18]     The second transcript relates to a conversation on 17 October 2001 between Liz Rollinson and Mr Rollinson in which Liz says she needs some halcion and some dregs.  He agrees to drop some off to her.  Mr Rollinson apparently had halcion on prescription, which would mean his possession of it was not unlawful.  The police did not check pharmacy records to determine whether he had a prescription for halcion.  We were told they could have done so. 

[19]     The third transcript is a record of a conversation on 19 October 2001 between Mr Rollinson and Liz Rollinson in which Liz says she would not mind some “garlic” and asks him to drop it off that night because she would take it before she went to the club.  Mr Rollinson agrees to do so.

[20]     Mr Knowles argued that the conversations recorded in these transcripts did not provide a basis for the statement in the affidavit that they relate to Mr Rollinson supplying drugs and prescription medicines to Liz Rollinson. The second transcript establishes that Mr Rollinson did on one occasion  agree to supply Liz Rollinson with halcion, which is a Class C controlled drug, and which had been prescribed to Mr Rollinson.. 

[21]     The reference to the supply of “garlic” is said to relate to the supply of drugs, but there is nothing in the affidavit or any other information before the Court which provides a basis for the conclusion that garlic is a code word for drugs generally or any particular type of drug.  There is certainly nothing to indicate that it is a reference to cannabis. 

[22]     The first conversation indicates a discussion between Mr Rollinson and Liz Rollinson about the supply of unspecified “pills” by Mr Rollinson, to Liz Rollinson, but there is nothing to indicate whether these were Class C controlled drugs.

[23]     The best that can be said about the material supporting the affidavit is that it sustains an allegation that Mr Rollinson has on one occasion supplied a particular Class C controlled drug, halcion, to Liz Rollinson  The supporting material does not establish that he supplied Class C controlled drugs to Liz Rollinson on more than one occasion and there is no evidence at all of any supply of cannabis by Mr Rollinson to Liz Rollinson or anyone else.

[24]     Mr Knowles pointed out that the detective who executed the search warrant said in evidence that the police did not know what substance had been supplied by Mr Rollinson to Liz Rollinson, and found out it was halcion only after interviewing Mr Rollinson.  He said there was therefore no basis for a belief that halcion supply had occurred.  However, it appears the officer was mistaken in that respect because the transcript clearly refers to halcion, so the police must have been aware that is what had been supplied by Mr Rollinson when the affidavit supporting the application for the search warrant was sworn.

[25]     Mr Knowles also argued the police had not complied with the obligation to be candid and present a full picture to the judicial officer considering the application for the warrant, as required by R v McColl (1999) 17 CRNZ 136 at paragraph 20.  He said there was exaggeration (considerable contact between Mr Rollinson and those involved in the wider operation, when there were only two conversations between him and his ex-wife), and  the statement that Mr Rollinson was involved in the wider operation when there was no basis for that view. 

[26]     We accept it was confusing for the judicial officer considering the warrant application to be confronted with a long affidavit containing considerable information about offending by others with whom Mr Rollinson is not associated, at the end of which there are a few paragraphs referring to Mr Rollinson.  It would have been preferable for the affidavit supporting the application for the warrant to have dealt only with information relevant to Mr Rollinson or to have used headings which highlighted the information relevant to Mr Rollinson and separated it from the information which was not.

[27]     However, the significant feature of the affidavit is that it does not disclose any grounds for suspicion that Mr Rollinson was involved in cannabis offending.  It does not mention cannabis in relation to Mr Rollinson and there was no basis for it to do so.  The supply of “pills” by Mr Rollinson his ex-wife or to third parties, the supply of the Class C controlled drug halcion to his ex-wife and the supply of “garlic” to his ex-wife does not give any basis for obtaining a warrant to search for cannabis or cannabis-related materials.

[28]     The affidavit also disclosed nothing justifying a warrant to search for the stolen goods referred to in Appendix B, as the Registrar himself noted.  The Registrar deleted the reference to Appendix B but did not make the consequential deletions of the references to burglary and receiving.  However, it is clear that the warrant, as issued, did not authorise a search for the items referred to in Appendix B.

[29]     We conclude that the information contained in the affidavit did not provide a proper basis for the issue of a warrant to search for cannabis and cannabis related things.  The warrant was therefore invalid and the search was therefore unlawful.

[30]     Mr Knowles made an alternative argument that the information obtained by the use of the interception warrant, as recorded in the transcripts which were produced in this Court, should not have been used to support an application for a search warrant.  He based this on s 312I of the Crimes Act 1961, which requires that the record of any irrelevant conversation obtained through the use of an interception warrant must be destroyed as soon as reasonably practicable.  For the purposes of s 312I material is irrelevant if it does not relate to the commission of a specified offence, a serious violent offence, or a drug dealing offence or prescribed cannabis offence.  It is clear that the transcripts used to support the application for the search warrant did not relate to any such offences and s 312I therefore applied.

[31]     This argument was bolstered by reference to s 312N which says that where a private communication  which is intercepted in pursuance of an interception warrant discloses an offence other than a specified offence, a serious violence offence, serious violent offence or conspiracy to commit either such offence, then no evidence of the communication can be given in Court.

[32]     Mr Knowles argued that, either the transcripts should have been destroyed before the date on which the search warrant was applied for (which was about two weeks after the end of the police interception operation) or, alternatively, the information in the transcript should not have been used in support of an application for a warrant because it was inadmissible.  Neither of these points was argued before the District Court and, because they were raised just prior to the hearing, were not argued in full before us.  In view of our conclusion on the invalidity of the search warrant, there is no need for us to determine these points in this case, and we prefer to leave them for another occasion when the issues involved have been fully canvassed in argument.

Was the search unreasonable?

[33]     Mr Pike argued that, even if the warrant was invalid, the search was not unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990.  He said that there was no evidence that Mr Rollinson had been misled by the warrant’s reference to cannabis.  It appeared he had voluntarily led the officers to the cannabis growing room, and he had not given evidence to say this was because he thought the warrant authorised a search for cannabis.

[34]     Mr Pike’s argument was made on the basis that the warrant validly authorised the search for Class C controlled drugs, and that the reference to cannabis was a mistake.  We have already found the warrant itself was invalid, so this is not a case of an otherwise valid warrant with a typographical error.  When a householder is presented with a warrant saying the police are authorised to search for cannabis, and he then leads them to cannabis in the house, it will be hard to convince a court that the presentation of  the warrant at the beginning of a search  did not influence the decision of the householder to invite the police in and to co-operate with the search. 

[35]     Mr Pike suggested that the Court should not make such a finding in this case because Mr Rollinson had not given evidence to say he was misled into inviting the police into his property, but we reject that submission.  In our view, it is obvious that when Mr Rollinson was confronted by several police officers, one of whom held a warrant which we have now found to have been invalid, his decision to invite them into his home and take them to the cannabis growing room, would have been attributable to an understanding on his part that he was required to do so because the officers had a warrant entitling them to search for cannabis.  We do not accept the Crown’s submission that Mr Rollinson was not misled and that the search was therefore reasonable.

The Shaheed balancing test

[36]     Mr Knowles made two concessions which we have taken into account in the balancing exercise mandated by R v Shaheed.  The first is that Mr Rollinson does not object to the evidence obtained as a result of the search being used in pending proceedings for the revocation of his firearms licence.  The second is he does not seek the return to him of items of property which were removed by the police in order to check ownership, where the check reveals the property does not belong to him.

[37]     In our view the balancing exercise clearly leads to a conclusion that the evidence should be excluded.  Factors favouring exclusion are:

a)The search was both unlawful and unreasonable; 

b)The affidavit produced in support of the application for the search warrant did not support the issuing of a warrant to search for cannabis; 

c)The information contained in the affidavit was presented in an inappropriate way,  particularly the statement that Mr Rollinson was involved in the wider criminal offending, when  there was no evidence to suggest he was; 

d)The representation of the significance of the intercepted conversations referring to Mr Rollinson or involving his participation was inaccurate;

e)The police sought a warrant covering the Appendix B stolen items when there was nothing in the affidavit even referring to involvement on Mr Rollinson’s part  in the burglary and receiving of those items.  Although the Registrar who signed the warrant deleted the reference to Appendix B, the officers executing the warrant had a copy of that appendix with them and used it to check items found in Mr Rollinson’s house.

f)Mr Rollinson was clearly influenced in his decision to invite the police into his property and take them to the cannabis growing operation by the fact he was presented with a warrant which, on its face, authorised a search for cannabis.

[38]     The major factor against exclusion is that there is compelling evidence of the commission of the offences specified in the indictment..  The prosecution will not be able to proceed without it.  But this is not offending at the most serious level and that factor does not strongly support the admissibility of this evidence when balanced against the factors set out above.

[39]     We are satisfied that, applying the test set out in R v Shaheed, the evidence should be excluded.  Accordingly, we grant leave and allow the appeal.  We rule that the evidence gathered pursuant to the execution of the search warrant at Mr Rollinson’s house, including the record of the interview with him at the time of the search, is inadmissible.

Solicitors:
Crown Law Office, Wellington