IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CRI [2013] NZHC Appellant. NEW ZEALAND POLICE Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CRI [2013] NZHC 1350 BETWEEN AND CHERYL MCVEIGH Appellant NEW ZEALAND POLICE Respondent Hearing: 30 May 2013 Appearances: TA Castle for Appellant GC Hollister-Jones for Respondent Judgment: 10 June 2013 JUDGMENT OF TOOGOOD J This judgment was delivered by me on 10 June 2013 at 9:15 am Pursuant to Rule 11.5 High Court Rules Registrar/Deputy Registrar

2 Result [1] On 12 March 2013, Cheryl McVeigh was convicted by Judge Ingram, in the District Court at Tauranga, on charges of possession of a pipe for smoking methamphetamine and possession of cannabis. 1 She has appealed against her convictions on the ground that the Judge erred in admitting evidence obtained by the Police following the issuing of a search warrant. [2] I am satisfied that the warrant was valid and the evidence properly admitted. For the reasons given below, I dismiss the appeal. Introduction [3] Section 6 of the Search and Surveillance Act 2012 ( the Act ), which came into force shortly before the search warrant was sought, provides that a search warrant may be issued if the issuing officer is satisfied that there are reasonable grounds: (a) to suspect that an offence specified in the application and punishable by imprisonment had been committed, or was being committed, or would be committed; 2 and (b) to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application. 3 [4] The challenge to the search-related evidence in the District Court was based on the proposition that the evidence adduced in support of the application for a search warrant did not provide sufficient reliable information to enable the issuing officer to be properly satisfied that the grounds for issuing a warrant under s 6 of the Act had been met Police v Kingi DC Tauranga CRI , 12 March Search and Surveillance Act 2012, s 6(a). Ibid, s 6(b).

3 [5] It was submitted on behalf of the appellant at the summary hearing that information supplied by an anonymous informant ( Informant A ), who had not previously provided information to the Police, did not justify a belief (as opposed to a mere suspicion) that the search would find evidential material in respect of the nominated offences (possession and sale of methamphetamine) in the place specified in the application. [6] The District Court Judge rejected that submission, holding that he had no doubt at all that there were reasonable grounds for an issuing officer to believe that evidential material would be found at the subject premises. Approach to appeal [7] An appeal against conviction shall be by way of rehearing. Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it. This is not a case about findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility; I am required to review the evidential basis for the findings of the District Court Judge as to the sufficiency of the basis for the issuing of the search warrant and form my own opinion: Austin, Nichols & Co Ltd v Stichting Lodestar. 4 [8] In dealing with the appeal, I am required to decide: (a) whether the evidence from Informant A was reliable to the extent that it could found reasonable grounds for the issuing officer to believe that the search would find evidential material in respect of the nominated offences in the place specified in the application; and, if not, (b) whether the search and seizure was in breach of s 21 of the New Zealand Bill of Rights Act 1990 ( NZBORA ); and, if so, 4 [2008] 2 NZLR 141 at [16].

4 (c) whether the evidence of the seizure should have been excluded under s 30 of the Evidence Act [9] If, following that question trail, I hold that the evidence of the seizure should have been excluded, it is inevitable that the convictions should be set aside. The factual background [10] The application for a search warrant was made by Detective Constable Drayson, a Police officer with 13 years experience. In the affidavit in support of the application, Detective Constable Drayson said that Informant A told him that there was a house on Langstone Street, Welcome Bay, that was selling methamphetamine. Informant A said that the property was the first on the left of a group of eight properties with a shared driveway, a carport and a small deck at the front and that the house was made of weatherboard. Informant A also said the main man did not stay at the property but only visited every second day or so. He 5 said the main man drove a brown BMW, that he thought his name was Dot or Doti, that he was aged about 30 or was in his late 20s, and that he was a Maori. [11] When Detective Constable Drayson received this information, he printed a Google Map from which the informant identified the address. From the picture on the website, the Detective Constable confirmed the property s description as given to him by Informant A. [12] Detective Constable Drayson s inquiries revealed that at 10:20 pm on 9 June 2012, a constable had observed a dark BMW motor vehicle parked outside the subject property. The vehicle, which was identified by registration number, was found to be a brown BMW registered to Aaron McVeigh, who was identified as a 26- year-old male. A check with the company supplying power to the address showed the account holder to be Cheryl McVeigh. [13] The information revealed in Detective Constable Drayson s affidavit also included a statement by Informant A that he had an associate (whom he did not wish 5 Although the gender of the informant is unknown, for ease of reference in this judgment I shall refer to Informant A as he.

5 to name) who smoked P or methamphetamine and that the associate had told Informant A about two months earlier that he bought P from the subject property. Furthermore, Informant A said that he had seen that associate at the property. When he asked the associate what he was doing, the associate said I am going to get a bag by which Informant A said he knew he meant he was going to get a small bag of methamphetamine. [14] Informant A provided further information from which it might be inferred that methamphetamine was being supplied from that address, including information about recent visits to the property by a second associate also known to Informant A to be methamphetamine user, and information as to the frequency and duration of visits by many other persons in vehicles. This information was redacted from the version of the affidavit given to defence counsel out of concern that the information would help to identify the informant. [15] The affidavit then contained Detective Constable Drayson s belief that evidential material in respect of the supply of methamphetamine would be found upon a search of the premises. The District Court Judge s approach [16] In his oral decision, after discussing the facts, Judge Ingram referred to the discussion of the test under the relevant section of the predecessor to the Act 6 by Fisher J, delivering the leading judgment of the Court of Appeal in R v Sanders. 7 Accepting that there was a need to distinguish belief from mere suspicion, Judge Ingram noted that Fisher J had indicated that in deciding whether grounds for the issuing of a search warrant existed in a particular case, much depended on the context and the inherent likelihood of the facts asserted. 8 [17] The Judge also referred to, but did not review, the judgments of the Court of Appeal in R v Williams 9 and Judge Moore in R v Keesing (No 10). 10 He noted that Summary Proceedings Act 1957, s 198. R v Sanders [1994] 3 NZLR 450, (1994) 12 CRNZ 12 (CA). Police v Kingi, above n 1 at [5]. R v Williams [2007] 3 NZLR 207 (CA).

6 the reliability of an anonymous informant had to be assessed by checking the details of what the informant had said, because no indicia of reliability could be put forward other than checks on the detail of what the person concerned had said. 11 The Judge said he preferred to look at the state of the evidence as a whole. He found that the story given by Informant A was internally consistent; there were no contra indications in the evidence given or in the Police checks; and there was at least a modicum of corroboration provided by the checks on the property and the occupants. 12 He did not accept that a single anonymous informant could never provide an adequate basis for the granting of a search warrant, 13 and held that the internal consistency of an informant s information can provide reasonable grounds for a belief as opposed to a suspicion. 14 [18] While accepting that the case probably lies at the sharp end of such applications, Judge Ingram was of the clear view that anonymity does not itself discharge the application for a warrant and he was satisfied the delay between the receipt by the informant of some information and passing it on to the Police was within reasonable bounds. The Judge concluded that the information provided was sufficiently detailed for an issuing officer to decide that there was more than suspicion and that the information would tip the application over into the category of case where a reasonable belief could be formed that an offence had been committed and that evidence of it [would] be found at the address. 15 [19] The passage just quoted might be said to indicate a degree of confusion in the mind of the Judge about the ingredients of the test for the issuing of a search warrant under the new legislation, in comparison to those under the Summary Proceedings Act In R v Sanders, Fisher J, with whose judgment the other members of the Court 16 agreed, identified that where a warrant was sought under s 198(1)(b) of the Summary Proceedings Act to secure evidence, the judicial or issuing officer could issue a warrant only if satisfied that there were reasonable grounds for belief in three R v Keesing (No 10) [1999] DCR 383. Police v Kingi, above n 1 at [6]. Ibid, at [7]. Ibid, at [8]. Ibid, at [9]. Ibid, at [11]. Cooke P and Casey J.

7 matters: first, that there had been the commission of an offence punishable by imprisonment; second, that there are things present at or in a stated location; and, third, that the things to be found there will be evidence as to the commission of the offence. [20] It is clear that the test under s 6 of the Search and Surveillance Act does not require the issuing officer to believe in the commission of an offence but only to suspect that an offence had been committed, or was being committed, or would be committed. For contemporary purposes, therefore, the part of the judgment of Fisher J in Sanders just referred to needs to be read with caution. Fisher J s observations as to the differences between suspicion and belief remain applicable, however. [21] It may be that in the course of delivering an extempore oral judgment following a summary hearing, Judge Ingram stumbled a little in identifying the precise nature of the test but I do not think that assists the appellant on this appeal. First, it is clear that the Judge, if he did err, erred in applying an even stricter test than the prosecution faced in relation to the issue of suspicion of offending by suggesting that a reasonable belief in offending may have been required. Second, and more significantly, this is a rehearing and I am required to come to my own views on the matters at issue. 17 Submissions Appellant s submissions [22] After traversing the case law, Mr Castle focussed his appeal arguments on the submission that that the assertions detailed in the search warrant application, even taken collectively, may have justified a suspicion about offending but did not give rise to reasonable grounds for the issuing officer to believe there would have been evidence of the commission of an offence at the appellant s address. 17 See above at [7]; Austin, Nichols & Co Ltd v Stichting Lodestar, above n 4.

8 [23] Making the realistic concession that the information in the affidavit filed in support of the application for a warrant was capable of justifying a suspicion that one or both of the nominated offences had been, were being, or would be committed, Mr Castle s challenge to the convictions on behalf of the appellant was advanced on the grounds that: (a) the Judge s approach to assessing the reliability of the information contained in the search warrant was flawed; (b) there was no information in the application with which to assess the reliability of Informant A or his associates; (c) the information was unreliable; and (d) the asserted corroboration of Informant A s information provided no support for a reasonable belief that offending was occurring or that evidence would be located at the address given in the warrant. [24] On those grounds, Mr Castle submitted the application was manifestly inadequate in establishing the necessary ingredients for the issue of a warrant, and that the search of the appellant s property was unreasonable and in breach of the appellant s rights under s 21 NZBORA as a result. He argued further that the evidence should not be held to be admissible pursuant to the balancing exercise under s 30 of the Evidence Act Respondent s submissions [25] For the respondent, Mr Hollister-Jones did not argue that, if the search warrant was held to be invalid, the evidence flowing from the search should nevertheless be saved by s 30 of the Evidence Act. His response to the appeal focussed entirely on a submission that reasonable grounds existed for the satisfaction of the tests under s 6(a) and (b) of the Act. [26] As to whether the information contained in the affidavit was sufficient, he submitted that this was a case in which a first-time informant had provided

9 information with a level of particularity which made it inherently likely that an offence of dealing in methamphetamine was occurring at the address. This is because: (a) the informant clearly had personal knowledge of the address and what was occurring there; (b) the hearsay information was supported by the informant seeing two of his associates, whom he knew to be methamphetamine users, at the address; (c) the frequency of the arrival and departures of vehicles suggest drug dealing was occurring at the address; and (d) the Police verified the address existed, and the owner of the car fitted the description of the main man given by the informant. [27] On the basis that the evidence established more than a suspicion of offending, Mr Hollister-Jones submitted that the information provided by the informant set out a credible basis for the belief that the search would find evidential material, the Judge was correct, and the appeal should be dismissed. The applicable principles [28] In s 6 of the Act, the words is satisfied do not mean the grounds must be proved beyond reasonable doubt or to any particular standard; they require the issuing officer to make up his or her mind on reasonable grounds, or, in other words, to reach a judicial view on the matter. 18 [29] Reasonable grounds to suspect has been variously defined as a reasonable ground of suspicion upon which a reasonable [person] may act ; 19 that something is Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96]. Police v Anderson [1972] NZLR 233 (CA) at 242

10 possible or likely, or inherently likely ; 20 and thinking that it is likely that a situation exists. 21 [30] The term reasonable grounds to believe imports a higher standard than reasonable grounds to suspect. 22 For this threshold to be met, the issuing officer must be satisfied that the state of affairs alleged by the applicant actually exists in the sense that there must be an objective and credible basis for thinking a search will discover the items identified in the warrant. 23 There must be more than surmise or suspicion that something is inherently likely. 24 [31] In Collett v R, 25 the Court of Appeal confirmed recently that a global, realistic and common sense approach needs to be taken to attacks on search warrants, rather than picking through individual factors. 26 Search warrants based on informants [32] The leading decisions about search warrants based on information from informants are R v Williams 27 and R v Kissling. 28 There are also helpful examples of the applicable principles in action in R v Green, 29 R v Stevenson, 30 and Thornton v Police. 31 [33] Having regard to the above authorities, I regard the ultimate question in any such case as whether the issuing officer can reasonably be satisfied that the information provided is reliable. In the context of anonymous informants, the following questions may be asked: R v Sanders, above n 7 at 461, 21; Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663 at 666. R v Laugalis (1993) 10 CRNZ 350, 1 HRNZ 466 (CA) at , 472. Collins v R [2010] NZSC 3 at [2]. R v Sanders, above n 8; R v Williams, above n 9 at [213]; Warner v R [2011] NZCA 258 at [21]. R v Laugalis, above n 21; Hill v Attorney-General (1990) 6 CRNZ 219 (CA); R v Sanders, above n 7. Collett v R [2013] NZCA 158. Ibid, at [21]. R v Williams, above n 9. R v Kissling [2009] 1 NZLR 641 (CA). R v Green HC Auckland CRI , 23 November R v Stevenson HC Wellington CRI , 4 April Thornton v Police HC Wellington CRI , 8 October 2009.

11 (a) What is the nature and apparent quality of the information? (i) Is it detailed and appear to be based on personal observations rather than vague assertions or hearsay? (ii) Is there evidence that the statements are based on more than suspicion, rumour or gossip? (iii) How current is the information? (iv) Is the informant someone close to the alleged offender (e.g. friend, family member or co-offender) and so is in a better position to give reliable information as opposed to a distant source? (v) Is there any reason to think that the informant might be motivated by malice or ill will? (b) Can the information be supported by evidence from independent and verifiable sources? (c) Has the source, although anonymous, provided reliable information in the past? (d) Is there any other, objective evidence to support reliability? [34] Once the reliability of the information is established, the question is whether the information is sufficient to form reasonable grounds for the issuing officer: (a) to suspect an offence has been, is being, or will be committed; and (b) to believe that the search will find evidential material in respect of the offence.

12 Application [35] Having regard to the relevant principles, and notwithstanding Mr Castle s thorough analysis of the information and succinct arguments, I agree with Judge Ingram s conclusion that there were reasonable grounds for issuing a search warrant in this case. In coming to that view, I have taken the following factors into account: (a) Informant A did not make vague assertions but gave information that was sufficiently detailed to suggest that it was based on genuine observations. The property and its location were accurately described before Detective Constable Drayson checked them in a Google Maps search. A good description of the main man was given, including an estimate of his age and ethnicity, and the make and colour of his car were provided. (b) None of this evidence proved any relationship between the property, its occupants, and criminal offending, but the detailed description of the property given by Informant A was corroborated by the map and photograph and that supported the informant s reliability. (c) The description of a man aged about 30 or in his late 20s driving a brown BMW who was a frequent visitor is at least consistent with the observations of a Police officer in June 2012 that a 26-year-old male who owned a dark BMW parked outside the address shared the same surname as the power account holder for the property. Such confirmation would lead to a reasonable inference that Informant A had reliable information about the property and one person who was at least a regular visitor. (d) The evidence was based on eye-witness accounts by the informant spread over a period of time, involving many observations. The informant provided information as to the frequency and duration of visits to the property by persons in cars which was indicative of drugdealing activity.

13 (e) Although Informant A passed on hearsay information that an associate had told him some two months earlier that he bought P from the property, this is supported by the evidence that the informant saw his associate at the property and had spoken to him about that visit. It is also supported by information that he had seen another associate, who was known to Informant A to smoke methamphetamine, at the address on about five occasions, most recently about two weeks prior to the discussion with the Police. (f) The independent verification of some of the details provided by Informant A, and the absence of evidence suggesting he may have a motive for providing misleading or fabricated information, supported the conclusion that the hearsay information from the associates was credible. [36] An interesting issue not yet addressed by the courts under the new search legislation is whether a suspicion of offending provides any foundation for a belief that evidential material of the suspected offending would be found in the search. On at least one view, evidence leading to the conclusion that there was merely a suspicion of offending could never be sufficient to justify a more substantial belief in the likely existence of evidential material. [37] I do not consider it is necessary to address that issue in this case, however, because I am satisfied that the evidence available to the issuing officer here was sufficient to justify a belief that offending was continuing to occur at the address. Informant A gave up-to-date information about his own observations of what was taking place at the property. In those circumstances, it requires no great leap of logic to find that the same evidence supports a belief, rather than a mere suspicion, that evidential material would be found on the property. [38] While Mr Castle s careful analysis of the evidence and the legal principles may have led Judge Ingram to the view that the argument for the appellant failed only by a narrow margin, I am wholly satisfied that the granting of the search warrant was justified in this case. That being so, it is unnecessary to address the

14 NZBORA and Evidence Act issues which would have arisen had I come to a contrary conclusion. [39] I dismiss the appeal.... Toogood J