THE QUEEN v GLEN GREGORY JOHN CAMERON & JAMIE NEIL GUTHRIE [1999] NZCA 276 (24 November 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 369/99 CA 370/99

THE QUEEN

V

GLEN GREGORY JOHN CAMERON & JAMIE NEIL GUTHRIE

Hearing:	24 November 1999
Coram:	Richardson P Heron J Robertson J
Appearances:	S P France for Crown J P Takas for Appellant
Judgment:	24 November 1999

judgment of the court DELIVERED BY HERON J

[1] This is an application for leave to appeal against a pre-trial ruling pursuant to S.344A of the Crimes Act 1961.

[2] On 3 September 1999 a District Court Judge in Dunedin ruled that certain evidence arising from a search and seizure was admissible.The applicant's are charged that on 5 March 1999, they produced a class B controlled drug, namely cannabis oil and did cultivate a prohibited plant namely cannabis.

[3] The evidence against them includes the various items discovered at 22 Irvine Street, Lawrence, following the execution of a search warrant at that address.Consequently upon the execution of that search warrant, and the information it revealed, a further search warrant was obtained to search 22 Colonsay Street, Lawrence, where the applicant Cameron resided.He was confronted with the outcome of the search at 22 Irvine Street, Lawrence and made certain admissions following being informed of what had been found there.

[4] The search warrants were prepared by Detective Henderson stationed at Balclutha.On the evening of 6 March 1999 Detective Henderson received a phone call from Senior Sergeant Dickie who was in Dunedin.He was informed that Dunedin control had received a telephone call from a person who wished to remain anonymous and that person had passed on information concerning a James Guthrie and Glen Cameron.They had in the informant's words, ripped off a cannabis plot and that they had produced some cannabis oil and that they had been skiting about it and that the majority of the cannabis was at Jamie Guthrie's address at 22 Irvine Street.

[5] Detective Henderson learned that the information being passed to him by Senior Sergeant Dickie had in turn been received by him from another constable who was at control and who received the telephone call.The Detective, in order to verify the information, checked the Wanganui Computer, but also decided to telephone Constable Paul Brown, the local Lawrence policeman at home, and ask him about the two men mentioned in the telephone call.He was the only policeman in Lawrence and according to Detective Henderson, if anyone was going to have any knowledge about Lawrence people, he would have it.He also knew that in Lawrence, Constable Brown had put a considerable amount of time into the community trying to get them to come forward with information and that he had had some good results as a result of that approach in relation to cannabis.Consequently the likelihood of the telephone call being genuine, and possibly in response to the initiatives taken by Constable Brown, was in the mind of Detective Henderson.

[6] Constable Brown was able to confirm the address of one of the applicant's and also that they had both been seen by the constable on mountain bikes in an area where there was known to be a large plot of cannabis.On that basis a search warrant was obtained and incriminating material discovered at one of the addresses.The content of the affidavit in support of the warrant was as follows:

1. ON THE 6^TH MARCH 1999 POLICE RECEIVED INFORMATION FROM A CONFIDENTIAL INFORMANT WHO WISHES TO REMAIN ANONYMOUS.

2. THE INFORMANT STATED THAT HE/SHE HAD OVERHEARD A JAMIE GUTHRIE AND GLEN CAMERON SKITING THAT THEY HAD FOUND A CANNABIS PLOT CONTAINING 60 MATURE CANNABIS PLANTS.

3. THE INFORMANT SAID THAT BOTH GUTHRIE AND CAMERON HAD STATED THEY HAD STOLEN THE CANNABIS PLANTS AND TOOK THEM TO 22 IRVINE STREET LAWRENCE WHERE THEY ADDED CHEMICALS AND PRODUCED THE CLASS B CONTROLLED DRUG CANNABIS OIL.

4. THE INFORMANT STATED THAT GUTHRIE AND CAMERON HAD PRODUCED THE CANNABIS OIL LAST NIGHT BEING THE 5^TH MARCH 1999.

5. ENQUIRIES WITH THE LAWRENCE POLICE REVEALED THAT GUTHRIE AND CAMERON WERE BOTH SEEN BY CONSTABLE BROWN OF LAWRENCE ON MOUNTAIN BIKES EARLIER THIS YEAR IN AN AREA WHERE THERE IS KNOWN TO BE A LARGE PLOT OF CANNABIS.

6. GUTHRIE RESIDES AT 22 IRVINE STREET LAWRENCE.

7. CAMERON RESIDE AT ROBERTSON SHEARING QUARTERS WHICH ARE LOCATED AT 22 COLONSAY STREET LAWRENCE.

8. I BELIEVE THAT A SEARCH OF BOTH 22 IRVINE STREET LAWRENCE AND 22 COLONSAY STREET LAWRENCE WILL REVEAL THE CLASS B CONTROLLED DRUG CANNABIS OIL, THE CLASS C CONTROLLED DRUG CANNABIS, INSTRUMENTS AND IMPLEMENTS FOR USING AND PRODUCING AND DOCUMENTS RELATING TO THE SAME.

9. PRODUCING THE CLASS B CONTROLLED DRUG CANNABIS OIL AND POSSESSION OF THE CALSS C CONTROLLED DRUG CANNABIS ARE CRIMES UNDER THE MISUSE OF DRUGS ACT 1975 AND ARE PUNISHABLE UPON CONVICTION BY IMPRISONMENT.

[7] On appeal it is submitted that the police did not at the time the search warrant was issued, have reasonable grounds for believing cannabis and or cannabis oil were on the premises in question and accordingly they failed to meet the terms of S.198 of the Summary Proceedings Act.That section provides as follows:

Any [District Court Judge] or Justice [or Community Magistrate], or any Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place--

(a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

(b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

(c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence--

may issue a search warrant in the prescribed form.

[8] The formal requirements relating to a search warrant include the applicant's sworn statement of facts which need not be confined to admissible evidence but must express or imply the source of the applicant's belief.

[9] The sworn statement must provide reasonable grounds for belief (as distinct from mere suspicion) that an offence punishable by imprisonment had been committed, the thing specified would be found at the designated place and those things if found would be evidence as to the commission of the offence.See R v Sanders [1994] 3 NZLR 450 per Fisher J and adopted in R v Briggs [1995] 1 NZLR 196.

[10] In the course of cross-examination of Detective Henderson he revealed that to his knowledge the police searched but never found the cannabis plot, the existence of which was said to be known by Constable Brown, and reported as such in Detective Henderson's affidavit.The actual exchange is recorded as follows:

Did Constable Brown know there was a cannabis plot there at that time? ..... Yeah, he had received information that there was a large cannabis plot in that area.I don't know if he knew of the plot at the time he saw them or whether he found that later on, you'd have to ask him that, but you know after speaking to him that night I mean I was satisfied that there was a cannabis plot in that area where they were seen.

But he didn't mention any connection between Cameron and Guthrie and that cannabis plot, did he?He said that they were on mountain bikes in the area, is that right? ..... He said they - I mean I put the information what I'd received to him and says, "What do you know about these boys, what can you tell me?" and he says to me, "I seen them in an area where there's -"I mean this is all hearsay.He'll be able to explain it, but in an area where he knew there to be a large plot of cannabis.I think he'll explain to you I think he'd been out looking for it and he's never been able to find it.

.....

And so wherever this plot was that Constable Brown referred to as far as you know he never saw it and you never saw it? .... No.

Do you know if the police searched for the alleged plot that Cameron and Guthrie were mountain biking near? .... Yes, I believe they did, I listed the dates and when.You'd have to ask Constable Brown.

But they didn't find it? .... No.

[11] We do not accept that the use of the words "known to be" when "believed to be" might have been more accurate take the applicants any distance.Such local knowledge of a resident policeman in a small town carries its own cogency in the context of this case and either state of knowledge would have assisted the deponent and the issuer of the warrant to form reasonable grounds for belief in terms of S.198.

[12] In this case we consider the factors presented on oath to the issuer of the warrant were sufficient for that person to reasonably believe that there was in this house evidence as to the commission of offences.Whilst the identity of the informant was not known, his or her information was relatively precise and focused on a particular address.There is no suggestion of perfunctory inquiry being made and the police officer has wisely made a further inquiry from a local policeman likely to support or otherwise, the reasonable belief engendered by the informant's information in the first place.It is largely a factual matter where as in this case more than one piece of information is added to another and the issuing officer must be satisfied there are reasonable grounds for the belief required by the section.Having considered that evidence again by way of this appeal we are satisfied that the threshold between reasonable grounds for belief and mere suspicion has been traversed.

[13] As this Court said recently:

The courts have long taken the view that a valid warrant can be granted on the basis of hearsay evidence and that information provided to the police by informants can be used provided that there are reasonable grounds for treating it as reliable.

R v Chapman, CA 353/99, 27 September 1999.

[14] As Mr France said, how much less information would have been insufficient to form a reasonable belief is not the point.Here an unidentified informant, (not surprisingly), in a small town conveying with immediacy and specificity, information with names and an address coupled with the local policeman's background information, means the statutory test of reasonable grounds to believe has been complied with.

[15] The Judge in the court below said:

..... and the issue is whether on the information received and subsequent checking with the Lawrence Police that Detective Henderson's belief could be said to have been held on reasonable grounds or whether it was still at a level of suspicion.

When looking at this matter, I am required to be satisfied by the Crown on the balance of probabilities that such a belief was based on reasonable grounds. In this case, although the information received from the Lawrence Constable did not positively establish a link between the presence in the area with actual cultivation, I am satisfied that on learning on the sighting, coupled with the information received, that Detective Henderson had been taken to the point where he was satisfied that there was a basis for the informant's tip off to the Police.

[16] We agree.The application for leave to appeal is refused.The evidence obtained pursuant to the warrant is admissible.

Solicitors:

Crown Law Office, Wellington for Crown

T Horder, Dunedin for Appellant