THE QUEEN v SHANE AARON WILLIAM OLIVER [1999] NZCA 28 (16 March 1999)

IN THE court of appeal of new zealand

ca 394/98

THE QUEEN

V

SHANE AARON WILLIAM OLIVER

Hearing:	16 March 1999
Coram:	Richardson P Heron J Goddard J
Appearances:	P K Feltham for the Crown R M Lithgow and S L Baigent for the Appellant
Judgment:	16 March 1999

judgment of the court delivered by GODDARD J

[1] This is an appeal against a pre-trial ruling pursuant to s.344A Crimes Act 1961.The evidence, which the Crown successfully sought to adduce, was obtained pursuant to a search warrant executed at an address occupied by the appellant and from which a `tinnie' house was allegedly being operated.The appellant was the only person present at the address when the search warrant was executed on 2 March 1998.Discovered underneath a chair on which he was sitting were six cannabis `tinnies'.He claimed to have purchased those for $20 each.Cash totalling $750 was also found on the floor nearby, which the appellant claimed comprised a benefit payment and payments received for tattooing.A further `tinnie' was found in a cabinet in the lounge and a `roach' under a mattress.Plastic bags containing tin foil and further cannabis were found in the bathroom, and `spotting' knives were found in the kitchen.Bathroom scales were found concealed under the floorboards in the laundry.The amount of cannabis seized in this search approximated the statutory presumption.Beyond admitting that he was the lawful occupier and had lived at the address for two months, the appellant made no admissions.

[2] At the pre-trial hearing the defence challenge to the admissibility of the evidence was directed to the validity of the application for the search warrant obtained by the Police. Essentially that is the ground of appeal now advanced in this Court also.

[3] For the appellant, Mr Lithgow submitted that the affidavit sworn and filed in support of the successful application for a search warrant contained third-hand hearsay evidence on the part of the deponent and thus did not provide "proper evidence forming the foundation of an application".On that basis he submitted there was no foundation upon which the Deputy Registrar, who issued the warrant, could have reached the requisite standard of belief required by s.198 Summary Proceedings Act 1957.For the same reason the District Court Judge, who ruled in favour of the Crown under s.344A Crimes Act, had erred in concluding that the search warrant was obtained reasonably and on sufficient grounds.Mr Lithgow submitted that the search warrant should have been ruled invalid on the basis of insufficient grounds to support its issue and that the cannabis material and other items seized during the search authorised by that warrant consequentially ruled inadmissible.

The Relevant Chain of Events

[4] It appears from evidence given at the pre-trial hearing that, during the night-shift commencing 11.00 pm on 1 March 1998 and finishing at 7.00 am on 2 March 1998, a constable on street duty received information from an informant about a `tinnie' house being operated by the occupants of 163 Tasman Street, Mt Cook, Wellington.The informant advised that the occupants were selling cannabis tin foils on a daily basis at a charge out rate of $20 per foil and that he had purchased cannabis there that very morning.

[5] The Constable concerned, Constable Moyle, duly advised the senior officer in charge of his section, Sergeant Malaulau, of the information he had received.An application for a search warrant and affidavit in support was then prepared in which the information received from the informant was set out. Constable Moyle was the intended deponent and his name and rank were inserted in the affidavit as such. Sergeant Malaulau apparently took the view, however, that the matter was not so urgent as to require the application and warrant to be sworn before a Justice of the Peace prior to their shift finishing at 7.00 am that morning.The decision was therefore taken that the Combined Investigation Unit, which commenced the next shift at 7.00 am, could take care of the matter and conveniently swear the warrant at the Court sometime after 10.00 am.

[6] Sergeant Malaulau accordingly briefed an officer on the early shift in respect of the matter when that officer arrived at about 6.45/7.00 am.That officer, Constable Hall, gave evidence at the pre-trial hearing.He said Sergeant Malaulau first enquired whether he was available to swear a search warrant later that morning, and he was.Sergeant Malaulau then sat down with him and went through the points of the affidavit so that he was fully aware of the content of the affidavit.Constable Moyle's name was crossed-out as deponent and Constable Hall's name written in.Constable Hall said that he understood that Sergeant Malaulau had been informed of the matters to be deposed by Constable Moyle, who had received the information from an informant. Although Constable Hall had knowledge of the fact that such `tinnie houses' were being operated and was also aware of the occupant of 163 Tasman Street, Mt Cook, and of his gang associations, he did not have specific knowledge of the detail set out in the affidavit but received that from Sergeant Malaulau.Nor did he have personal knowledge of the exhibits referred to in the affidavit. However, he accepted Sergeant Malaulau's instructions as reliable and trustworthy.

The Affidavit Sworn and Filed in Support of the Application for a Search Warrant

[7] The affidavit sworn by Constable Hall in support of the application for a search warrant, showed his name substituted for that of Constable Moyle.It set out the following matters:

"1. On Monday 2^nd March 1998, information was received from a confidential and reliable Police informant, that the occupants of 163 Tasman Street, Mt Cook, Wellington, were selling cannabis from that premise.

The informant stated that members of the public go up the external pathway of the dwelling and knock on the first door they come to.

The informant stated the occupants sell cannabis tin foils on a daily basis and charge $20 per foil.

The informant stated that he had purchased cannabis there that same morning.

The informant has told Police that the occupants of the address will sell to people that have an identification card for the address.The informant has given Police one of the identification cards from the address.

Although Police have no current information on the address, Police believe the occupants of the address are associated to the Highway 61 gang.They are notorious for selling cannabis from `tinnie houses'.

Police also believe that the address is closely associated to another Highway 61 address situated at 91A Tasman Street as the informant stated that he has purchased cannabis from both addresses and has seen the occupier of 91A Tasman Street selling at 163 Tasman Street.

91A Tasman Street is a well known `tinnie house' and the occupant is Clywdd Highway Tredreas who is well known to Police.

Police believe that a search of both 91A Tasman Street and 163 Tasman Street will locate cannabis plant and other documentation and paraphernalia relating to offences against the Misuse of Drugs Act 1975.

Possession of cannabis for supply is an offence punishable by imprisonment."

The Pre-Trial Ruling

[8] In a succinct, though thorough, ruling the District Court Judge found as follows:

"In the first place, I accept that Constable Hall made the application, and gave the supporting affidavit, in good faith and on proper grounds.He completed the affidavit and made the application only after Sergeant Malaulau had satisfied him as to the cogency of the narrative in the affidavit, and I am satisfied in turn that this conclusion was fairly open to him.Secondly, and relatedly, I agree that the affidavit is in the crucial respects highly specific.It begins with pointed observations about a pattern of sales at 163 Tasman Street consistent with that address having become a `tinnie' house.It culminates in the statement that the informant himself had made a purchase that day.It names as present then, or on some earlier occasion, a person known to be the occupant of another `tinnie' house on Tasman Street with a gang connection.All this points to a single conclusion.Thirdly, and one more relatedly, I accept that this body of information provided grounds on which the Registrar might reasonably come to the state of belief required by s.198(1) of the Summary Proceedings Act on which the issue of a warrant is predicated, despite Constable Hall himself not claming as his own that state of belief in the affidavit.Also, it is not without significance, ... that on the execution of the warrant what was found was the form of evidence to which the warrant was directed.

In saying this I do not ignore that the affidavit was triple hearsay.But hearsay at one level or another is always a feature on search warrant applications where the source is an informant whose anonymity the applying officer wishes to protect.This was recognised in R v Condren CA 233/96, 10 September 1996, where double hearsay figured.There the level of hearsay was treated as going to admissibility and not to the validity of the warrant; in other words as going to reasonableness and fairness.The question is finally, as it is with evidence of any description, whether what is deposed to appears to be cogent fact from which a conclusion might safely be drawn or is merely assertion.

One difference between the case and this is that there the deponent disclosed that he was speaking hearsay, but Constable Hall's omission to do so does not, I think, taint his conduct.He struck out Constable Moyle's name, and spoke abstractly, and as proved to be the in evidence, was frank about what his state of knowledge was.And in this case, in contrast to that, the informant did more than claim that drugs were likely to be found at the premises searched; the informant disclosed a purchase on the day.That more than balances the equation.This is not a case like R v Reid CA108/98, 30 July 1998, in which there was `a quantum leap of logic'.The hearsay was of good quality, and the fact it was triple hearsay is a formal consideration; Constable Hall merely relayed what Constable Moyle had prepared.

Thus I consider that the search was conducted in reliance on a search warrant obtained reasonably on sufficient grounds, and that as there is no complaint about the manner of search, the search itself was conducted consistently with s.21 of the Bill of Rights Act, and fairly; and it follows that what was discovered and seized on the search is admissible in evidence."

The Appeal

[9] The argument on appeal was that Constable Hall, as deponent of the affidavit filed in support of the application for the search warrant, lacked personal knowledge of the matters he deposed to.This was apparent on the face of his affidavit in which he ascribed knowledge and belief to "the Police" in abstract.Whilst accepting that search warrants can include hearsay evidence, Mr Lithgow nevertheless criticised the affidavit on two bases.First, that the matters deposed to by Constable Hall in the affidavit were third-hand hearsay. Secondly, that the affidavit should have made it explicitly clear that Constable Hall was a nominal deponent only.In support, Mr Lithgow referred to the decision of this Court in R v Sanders 1994 3 NZLR 450 CA and, in particular, to a discussion of the requirements of s.198(1) Summary Proceedings Act 1957 in the judgment of Fisher J at 459.During that discussion Fisher J commented as follows:

"... the very fact that the statute requires sworn evidence indicates that the deponent must expressly or impliedly assert his or her personal belief to the truth of the primary facts to which he or she is deposing.Normally when a deponent asserts particular facts, the context will justify an inference that he or she has personal knowledge of the facts asserted.If the context suggests otherwise, and some other reliable foundation for the deponent's belief is not given, the bald assertion will normally carry little or no weight.Much will depend, however, upon the context and the inherent likelihood of the facts asserted.The ultimate test of the evidence is whether the applicant has provided the judicial officer (a District Court Judge, Justice or Registrar (not being a Constable)) with reasonable ground for belief in the elements necessary for the issue of the warrant."

Section 198 Summary Proceedings Act 1957

[10] Pursuant to s.198 Summary Proceedings Act 1957:

"Sec.198. Search Warrants - (1) Any District Court Judge or Justice or any Registrar (not being a Constable), who, on an application in writing made an oath, is satisfied that there is reasonable ground for believing that there is in any building ...

Anything upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

Anything which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

Anything which there is reasonable ground to believe is intended to be used for the purposes of committing any such offence -

may issue a search warrant in the prescribed form."

Conclusion

[11] It is standard practice for applications for search warrants to amorphously describe the source of knowledge deposed to as "information received", to describe the provider of such knowledge as an "informant" and to describe the recipient of such knowledge as "the Police".In R v Grayson and Taylor [1997] 1 NZLR 399, the recipient of the knowledge deposed to in that case was simply described as "the Tauranga Drug Squad".Such abstract terminology will suffice so long as the specifics of the information contained in the application for a warrant is capable of satisfying a judicial officer that there are reasonable grounds for believing the existence of matters in s.198(1)(a), (b) or (c). The application should of course state how the information was sourced, if not within the personal knowledge of the deponent.

[12] In the present case the hearsay nature of the evidence has not been converted into a particular statement of fact or belief, contrary to Mr Lithgow's submission.The opening paragraph of the affidavit clearly states that the information has been received from a "confidential and reliable Police informant".The following paragraphs then make it clear that the hearsay information passed by the informant was to "the Police" so that the reader is not misled into supposing Constable Hall himself received the information first-hand, or that it is not in the nature of hearsay.Constable Hall's role is simply that of deponent in his capacity as an officer of the New Zealand Police, and no more.

[13] The information in the body of the affidavit is quite specific and provides reasonable grounds for believing that 163 Tasman Street, Mt Cook was being operated as a `tinnie house'.In particular, the informant has stated that he purchased cannabis from that address that morning and has given the Police an identification card from the address.The identification card apparently enables the holder to purchase cannabis from the address.The rest of the affidavit contains general Police intelligence relating to the occupants of the address and their activities.

[14] Thus the specifics of the information in the affidavit take it out of the realms of "bald assertion" and provide a context which makes it inherently likely that the facts deposed to are reliable.A judicial officer reading them could well feel satisfied that they provide reasonable grounds for belief in the elements necessary for the issue of a warrant.Thus the application for a warrant in this case does contain a reliable foundation for Constable Hall's belief, in the terms as discussed by Fisher J in Sanders above.

[15] Further, it should be noted that the majority of this Court in Sanders observed that:

"Shortcomings in procedure and documentation are so various, however, that we have reservations as to how far any formula could be evolved that would provide anything in the nature of an automatic analytical answer to issues under ss.198 and 204.In the end, it is always a question of the relative seriousness or otherwise of an error.If the error is so serious as to attract the description "nullity", s.204 will not assist.Inevitably questions of degree and judgment arise."

[16] Section 204 Summary Proceedings Act saves documents from invalidity for "defect, irregularity, omission or want of form" if they occasion no miscarriage of justice.

[17] We are satisfied that the ruling of the trial Judge is correct and the appeal is therefore dismissed.

Solicitors:

Crown Solicitors Office, Wellington for the Crown

R M Lithgow, Wellington for the Appellant