THE QUEEN v GREGORY COOK [1999] NZCA 73 (6 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 70/99

THE QUEEN

V

GREGORY COOK

Hearing:	6 May 1999 (at Auckland)
Coram:	Blanchard J Anderson J Robertson J
Appearances:	C White for Appellant
	C B Cato for Crown
Judgment:	6 May 1999

judgment of the court delivered by ROBERTSON J

[1] Gregory Cook seeks leave to appeal against a ruling made under s 344A of the Crimes Act 1961 in the District Court at Whangarei on 16 February.In issue was the validity of a search warrant which had been obtained and executed on 12 August 1998 on the basis that there was insufficient material placed before the judicial officer to justify the warrant's issue.

[2] The affidavit in support was sworn by a Police Constable and is as follows :

I, RUSSELL COLIN BOOTTEN, of KAWAKAWA POLICE

make oath and say as follows :

RELIABLE INFORMATION WAS RECEIVED TO SAY THAT A.G. COOK OF TOWAI IS CULTIVATING APPROXAMTELY 40 CANNABIS PLANTS IN THE GARAGE AT HIS ADDRESS IN TOWAI.

THE INFORMANT DOES NOT WISH TO BE IDENTIFIED.

I THEREFORE APPLY for a search warrant to be issued in respect of the said building, aircraft, ship, carriage, box, vehicle, receptacle, premises or place situated at STATE HIGHWAY 1 TOWAI.HOUSE ON SOUTH SIDE OF SHOPS.

SWORN AT KAWAKAWA

this 12 day of August 1998.

[3] The District Court Judge referred to decisions in this Court in R v Sanders [1994] 12 CRNZ 12 and R v Kahika (CA 200/97, 31 July 1997).

[4] The Judge concluded ("although it must be said only just") that the evidence was admissible because :

1. I accept Mr Thomas' submission that the specific numbering of the cannabis plants together with the description of an actual location, is sufficient for the issuing Judicial Officer to draw the inference that the assertions made in the affidavits are more than suspicion, rumour or gossip.

2. I bear in mind the general principles expressed by the Court of Appeal in R v Grayson and Taylor [1997] 1 NZLR 399, and in particular the comment contained in that judgment at page 406, line 37 :

The unique feature of real evidence is that it exists irrespective of Police conduct in discovering its existence unlike confessional statements where real evidence is involved the accused is not conscripted against himself or herself, and if wrongfully seized the property could be returned to its true owner or possessor but who would then have possession of it and would be liable to be charged in respect of any possessory offence.

3. When reduced to bare essentials the lack of specificity and connection between the supporting material and the crucial elements of the affidavit as criticised by the Court of Appeal in Kahika are not to my mind apparent in this case.I agree with Mr White's comment that the use of the adjective "reliable" by the deponent does not of itself mean that the information is reliable, but I consider that there is just sufficient in the particularity contained in the short statement contained in the affidavit to take it out of the category described in Kahika as a mere conclusory statement.Having ruled that the evidence is admissible however I would agree that this case falls within the area described by the Court of Appeal in Limbrick in its final paragraph :

In expressing this conclusion we do not intend to convey that the affidavit was other than merely adequate.A search warrant authorises a breach of privacy and the issue of a warrant is a serious matter.Police Officers seeking a warrant have an obligation to support the application with clearly sufficient, substantial information.Not only would the right to privacy be given its due, but also fewer questionable warrants would be issued.

Here I think the affidavit can be described as barely adequate but nevertheless in my view it is just adequate enough.

[5] Mr White argues that accepting that one must view the affidavit in support of the application as a whole (R v McNicol (1994) 12 CRNZ 668) the judicial officer must have a reasonable ground for belief with respect to all three of the ultimate issues referred to in s 198(1)(b) and be mindful of the distinction between belief and mere suspicion.

[6] Section 198(1) provides :

Search warrants - (1) Any [District Court Judge] or Justice, 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.

[7] It is accepted that hearsay evidence or even double hearsay may be assessed in the process providing there is a reasonable ground for belief if the person issuing the warrant considered it sufficiently reliable.In other words it is accepted that although the affidavit need not be confined to admissible evidence, it must include expressly or by necessary implication, the source of the applicant's belief unless it is patently incontrovertible.

[8] As was noted in Kahika a conclusionary statement without more is not sufficient.There are sometimes cases where the existence of additional factual matters will be sufficient to tip the balance (R v Limbrick (CA 346/98, 23 November 1998).

[9] In the present instance it is argued that there was an evidential insufficiency because there was :

[a] no background information to support the asserted reliability of the informant;

[b] no information to support the content of the information received;

[c] no additional information provided;

[d] no information about the address for which the warrant was requested and the address for which it was sought was insufficiently specific.

[10] It was also submitted that the information related to one A G Cook, whereas the appellant's name is Gregory Cook and there is no evidence suggesting he has ever been known by any other name.(This is a questionable proposition on the actual form of the affidavit - it appears to us the reference was to a G Cook).

[11] The Crown on the other hand submits that the information provided by the informant was specific as to the person, the address, the place at the address and the number of plants.In terms of the approach in Kahika the Judge was entitled to conclude that the assertions recorded in the affidavit were based on more than "suspicion, rumour or gossip".The Police Officer had asserted that the information was reliable, although we note that there is no indication as to why he reached that view.

[12] The decided cases make it clear that there is a serious obligation on a deponent in these circumstances.Parliament has provided a mechanism and the Courts have a duty to ensure that it is scrupulously adhered to so that the intrusion which is inherent in a search warrant is controlled in the manner which the Parliament has determined is appropriate.Police Officers need to take the time and trouble to prepare proper information and to avoid short cuts.

[13] The learned Judge in the District Court clearly saw the matter as being borderline but we have been persuaded that the affidavit is insufficient to lay the necessary foundation.The bare and unsubstantiated assertions in our judgment do not constitute material upon which the judicial officer could be satisfied.We are not suggesting that there is a higher test than balance of probability, but the nature of the intrusion of privacy which is inherent in a search needs to be borne in mind in light of s 6 of the Bill of Rights Act 1990.On the face of the affidavit the judicial officer could not know whether there was any basis for the assertion that the information was reliable.We do not accept that merely because there is specificity about the number of plants and the fact that they are in a garage alters that base situation.The factual material provided is here so scant and sparse that we are of the view that it is properly to be placed on the side of the line where the affidavit is merely a conclusionary statement and not the provision of base material.

[14] The Crown argued that should we reach that position then, in terms of the decision of this Court in Grayson v Taylor [1997] 1 NZLR 399, we should determine the search was not in the circumstances unreasonable principally because :

* The Police Officer proceeded on the basis that the warrant had been validly issued and to this extent the search was conducted in good faith.

* The search was of a shed and not a private residence.

[15] This argument was not made in the Court below and we do not address it on appeal.

[16] Leave is accordingly granted pursuant to s 379A of the Crimes Act to appeal against the ruling made in the District Court at Whangarei on 16 February 1999.The appeal is allowed and the evidence is ruled inadmissible.

Solicitors

Crown Solicitor, Auckland