THE QUEEN v SHAWN DEAN ROBERTS [2000] NZCA 235 (12 October 2000)

NO PUBLICATION UNTIL VERDICT
IN THE COURT OF APPEAL OF NEW ZEALAND	ca 241/00

THE QUEEN

V

SHAWN DEAN ROBERTS

Hearing:	27 September 2000(at Auckland)
Coram:	Heron ACJ Tipping J Anderson J
Appearances:	M S Gibson & A Ives for Appellant P K Hamlin for Crown
Judgment:	12 October 2000

judgment of the court DELIVERED BY HERON ACJ

[1] This is an application by the Solicitor-General for leave to appeal against an order made under S.344A of the Crimes Act 1961.

Leave to appeal out of time

[2] S.379A(4) and (5) provides:

(4)Where a person desires to obtain the leave of the Court of Appeal to appeal to that Court under this section, he shall give notice of his application for leave to appeal in such manner as may be directed by rules of Court within 10 days after the decision of the [Court or Judge] is given, irrespective of whether reasons for the decision are given at a later date and irrespective of whether any formal steps to sign, enter, or otherwise perfect the decision are necessary or are afterwards taken.

(5)The time within which notice of an application for leave to appeal under this section may be given may be extended at any time by the Court of Appeal.

[3] The Crown were advised of the issuing of the judgment on 7 July such information being forwarded by e-mail.However the physical copy of the judgment was received by the Crown Solicitor on Monday 10 July and was undated. The Crown assumed that it had been released on that day and only after it was known that the appeal was out of time was the 7 July e-mail traced.

[4] The notice for leave to appeal was filed by the Crown on 20 July and the application for leave to appeal out of time, on 24 July.The Court has wide powers to extend time.Plainly the judgment was not formally delivered to the Crown until the Monday although it may be regarded as dated the 7^th.

[5] The respondent was expecting the charges to be dismissed at the call over on 13 July but then the time for appealing would not have expired.We are informed that he was then told of the intention to appeal.This very short delay of some two days is no prejudice to the respondent.We think in all the circumstances it is appropriate to extend the time for the application for leave.

The Appeal Proper

[6] The appellant is charged with one charge of receiving a pistol knowing that it had been dishonestly obtained, and two charges under the Arms Act of having in his possession, except for some lawful purpose, a .22 Smith and Wesson semi-automatic pistol and ten rounds of ammunition.He is also charged with selling methamphetamine and one charge of engaging in a money laundering transaction in respect of the proceeds of a serious offence namely the selling of methamphetamine.

[7] These charges follow the execution of a search warrant at the respondent's address at 5 Diana Drive, Glenfield on 17 January 2000.Located at the defendant's home were the pistol and ammunition, the drugs and $7600 in cash.

[8] In December 1998, some 13 months previously, a jewellery store in Broadway, Newmarket was robbed.Two offenders entered the store, one carrying a sawn-off double barrelled shotgun, and the second, the bagman, a sportsbag.The premises were robbed after the manager was disabled and forced to lie on the floor with his hands and feet bound.A large amount of jewellery both in value and quantity was taken.Whilst making their departure one of the robbers was seen to use a cell phone.The motor vehicle that had been used as the get-away car was subsequently found.Up to this point, no persons have been arrested for the offending and only some of the property stolen has surfaced in the community to which we refer later.

[9] On 14 January 2000 a comprehensive search warrant application was made directed to a number of persons including the respondent.Houses and cars were targeted.The purpose of the warrant is best described by the concluding paragraphs of the affidavit.

It is my belief that a search of the following addresses and vehicles will reveal evidence that the persons noted in this application are responsible for the Aggravated Robbery of ABOUT TIME and/or the subsequent disposal of the stolen property.In particular, I believe a search will uncover items outlined in Schedules "A" and "B".

Because of the important role the cell phones played in the execution and subsequent disposal of property obtained in the robbery, any cell phones located at the addresses and vehicles searched, will require careful examination in a controlled environment to determine whether they contain details such as pre-set or quick-dial mobile cell phone and calling numbers linking the cell phones used in the robbery to that of ....With that in mind, I seek to seize all cell phones, cell phone packaging, sim-cards and documentation relating to the same, at the addresses listed or in the listed vehicles so such a careful and detailed examination can take place.

[10] Schedules A and B described the list of property stolen, items of clothing worn at the time of the robbery and all phones and sim cards and other miscellaneous documentation.

[11] The affidavit revealed that an informant had supplied relevant information to a named detective connecting the respondent to the robbery, and had been shown a still photograph of the bagman that had been circulated widely in the media.The informant was positive the bagman was a person whom he knew as the respondent.

[12] The affidavit went on to say that according to the deponent a photograph taken on 26 December 1998, some 14 days after the robbery, showed marked similarities between the respondent and the photo of the bagman taken on closed circuit TV on the day of the robbery.

[13] For the protection of the informant much of the affidavit was not made available to the respondent or his lawyers.However in general terms there was evidence suggesting the perpetrators of the robbery had organised themselves both before and after the robbery by widespread use of cell phones.Those persons having been identified, a connection was suggested between them and the respondent.

[14] The search warrant based on that information was duly issued with the consequences already described.The Crown brought a S.344A application to determine the validity of the search warrant.The Judge heard evidence as to the circumstances surrounding the issue of the warrant from the detective and the respondent.On 20 July in a reserved judgment he ruled the issue of the search warrant invalid and the evidence obtained following its execution inadmissible.

[15] S.198 of the Summary Proceedings Act 1957 provide as follows:

(1) 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.

[16] The Judge directed himself in terms of R v Kahika, CA 200/97, 31 July 1997, by reference to the following passage:

As is well established the officer issuing the warrant has to decide whether the material placed before him or her is sufficient to justify being satisfied that there were reasonable grounds for belief in terms of Section 198(1): Rural Timber Ltdv Hughes [1989] 3 NZLR 178, 183.More is required than suspicion, or belief based on mere rumour or gossip:Rural Timber Ltd v Hughes; R v Sanders [1994] 3 NZLR 450.Hearsay evidence, or even double hearsay, may be taken into account in arriving at a reasonable ground for belief if the person issuing the warrant considers it sufficiently reliable: Rural Timber Ltd v Hughes; R v Condren CA 233/96, 10 September 1996.

[17] After reviewing the evidence in the affidavit and summarising those parts not made available to the respondent, the Judge said:

The photographs taken by the surveillance video and the police were not annexed to Detective Newman's affidavit, to give the judicial officer an opportunity of comparing the photographs to see if she agreed with the conclusion of Detective Newman that there were marked similarities between the two photographs.

I also comment that the identification by the informer he or she having been shown a photograph of the bag man, and identifying it as Mr Roberts, is open to objection if at the same time other photographs of Roberts and/or others were not shown too.

[18] The Judge then embarked on an assessment of the identification evidence after seeing the video recording which was shown and the photographs referred to by the police.He said:

"Detective Newman had clearly formed the view that the bag man and Mr Roberts were one and the same.That resulted in him making the statement he did in his affidavit to that effect.In this evidence, he agreed that in hindsight it may have been wiser if he had annexed the photographs to the affidavit, and in that I totally agree.I have some difficulty in his contention that as he was not asked by the judicial officer to produce the photographs, that then absolved him from annexing the photographs.The judicial officer issuing the search warrant was a Deputy Registrar.It may have been prudent for the police to place the application before a Judge who, as far as Mr Roberts was concerned, may well have asked to see photographs.Be that as it may, the conclusionary statement that there was a remarkable likeness between Mr Roberts and the bag man is of considerable importance but, without the photographs, it places the judicial officer in a situation of not herself being able to consider the photographs relied on to reach that conclusion, and make her own determination thereon.

The other matters relied on came from the informer and do not exclude gossip and rumour as being the source.That too creates a conclusion or series of conclusions which the judicial officer would have been unable to test.

In my view then, particularly because of the failure to annex the photographs, but also because of the way in which the informer has failed to give the source of the informer's information, and there being no statement as to the reliability of the informer, as an informer, I am not satisfied the judicial officer had reasonable grounds for belief that justified the issue of the search warrant.

[19] We have reviewed the evidence in the affidavit.It reveals:

(a) Evidence from a code named informer to a named detective implicating the respondent in an aspect of the offending.

(b) Evidence from a code named informer confirming the likeness between the bagman and the respondent as seen in the video photos.

(c) Evidence from the deponent of the likeness between the bagman and the respondent as seen in the video and photos of the respondent taken near the date of the robbery.

(d) Evidence of association between the respondent and persons who may have been involved in the events surrounding the robbery.

(e) Evidence that the goods stolen were difficult to dispose of and accordingly may still be in the possession of the robbers.

(f) The existence of identified clothing which may still be in the possession of the robbers notwithstanding the length of time which had passed.

(g) The likelihood generally of the existence of cell phones, sim cards and accompanying documentation being in possession of the robbers notwithstanding the length of time which had passed.

(h) Whilst the respondent's address had changed he had remained with the same partner, with a brief interruption, since the robbery.Hence the likelihood of articles of personal property being at the current address.

[20] Although the length of time which had run since the robbery affected the various likelihoods, there was evidence in our view on which a judicial officer could be satisfied that there might well be evidence as to the commission of a crime either in the house or car of the appellant.

[21] It is necessary, once again, to repeat what has been said in a number of cases.The role of the applicant for a search warrant is to provide the evidence on which the grounds contained in S.198 are said to be made out.It is then for the judicial officer to consider, on the evidence, what conclusions are to be reached as to whether the grounds in the section are made out. Hearsay, or even double hearsay is not prohibited but the evidence should have on its face a cogency which leads the judicial officer in the circumstances of the case, to conclude there is reasonable ground for believing that there is in any building or vehicle, anything which there is reasonable ground to believe will be evidence as to commission of the offence.

[22] We are bound to say that in our collective trial experience this application contains a considerable amount of information going to the establishment of reasonable grounds.The Judge considered the informants were not adequately confirmed as reliable but has clearly overlooked paragraph 34 where their reliability is deposed.This could well have been because it was omitted from the edited version of the affidavit and frequent cross reference between affidavits is required.

[23] The Judge was plainly concerned at the failure to produce the relevant photographs to the issuer of the warrant.When the Judge saw them he had reservations as to the claimed similarity.In our view the Judge was moving into an area which was more relevant to any trial of the robbery offending. The question remained as to whether the issuing officer could be satisfied on the evidence she had that there was reasonable ground for believing the evidence might be found in the named places.

[24] This is not to say that where the bona fides of the police actions or statements are in issue false claims made to similarity in photographs could not be raised.But no attack on bad faith grounds is made on appeal, the Judge having expressly ruled it out.Here the question remains as to whether there was sufficient for the judicial officer to find a reasonable belief.We have no doubt that there was sufficient and we have earlier set out the ingredients leading to an accumulation of evidence entitling the judicial officer to issue the warrant.

[25] At the hearing of this appeal the respondent, without leave, filed an affidavit from Dr Robin Watt on matters going to the similarity of the respondent, in photographs of him and in the jewellery shop video.We note that the video pictures did not accompany his affidavit.Be that as it may, we decline to read this evidence which goes to a matter of evidence overall and does not bear on the reasonableness of the belief of the applicant for a warrant as assessed by the issuer of the warrant.

[26] It follows that leave to appeal must be given.The appeal is allowed. The evidence obtained pursuant to the warrant is held to be admissible.

Solicitors:

Crown Solicitor, Auckland