THE QUEEN v HENARE MOANA BOWRING [2001] NZCA 20 (15 February 2001)

NO PUBLICATION UNTIL AFTER TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

ca399/00

THE QUEEN

V

HENARE MOANA BOWRING

Coram:	Blanchard J Tipping J McGrath J
Judgment: (On the papers)	15 February 2001

judgment of the court DELIVERED BY TIPPING j

[1] This is an application for leave to appeal against a pre-trial order under section 344A of the Crimes Act 1961 ruling as admissible evidence obtained upon the execution of a search warrant at the appellant's address.The appellant is charged with one count of burglary, one of cultivation of cannabis and one of producing cannabis oil.
[2] The appellant applied for legal aid in respect of this appeal.The Registrar declined the application after the necessary consultation.The appeal has, therefore, been determined on the basis of written submissions.
[3] The appellant challenged the validity of the search warrant in the District Court on the basis that the information before the issuing officer was insufficient to support the required reasonable grounds for belief under section 198. However the District Court Judge held that the warrant was properly issued and that the evidence was therefore admissible.That decision is appealed to this court.
[4] The search warrant application in question was made by a Constable Lack on 6 November 1999.In that application Constable Lack deposed as follows:
1. That on the 29^th of September 1999 a burglary was committed at Baker Bobs, Chadwick Road, Tauranga.
2. That on the 29^th September Henare Bowring was caught on the Caltex Garage Station camera at 2.30am.
3. That Henare Bowring paid $14.00 in .50c coins for cigarettes and petrol.
4. That $220.00 of .50c coins and $1.00 coins were taken in the burglary.
5. That on the 6^th November 1999 reliable information was received from an informant that Henare Bowring has now in his possession a playstation game.
6. That a playstation game was taken in the Baker Bobs burglary.
7. That Henare Bowring has been convicted of 11 dishonesty offences in the last 2 years and two of those are burglary convictions.
8. That enquiries have established Henare Bowring to be residing at 81 Hynds Road, Tauranga.
9. That burglary is punishable on conviction by way of imprisonment.
[5] As is clear on reading it this information is brief.It would normally be expected that at least some basis for the reliability of the information from the informant would be given.While such sparse applications are not to be encouraged, for the reasons of the District Court Judge outlined as follows we consider that there were reasonable grounds for the belief as required under section 198.
[6] The Judge held as follows:
If the application for the warrant had depended solely upon the contents of paragraph 5, then it could not have been granted.It did not, however.The judicial officer was faced with a factual situation where, in the early hours of a morning on which a burglary was committed, and in which a large number of fifty cent coins were stolen, the accused was paying a petrol station in fifty cent coins.That is a most unusual thing to occur, and when added to the information that a playstation was stolen in the same burglary and that the accused was in possession of such an item five weeks later, then there is in my view sufficient information in the application to found reasonable grounds for believing that the search will provide items that are sought by the police.To this is added the history of the accused.
This application is verging on the sparse, but in my view it satisfies the necessary tests. That being the case, I hold that the warrant was validly issued and evidence obtained pursuant to the search of the premises is admissible.
[7] Accordingly the application for leave to appeal is refused.Thus the evidence obtained pursuant to the search warrant is admissible at the appellant's trial.