R v Waghorn CA362/01 [2001] NZCA 440; (2001) 6 HRNZ 692 (13 December 2001)

Last Updated: 20 May 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA362/01

THE QUEEN

V

GEOFFREY ALLAN WAGHORN

Hearing: 10 December 2001

Coram: Gault J

Keith J Blanchard J

Appearances: D N Bunce for Appellant S P France for Crown

Judgment: 13 December 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] In a pre-trial application under s344A of the Crimes Act 1961 the High Court ruled that evidence obtained as a result of a search at the appellant’s residence was admissible. The search had located large quantities of cannabis oil and plant material. A jury in the High Court at Christchurch has found the appellant guilty on one count of possession of cannabis for supply. He appeals his conviction on the ground that the Judge erred in admitting the evidence in question.

[2] On 24 April 2001 Constable Maw received information from an informant that the appellant was selling drugs from an address in Oxford. On 30 May 2001 Senior Constable Brine received information from a different informant, also in relation to the sale of drugs by the appellant. This informant advised Constable Brine that the appellant was selling drugs at a price of $100 to $120 per gram. The informant had obtained that information using a scanner to listen to a private conversation between the appellant and another. The informant told the constable that he believed that part of the conversation had emanated from a dwelling attached to the Shell Waikuku Service Station on the Main Road. Constable Brine duly advised his senior officer, Detective Sergeant Barnett. On 5 June 2001 Constable Maw also received information from the first of the informants that the appellant was selling drugs from behind the Shell Station at Waikuku.

[3] An application for a search warrant was made by Detective Sergeant Barnett on 6 June 2001. In an affidavit in support of the application he deposed:

1. That recently a confidential informant was listening to his scanner when he overheard a conversation involving the sale of drugs.

2. That the conversation spoke of ‘lines’ and ‘uncut’ and a price of

$100 - $120.

3. That the informant believed that one part of the conversation came from the house behind the Shell Waikuku Service Station.

4. That the Police have also received information from another confidential and previously reliable informant, that a person by the name of ‘Blue’ is selling ‘snort’ from his address at the house behind the Shell Waikuku Service Station. This informant also states that WAGHORN is selling cannabis.

5. That Police enquiries reveal that the person residing at 1413 Main North Road, Waikuku, is Geoffrey Allan WAGHORN.

6. WAGHORN has a nickname of ‘Blue’.

7. That the terms used to describe the drugs mentioned, refer to the drugs, Cocaine or Methamphetamine.

[4] The execution of that warrant led to the discovery of the cannabis in respect of which the appellant has been convicted.

[5] The pre-trial ruling was given on 21 September 2001. The previous day another Judge, William Young J, had delivered judgment in Moreton v Police (High Court, Greymouth Registry, AP1/01, 20 September 2001) in which he had allowed an appeal against conviction based on evidence of the interception of private conversations by a member of the public using a scanner. William Young J had ruled that such evidence was inadmissible because of s312M of the Crimes Act 1961 which, in part, reads:

312M Inadmissibility of evidence of private communications unlawfully intercepted

(1) Subject to subsections (2) to (4) of this section, where a private communication intercepted by means of a listening device otherwise than in pursuance of an interception warrant or emergency permit issued under this Part of this Act or of any authority conferred by or under any other enactment has come to the knowledge of a person as a direct or indirect result of that interception or its disclosure, no evidence so acquired of that communication, or of its substance, meaning, or purport, and no other evidence obtained as a direct or indirect result of the interception or disclosure of that communication, shall be given against any person, except in proceedings relating to the unlawful interception of a private communication by means of a listening device or the unlawful disclosure of a private communication unlawfully intercepted in that manner.

[6] At all stages in the present case the Crown has chosen not to impugn the Moreton decision. We have not been called upon to determine whether it is correct nor to consider whether s312M precludes the use of material from an intercepted private communication for the purpose of obtaining a search warrant. The Crown has also accepted for present purposes that if paragraphs 1, 2 and 3 of the affidavit made by Detective Sergeant Barnett must accordingly be disregarded, there was insufficient material in the remainder of his affidavit to provide a proper basis for the issue of a search warrant.

[7] The Crown’s position is that, in the somewhat unusual circumstances of the case, the search of the appellant’s premises was not unreasonable and therefore not in breach of s21 of the New Zealand Bill of Rights Act 1990.

[8] The reasoning of the Judge who had heard the pre-trial application which led him to uphold the Crown’s submission is contained in the following passage from his judgment:

The evidence before this Court on this particular point is not only the oral evidence given by Detective Sergeant Barnett today, but the job sheets that were ultimately made available to the Court. A reading of those satisfies me that they are, firstly independent from the scanned evidence. It was evidence volunteered by the informant; it confirmed the scanned evidence, but did not arise directly, or indirectly, from it. The police did not go chasing the informant after they had the evidence from the scanner, rather it was a call to the police constable concerned where the information was volunteered, and having the advantage of reading that job sheet, it is clear that it contains information that would lead anybody reading it to a reasonable belief that drug selling was being carried on at the premises in question. Furthermore, I am satisfied, having heard from Detective Sergeant Barnett, that the informant is a reliable one, for the reasons he gave in the course of his evidence.

Accordingly, although not having dealt with this matter as fully as I would have liked if I had more time, I am satisfied that while the issue of the search warrant was unlawful (on the Crown’s concession) in this case the search was reasonable, and the evidence obtained as a result is admissible.

There is the further point, and that is while it is preferable in all cases for the search warrant to be obtained, it would appear that the police had the power under s18(2) of the Misuse of Drugs Act in any event to act on what I have found to be independent evidence of the informant.

[9] For the appellant, Mr Bunce began with the argument that where there is an unlawful seizure of evidence it will be rare that the actions of the police will be found to have been not unreasonable. In particular, where search warrants were obtained on the basis of information which is inadequate properly to satisfy the judicial officer issuing them of the required “reasonable grounds to believe”, then such evidence should, prima facie, be ruled inadmissible in the absence of compelling reasons to the contrary being established by the Crown, particularly in cases involving searches of private dwellings. Mr Bunce said that Detective Sergeant Barnett held relatively senior rank and had 28 years of experience in the police and it was of concern that he did not appear to have understood that he had a duty to be completely open and frank with the person issuing the warrant. By and large the police officer appeared to have regarded the issuing of search

warrants as a routine exercise and expected search warrants to be freely issued. In such circumstances, counsel said it was not appropriate when the adequacy of the grounds for the issue of the warrant was challenged, for inquiry then to be conducted concerning whether there was other evidence available to the police which, had it been included in the affidavit, would have provided a basis for issuing the warrant. Counsel drew attention to recent criticisms of the conduct of the police in this regard in R v Cook (CA70/99, 6 May 1999), R v Harrison (CA20/01, 23 May 2001), R v Burns (CA148/01, 4 September 2001) and R v Pineaha (CA315/01, 1 November 2001). In Pineaha Tipping J had said, for the Court, that “we do not consider a search will normally be reasonable if the police apply for a warrant on the basis of wholly inadequate material and then claim that they were actually in possession of information which would have justified the issue of the warrant”; and that to regard that situation routinely as involving a reasonable search would tend to subvert the quasi judicial process involved in the issue of search warrants.

[10] For the Crown, Mr France submitted that this was not a “run of the mill case” and that it had been open to the High Court to conclude that in all the circumstances the search had not been unreasonable. The application as a whole had, at the time it was made, appeared to contain ample material to form the basis for the issue of the warrant. It was only after the subsequent decision of William Young J in Moreton that the police learnt there was a difficulty in basing the warrant on the evidence obtained by the use of a scanner by a private citizen informant. The balance of the material, if paragraphs 1, 2 and 3 were disregarded, had been conceded to be insufficient but, Mr France said, only marginally. The Court was in these circumstances entitled to look at the additional material which the deposing police officer had available to him. He had not used it because it appeared to be surplus to requirements and because of a genuine concern that it would reveal the identity of the informant. The police officer had not appreciated that the appropriate procedure is to include all the material relied upon by the police and that, if the warrant is later challenged, the identity of the informant can be protected by making available to the accused and defence counsel an edited version only.

[11] Mr France submitted that the remarks of Tipping J in Pineaha had not been intended as an absolute rule. It was correct that additional information could not “routinely” make an illegal search reasonable, but in some circumstances the existence of additional information might well be relevant to the reasonableness of the police conduct.

[12] In our view this was an unusual case. While we accept that searches will often be regarded as unreasonable where the police apply for a warrant on the basis of wholly inadequate material, neglecting to include other information in their possession which would have justified the warrant (Pineaha), this is not an absolute rule. It is always necessary to look to the circumstances of the case. Here, the police could be forgiven for not anticipating that Mr Moreton would win his appeal on a question of law and that the scanner evidence would become questionable as a basis to support the issue of the warrant. We have seen an unedited version of the police job sheets available to Detective Sergeant Barnett. It is clear that he had a substantial amount of additional information which he did not include in his affidavit for the reasons mentioned. All of it would have supported the application for the warrant. There was nothing unrevealed to the judicial officer which might have led to a warrant being refused. In the circumstances, although Detective Sergeant Barnett should have provided additional information, his failure to do so is understandable. Furthermore, it is plain from a reading of the police job sheets that the police could readily have invoked s18(2) of the Misuse of Drugs Act 1975, which provides for a warrantless search where a member of the police has reasonable grounds for believing that there is in any building a controlled drug of the kind specified in the schedules to that Act. The police certainly had a basis in this case for believing that the appellant was dealing in such drugs from his residence behind the service station.

[13] For these reasons we are satisfied that the search was not unreasonable and that evidence obtained as a result of the execution of the search warrant was properly admitted at the appellant’s trial. The appeal against conviction is dismissed.

Solicitors:

Crown Solicitor, Christchurch