THE QUEEN v STANLEY CHEK-KUAN CHAN [2002] NZCA 149 (26 June 2002)

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANTS AND MESSRS MARSH AND SHORTCLIFFE PENDING DISPOSAL OF THEIR RESPECTIVE PROSECUTIONS

IN THE court of appeal of new zealand

ca 86/02 CA 87/02

THE QUEEN

V

STANLEY CHEK-KUAN CHAN

&

MARDI EDWIN PATUWAKA CHAN

Hearing:	18 June 2002
Coram:	Anderson J Williams J Paterson J
Appearances:	K J Raftery for Crown A Shaw and N G Cooke for S Chan
Judgment:	26 June 2002

judgment of the court DELIVERED BY ANDERSON J

[1] The Crown seeks leave to appeal against a District Court ruling, pursuant to s344A of the Crimes Act 1961, concerning the admissibility of evidence in the pending trials of Mr and Mrs Chan.Although the intituling in the case relates to each respondent, this judgment is only in respect of Mr Chan.The reason is that the submissions intended to be made to the District Court on behalf of Mrs Chan were pre-empted by the ruling, of common significance in the case of each, that the incriminating evidence was inadmissible.The position was put to this Court on the basis that if the Crown's application failed, exclusion of the impugned evidence would be dispositive of both prosecutions; but should the Crown succeed, Mrs Chan should not be deprived of the right to be heard on her application in the District Court, which in some respects differs from that of her husband.

[2] The focus of the case is a search warrant issued by the District Court at Papakura on the application of Constable G P Foster in respect of a residence at 3 Falkirk Street, Blockhouse Bay, Auckland.In the course of executing the warrant a member of the Police party noticed a strong smell of cannabis plant as he approached the doors of a basement garage.Access to the garage was obtained by the use of a padlock key reluctantly handed over by Mr Chan. The fact that a warrant was being executed and Mr Chan needed some oral persuasion to deliver up the key gainsays any element of voluntariness on his part.

[3] Within the basement was a cannabis growing operation involving extractor fans, insulation, ultraviolet lights and hydroponic equipment.In all there were almost 150 plants in various stages of maturity.In the meantime, more cannabis had been found within the residence by other members of the Police team.

[4] Counsel for Mr and Mrs Chan impugned the evidence found in consequence of the execution of the search warrant on the grounds that the affidavit in support of the warrant was insufficient to justify the issuing officer being satisfied that there were reasonable grounds for belief in terms of s198(1) of the Summary Proceedings Act 1957.

[5] That statutory provision is as follows:

198Search warrants

(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.

The nature of the evidence in support of the warrant

[6] Constable Foster deposed that he was a Police Constable currently attached to the law enforcement team at Papakura Police Station and that he expressly asserted his personal belief in the truth of the facts contained in his application.He said that the information detailed in the paragraphs set out by him contained "facts obtained in the course of a criminal investigation to which I have been privy to, and to which I have knowledge of".

[7] In all, the material contained in the application extended over five pages and more than 60 paragraphs.The constable disclosed considerable evidence relating to a small group of burglars and receivers of consumer goods such as stereophonic equipment, computers and monitors, and such like.

[8] The constable deposed that on 28 January 2001 there was a burglary at the premises of Schenker International Ltd, Richard Pearce Drive, Mangere and there were stolen several hundred pairs of various models of Puma Roma shoes and a number of Puma sports bags.One of the members of the criminal group was a man who had been employed by Schenker International, by virtue of which he would have become familiar with the operations and security arrangements of the employer.

[9] It is plain from the information provided by the constable that the employee is a member of the criminal group and had been seen in the course of Police observations in conjunction with one William Marsh.Marsh is described in the application as one with an extensive criminal history including two convictions for receiving, the last being in March 1998.The application showed that Marsh was still active as a receiver.

[10] The constable's application then went on to say:

55. THAT anonymous information was received that SHORTCLIFFE was responsible for this Burglary.

56. THAT on the 2^nd of April 2001 a Police informant stated that he was offered two of the stolen Puma bags and a pair of stolen Puma shoes by one Stanley CHAN who was driving a Ford Fairmont motor vehicle, registration ZX7987.

57. THAT CHAN stated that he received the shoes off William MARSH.

58. THAT the Police informant works at [not disclosed to defence] William MARSH[not disclosed to defence]

59. THAT within the last two weeks MARSH has provided his home address as 8/2 Puriri Road, Manurewa.

60. THAT this informant has given information to Police several times in the past which has proven to be reliable.

61. THAT Stanley CHAN is known to Police under PRN: 27054792 and has a November 1999 conviction for Burglary.

62. THAT CHAN's vehicle is registered to the address of 11 Shipton Place, Blockhouse Bay.

63. THAT CHAN's home address is 3 Falkirk Street, Blockhouse Bay.

[11] Some of the information in the application referred to activities related to cannabis but not in a way relevant to Mr and Mrs Chan or their residence at Falkirk Street.However, because the constable's application was compendious in nature the various things mentioned in the separate search warrants issued in respect of a number of properties included cannabis plant material and related packaging and distribution items.Thus, the discrete search warrant in respect of Falkirk Street contained reference to those materials merely incidentally.The Crown concedes that there was insufficient information relating to Mr and Mrs Chan to have supported a search warrant directed merely to cannabis and related things.

The District Court hearing and judgment

[12] In addition to the particular warrant and supporting application the District Court Judge received oral evidence from Constable Foster whom the Crown had called for cross-examination at the request of Mr Chan's counsel. Unless there should be a question of the truthfulness of evidence sworn in support of an application for a warrant we doubt the relevance of such evidence on the issue of the validity of the warrant.Of course, however, in the event that a warrant should be found to have been invalidly issued the more general question of admissibility, including by reference to a Shaheed balancing exercise (R v Shaheed (28 March 2002) 19 CRNZ 165) may well be informed by other evidence.

[13] In summary, the Judge held as follows:

1. There was no evidential support for a search warrant directed to cannabis.

2. There was inadequate information about how the informant referred to in paragraph [56] regarded the offered goods as "stolen", that word seeming to be merely conclusory.

3. The reference in paragraph [57] of the affidavit to "received" was conclusory being a conclusion as to the criminality of the receiving.

4. Inadequate information was provided to support the constable's statement that the information was reliable.

5. The information provided by the constable was inadequate when ineffective conclusory statements were excluded.

6. In consequence of these deficiencies the issuing of the warrant was invalid wherefore the appellant had suffered a clear prejudice and miscarriage of justice through having his home entered on an invalid warrant.

7. Accordingly the evidence was inadmissible.

Crown arguments on appeal

[14] Whilst conceding the insufficiency of evidence in respect of cannabis dealing, as we have mentioned, the Crown submitted that if the evidence provided by Constable Foster justified the issuing of a search warrant on grounds related to stolen property a search pursuant to such a warrant would not be invalid.When taken as a whole, particularly with reference to the information expurgated from the documentation provided to defence counsel, there was sufficient to support the issuing of a warrant.The District Court Judge wrongly interpreted the reference to "received" as a conclusory statement as to the crime of receiving rather than in its obvious intended usual sense of "obtained from", and wrongly regarded "stolen" as conclusory when it was simply a narration of what the informant was told.Mr Raftery submitted that the Judge failed to take into account the context of the information provided in paragraphs [55]-[63].That included not only the relationship between Marsh and other criminals, particularly in connection with the theft of the Puma goods, but also the constable's averment of personal knowledge which colours the reference to the informant having given information to Police several times in the past which has proven to be reliable.That knowledge need not be direct and can reasonably be obtained in the normal course of Police duties as part of a team.In counsel's submission there was adequate information disclosed on the affidavit as a whole to justify the issuing of a warrant.

[15] But if the Court should find the warrant to have been wrongly issued then in Mr Raftery's submission the search was not unreasonable and the evidence should be ruled admissible.This is because the search was not arbitrary but executed pursuant to a warrant assumed to be valid, with the Police acting in good faith.The aspect of the search giving rise to the apprehension of the presence of cannabis in the basement occurred outside the residence itself, involving, per se, only limited intrusion on privacy before an entitlement to conduct a warrrantless search pursuant to s18(2) of the Misuse of Drugs Act 1975 clearly arose.Although that Act was not invoked and therefore not strictly complied with in terms of s18(4) this was only because the Police believed they were acting under a valid warrant.The fact remains that there was ample justification for conducting a warrantless search at that point.The disputed evidence is "real evidence" within the contemplation of that term in Shaheed para [151].With reference to Shaheed para [152] the evidence is not only reliable but also central to the prosecution's case.

Respondent's arguments on appeal

[16] Mr Shaw submitted for the respondent that there was inadequate provision of primary facts in relation to the veracity and reliability of the Police informant, and also in relation to the informant's information, either on the face of the application or in evidence before the District Court.He submitted that the applicant's affidavit was misleading in nature and that overall there was insufficient evidence for the issuing officer to have been satisfied in terms of s198 of the Summary Proceedings Act.This search was therefore carried out in breach of the respondent's rights affirmed by s21 of the New Zealand Bill of Rights Act.

[17] Mr Shaw submitted that the veracity and reliability of a Police informant whose information is invoked in support of an application for a search warrant goes to the heart of the reasonable belief of the applicant.A bare assertion of belief as to reliability without any supporting primary facts could not satisfy the reasonable belief requirement.He submitted that facts must be brought before the judicial officer to enable a determination as to the inherent reliability and credibility of the informant and the reliability and credibility of the information on the particular occasion.The decisions of this Court in R v Kahika CA 200/97 31 July 1997 and R v Harrison CA 20/01 23 May 2001 were cited in support of the submission.Mr Shaw also referred to the decision of the Court of Appeal in Ontario in R v Sutherland (2000) 150 CCC (3d) 231 in support of the proposition that evidence of informant reliability requires more than just a conclusory statement to that effect.Reference was also made to the citation in United States ofAmerica v Future Électronique Inc (2000) 151 CCC (3d) 403 (Que CA) of the proposition that "when the grounds are based exclusively on the information provided by an informant, the court must be able to determine that the information is reliable.In order to do this, sufficient evidence must be provided to it so that it can assess this reliability. Examples of such evidence are the experience of the police officer involved, the reputation of the informer, his role in the milieu in question, the detail of his information.The Court will seek to determine the weight of the information based on these corroborating elements."(See R v Perreault [1992] R.J.Q 1848, 1854 per Nichols J.A.)

[18] The inadequacy of conclusory statements and the necessity for sufficient primary material to enable the judicial officer to be satisfied of the necessary statutory matters has been referred to in other decisions of this Court such as R v Pineaha (2001) 19 CRNZ 149, 152, para 7; and R v Cook CA 70/99 6 May 1999 paras 8-13.The latter case is the paradigm of inadequacy in this area, the information in support of the warrant which, surprisingly, was issued was:

Reliable information was received to say that A G Cook of Towai is cultivating approxamtely (sic) 40 cannabis plants in the garage at his address in Towai.

The informant does not wish to be identified.

[19] Counsel criticised the evidence of Constable Foster on the voir dire before the District Court for the limited information he could supply on that occasion.In our view unless there was some proper basis for impugning an applicant's bona fides, such extraneous evidence would have little relevance in a challenge to a search warrant since the information provided and the application must stand or fall on its own patent quality.

[20] Mr Shaw submitted that on its face the affidavit in support of the application was wholly inadequate and that in light of the evidence on the voir dire it must be regarded as lacking in candour and accuracy.The criticism that Constable Foster was not candid is based on his cross-examination on the voir dire when he was unable to recall who had spoken to the informant, when the information was received by the Police and the circumstances it was given to the Police.Nor could he recall how the information which he included in the warrant application got passed before him.

[21] On the premise that the search warrant was invalid counsel submitted that the evidence obtained pursuant to the search should be excluded.The constable who smelled the cannabis had been on the premises for about 15 minutes after the allegedly invalid warrant was first executed, too long a time to be justified on the basis of an implied licence to be present, and in any event s18 of the Misuse of Drugs Act was neither invoked nor complied with.Counsel submitted that the breach was serious, involving as it did the search of a dwelling house.The evidence did not disclose offending of a violent nature or otherwise raising issues of public safety.The search warrant was deficient and contained misleading information.The fact that the warrant was executed in good faith was a merely neutral factor, adding weight to neither side of the balance.

Discussion

[22] The decision in the District Court was not based to any extent on a perception of lack of candour on the part of Constable Foster.Plainly cognisant of the fact that the constable was being cross-examined more than 11 months after he applied for the warrant, the Judge said:

It is fair to say when questioned about the information that the constable based his affidavit on that the general flavour of his evidence was that he knew about it at the time but some months down the track that he could not perhaps recall exactly where or how such information had been received.He was clear that the Police informant was someone else's informant and that he would not have known the identity of that informant but it appears his memory of where various things came from is certainly not as clear now as it may have been at the time.

[23] Counsel for the Crown on this appeal was able to advise us of relevant aspects of the progress of the application in the District Court.The first challenge to the impugned evidence was made on behalf of the respondents at a call-over on 20 September 2001.In accordance with a usual practice the defence was directed to file submissions in support of its objection but that was not done by the stipulated date of 18 October and it seems that even a few days before the hearing of the s344A application all that was advised on behalf of the respondent were the broad grounds of insufficiency of material to justify the warrant and lack of good faith on the part of Constable Foster.

[24] Be that as it may, we are not prepared to take an adverse view of the constable when the Judge at first instance, more sensible of the circumstances and able to take account of the demeanour of the witness, was plainly unpersuaded by the particular ground.Her decision was founded on perceived inadequacy of information on the face of the supporting affidavit.

[25] The Judge considered that there should have been more detail as to how the offering of the goods was done to the Police informant and how the information that they were stolen was in the mind of that informant.She was also unimpressed with "the bald statement that the person has provided information several times in the past which has proven to be reliable..."

[26] In our view the information provided in paras [56]-[63] of the affidavit in support of the warrant application needs to be evaluated in its context, that is, a Police operation to which Constable Foster was privy and which was reasonably extensive in its scope.It involved observations over a period of time of a number of known criminals with histories of receiving and burglary. Information provided in respect of those is extremely detailed, indicative of the reliability of the sources of information, including Police officers themselves.The information shows a linkage by Shortcliffewith a burglary in which Puma goods were stolen, just over two months before the application for a warrant was made.

[27] The application for a search warrant provided the following specificity in respect of the informant's information:

1. The date on which an offer was made to the informant.

2. The type and number of bags which were offered.

3. The type and number of shoes which were offered.

4. The first name and surname of the person who made the offer.

5. The make, model and registration number of a vehicle being driven by the offeror.

6. The fact that the offeror stated he had received the shoes from Marsh, a known receiver.

[28] In addition, the context showed the linkage between Marsh and Shortcliffe; the name and vehicle particulars of the person who made the offer to the informant corresponds to the information known to the Police; and the offeror is stated as having been convicted on a date some 16 months previously, for burglary.

[29] With respect to the District Court Judge, we think that emphasis on the words "received" and "stolen" may have deflected attention from the significance of the context.It is the case that "stolen" appears merely conclusory, and "received" plainly carried its ordinary meaning.There was too narrow a focus on those words rather than on the sum of the information.

[30] Whilst it is the case that more particulars as to the circumstances of the offer and provenance of the informant could have been provided, the issue under consideration is sufficiency not potential.And in terms of overall sufficiency this Court has an advantage which, for conventional reasons, learned counsel for the respondent does not have.That is the additional information expurgated from the copy of the application provided to the defence.

[31] In terms of general principles the submissions on behalf of the respondent have been essentially correct and entirely helpful.But in the result we are satisfied that there was placed before the issuing officer by way of the sworn application sufficient information to justify that officer being satisfied that there were reasonable grounds for belief in terms of s198(1) of the Summary Proceedings Act, that stolen goods connected with the burglary at Schenker International Ltd, or evidence in connection with the burglary, were at the Chan's address.Accordingly the appeal must be allowed.

[32] Our finding that the warrant was valid renders unnecessary any balancing exercise in terms of R v Shaheed.Whilst grateful to learned counsel for their assistance in that respect we are not disposed to examine that question hypothetically.

Result

[33] For the above reasons leave to appeal is granted and the appeal is allowed.The impugned evidence is admissible accordingly.

Solicitors

Crown Solicitors, Auckland

Nigel Cooke, Auckland for Respondent