THE QUEEN v MARK ALEXANDER SMITH [2002] NZCA 240 (23 September 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA229/02

THE QUEEN

V

MARK ALEXANDER SMITH

Hearing:	19 September 2002
Coram:	Tipping J Hammond J Baragwanath J
Appearances:	R M Lithgow for Appellant J M Jelaoe for Crown
Judgment:	23 September 2002

judgment of the court DELIVERED BY BARAGWANATH J

[1] The appellant advanced two grounds in support of his appeal against conviction by a District Court jury at Napier on 21 May 2002 of possession of cannabis plant for the purpose of sale to others.The first was a challenge to the search warrant; the second a submission that the jury verdict was unreasonable as not supported by evidence.

The search warrant challenge

[2] Mr Lithgow submitted that the affidavit, in the following form but without the deletion in its second paragraph, did not afford the reasonable grounds required by s 198(1) of the Summary Proceedings Act 1957 to believe that there was at the accused's property at 41 Richmond Road Hastings any thing in respect of which an offence punishable by imprisonment had been committed.

I, Paul John TRICKLEBANK, of Hastings

Make oath and say as follows:

1. THAT on 17^th December 2001, a member of the HASTINGS Police received information from an associate that he believed drug dealing was occurring at an address of 41 Richmond Road, HASTINGS.

2. THAT the associate of the Policeman [passage deleted] 41 Richmond Road, HASTINGS.

3. THAT the associate states that a large number of vehicles have been calling at the address with people of varying ages and that they stay for approximately five minutes.This behaviour is indicative of persons purchasing controlled drugs.

4. THAT the informant also states that he has seen a large number of pot plants outside the address, full of soil and only with a plant stem.

5. THAT he believed they appeared to look like used cannabis plants.

6. THAT Police enquiries reveal the property is leased by Mark Alexander SMITH.

7. THAT SMITH has two previous convictions relating to drugs from AUSTRALIA in the early 1980's.

8. THAT on 30^th August 2001, Police executed a search warrant at the above address and arrested SMITH for Cultivation of Cannabis.

9. THAT this matter is still before the Court.

10. THAT Police intelligence has been received in relation to SMITH in that in June 2001, he has been accused of supplying cannabis to young associates.

11. THAT I believe a search of 41 Richmond Road, HASTINGS will result in the location of cannabis plant.

12. THAT Possession of Cannabis, Cultivation of Cannabis and Possession for Supply or Sale are offences under the Misuse of Drugs Act 1975 and are punishable by imprisonment.

[3] Ms Jelaoe for the Crown informed the Court that the undisclosed portion of the affidavit indicated the location from which the associate of a police officer had been able to make observations.

[4] Mr Lithgow accepted that the Court should examine the original warrant to ascertain what had been deleted in the copy contained in the Case on Appeal, in accordance with the procedure authorised in R v McNichol [1995] 1 NZLR 576 (Court of Appeal).Our inspection confirmed the Crown's account.

[5] Mr Lithgow submitted that to accept the affidavit as justifying the warrant, the execution of which led to the police raid on which the prosecution was based, would lower the standard of police conduct set by such authorities as R v Kahika CA 200/97, 31 July 1997 and thereby fail to maintain the safeguards required by s 198(1).

[6] Mr Lithgow submitted that the affidavit provided no sufficient specificity of time frame and detail as to allow the Court to be satisfied that the evidence established reasonable grounds for belief, rather than merely suspicion, of drug offending. He urged the Court to ensure that the deletion in paragraph 2 had been necessary and it did not create an injustice.He warned us of the potential of injustice of the ex parte procedure and the importance of ensuring that there is a proper basis for any conclusion that the underlying information from the informant was true.Whiledetail or inherent congruence can have that effect that was not, he submitted, the present case.And while a further way of establishing truth could be by evidence of proven reliability of the informant, that had not been deposed to.

[7] He submitted as to paragraph 3 that the people visiting the property might have been interested in home-made wine available from the appellant. He challenged the fourth paragraph as not giving any idea of the number of plants. He submitted as to paragraph 5 that it is not credible that mere plant stems could appear to look like used cannabis plants and that without more elaborate description, of understanding of the informant's knowledge of such plants and knowledge of how far away the person was.He complained of paragraph 6 as consisting of non-specific hearsay.

[8] He invited us to conclude that the affidavit provided no sufficient basis for the issue of the warrant and that the evidence resulting from its execution on 31 December 2001 it should be excluded.

Decision on the first ground

[9] On the first ground we are satisfied that, including the evidence of the location from which the police officer's associate made his observations, the affidavit contained sufficient evidence to afford reasonable grounds for belief in terms of s 198(1)(b).Read as a whole it is an account of contemporary conduct from a witness appropriately positioned to see what was going on.

[10]It is apparent from the first paragraph that the information received by the police two days before the application of 19 December 2001 was that drug dealing was occurring - not had occurred - at the appellant's address.The complete form of the second paragraph satisfied us that the person providing the information was well able to do so.

[11] The third paragraph established a pattern of behaviour of a large number of people of various ages, visiting for approximately five minutes, can only have been for the purposes of performing some short-term transaction. Mr Lithgow's submission that they might have been interested in home-made wine available from the appellant was a logical possibility, viewed in isolation.So was that of Ms Jelaoe that, as the officer deposed, the evidence was indicative of drug purchases.The paragraph is however to be read not in isolation but in context.

[12] The fourth and fifth paragraphs provided powerful evidence in support of the application.

[13] The sixth paragraph linked the property with the appellant. The evidence of the presence of pot plants appearing to look like used cannabis plants and of the lease linking the appellant with the site is reasonably specific.While second hand, the evidence in our view provided sufficient material to justify the issue of the warrant.

The submission that the verdict was unreasonable

[14] In support of the second ground Mr Lithgow referred to the fact that the conviction was only on the first of 2 counts into which the indictment has been divided following the defence closing, that of possession of cannabis outside the house.The appellant was acquitted on a second count of possession of cannabis inside the house, in respect of which the jury plainly accepted his explanation that it was for his personal use and not for supply.

[15] The cannabis the subject of the second count was located by the police on 31 December 2001 in the course of executing the search warrant.The appellant showed the police a shoebox taken from his bedroom containing two Glad snap-lock bags containing a total of 41.1 grams of cannabis plant.As the police were searching the house the appellant said he wished to speak to a solicitor.They directed him to use a portable telephone from the back doorstep and asked him to remain there.The appellant went outside and shortly after it was noticed that he had disappeared.The officer in charge of the search found him walking towards the officer from a point which a sketch plan showed to be in the general vicinity of an old hen house, the area around which was overgrown except for a clear path to it from the house.On the roof of the hen house the police found a plastic bucket lying on its side with the lid off. Inside it was a beer carton containing a plastic bag with 298 grams of cannabis and three snap-lock Glad plastic bags of the kind found in the shoebox taken from the accused's bedroom; each contained some 26 grams of cannabis.

[16] Ms Jelaoe for the Crown relied on evidence that (1) the location of the cannabis at the property leased and occupied by the appellant and being some 60 to 80 metres away from the nearest house; (2) the cardboard beer box containing the cannabis at the hen house was dry, there being no leaf litter or other matter lying on it he had the impression that the bucket had been put there recently; and (3) located in the appellant's wallet was a piece of paper containing a list of names and figures of the kind known as a "tick list" frequently kept by drug dealers.Taken with the accused's conduct in disappearing and returning from the general direction of the hen house, Ms Jelaoe submitted that there was ample material to justify the jury's verdict.

[17] Mr Lithgow submitted that the outside cannabis could have been in the possession of anyone.He referred to the appellant's evidence that his property adjoined an 80-acre block accessed by workers coming to perform weeding, by one of the owners of the company and by other the workers; the area could be described as communal.The hen house is accessible to the adjoining property where there has been a problem with vandals.

[18] Mr Lithgow pointed to the individual explanations available in respect of each of the items relied upon by the Crown, including the accused's account that the supposed "tick list" was in fact a record of lawful sales of home-made wine.Mr Lithgow submitted that not only was there no direct evidence, such as finger prints, supporting the Crown case but there was the contrary indication that no packaging or scales of the kind to be expected to be in the possession of a dealer were found at the house.

[19] We are however satisfied that the facts referred to in paragraphs [15-16], taken in combination, provide ample basis for a jury conclusion that the only realistic assessment of the evidence was of the accused's possession of the outside cannabis.On that basis the verdict on Count 1 was clearly open to them.

Result

[20] The appeal is accordingly dismissed.

Solicitors

Crown Law Office, Wellington