R v Hines CA68/02 [2002] NZCA 352 (4 July 2002)

Last Updated: 21 July 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/02

THE QUEEN

V

WILLIAM HINES

Coram:	Keith J Tipping J Glazebrook J
Counsel:	M A Kennedy for Appellant A Markham for Crown
Judgment (On the papers):	4 July 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] This application for leave to appeal against a pre-trial ruling of Harrison J has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Relevant facts

[2] The applicant and others are charged with a range of offences under the Misuse of Drugs Act 1975 as the result of a police operation which commenced in July 2000. As part of that operation, the police applied for an interception warrant pursuant to the provisions of the Misuse of Drugs Amendment Act 1978 to authorise the placement of listening devices in the home of one of the other accused, Waha Saifiti, and on a prepaid cellular phone believed to be used by another of the accused, Peter William Cleven.
[3] The warrant was issued on 7 September 2000 by Potter J in the High Court at Auckland on the basis of information contained in the sworn affidavit of Detective Inspector Bruce Leonard Good. The application totalled 35 pages. In due course the Crown disclosed an edited copy of the application to counsel for the applicant. The editing was done on the basis that production of the excised sections would be contrary to the public interest because that information “identifies or is likely to lead to the identification of a person who gave information to the police” (s20(7) of the Misuse of Drugs Amendment Act 1978). The warrant was initially granted for a period of 30 days and was renewed for a further 30 days on 5 October 2000. The electronic phrase of the operation terminated on 1 November 2000 with the arrest of all of the accused. The Crown wishes to adduce evidence obtained pursuant to the warrant at the forthcoming trial, scheduled to commence in September 2002.
[4] At the request of a number of the accused, including the applicant, the Crown applied for an order under s344A Crimes Act 1961 to test the admissibility of the evidence. The basis of the opposition to admissibility was the submission that, when applying for the warrant, the police did not have reasonable grounds for believing any of the accused had committed offences against the Misuse of Drugs Act. Harrison J, who had before him all the sworn material before Potter J including those parts of the application which have not been produced to the defence pursuant to the order under s20(7), found that there were sufficient grounds to justify the warrant and ruled that the evidence would be admitted at the forthcoming trial.

Grounds of appeal

[5] The applicant now seeks leave to appeal from the pre-trial ruling as to the admissibility of evidence obtained pursuant to interception warrant. Essentially counsel invited the Court to reconsider its decision in R v Saifiti [1994] 2 NZLR 403. In that case this Court held that it is permissible for a Judge considering whether an interception warrant was properly issued to have regard to all the sworn material before the authorising Judge, including those parts of it which were not produced to the defence. This Court said (at p408):

The public interest requires certain of that material to be withheld from the defence under s312H(7) [of the Crimes Act 1961, a provision in essentially the same terms as s20(7) of the 1978 Act]. The authorising Judge was nevertheless permitted to take account of that material when considering the ex parte application for the warrant. If the criteria were satisfied on the whole of the evidence which he was entitled to take into account, then it was validly authorised. It cannot cease to be validly authorised merely because some of the material on which the Judge was entitled to rely is unable in the public interest to be disclosed to the defence.

[6] In support of the application, counsel cited a number of Canadian authorities reflecting the different approach taken by the Supreme Court of Canada in R v Garofoli [1990] 2 SCR 1421.

Reasons

[7] We are satisfied that no proper ground has been shown for reconsideration of Saifiti. As stated in Saifiti and subsequently affirmed in R v McNicol [1995] 1 NZLR 576 and R v Raimon and Varney (CA60/99 & 61/99, judgment 4 May 1999) the Canadian position is a gloss on their equivalent statutory provisions, justified by the Court’s supervisory and protecting power over its own records. Canada, unlike New Zealand, does not have a provision specifically authorising the non-production of material where that would not be in the public interest.
[8] Moving from the issue of principle to the question of fact we add that we are satisfied that on the particular evidence before Potter J there was sufficient material to justify the issue of the warrants. We find no force in the hearsay and identification points.

Decision

[9] Leave to appeal against the ruling of Harrison J is refused.

Solicitors:
Crown Law Office, Wellington