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DANIELS Hone Rankin v R [2004] NZCA 262 (5 November 2004)

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DANIELS Hone Rankin v R [2004] NZCA 262 (5 November 2004)

Last Updated: 24 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA346/04

THE QUEEN

v

HONE RANKIN DANIELS

Hearing: 26 October 2004

Coram: O'Regan J
John Hansen J
Goddard J

Appearances: M J Lillico for Appellant
J C Pike for Crown

Judgment: 5 November 2004

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1] This is an application for leave to appeal against a pre-trial ruling made by Judge Lee in the District Court on an application made by the Crown under s 344A of the Crimes Act 1961.
[2] The s 344A application related to the admissibility of the evidence obtained as a result of a search of a motor vehicle. The motor vehicle was searched pursuant to a search warrant and the appellant’s counsel argued that the search warrant had been issued without reasonable grounds to believe that evidence of the relevant offences would be found in the motor vehicle, and the search was therefore unlawful and unreasonable.
[3] Judge Lee made the following finding in her ruling (at [8]):

I consider that the information [in the supporting affidavit] is not very detailed but there is enough to justify the issue of the warrant. This detail is contained in parts of the affidavit which have been deleted, as supplied to Mr La Hood [the appellant’s then counsel], so of course he is not able to make submissions in relation to that. I consider that this case is borderline but that on balance there is enough for a judicial officer to reach the conclusion that there are reasonable grounds for him or her to issue the warrant requested. In particular there is sufficient detail to link the defendant Daniels to the weapons used in the aggravated burglary and to the vehicle.

Background

[4] The appellant is charged with a number of offences relating to the robbery of a residential address in Berhampore, Wellington. He also faces two charges in relation to unrelated burglaries at other addresses in Wellington. There were three offenders involved in the Berhampore robbery, and the Crown alleges that the appellant and his co-accused, Toby Kameta were two of those offenders.
[5] As a result of information received from an informant, the police made inquiries centred on a number of persons including the appellant, and also on a motor vehicle. The motor vehicle was a Nissan Cefiro, which was registered to a woman whose address was the same as the address to which the appellant had been bailed in relation to other charges. This address is an Auckland address. When asked by the police about his association with the vehicle, the appellant declined to comment.

The affidavit

[6] The affidavit supporting the application for search warrant was sworn by Detective McCarthy. It supported an application for search warrants for four different addresses in Wellington and the Nissan Cefiro motor vehicle. It is extensive (71 paragraphs). The disclosure copy provided to the appellant’s counsel had some deletions of information which the police believed could not be disclosed because it might identify the source of the information.

Reasonable grounds to believe

[7] The application for a search warrant was made under s 198 of the Summary Proceedings Act 1957. Under that section, a registrar is authorised to issue a search warrant if he or she is satisfied that there is reasonable ground for believing that there is in any motor vehicle, in this case, anything which there is reasonable ground to believe will be evidence as to the commission of an offence punishable by imprisonment. The proper approach to the exercise of the power to issue a search warrant has been well established in leading authorities such as R v Sanders [1994] 3 NZLR 450 and R v Grayson and Taylor [1997] 1 NZLR 399. The question which arises in this case is whether the sworn evidence given by Detective McCarthy in support of the application for the search warrant was sufficient for the registrar to be satisfied that there were reasonable grounds for believing that evidence as to the commission of the robbery at Berhampore was in the motor vehicle which was the subject of the search.
[8] On behalf of the appellant, Mr Lillico argued that the evidence contained in the affidavit did not meet this test. He addressed us on the evidence contained in the censored version of the affidavit which had been provided to him, but, as is often the case in relation to challenges to search warrants, he was not able to address us on those parts of the affidavit which had been deleted from the version provided to him.
[9] We have, however, considered the original version of the affidavit, and therefore have before us all of the information which would have been before the registrar who issued the search warrant. The deleted information, when read in the context of the rest of the affidavit, provides a very clear basis for a registrar to conclude that there were reasonable grounds to believe that evidence relating to the commission of the Berhampore robbery would be found in the motor vehicle, the motor vehicle was associated with the appellant, and the appellant was involved with the Berhampore robbery. We do not share the view expressed by Judge Lee that this is a borderline case.

Standing

[10] For the Crown, Mr Pike challenged the standing of the appellant to allege a violation of his rights under the New Zealand Bill of Rights Act, given that the appellant has not acknowledged any association with the Nissan Cefiro motor vehicle. He noted that the appellant had declined to comment when asked by the police about his association with the motor vehicle, and had not testified at the s 344A hearing. He said this meant that the appellant’s complaint as to the breach of his rights did not have an air of reality, and no remedy was therefore available to him: R v Pointon CA227/98 22 February 1999.
[11] As we are satisfied that the search warrant was validly issued, it is not necessary for us to express a view on this issue.

Result

[12] In view of the District Court Judge’s finding that the matter was borderline, it is appropriate that this Court consider the legality of the search warrant, and we therefore grant leave to appeal. However, for the reasons which we have given, we are satisfied that the search warrant was properly issued, and that the evidence obtained by the police as a result of the search is therefore admissible at the appellant’s trial. Accordingly we dismiss the appeal.

Solicitors:
Sladden Cochrane & Co, Wellington for Appellant
Crown Law Office, Wellington

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[1]	This is an application for leave to appeal against a pre-trial ruling made by Judge Lee in the District Court on an application made by the Crown under s 344A of the Crimes Act 1961.
[2]	The s 344A application related to the admissibility of the evidence obtained as a result of a search of a motor vehicle. The motor vehicle was searched pursuant to a search warrant and the appellant’s counsel argued that the search warrant had been issued without reasonable grounds to believe that evidence of the relevant offences would be found in the motor vehicle, and the search was therefore unlawful and unreasonable.
[3]	Judge Lee made the following finding in her ruling (at [8]):

[7]	The application for a search warrant was made under s 198 of the Summary Proceedings Act 1957. Under that section, a registrar is authorised to issue a search warrant if he or she is satisfied that there is reasonable ground for believing that there is in any motor vehicle, in this case, anything which there is reasonable ground to believe will be evidence as to the commission of an offence punishable by imprisonment. The proper approach to the exercise of the power to issue a search warrant has been well established in leading authorities such as R v Sanders [1994] 3 NZLR 450 and R v Grayson and Taylor [1997] 1 NZLR 399. The question which arises in this case is whether the sworn evidence given by Detective McCarthy in support of the application for the search warrant was sufficient for the registrar to be satisfied that there were reasonable grounds for believing that evidence as to the commission of the robbery at Berhampore was in the motor vehicle which was the subject of the search.
[8]	On behalf of the appellant, Mr Lillico argued that the evidence contained in the affidavit did not meet this test. He addressed us on the evidence contained in the censored version of the affidavit which had been provided to him, but, as is often the case in relation to challenges to search warrants, he was not able to address us on those parts of the affidavit which had been deleted from the version provided to him.
[9]	We have, however, considered the original version of the affidavit, and therefore have before us all of the information which would have been before the registrar who issued the search warrant. The deleted information, when read in the context of the rest of the affidavit, provides a very clear basis for a registrar to conclude that there were reasonable grounds to believe that evidence relating to the commission of the Berhampore robbery would be found in the motor vehicle, the motor vehicle was associated with the appellant, and the appellant was involved with the Berhampore robbery. We do not share the view expressed by Judge Lee that this is a borderline case.