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MAHARA v R [2005] NZCA 229 (6 September 2005)

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MAHARA v R [2005] NZCA 229 (6 September 2005)

Last Updated: 19 September 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA53/05

THE QUEEN

v

TONY RATAHI MAHARA

Hearing: 29 August 2005

Court: Robertson, Baragwanath and Goddard JJ

Counsel: L L Heah for Appellant
B J Horsley and M J Inwood for Crown

Judgment: 6 September 2005

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS
(Given by Baragwanath J)

Introduction

[1] This appeal is against conviction following the appellant’s jury trial in the District Court at Christchurch on counts of burglary, receiving (three counts), unlawful possession of a pistol, unlawful possession of a shotgun and unlawful possession of ammunition. There were two grounds of appeal: that Judge Abbott erred in ruling on the first day of trial in the District Court at Christchurch that evidence obtained from the execution of three search warrants was admissible, and that there was misdirection of the jury in respect of the burglary charge, so that a substantial miscarriage of justice resulted.

The first ground: the challenges to the warrants

[2] The first ground is rooted in the accuracy of an affidavit by Detective Sergeant Parnell sworn on 20 November 2003 and also the inclusion in an affidavit sworn by Detective Sergeant Fisher the following day of information which the Crown accepts is inaccurate.
[3] Some time on or after 6 November 2003 there was a burglary at a property in Main Road, Mt Pleasant, Christchurch. The items stolen included a Nissan motorcar. On 7 November there was a burglary in Burnham School Road, Christchurch in the course of which three firearms, ammunition and a bag of property were stolen. A car similar to that stolen the previous day was seen leaving the property at speed. Also on 7 November there were burglaries of two further properties in Burnham School Road from which chattels were stolen.
[4] On 7 November 2003 a search warrant was executed at 33 Shearwater Drive, Christchurch and some of the stolen property from the burglaries referred to above was located. On 17 November 2005 Constable Roberts of the Christchurch police stopped a vehicle and spoke to the two male occupants. One of them was the appellant, Tony Ratahi Mahara, who falsely gave as his name that of his brother, Mitchell Mahara, but whose identity was later confirmed by fingerprint testing. The appellant gave as his address Flat 9/51 River Road, Christchurch and he told the police that he had a music shop in Cashel Street. Four cannabis foils and $800 in cash were found on him. He has previous criminal convictions for shoplifting and burglary.
[5] The next day, 18 November, Constable Roberts made enquiries at Flat 9/51 River Road and spoke to a female, Geneva Moana, who Ms Heah acknowledged is the partner of the appellant. In the first challenged affidavit, sworn in support of warrants for 425 Cashel Street, Flat 9/51 River Road and at 1/34 Bickerton Street, Detective Sergeant Parnell deposed that Ms Moana had told Constable Roberts that Mitchell Mahara often stayed at Flat 9/51 River Road and also had a shop situated at 425 Cashel Street. When disclosure was made to counsel for the applicant of the affidavit tendered in support of the search warrant, certain parts had been excluded because they contained confidential information. The Court had a copy of the document in its original form.
[6] Execution of the warrant at 425 Cashel Street disclosed evidence connecting Tony Ratahi of 151 River Road, Christchurch to a storage unit at Storage Plus, 23 Kennaway Drive, Woolston, Christchurch.
[7] In the second challenged affidavit sworn on 21 November 2003 in support of an application for a warrant to search the storage unit at Kennaway Drive, Detective Sergeant Fisher deposed that the police had been led to believe that the storage unit was likely to have been hired by the appellant. A description given by a Storage Plus employee fitted the appellant. The detective sergeant’s affidavit asserted incorrectly that the appellant admitted owning the Cashel Street business; that the appellant had convictions for drug offending; and that methamphetamine had been found in the search at River Road. A further warrant was issued and the premises at Storage Plus were searched.
[8] The search at Cashel Street led to the discovery of property stolen from burgled premises. The search at River Road revealed a stolen computer and a revolver. The search at Storage Plus revealed a shotgun and ammunition.

Cashel Street and River Road

[9] Ms Heah for the appellant challenged the warrants in relation to the Cashel Street, River Road and Storage Plus premises. The challenge in relation to the first two warrants was that the affidavit in support sworn by Detective Sergeant Parnell was inaccurate in recounting the response to Constable Roberts’ enquiry of Geneva Moana as:

Mitchell Mahara often stays at the address [River Road] and also has a shop situated at 425 Cashel Street Christchurch.

[10] To sustain such challenge, counsel relied upon Constable Roberts’ job sheet later made out on 2 June 2004 and recording that on 18 November 2003 at 1855 hours he had gone to 9/51 River Road and spoken to Geneva Moana. The job sheet recounted:

Moana said that Mitchell Mahara lived at that address [River Road] but she did not know where he was at that moment.

[11] The job sheet records that at 1935 hours Constable Roberts made enquiries at 1/34 Bickerton Street and spoke to Mitchell Mahara who confirmed that he lived at the Bickerton Street address. Asked who the person was that Constable Roberts had arrested the previous day, he said it was probably his brother Tony who sometimes used his name. Asked where Tony lived he said 9/51 River Road.
[12] Ms Heah submitted that the affidavit wrongly asserted grounds for issue of a warrant concerning the conduct of Mitchell Mahara at the River Road premises on the basis of his being associated with that address. In fact his home was at Bickerton Street: Geneva’s first statement, that Mitchell Mahara lived at River Road, had been corrected by the second, that he lived at Bickerton Street and it was Tony who lived at River Road.
[13] At a depositions hearing on 14 April 2004, Constable Roberts was cross-examined by counsel (not Ms Heah) about his enquiries. He said he did not have the relevant notebook on him although he was aware he had made enquiries at 34 Bickerton Street. He was asked whether, following his arrest of the appellant earlier that night or the following morning, he had a meeting or briefing with members of the Christchurch burglary squad. He said he was phoned in the morning, (he thought by Detective Sergeant Fisher), and told that the appellant had given false details. Constable Roberts said that Detective Sergeant Fisher told him that the burglary squad was very interested at that stage in catching up with Mitchell Mahara and that he was asked to go to the two addresses given by Tony at Bickerton and River Roads to make enquiries as to whether he could find Mitchell.
[14] He was cross-examined on whether his enquiry at River Road was just to find out where the appellant normally lived. He confirmed that that was so because the appellant had given him two addresses the previous night. Asked whether he made enquiry of Geneva Moana about Mitchell Mahara, he replied he thought he did and that he had been told by her that Mitchell would be living at 34 Bickerton Street. He said he might have asked Geneva whether the appellant was at Cashel Street where he made enquiries but found nobody to be present. He said that as far as he could remember he had visited the three addresses at River Road, Cashel Street and Bickerton Street one after the other on 18 November. Asked whom he was looking for at Bickerton Street he said "The person I dealt with the prior night, Tony Mahara." Asked where he understood the appellant was going to be living after being bailed from the police station the previous night he said "At 9/51 River Road."
[15] He said that at Bickerton Street he met Mitchell Mahara from whom he made enquires about his brother Tony. He said he understood Mitchell normally lived at 34 Bickerton Street. Asked whether he had any reason to believe Mitchell, or only Tony, lived at River Road he said "I understood it was just Tony." Asked whether he understood Mitchell to have any involvement with the business at Cashel Street or whether it was just Tony’s business, he said he knew nothing of the business at Cashel Street or who ran it.
[16] On this material Ms Heah argued that Constable Roberts well knew that Tony, not Mitchell, lived at River Road; that Tony not Mitchell, had the business at Cashel Street; and therefore Constable Roberts could not have told Detective Sergeant Parnell what the latter asserted in his affidavit of 20 November:

Geneva Moana... stated that Mitchell Mahara often stays at the [River Road] address and also has a shop situated at 425 Cashel Street.

She submitted that such an assertion by Detective Sergeant Parnell could not be accurate and the warrants for River Road and Cashel Street, in relation to conduct of Mitchell, had been wrongly issued as the detective sergeant could have had no honest belief that the proceeds of offending by Mitchell would be found at either of those addresses.

[17] In a voir dire on the first day of the trial Detective Sergeant Parnell was asked in examination in chief as to the veracity of para 29 of his affidavit. He said that the information was given to him orally by Constable Roberts and the link with 425 Cashel Street was with Mitchell Mahara rather than Tony Mahara. He was cross-examined by Ms Heah on the statement by Constable Roberts in the job sheet that Mitchell Mahara confirmed he lived at Bickerton Street (as distinct from River Road). He confirmed that he was told that Mitchell Mahara had a business in Cashel Street.
[18] Because no pre-trial application had been made, and it was necessary to deal with the matter on the first day of the trial, the Judge gave his ruling without reasons. These were provided on 16 May 2005 after notice of the present appeal had been filed. Such challenges should, wherever possible, be made in advance of trial so that reasons may be given at the time of the decision which may then, if necessary, be tested on appeal to this Court prior to trial.
[19] In respect of the inconsistency between para 29 of Detective Sergeant Parnell’s affidavit and Constable Roberts’ depositions evidence and job sheet, the Judge said he was satisfied of the credibility and reliability of the detective sergeant’s evidence that the information in that paragraph was conveyed to him orally by Constable Roberts between 18 and 20 November 2003. The Judge observed that, at the preliminary hearing, the detective sergeant’s affidavit had not been put to Constable Roberts, who had therefore not had the opportunity to comment upon it. Nor for that matter was Constable Roberts asked on the voir dire hearing to give his account.
[20] The present point turns on whether this Court can and should reject as inaccurate Detective Sergeant Parnell’s para 29, confirmed by oral evidence accepted by the trial Judge, on the basis of inconsistency with a retrospective job sheet and Constable Roberts’ cross-examination at depositions at which he commented he did not have access to his notebook.
[21] The failure by the defence to call Constable Roberts or Ms Moana at either the depositions hearing or the voir dire meant that the only evidence before the Judge was that of Detective Sergeant Parnell. We are not prepared to regard either Constable Roberts’ retrospective notebook entry or his voir dire evidence, made without reference to his notebook, as providing such compelling material as to require rejection of the Judge’s acceptance of the detective sergeant’s evidence following his cross-examination. The challenge to his affidavit fails as does the challenge to the River Road and Cashel Street warrants and the exhibits found at each.
[22] While that conclusion is sufficient to dispose of the point, we add that the confidential passages in the detective sergeant’s affidavit provide further support for the Judge’s decision.

Storage Plus

[23] During the execution of the search warrant at Cashel Street the police found an invoice in the name of Tony Ratahi of 151 River Road, Christchurch relating to a storage unit at Storage Plus, Kennaway Drive, Woolston, Christchurch. The proprietor of Storage Plus confirmed that Tony Ratahi was occupying unit 11 at that address and had been hiring the unit for the previous four months. Detective Sergeant Fisher deposed that the description given by the proprietor fitted that of the appellant.
[24] The affidavit referred also to the finding at the Cashel Street address of two new digital cameras with the serial numbers removed, a quantity of musical equipment from which the original numbers had been removed and replaced with home-made numbers. At the appellant’s River Road address a pistol as well as a quantity of cannabis and some 21/2 grams of methamphetamine were found.
[25] This material afforded ample basis for the issue of the warrant for Kennaway Drive. The argument advanced by Ms Heah was, however, that the affidavit was tainted by the inclusion of inaccurate assertions that the appellant had admitted owning the Cashel Street business; that he had convictions for drug offending; and that methamphetamine had been found in the search of River Road.
[26] In his reasons for decision of 16 May 2005 the Judge stated:

...Detective Sergeant Fisher should not have stated in the affidavit in support of [the Kennaway Drive] application that Mr Mahara had admitted owning the business at 425 Cashel Street, that Mr Mahara had convictions for drug offending, and that methamphetamine had been found in the search of Flat 9/51 River Road (although, as a matter of fairness, that was certainly what the police suspected at the time).

[27] He also accepted Ms Heah’s submission that paragraphs in Detective Sergeant Fisher’s affidavit referring to informant information failed to conform with the directions of this Court in R v Hepi and Poihipi CA382/03 and CA402/03 5 April 2004 as to how hearsay and informant information should be communicated in an affidavit. He decided however that:

...decisions about the legality of a search and the admissibility of evidence which is obtained as a result and not been made on a disciplinary basis. As Ms Heah did not suggest that Detective Sergeant Fisher included in any incorrect assertions in his affidavit dishonestly, the decision about the legality of the Kennaway Drive search warrant had to be made solely by reference to whether, if those assertions had not been included, the affidavit nevertheless contained sufficient evidence on which a warrant could have been issued.
...my conclusion regarding that issue was that there was such evidence, i.e. in particular from the Storage Plus invoice and the information which Detective Sergeant Fisher obtained from Mr Bailey.
Put in another way, the questions which I was required to determine were whether the incorrect information in Detective Sergeant Fisher’s affidavit nullified his application and, if not, whether the issuing of the search warrant constituted or resulted in a miscarriage of justice... My answers in respect of both those issues were no.

[28] The importance of candour and accuracy in an affidavit sworn in support of any application under s 198 of the Summary Proceedings Act 1957 is underlined by judgments of this Court. Warrants may be set aside where the judicial officer issuing the warrant was misled: Solicitor-General v S (1996) 3 HRNZ 157; R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136. It is not necessary for bad faith to be established; suppression of material information can suffice as constituting abuse of process which may not be condoned: McColl at [33].
[29] Here, however, there was no investigation at the voir dire hearing as to the reason for the errors in Detective Sergeant Fisher’s affidavit. We cannot speculate whether the inaccuracies were due to the fault of the detective sergeant, of some other person, through simple miscommunication, or indeed where the conduct fits on the spectrum between grave and venial. Since that issue was not investigated at trial there can be no justification for this Court to exercise an effective disciplinary jurisdiction in relation to the police that might have the effect of allowing a challenge into the warrant and the conviction based upon it and require discussion of the jurisprudence mentioned.

The second ground: the summing up

[30] The second ground of appeal related to the summing up. The Judge provided the jury at the outset of the case with a preliminary memorandum stating in appropriate terms the onus and standard of proof. He repeated that exercise in his oral summing up on the final day of trial. There is no challenge to either.
[31] The point taken by the defence is that at 9.05 pm on the final day of the trial the jury advised that it had reached impasse in relation to an element of the burglary count (count 1) relating to the premises of Just $2 Limited and the identification of a person beside the truck who entered those premises. By that stage the jury had reached their verdicts on all other counts.
[32] The Judge sought and obtained the confirmation of the foreman that the jury had rejected the appellant’s explanation for the circumstances in which he came into possession of the complainant’s computer. He then directed them:

[69] The issue for present purposes is whether the combined effect of all the evidence regarding count 1, i.e. Mr McGregor’s evidence, the evidence of the subsequent presence of the Isuzu MU at Mr Mahara’s home, as shown in the photographs and as deposed to by Constable Kingston in her evidence, and the evidence that Mr Costello’s computer was found at River Road on 21 November 2003, about 21/2 months after it was stolen, means that the only reasonable inference to be drawn from that combination of factual circumstances is that Mr Mahara committed the burglary.
[70] If you answer that question in the affirmative, i.e. yes, then the appropriate verdict on count 1 is guilty. If you answer that question in the negative, i.e. no, then the proper verdict on count 1 is not guilty.

No objection was then taken by the defence to his direction.

[33] In this Court Ms Heah noted that this direction was given some eight hours after the jury had retired. She submitted that it was incumbent on the Judge at that stage to give a further full direction as to onus and standard of proof, and that in the absence of that there was risk of miscarriage of justice because the jury might substitute the further direction for the original direction.
[34] We do not agree. We have noted that by that stage the jury had reached their verdicts on all except count one. There is no reason to doubt their due appreciation and application of the original directions throughout their deliberations to that stage. The further direction would have been understood by the jury against that background including the clear direction that the Crown must prove its allegations beyond reasonable doubt. We regard as fanciful the suggestion that the further direction at [69]-[70] could be read as departing from that underlying direction. We are satisfied that the jury would have taken the phrase "the only reasonable inference to be drawn" as referable to the onus and standard on which they had been fully and appropriately directed.
[35] Ms Heah is a counsel of long experience at the criminal bar. She candidly acknowledged that it did not occur to her at the time to apprehend error and to invite the Judge to give a further or different direction.
[36] We are satisfied that there is nothing in this point and that this ground of appeal also fails.

Conclusion

[37] Neither ground having been established the appeal against conviction is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington

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[2]	The first ground is rooted in the accuracy of an affidavit by Detective Sergeant Parnell sworn on 20 November 2003 and also the inclusion in an affidavit sworn by Detective Sergeant Fisher the following day of information which the Crown accepts is inaccurate.
[3]	Some time on or after 6 November 2003 there was a burglary at a property in Main Road, Mt Pleasant, Christchurch. The items stolen included a Nissan motorcar. On 7 November there was a burglary in Burnham School Road, Christchurch in the course of which three firearms, ammunition and a bag of property were stolen. A car similar to that stolen the previous day was seen leaving the property at speed. Also on 7 November there were burglaries of two further properties in Burnham School Road from which chattels were stolen.
[4]	On 7 November 2003 a search warrant was executed at 33 Shearwater Drive, Christchurch and some of the stolen property from the burglaries referred to above was located. On 17 November 2005 Constable Roberts of the Christchurch police stopped a vehicle and spoke to the two male occupants. One of them was the appellant, Tony Ratahi Mahara, who falsely gave as his name that of his brother, Mitchell Mahara, but whose identity was later confirmed by fingerprint testing. The appellant gave as his address Flat 9/51 River Road, Christchurch and he told the police that he had a music shop in Cashel Street. Four cannabis foils and $800 in cash were found on him. He has previous criminal convictions for shoplifting and burglary.
[5]	The next day, 18 November, Constable Roberts made enquiries at Flat 9/51 River Road and spoke to a female, Geneva Moana, who Ms Heah acknowledged is the partner of the appellant. In the first challenged affidavit, sworn in support of warrants for 425 Cashel Street, Flat 9/51 River Road and at 1/34 Bickerton Street, Detective Sergeant Parnell deposed that Ms Moana had told Constable Roberts that Mitchell Mahara often stayed at Flat 9/51 River Road and also had a shop situated at 425 Cashel Street. When disclosure was made to counsel for the applicant of the affidavit tendered in support of the search warrant, certain parts had been excluded because they contained confidential information. The Court had a copy of the document in its original form.
[6]	Execution of the warrant at 425 Cashel Street disclosed evidence connecting Tony Ratahi of 151 River Road, Christchurch to a storage unit at Storage Plus, 23 Kennaway Drive, Woolston, Christchurch.
[7]	In the second challenged affidavit sworn on 21 November 2003 in support of an application for a warrant to search the storage unit at Kennaway Drive, Detective Sergeant Fisher deposed that the police had been led to believe that the storage unit was likely to have been hired by the appellant. A description given by a Storage Plus employee fitted the appellant. The detective sergeant’s affidavit asserted incorrectly that the appellant admitted owning the Cashel Street business; that the appellant had convictions for drug offending; and that methamphetamine had been found in the search at River Road. A further warrant was issued and the premises at Storage Plus were searched.
[8]	The search at Cashel Street led to the discovery of property stolen from burgled premises. The search at River Road revealed a stolen computer and a revolver. The search at Storage Plus revealed a shotgun and ammunition.

[11]	The job sheet records that at 1935 hours Constable Roberts made enquiries at 1/34 Bickerton Street and spoke to Mitchell Mahara who confirmed that he lived at the Bickerton Street address. Asked who the person was that Constable Roberts had arrested the previous day, he said it was probably his brother Tony who sometimes used his name. Asked where Tony lived he said 9/51 River Road.
[12]	Ms Heah submitted that the affidavit wrongly asserted grounds for issue of a warrant concerning the conduct of Mitchell Mahara at the River Road premises on the basis of his being associated with that address. In fact his home was at Bickerton Street: Geneva’s first statement, that Mitchell Mahara lived at River Road, had been corrected by the second, that he lived at Bickerton Street and it was Tony who lived at River Road.
[13]	At a depositions hearing on 14 April 2004, Constable Roberts was cross-examined by counsel (not Ms Heah) about his enquiries. He said he did not have the relevant notebook on him although he was aware he had made enquiries at 34 Bickerton Street. He was asked whether, following his arrest of the appellant earlier that night or the following morning, he had a meeting or briefing with members of the Christchurch burglary squad. He said he was phoned in the morning, (he thought by Detective Sergeant Fisher), and told that the appellant had given false details. Constable Roberts said that Detective Sergeant Fisher told him that the burglary squad was very interested at that stage in catching up with Mitchell Mahara and that he was asked to go to the two addresses given by Tony at Bickerton and River Roads to make enquiries as to whether he could find Mitchell.
[14]	He was cross-examined on whether his enquiry at River Road was just to find out where the appellant normally lived. He confirmed that that was so because the appellant had given him two addresses the previous night. Asked whether he made enquiry of Geneva Moana about Mitchell Mahara, he replied he thought he did and that he had been told by her that Mitchell would be living at 34 Bickerton Street. He said he might have asked Geneva whether the appellant was at Cashel Street where he made enquiries but found nobody to be present. He said that as far as he could remember he had visited the three addresses at River Road, Cashel Street and Bickerton Street one after the other on 18 November. Asked whom he was looking for at Bickerton Street he said "The person I dealt with the prior night, Tony Mahara." Asked where he understood the appellant was going to be living after being bailed from the police station the previous night he said "At 9/51 River Road."
[15]	He said that at Bickerton Street he met Mitchell Mahara from whom he made enquires about his brother Tony. He said he understood Mitchell normally lived at 34 Bickerton Street. Asked whether he had any reason to believe Mitchell, or only Tony, lived at River Road he said "I understood it was just Tony." Asked whether he understood Mitchell to have any involvement with the business at Cashel Street or whether it was just Tony’s business, he said he knew nothing of the business at Cashel Street or who ran it.
[16]	On this material Ms Heah argued that Constable Roberts well knew that Tony, not Mitchell, lived at River Road; that Tony not Mitchell, had the business at Cashel Street; and therefore Constable Roberts could not have told Detective Sergeant Parnell what the latter asserted in his affidavit of 20 November:

[17]	In a voir dire on the first day of the trial Detective Sergeant Parnell was asked in examination in chief as to the veracity of para 29 of his affidavit. He said that the information was given to him orally by Constable Roberts and the link with 425 Cashel Street was with Mitchell Mahara rather than Tony Mahara. He was cross-examined by Ms Heah on the statement by Constable Roberts in the job sheet that Mitchell Mahara confirmed he lived at Bickerton Street (as distinct from River Road). He confirmed that he was told that Mitchell Mahara had a business in Cashel Street.
[18]	Because no pre-trial application had been made, and it was necessary to deal with the matter on the first day of the trial, the Judge gave his ruling without reasons. These were provided on 16 May 2005 after notice of the present appeal had been filed. Such challenges should, wherever possible, be made in advance of trial so that reasons may be given at the time of the decision which may then, if necessary, be tested on appeal to this Court prior to trial.
[19]	In respect of the inconsistency between para 29 of Detective Sergeant Parnell’s affidavit and Constable Roberts’ depositions evidence and job sheet, the Judge said he was satisfied of the credibility and reliability of the detective sergeant’s evidence that the information in that paragraph was conveyed to him orally by Constable Roberts between 18 and 20 November 2003. The Judge observed that, at the preliminary hearing, the detective sergeant’s affidavit had not been put to Constable Roberts, who had therefore not had the opportunity to comment upon it. Nor for that matter was Constable Roberts asked on the voir dire hearing to give his account.
[20]	The present point turns on whether this Court can and should reject as inaccurate Detective Sergeant Parnell’s para 29, confirmed by oral evidence accepted by the trial Judge, on the basis of inconsistency with a retrospective job sheet and Constable Roberts’ cross-examination at depositions at which he commented he did not have access to his notebook.
[21]	The failure by the defence to call Constable Roberts or Ms Moana at either the depositions hearing or the voir dire meant that the only evidence before the Judge was that of Detective Sergeant Parnell. We are not prepared to regard either Constable Roberts’ retrospective notebook entry or his voir dire evidence, made without reference to his notebook, as providing such compelling material as to require rejection of the Judge’s acceptance of the detective sergeant’s evidence following his cross-examination. The challenge to his affidavit fails as does the challenge to the River Road and Cashel Street warrants and the exhibits found at each.
[22]	While that conclusion is sufficient to dispose of the point, we add that the confidential passages in the detective sergeant’s affidavit provide further support for the Judge’s decision.

[23]	During the execution of the search warrant at Cashel Street the police found an invoice in the name of Tony Ratahi of 151 River Road, Christchurch relating to a storage unit at Storage Plus, Kennaway Drive, Woolston, Christchurch. The proprietor of Storage Plus confirmed that Tony Ratahi was occupying unit 11 at that address and had been hiring the unit for the previous four months. Detective Sergeant Fisher deposed that the description given by the proprietor fitted that of the appellant.
[24]	The affidavit referred also to the finding at the Cashel Street address of two new digital cameras with the serial numbers removed, a quantity of musical equipment from which the original numbers had been removed and replaced with home-made numbers. At the appellant’s River Road address a pistol as well as a quantity of cannabis and some 21/2 grams of methamphetamine were found.
[25]	This material afforded ample basis for the issue of the warrant for Kennaway Drive. The argument advanced by Ms Heah was, however, that the affidavit was tainted by the inclusion of inaccurate assertions that the appellant had admitted owning the Cashel Street business; that he had convictions for drug offending; and that methamphetamine had been found in the search of River Road.
[26]	In his reasons for decision of 16 May 2005 the Judge stated:

[30]	The second ground of appeal related to the summing up. The Judge provided the jury at the outset of the case with a preliminary memorandum stating in appropriate terms the onus and standard of proof. He repeated that exercise in his oral summing up on the final day of trial. There is no challenge to either.
[31]	The point taken by the defence is that at 9.05 pm on the final day of the trial the jury advised that it had reached impasse in relation to an element of the burglary count (count 1) relating to the premises of Just $2 Limited and the identification of a person beside the truck who entered those premises. By that stage the jury had reached their verdicts on all other counts.
[32]	The Judge sought and obtained the confirmation of the foreman that the jury had rejected the appellant’s explanation for the circumstances in which he came into possession of the complainant’s computer. He then directed them:

[33]	In this Court Ms Heah noted that this direction was given some eight hours after the jury had retired. She submitted that it was incumbent on the Judge at that stage to give a further full direction as to onus and standard of proof, and that in the absence of that there was risk of miscarriage of justice because the jury might substitute the further direction for the original direction.
[34]	We do not agree. We have noted that by that stage the jury had reached their verdicts on all except count one. There is no reason to doubt their due appreciation and application of the original directions throughout their deliberations to that stage. The further direction would have been understood by the jury against that background including the clear direction that the Crown must prove its allegations beyond reasonable doubt. We regard as fanciful the suggestion that the further direction at [69]-[70] could be read as departing from that underlying direction. We are satisfied that the jury would have taken the phrase "the only reasonable inference to be drawn" as referable to the onus and standard on which they had been fully and appropriately directed.
[35]	Ms Heah is a counsel of long experience at the criminal bar. She candidly acknowledged that it did not occur to her at the time to apprehend error and to invite the Judge to give a further or different direction.
[36]	We are satisfied that there is nothing in this point and that this ground of appeal also fails.