R v Kissling [2008] NZCA 559; [2009] 1 NZLR 641 (10 December 2008)

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ORDER PROHIBITING THE PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN THE NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL SAVE THAT PUBLICATION IN A LAW REPORT

_{OR LAW DIGEST IS PERMITTED.}

IN THE COURT OF APPEAL OF NEW ZEALAND

CA577/2008 [2008] NZCA 559

THE QUEEN

v

STEPHEN PAUL KISSLING

Hearing: 10 December 2008

Court: William Young P, Robertson and Ellen France JJ Counsel: C L Mander and S J M Mount for Crown

S K Ellis for Respondent

Judgment: 10 December 2008

_{ORAL JUDGMENT OF THE COURT}

A We grant leave to appeal.

2. We allow the appeal and rule that the search warrant was valid and the evidence obtained when it was executed is admissible.

R V STEPHEN PAUL KISSLING CA CA577/2008 [10 December 2008]

C We prohibit publication of the judgment and any part of the proceedings (including the result) in the news media or on the Internet or other publicly available database until final disposition of the trial save that

_{publication in a law report or law digest is permitted.}

REASONS OF THE COURT

_{(Given by William Young P)}

Introduction

[1] On 31 August 2007 the police executed a search warrant on a semi-industrial property at 13B Bancroft Crescent, Glendene, Auckland. Mr Stephen Kissling occupied a flat on the first floor of the premises. During the search, the police located a complete laboratory for the manufacture of methamphetamine together with precursor chemicals and materials and an AK47 firearm.

[2] As a result of what was found during the search, Mr Kissling was arrested and he was to stand trial this week in the High Court at Auckland on five counts:

(a) count one – manufacturing methamphetamine;

(b) count two – being in possession of precursor substances intending that they be used for the manufacture of methamphetamine;

(c) count three – having in his possession equipment with the intention that it be used for the manufacture of methamphetamine;

(d) count four – having in his possession materials with the intention that they be used in and for the manufacture of methamphetamine; and

(e) count five – the possession of an AK47 firearm without lawful, proper and sufficient purpose.

[3] This trial was aborted as a result of a ruling delivered on 10 September 2008 in which Wylie J, in the context of a Crown application for an admissibility ruling under s 344A of the Crimes Act 1961, ruled that the search warrant in question was invalid. His primary reasons for this conclusion were:

(a) What he regarded were a large number of departures from the guidelines set out in R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA); and

(b) An insufficiency of evidence to bring the issuing officer to the requisite state of belief.

The Judge concluded that all evidence obtained in the search was inadmissible. He also discharged (or purported to discharge) Mr Kissling under s 347 of the Crimes Act in relation to count one – but only count one – of the indictment.

[4] The Crown seeks leave to appeal against the ruling of the Judge on the s 344A application.

[5] The questions which arise in the case are:

(a) Was the search warrant invalid? And, if not

(b) What if any orders are appropriate given the apparent discharge of

Mr Kissling under s 347 on count one?

We need not address the application of s 30 of the Evidence Act 2006 as we propose to hold that the warrant was valid. Before we discuss the two questions we have identified, it is necessary to explain the basis upon which the search warrant was obtained.

The basis upon which the search warrant was obtained

[6] Before the issuing officer there were two affidavits, both sworn by Detective

Sergeant Bruce Howard. The first was an open affidavit and the second, of which

only an edited version has been released to Mr Kissling, referred to information supplied by an informant.

[7] The open affidavit was in these terms:

I, Detective Sergeant Bruce Howard, of Harlech House make oath and say as follows:

1. On the 22/11/06 as the result of a significant electronic interception warrant known as Operation Colossus, several persons were arrested and charged with a number of counts of manufacturing and supplying methamphetamine. One of those arrested was Stephen KISSLING.

2. KISSLING currently faces 7 charges of manufacturing methamphetamine and 2 of supplying methamphetamine. He is currently on bail and due to appear in the Manukau District Court on

12-14/09/07 for depositions on these charges. KISSLING currently lives at 13 B Bancroft Crescent, Glendene. The proceeds of Crimes

Section has since had one property belong to KISSLING restrained and have also restrained $50,000 seized from his ASB safety deposit

box. Two days prior to the termination of Operation Colossus it is believed that he withdrew $85,000 in cash from the same safety deposit box.

3. KISSLING has been breaching his bail conditions by associating with his co-accused, possession a [sic] cellular phone and using drugs. He has been arrested twice while on bail and on both occasions was in breach of his bail conditions. Police intend to arrest KISSLING and charge him with breaches of his bail conditions when he is located. In total the Opposition to bail form outlines 10 breaches of his bail conditions.

4. In an attachment to this application I have disclosed to the issuing officer the Informant code name of the provider of this confidential information and the information that he has supplied. This attachment has been retained by me after being view [sic] and signed by the issuing authority.

5. On the 26/08/07 Stuart LIDDELL who is the landlord at 13 B Bancroft Crescent, Glendene went to this address to serve an eviction notice on KISSLING. The address is a mechanical workshop in an industrial area but has living accommodation in the upper floor. KISSLING’s behaviour was threatening causing LIDDELL to fear for his own safety and to believe that KISSLING was under the influence of methamphetamine. He stated that KISSLING’s behaviour had changed dramatically and that he was glaring at LIDDELL with glassy eyes and refused LIDDELL entry to the premises.

6. LIDDELL also noted that the windows had been covered up from the inside with some sort of red plastic material to prevent anyone looking into the premises.

7. LIDDELL stated that KISSLING had always been erratic in his payment of the rent but always paid it eventually in cash. He stated that KISSLING currently owes him about $3000 in unpaid rent.

8. LIDDELL spoke to KISSLING’s sister, Clare COTTLE the following night in an attempt to open up lines of communication with KISSLING but she advised him that KISSLING was out of control and that she had been to see him and that he was so off the rails that she tried to leave the address in a hurry and retreat into the front premises at 13 Bancroft Crescent which resulted in her colliding with the building and causing some damage. COTTLE described KISSLING to LIDDELL as being absolutely smashed. Police area ware [sic] that COTTLE herself was (and possibly still is) a user of methamphetamine and that she has been treated for an addiction to it.

9. LIDDELL also leases out the front factory at the address, namely

13A Bancroft Crescent, Glendene and he has spoken to Wesley, the tenant there about what has been going on at the rear unit occupied by KISSLING. Wesley has told him that there is a lot of traffic coming and going from the address both in the day and at night. Wesley also stated that KISSLING has started moving some of his vehicles out of the address.

10. KISSLING was arrested at Pokeno on 07/05/07 for possession of 4 grams of methamphetamine and Possession of a pipe. He was on bail at this time for the Operation Colossus methamphetamine manufacturing charges. KISSLING has pleaded guilty to the possession of methamphetamine and the possession of a pipe charge was withdrawn. He was fined $500 for this offence.

11. While on bail for the Operation Colossus charges KISSLING has committed numerous breaches of bail in that he has been associating with a number of his co-accused, one of who [sic] was hospitalised for serious burns which the Police believe are as the result of an accident during a methamphetamine manufacturing incident. There is no indication that KISSLING was with him at this time.

12. Based on this information set out above and the informant information in the attachment, I believe the KISSLING is using the premises of 13B Bancroft Crescent in the manufacture of methamphetamine for the purpose of supplying that methamphetamine to support his lifestyle.

13. I believe that a search of the premises described will lead to the location of methamphetamine, precursor chemicals and equipment used in the manufacture of methamphetamine and trace materials from the manufacture of methamphetamine.

14. Manufacturing methamphetamine and Supplying methamphetamine are both offences punishable by life imprisonment under the provisions of the Misuse of Drugs Act 1975.

[8] The edited version of the second affidavit that has been made available to Mr Kissling is heavily redacted. It referred to information obtained from an informant controlled through the Police District Informant Management Programme. This information appears to have been provided during two separate discussions between the informer and the Detective Sergeant responsible for managing the informer, the second of which was at least partly due to information obtained from another source. The affidavit noted that the informant had previously supplied information which had proved to be very accurate and that there was independent confirmation of the informant’s present information in six respects. The affidavit finishes by explaining that the Detective Sergeant who controlled the informant was on leave (presumably to show why the affidavit was sworn by Detective Sergeant Howard and not that Detective Sergeant). We record that we have seen the unredacted affidavit.

[9] We note that Detective Sergeant Howard, via the sensitive affidavit, disclosed to the issuing officer the code name, but not the real name, of the informant. He retrieved from the issuing officer the sensitive affidavit after it had been read. We will revert to the practical implications of this later. But because of its after-the-fact character, this point is irrelevant to the adequacy of the evidence which was before the issuing officer.

Was the search warrant invalid?

R v Williams

[10] The approach taken by the Judge was very much based on what this Court said in Williams. It is necessary therefore for us to say something about that case.

[11] Although information supplied to the police by an informant was material to the course of events which led to the obtaining of the original search warrant which

was in issue in Williams, that information was not of primary significance in the case. On the other hand, because the Court was seeking to provide general guidance to the police and profession associated with the obtaining of, and challenges to, search warrants, the judgment does address the way in which informant information should be provided to the issuing officer when a search warrant is sought.

[12] The first passage from Williams that is material starts at [216]:

[216] There is often a particular difficulty with warrant applications based on information provided by informants. In such cases, there has to be some accompanying evidence in the application suggesting why the informant should be considered reliable and why the informant’s assertions are solidly grounded in more than mere suspicion, rumour or gossip (see R v Condren (Court of Appeal, CA 233/96, 10 September 1996)). Evidence of an informant’s reliability could be that the source has supplied reliable information in the past, particularly if information provided by them previously has resulted in the conviction of other offenders (see R v Burns (Darryl) [2002] 1 NZLR 204 (CA) at para [16] and R v Hepi (Court of Appeal, CA 382/03 & 402/03, 5 April 2004)), or that their part of the story has been confirmed by police inquiries (see R v Debot (1986) 30 CCC (3d)

207, upheld by the Canadian Supreme Court ([1989] 2 SCR 1140)).

[217] The source and nature of the information itself may affect reliability. For example, an eyewitness account will be more reliable than information passed through multiple sources and then on to the police (see Burns at para [16]; R v Black (Court of Appeal, CA 50/06, 20 July 2006); and R v Thompson [2001] 1 NZLR 129 (CA) at p 144). Information from an informer close to the alleged offender such as a family member, colleague or friend will generally be considered more reliable than information from a more distant source (see Black at para [19]), as will be information from a participant in an illegal transaction, as opposed to a spectator (see R v Groves (Court of Appeal, CA 210/03, 23 September 2003)).

[218] Where aspects of an informant’s story unrelated to the alleged offending, such as personal details about the offender, are able to be verified through other inquiries the informant will be considered more reliable (see Groves and Hepi). Links between the alleged offender and the address stated in the warrant (see Butler and Hepi), accurate reports of the alleged offender’s previous convictions (see Groves), and facts that are able to be independently checked, such as power bills consistent with hydroponic cannabis-growing operations as alleged by the informant (see Butler and Thompson (2001)), are examples of information that, where confirmed, has been found to increase an informant’s reliability.

[219] Particularly in cases where only general or brief information is provided by the informant, it must be supported by information from the police about the source and the reliability of the informant in order to be considered reliable (see R v Harrison (Court of Appeal, CA 20/01, 23 May

2001)). It is not possible for the reliability of an informant to be assessed if their statements as recorded in the affidavit are conclusory. There must be

some evidence provided to show that the statements are based on more than

suspicion, rumour or gossip (see R v Kahika (Court of Appeal, CA 200/97,

31 July 1997)).

[220] As well as the effect the external factors discussed above will have on reliability, the way in which the applicant records the information received from the informant will affect its reliability. The applicant should give the date when information from any informant was supplied. If the information was given not to the applicant himself or herself but rather to another member of the police, that other officer should be named or should swear their [sic] own affidavit in support of the application. The applicant should use direct speech where possible indicating exactly what the informant told the police (see R v Poelman (2004) 21 CRNZ 69 (CA) at paras [27] – [28]).

[221] There is a public interest in the protection of police informers. The Court will prevent the disclosure of identifying information to an accused where that is necessary to protect an informant’s identity and it will use a confidential filing system. The issuing officer must, however, be given all information held by the police when deciding whether to issue the warrant, no matter how sensitive the information might be (see Poelman at para [35]).

[13] What is said in [221] is problematical.

[14] In R v Poelman (2004) 21 CRNZ 69 (CA) the Court discussed the manner in which search warrant applications should be prepared in this way:

[27] First, a deponent should not say, “A confidential informant recently supplied information ...”. Rather, the deponent should say “On [the date in question] a confidential informant told me ...”. If the information was given not to the deponent himself or herself but rather to another member of the police, that member of the police should be named. Better still, that member of the police should swear his or her own affidavit. There is no rule that an application for a search warrant can be supported only by sworn testimony from the applicant himself or herself; supporting affidavits can be filed. Indeed, it is preferable to support applications by direct testimony rather than rely on hearsay. That is not to say that hearsay, even double hearsay, is impermissible, but if it can be avoided it should be.

[28] Secondly, deponents should use direct speech wherever possible, not reported speech. That enables the judicial officer determining the application to assess exactly what the informant told the deponent or told the other named member of the police.

...

[35] ... When police are drafting these applications and any affidavits in support, they should draft them with as much specificity as possible. The police are not drafting them so that they can “safely” later be given to defendants and defence counsel. It is essential that the judicial officer who determines the search warrant application gets as much information as possible, no matter how sensitive that may be. The police can rest assured that the Court will protect informants’ identity by sanctioning appropriate

excisions if and when defendants ask for copies of search warrant applications. The problem with his Honour’s suggestion is that it can easily lead to some of the problems which we identified with Detective Coster’s affidavit. That affidavit required no excisions before being supplied to the defendant, but to some extent that was a consequence of its lack of specificity. Defence counsel challenged that lack of specificity, and were to an extent justified in so doing. It goes, almost of course without saying, that District Courts must apply a strict practice of confidential filing of affidavits and applications for search warrants, just as the High Court does for applications for interception warrants. Police wariness may be alleviated by knowledge of a confidential system of filing.

[15] Pausing at this point, it is important to recognise that the Court in Poelman

was making a distinction between:

(a) The naming of an informer which, given [27], was plainly seen as not necessary; and

(b) Providing to the issuing officer appropriate details, ideally as specific as the circumstances of the case permit, of what the informant said.

Confidentiality concerns necessarily arise in relation to (b); this because a defendant who is aware of the detail of what the informant has said may well be able to identify the informant.

[16] On this basis, and standing alone, it might be thought that what the Court in Williams was talking about in [221] was information of the kind referred to above in [15](b). Unfortunately, the waters were somewhat muddied by what followed:

[224] In summary, applicants for warrants should:

...

(h) If information relied on is from an informant, give as much information about the informant as possible, including the informant’s name, address and relationship to the suspect (if known) and any specific information on past reliability.

(i) Indicate in the application who received the information from the informant, when and in what circumstances.

(j) As far as possible, report information received from an informant in the informant’s own words. Consider attaching the original notes of the conversation to the application.

(k) Disclose all relevant information, even if confidential. Confidential information (for example, as to an informant’s identity) does not have to be disclosed to the suspect (even if later he or she is charged) but it must be disclosed in the warrant application. If applicants are concerned about inadvertent disclosure of confidential information, they should consider putting it in an attachment to the affidavit, sealed and marked confidential. Applicants should refer in the affidavit to the attachment and swear to their belief in its accuracy.

[17] Construed literally, [224](h) and (k) of Williams appear to require the disclosure of any informant’s identity, including name and relationship to the suspect.

The primacy of s 198 of the Summary Proceedings Act 1957

[18] It is important to recognise that the case must be determined by reference to s 198 of the Summary Proceedings Act 1957. This point was emphasised recently in R v HVT [2008] NZCA 99:

[9] Guidance as to best practice for those who apply for search warrants is provided in R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA) at [208] – [225] (and particularly at [224]). Obviously the greater the departure from best practice, the greater the risk of a warrant being set aside (see [225]). But the courts must not lose sight of the fundamental principle that an application for a warrant under s 198 of the Summary Proceedings Act 1957 must be supported by evidence which affords the issuing officer with reasonable grounds to believe that evidence associated with the commission of an offence is at the stated location. Where the application provides such evidence with reasonable specificity, the material supplied is not misleading or selective and the power of search which is sought is not unduly wide, there will be little or no scope for a successful challenge.

The Judge’s criticisms – overview

[19] The judgment is structured around the factors discussed in Williams at [224]. The Judge’s primary criticisms relate to the non-disclosure of the informant’s identifying particulars. A number of other criticisms, of varying but lesser significance, were also made.

The non-disclosure of the informant’s identifying particulars

[20] On this point, the Judge observed that the affidavit only identified the informant by code name and did not specify that person’s relationship to Mr Kissling. He also noted that the claims that the informant had previously provided “very accurate” information and that the current information had in certain respects been independently confirmed were generalised and lacked detail. Because of these factors, the Judge concluded that there was insufficient information to allow the issuing officer to assess the reliability of the informant information.

[21] The Judge then considered whether all relevant confirmatory information, even if confidential, had been disclosed to the issuing officer. He concluded that it had not, primarily because the police had retrieved certain information shown to the issuing officer, meaning it had not been retained on the Court’s file. The Judge then rejected the proposition that the principles in Williams are not applicable to registered police informants, although he did express surprise that this issue was not addressed in that case.

[22] Except in very limited circumstances, the identification in open court of informers has never been required. On this it is sufficient to refer to R v Hardy (1794) 24 St Tr 199 at 809 and 816 and Attorney-General v Briant (1846) 15 M & W

169 at 185 (Exch). The rule against non-disclosure applies not only to what is said in open court but also to discovery processes, cf D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 218 (HL). As noted in D, the only exception is where the disclosure of the informer’s identity might help to show that the defendant was innocent.

[23] Both the rule and the exception are well established in New Zealand, see R v McNicol [1995] 1 NZLR 576 (CA). The rule itself is now incorporated (at least broadly) in s 64 of the Evidence Act:

64 Informers

(1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.

(2) A person is an informer for the purposes of this section if the person—

(a) has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed; and

(b) is not called as a witness by the prosecution to give evidence relating to that information.

(3) An informer may be a member of the police working undercover.

[24] It is, of course, important to recognise that not all those who supply information are necessarily to be regarded as informers, see Attorney-General v Powerbeat International Ltd (1998) 16 CRNZ 555 at 560 (HC). And despite the black and white approach implicit in s 64(2) under which any particular informant either is or is not an informer, there may in practice be differing levels of confidentiality which are warranted. For instance, in this case the landlord supplied information to the police and in that sense was an informant. He was entitled to expect that the fact that he had done so would generally be kept confidential in the sense of not being unnecessarily disclosed. But he presumably anticipated having to give evidence if a prosecution resulted and, associated with this, he could not fairly expect that the information he provided to the police and his identity would be completely suppressed.

[25] Leaving aside what was said in Williams, it has always been recognised in New Zealand that the applicant for a search warrant need not disclose the name of the informant whose information provides the basis for the application (see for instance McNicol). We recognise that it is open to doubt whether an application for a search warrant is a “proceeding” within the definition provided in s 4 of the Evidence Act (and the related problem as to the application of s 4(2)(b) prior to trial), but, that said, it would be odd, to say the least, if a privilege which applied in the context of proceedings generally did not apply in the case of search warrant applications. But, in any event, on the assumption that the Act does not apply, the common law position is perfectly clear and confirmed not only by McNicol but also by express Canadian authority to the effect that the identification of informers is not

required when search warrants are sought, see R v Leipert (1997) 143 DLR (4^th) 38

at [17] – [18] (SCC). The practice is the same in England and Wales (see the Police and Criminal Evidence Act 1984, Code B: Code of Practice for Searches of Premises by Police Officers and the Seizure of Property Found by Police Officers on Persons or Premises at [3A]).

[26] When the police seek the sanction of a High Court Judge for electronic surveillance operations based on information supplied by informants, the affidavits are usually specific as to the information provided. Any information which might identify the informant will be redacted out of copy affidavits which are made available to the defendant in the case of a later challenge. But there has never, to our knowledge, been a practice under which the names of informers are themselves disclosed to the High Court Judge.

[27] We also refer to the New Zealand Law Commission Report Search and Surveillance Powers (NZLC R97 2007) at 107, where at footnote 65 the Commission noted:

We do not regard the inclusion of an informant’s name and address as being necessary.... It is, however, important that when information from an informant is relied upon the application discloses sufficient details to allow the issuing officer to make an assessment of the informant’s credibility and the reliability of the information.

The Search and Surveillance Powers Bill presently before the House broadly reflects that approach. Under the Bill issuing officers are prohibited from requiring the disclosure of informants’ identifying particulars, except in very limited circumstances (see cl 98(2)).

[28] When challenged from the bench, Mr Ellis (for the respondent) was, unsurprisingly, unable to come up with a single case in which an applicant for a search warrant had been required to disclose an informer’s identity.

[29] As is apparent from what we have said, we are well satisfied that there was no requirement in this case for the police to identify the informer. What was said in Williams in [224] was intended to provide guidance to those seeking warrants (see [209]) rather than a test for determining whether warrants are valid, an issue which must be addressed by reference to s 198. Moreover, those remarks were

plainly not written with the privilege of informers in mind. The Court, in giving guidance to applicants, cannot have abrogated a privilege which has been recognised for hundreds of years and a practice which has been universally followed in New Zealand and like jurisdictions.

The other concerns of the Judge: the limited evidence as to Operation Colossus

[30] In his judgment the Judge noted the contention of Mr Kissling’s counsel that the police had failed to disclose Mr Kissling’s alleged involvement in Operation Colossus fully. It was submitted that the police could not account for all of the equipment used in that alleged offending and therefore should have disclosed the possibility that some of this equipment might be found on the premises. Further, it was argued that police video footage of Mr Kissling visiting his co-accused (and allegedly breaching his bail conditions) and the fact that he may have had a legitimate reason for these visits should have been disclosed.

[31] The Judge agreed that the police had not provided the “full picture”. In his opinion, it would have been relatively easy for the police to provide a summary of Operation Colossus and to disclose the existence of the video footage and information received in relation to the alleged breaches of bail.

[32] We see no basis for criticism of the police in this respect. The Operation Colossus charges had been laid nine months earlier. It was perfectly clear from the material in the sensitive affidavit that the offending was unrelated other than in relation to the appellant’s interest in the manufacture and use of methamphetamine. That the police had further and undisclosed evidence which made their case stronger in relation to the bail breaches (particularly the video footage) did not diminish the case for a search warrant. Self-evidently the police cannot be expected to refer to every single piece of evidence available to them when seeking a search warrant. The possibility (speculative at best) that some of the Operation Colossus equipment might still have been in the appellant’s possession but for storage purposes only did not warrant discussion in the affidavits.

[33] Some of the other criticisms made by the Judge (to which we are about to refer) highlight the problems which can arise when unnecessary peripheral detail is referred to in affidavits in support of search warrant applications. We have in mind the references in the affidavit to the $85,000 and the alleged co-offender being injured in another methamphetamine manufacturing operation. The Judge criticised Detective Sergeant Howard for not putting forward the basis for his belief in relation to these two factors. Given that the files on Operation Colossus occupy 120

Eastlight folders, a detailed overview of the nature of the alleged offending in that case reinforced in all respects with the evidential basis for the conclusions expressed would have involved a level of detail which would have been disproportionate to its evidential value (in the context of the search warrant application).

The other concerns of the Judge

[34] The Judge identified a number of other departures from the recommendations in [224] of Williams.

[35] In contradistinction, we see nothing that is materially untoward in the affidavits and no point in reviewing the detail of the information supplied. In saying this, we recognise that there were two relevant assertions of belief that were not the subject of specific justificatory particulars, namely the assertions about the $85,000 and the alleged Operation Colossus co-offender being injured in an accident. These, factors, however, were of peripheral significance and, if subtracted from what was put to the issuing officer, do not significantly detract from the cogency of what was properly available. The critical point is that the s 198 threshold was well and truly crossed.

[36] It is important that defence counsel (and the courts for that matter) do not engage in nit-picking exercises.

Was there an adequate evidential basis for the warrant?

[37] The Judge’s conclusion that there was not an adequate evidential basis for the issuing of the warrant seems to have been a function of his other conclusions associated with what he saw as inadequacies in the material supplied and his apparent putting to one side of the informer information.

[38] In our view there was ample evidence supporting the issue of the warrant.

Practical implications

[39] We were told that when an application for a search warrant is made to a Justice of the Peace, the applicant police officer will usually retrieve the supporting material once the warrant has been obtained (although cf the recommendations in the Manual for New Zealand Justices of the Peace (2002) at 32 which contemplate the forwarding of material to the local District Court registry). In contradistinction, when a search warrant application is made to an officer of the Court (usually a deputy registrar) the affidavits are usually (but not always) retained by the Court. Particular issues may arise if the issuing officer deals with the application out of Court hours, perhaps at his or her home. Storage practices are discussed in a limited way in the Law Commission report (NZLC R97 2007) at 109 – 111. The corresponding practice in the High Court in relation to interception warrants, in terms of which the affidavits are always full (although they do not name informants) and always retained, would not be easy to apply in the District Court given the significant difference in volume.

[40] It is also important to recognise that the more cogent the information which an informer gives, the more likely that its disclosure will serve to identify the informer. Leaving affidavits which record such information in District Court registries necessarily risks the safety of informers given what we suspect is variable practice around the country and the ever present risk of human error.

[41] The parliamentary consideration of the Search and Surveillance Powers Bill should provide an opportunity to address in a systematic way the obvious concerns

which the police have as to the ability of the District Court to maintain appropriate security in relation to informer information. Ideally this will produce a legislative solution (which could include a strengthened security system in the District Court) that ensures both the authenticity of the documents relied on by the issuing officer and the safety of informers.

What if any orders are appropriate given the apparent discharge of Mr Kissling under s 347 on count one?

[42] At the conclusion of his written ruling excluding the evidence from the search the Judge allowed the defence’s application for a discharge under s 347 of the Crimes Act. This apparent discharge strikes us as somewhat odd for the following reasons:

(a) Given that it was always likely that there would be a Crown appeal on the admissibility issue (as the Judge recognised), the conventional course would have been to withhold a s 347 ruling until it was known whether there was to be an appeal (and if there was an appeal, until it was determined).

(b) We were told that counsel for Mr Kissling only sought a s 347 discharge on count one but it still seems strange that, given the Judge was going to resort to s 347, he did so only in relation to count one given that the other four counts in the indictment were equally untenable if the search evidence were excluded.

(c) Section 347(3A) requires a discharge to be given in open court whereas the Judge resorted to the section in a ruling which was delivered through the Registrar.

[43] Section 381A permits a question of law arising out of a s 347 discharge to be referred to this Court, provided the application is made within 10 days of the discharge. Taking the view that the discharge was ineffective as not having been given in open court, the Crown did not avail itself of the s 381A process. The upshot

is that if the s 347 discharge on count one is effective despite not having been given in open court, it is now past the point of challenge.

[44] On the other hand, it is indisputable that there has been no discharge under s 347 in relation to the other four counts in the indictment and our ruling as to the admissibility of the evidence will be material to Mr Kissling’s trial on those counts.

[45] The issue whether the s 347 discharge is effective is not properly before us under s 379A and we think it inappropriate therefore to express a view on the issue which must, we think, be the subject of a determination in the High Court. For this reason we will confine the orders we make to the determination of the s 344A application.

Disposition

[46] We grant leave to appeal. We allow the appeal and rule that the search warrant was valid and the evidence obtained when it was executed is admissible.

Solicitors:

Crown Law Office, Wellington