The Queen v Job [2009] NZCA 49 (3 March 2009)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Job [2009] NZCA 49 (3 March 2009)

Last Updated: 13 March 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA515/2008

[2009] NZCA 49

THE QUEEN

v

MANU TEREKIA BUSBY JOB

Hearing: 17 February 2009

Court: Ellen France, Harrison and Cooper JJ

Counsel: C B Wilkinson-Smith for Appellant
M D Downs for Crown

Judgment: 3 March 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Cooper J)

[1] The appellant appeals against his conviction after trial by jury on charges laid following the execution of a search warrant on a rural property situated near Gisborne. In the course of their search the police found numerous cannabis plants and seedlings, a stolen Nissan truck, three firearms and ammunition. The jury found the appellant guilty on four counts, including those alleging cannabis cultivation, conversion of the truck, unlawful possession of a firearm and unlawful possession of ammunition.
[2] Prior to the trial, the appellant challenged the admissibility of the evidence of what had been found, in the context of an application by the Crown under s 344A of the Crimes Act 1961. In a reserved judgment delivered on 10 June 2008, Judge Spear ruled that the evidence was admissible. No appeal was filed at the time as defence counsel considered there was no realistic prospect of an appeal being heard pre-trial. The appellant now argues that the convictions should be set aside as based on a wrong decision on a question of law, and that there was a miscarriage of justice (s 385(1)(b) and (c) of the Crimes Act).
[3] Mr Wilkinson-Smith advanced three grounds of appeal. They were that:

(a) The pre-trial application was decided in a manner that was so procedurally unfair it amounted to a miscarriage of justice. That argument was based on the fact that the Judge had conducted and relied on his own internet investigation to decide a contested matter of fact.

(b) It was not established on the evidence that the address searched was in fact the address described in the search warrant, so that the decision to admit the evidence was wrong in law.

(c) Evidence had been admitted of the search of a house bus, which was not within the ambit of the search warrant.

Background

[4] The police obtained a search warrant authorising them to search the “building, vehicles, carriage, boxes, receptacles, premises or place situated at 568A Lavenham Road, Patutahi”. Although there was an argument in the District Court as to the adequacy of the information provided in the application for the warrant, Judge Spear held that the warrant had been validly issued and that issue has not been pursued on appeal.
[5] Patutahi is a rural area near Gisborne. Street addresses in the area are allocated in accordance with the Rural Address Property Identification system (“RAPID”). Evidence before the District Court showed that there were two numbers given to properties accessed off an unnamed private road or lane off Lavenham Road, namely numbers 568 and 568A. The police considered that the property referred to as 568A Lavenham Road was occupied by the appellant and, according to information that had come into their hands, he was cultivating cannabis there.
[6] Other information before the District Court identified four adjacent properties, and there was an aerial map on which lines were drawn supposedly referable to legal block numbers. Three of those blocks were referred to as Waituhi block 2D3B, Waituhi block 2D4A and Waituhi block 2D4B. The fourth block (not given a block number on the map) was Waituhi block 2D3A, a narrow strip on which was located the cottage that the police searched in the belief that it was number 568A.
[7] The police search of the property referred to as 568A Lavenham Road revealed cannabis in and around the cottage. The police seized a substantial number of cannabis seedlings, together with potting mix, various fertilisers, water crystals and other horticultural accessories, able to be used in the cultivation process. In the main bedroom of the house the police found a polystyrene container with a heat light.
[8] The police also relied on the warrant to search a house-bus which the appellant contends was parked on block 2D4B. One of the police officers noticed a smell of cannabis emanating from the bus which was occupied at the time by two persons, one of them the appellant. Detective Sergeant Beattie advised both of them that the police were present executing a search warrant and directed them to accompany him back to the cottage. Cannabis plant material was located on the table in the bus, which was situated approximately 50 metres from the house. Cannabis plants were located growing in paddocks on blocks 2D4A and 2D4B.
[9] In all, a total of 5,241 cannabis plants were found.

The District Court judgment

[10] At the hearing of the Crown’s application under s 344A of the Crimes Act, the appellant contended that although the police had obtained a search warrant for the address at 568A Lavenham Road, the property that they had in fact searched was number 568. Judge Spear noted that the property searched was down an unnamed lane off Lavenham Road, with the number 568 displayed at the commencement of the lane. He found that the lane provided access to two residential dwellings, and that the evidence pointed to those dwellings being known as 568 and 568A Lavenham Road. He found that the first residential dwelling reached was number 568, and the second was number 568A. He based that conclusion on a number of reasons, including a description of the Gisborne District Council’s methodology in assigning numbers pursuant to the RAPID system. The Judge had derived that information by accessing the Council’s website.
[11] The Judge also referred to a statutory declaration, on which the appellant relied, by one Hemi Pere to the effect that he lived with his wife and family on Waituhi block 2D3B “otherwise known as 568 and 568A Lavenham Road, Patutahi, Gisborne”. It appears that the statutory declaration was admitted on the basis that Mr Pere was unavailable because of absence in Australia.
[12] The Judge also referred to evidence by the appellant that blocks 3A, 4A and 4B were owned in shares by a Mr Neville Judd and the appellant himself. In the District Court, Mr Wilkinson-Smith accepted that Mr Judd had been entitled to give the police permission to enter and search the paddocks where cannabis was found on blocks 3A, 4A and 4B. At [22] the Judge observed:

[22] It is central to the objection raised by the accused that the residential dwelling identified as 568A Lavenham Road was indeed entirely on Mr Pere’s property (Waituhi 2D3B) and thus the search warrant did not permit the police to enter and search the cottage, the house-bus and the general land contained within Blocks 3A, 4A and 4B. With respect to Mr Wilkinson-Smith, that appears to be a rather difficult position to adopt or maintain given that the defence has conceded that Mr Judd was an owner of Blocks 3A, 4B and 4A and thus a person entitled to give consent to the police entering the property. Perhaps that might need to be qualified when considering the house-bus but I have not been asked to rule on that.

[23] Of greater moment is the accused’s evidence as to the location of the residential dwelling known as 568A Lavenham Road. It is suggested effectively that this is one of the outhouses close to Mr Pere’s home (568 Lavenham Road) and that it is not the cottage shown in the booklet of photos 3-14.

[13] The Judge rejected the appellant’s argument. He held that it was clear that 568A was the RAPID number for the cottage that the police had searched. In doing so, he accepted evidence from Detective Hunter who had referred to inspecting police aerial maps and inquiries that he had made from WINZ that the accused had given 568A Lavenham Road as his place of residence. In addition, there were only two residential dwellings on the lane, and the first reached when travelling from Lavenham Road (not the cottage searched) was apparently clearly marked as 568, with no reference to 568A. He relied also on evidence that, in accordance with the detective’s investigations, the cottage searched was known to be without power and telephone services. Further, it was Detective Sergeant Beattie’s evidence that he had previously visited the cottage, which had been occupied by the accused at the time and that he knew that this was where the accused resided.
[14] The Judge rejected evidence that had been given by the appellant that shortly after the police arrived at the property he had told them that 568A was “further back down the driveway”. The evidence from the police officers was that the appellant had not at the time disputed that the cottage was number 568A or raised any other issue that the police had entered the wrong property. He concluded:

[34] I am satisfied that the cottage and immediate surrounds searched by the police on 13 February 2007 were indeed 568A Lavenham Road by way of a general description of the address of this rural residential dwelling. It might well be that in some cases a reliance by the police on a RAPID number will cause difficulties insofar as the description of the area subject to the search warrant is concerned. I do not consider that to be the case here. I accordingly do not uphold the submission from the defence that the wrong address was searched.

The appeal

[15] We have already referred to the three grounds advanced by the appellant on appeal. It will be convenient to deal with the second and third of them before coming to the argument based on the Judge’s internet research.

Warrant executed at wrong address?

[16] It is to be noted at the outset that the argument advanced that police searched the wrong address was no longer based in this Court on an assertion that the police had searched 568 Lavenham Road. Rather, as we understood his argument, Mr Wilkinson-Smith contended that the police had searched neither 568 or 568A, but some other property able to be identified only by the block number, 2D3A. This was depicted on an aerial map as a narrow property abutting 2D3B to the north and 2D4A to the south.
[17] At the forefront of his argument was Mr Pere’s statutory declaration which he said “acknowledges” that the RAPID number 568A Lavenham Road attaches to his land, Block 2D3B. Mr Wilkinson-Smith further asserted that Mr Pere’s declaration was supported by the aerial map relied on by the Crown and produced at the preliminary hearing. This had, on the face of it, carried a notation which put both 568 and 568A on Waituhi Block 2D3B, Mr Pere’s land.
[18] Mr Wilkinson-Smith also referred to rates assessment notices produced in the District Court which had referred to the appellant, but had not described his property other than by block references. Absent the Judge’s own internet investigation, Mr Wilkinson-Smith contends, there had been no safe basis to find that the building searched was adequately and correctly described by reference to the RAPID number, 568A.
[19] Mr Wilkinson-Smith relied on R v Williams [2007] 3 NZLR 207 (CA) to contend that an unlawful search of the wrong address should not be regarded as a technical or minor breach and should have the consequence of rendering the search both unlawful and unreasonable, so that evidence derived from the search should not be admitted.
[20] Responding for the Crown, Mr Downs referred to four matters as establishing that the police had searched the property named in the warrant. First, was the fact that, as found by the Judge, the lane leading off Lavenham Road had only two premises. Since the first was marked 568, it was reasonable to assume that the second must be 568A. Second, the appellant had previously told WINZ that he resided at 568A Lavenham Road. Third, it was common ground that the cottage was without power and the police had ascertained that 568A was without power and telephone. Fourth, the police officers believed from their past experience that the address they were searching was that described in the warrant, and they had dealt with the appellant previously at that address.
[21] We agree with the Crown’s submissions on this issue. Once it is accepted (there is no suggestion to the contrary) that there are only two street addresses assigned to the house properties on the relevant lane off Lavenham Road, and that the first of those is number 568, the conclusion that the second dwelling is number 568A is inevitable. It is also consistent with the aerial map produced in the District Court on which other properties are identified on other lanes off Lavenham Road, with the numbering of properties proceeding sequentially from Lavenham Road. For example, five properties were depicted marked, in sequence from the road, 562, and 562A to D respectively.
[22] The appellant accepted in cross-examination that 568A was the address given to WINZ and in re-examination he was asked why he had given WINZ what he now said was the address of Mr Pere. His answer was:

Because there was no other residential address other than Mr Pere’s... .

[23] That answer has to be seen in the context of his earlier assertion in cross-examination that his property did not have a residential address and was known simply as Waituhi 2D4A.
[24] We accept the submission advanced by Mr Downs that is inherently unlikely that the property where the appellant resided was known only by its block number. Despite the appellant’s evidence about the block number, the argument on his behalf in the District Court was, of course, that the property searched was in fact number 568, and not 568A. The submission addressed to us by Mr Wilkinson-Smith apparently overlooked that aspect of the argument he had put to Judge Spear.
[25] There was in addition the evidence about the previous dealings that the police had had with the appellant at the address searched. We are satisfied overall that the Judge’s conclusion that the police had searched the property referred to in the warrant was correct.

The search of the bus

[26] The second argument advanced on the appeal was not run in the District Court. Mr Wilkinson-Smith contended that the search of the bus, parked near the house but situated on a different block had not been authorised by the warrant. The argument in this Court was based on evidence given at the trial (not at the pre-trial hearing) that the bus was parked on Waituhi block 2D4B at the time of the search.
[27] Mr Wilkinson-Smith argued that even if the Court concluded (as we have) that the police had correctly searched the house known as 568A Lavenham Road, the warrant would not have authorised the search of the bus on a different legal block. While Mr Judd, who was the lessee of Block 2D4B, had given his consent to the police entering that block, Mr Wilkinson-Smith contended that he had no power to consent to the police entering a house-bus owned by the appellant. Consequently, the search of the house-bus was unlawful and had resulted in the seizure of material prejudicial to the appellant at his trial, namely cannabis plant material and electronic scales.
[28] It was plain from photographs produced at the trial that the bus was in fact being used as a residence. Again, by reference to the Court’s decision in R v Williams, Mr Wilkinson-Smith submitted that evidence obtained as a result of what was a serious invasion of privacy should be excluded.
[29] However, it was Detective Sergeant Beattie’s evidence at the trial that he had stopped his vehicle beside the house-bus and had spoken to the two occupants, one of whom was the appellant. He said:

There was a distinct smell of cannabis emanating from the bus when I first spoke with them. I advised both men that we were executing a search warrant on the property and directed them back to the main dwellinghouse on the property. Mike asked me if he could go back onto the bus to grab his smokes. I permitted him to do this and we began to walk back to the main dwellinghouse.

[30] The inference that this passage clearly justifies is that the detective was outside the bus talking to the two occupants when he noticed cannabis emanating from inside it. He was there lawfully, because of Mr Judd’s consent. Sufficient grounds would then have existed for a warrantless search pursuant to s 18(2) of the Misuse of Drugs Act 1975.
[31] Because the issue was not pursued at the pre-trial hearing, nor raised at the trial, the record does not focus on the precise location of the bus. It appears that it was between 50 and 70 metres from the house, and the evidence also shows that a fence separated the property on which the house was located from that on which the bus was located. If, as the appellant contends, the evidence given at the trial was sufficient to show that the bus was located on what was, legally, a different block, that might be sufficient to raise an issue about the validity of the police purporting to execute the warrant inside the bus. Assuming, however, that the appellant’s argument about that is correct, the police would nevertheless have been justified in exercising the powers given by s 18(2) to enter and search the bus, because of what Detective Sergeant Beattie had smelt.
[32] The police, of course, thought that they were executing the warrant. There is no suggestion that they acted recklessly or with bad faith. The evidence obtained as a result of the search of the bus was real and was part of the evidence going to establish that the appellant was engaged in a substantial cannabis cultivating enterprise. In all the circumstances even if it were concluded that the evidence had been improperly obtained, its exclusion would not, in our view, be a “proportionate” response to any impropriety for the purposes of s 30(2)(b) of the Evidence Act 2006.

The internet

[33] That leaves for consideration the appellant’s other contention based on the fact that the Judge accessed the Gisborne District Council’s website and relied on material which it contained as part of his reasons for concluding that the police had properly searched the property known as number 568A.
[34] To put the appellant’s argument in context, we set out what the Judge said at paragraphs [14-16] of his judgment:

[14] A great deal of Mr Wilkinson-Smith’s argument centred around the use of 568A Lavenham Road as the address of the property to be searched. In his oral submissions, Mr Wilkinson-Smith argued that the police need to use different “identifiers” for rural property as there was a need for careful delineation.

[15] RAPID stands for Rural Address Property Identification. The Gisborne District Council website explains it in these terms:

WHAT IS RAPID NUMBERING, AND WHY HAS IT BEEN DONE?

RAPID stands for Rural Address Property IDentification. It gives every rural property with a dwelling an address.

Sometimes it is hard to explain exactly where you live on long rural roads. RAPID is particularly useful for emergency services such as police, fire, ambulance and civil defence. It is helpful for service providers such as NZ Post, Telecom, couriers and power authorities.

Most of the rural areas in NZ are now RAPID numbered and the system has been successful in enabling fast location of rural properties.

HOW ARE RAPID NUMBERS ALLOCATED?

RAPID numbers are allocated starting at the end of the road closest to Gisborne city. Your RAPID number will be based on the distance your property is along the road.

The numbers are allocated to properties by measuring in metres, the distance from the start of the road to the centre of the dwelling’s driveway.

The final measurement is divided by 10, and then rounded to a whole number. Numbers on the right of the road are even; those on the left are odd. For example a property located 825 metres from the start of the road would be numbered 82 if on the right side of the road or 83 if on the left side of the road. If there is more than one dwelling off a driveway then a letter e.g. A, B, or C is added.

The first house along will be A, the second B, etc. The owner can request an additional plate to put on the house itself where a shared driveway divides into several different residences. The primary plate must remain at the gate.

State Highways

State Highways in the Gisborne district have been broken into sections and given proper names e.g. Wharerata Rd, Matawai Rd etc. These have then been numbered in the same way as other RAPID addresses.

[16] Accordingly, the RAPID number is not for the purposes of identifying a particular property but more a residential dwelling and this for the principal purpose of assisting emergency services locate that residential dwelling in the event of an emergency. It is obviously different, for example, to the street address given in an urban setting.

[35] Mr Wilkinson-Smith pointed out that the information obtained as a result of the internet search was not tested at the hearing, nor had defence counsel had an opportunity to make inquiries or submissions about the matters on which the Judge relied. He observed that the information was in very general terms and could not necessarily be applied in the context of the particular properties in issue. Further, he argued that the information seems to have been material to the Judge’s decision. It had been a breach of both natural justice and the rules of evidence for the Judge to conduct his own inquiries without first raising the matter with counsel and giving them an opportunity to respond. He submitted that the Judge’s conduct meant that his ruling on the admissibility of the evidence should be reversed. He also submitted that without the evidence of the cannabis-related items found in the house, the result of the trial might have been different and, accordingly, the conviction should be quashed.
[36] Mr Downs accepted that the material derived from the internet was not put before the Judge by the parties. It was incorrect for the Judge to act as he did. Mr Wilkinson-Smith is right to submit that there are particular dangers in attempting to apply general information derived from a website to the resolution of contested issues. The role of the Judge is to decide the issues on the basis of the evidence put before him or her by the parties, and not to make independent evidential inquiries after the conclusion of the hearing. Quite apart from that rule, however, it is wrong in principle for Judges to make such inquiries without advising counsel in advance of their intention to do so and giving them an opportunity to respond to any factual material which is gathered as a consequence of the search.
[37] Having said that, we do not consider that the result of the Judge’s actions in this case should be rejection of the evidence obtained by execution of the search warrant. There was sufficient material before the Judge to justify the conclusion that he reached about the address of the property searched without the material derived from the internet. We say that, because it was clear on the material that was properly before the Judge that there were only two numbered properties on the lane in question, and one of those was number 568, as well as the other evidence earlier discussed.
[38] We note too a passage in the evidence on the s 344A application where the Judge questioned Detective Hunter in the following exchange:

When we’re talking about numbers 568 and 568A those are the RAPID numbers are they not... Yes Sir.

And that is akin to a street address so that for example the fire services can find dwellinghouses on rural roads... Yes Sir.

The blocks described as Waituhi 2D3B etc are part of the land transfer system the land registry system... Yes Sir, yes.

And bear no relationship to the RAPID numbers... No.

Do you agree... Yes Sir.

[39] This appeal has, of course, afforded the appellant the opportunity to raise again the question of the admissibility of the evidence obtained by execution of the warrant. Given our conclusion that the evidence was properly adduced, the appellant has suffered no prejudice even though the Judge was wrong to consult the internet without reference to the parties.
[40] Because there was sufficient proof that the property searched was that named in the warrant there is no reason to disturb the appellant’s conviction.

Result

[41] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington