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R v Poelman CA102/04 [2004] NZCA 400 (11 June 2004)

Last Updated: 22 October 2018

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA102/04

THE QUEEN

v

ANDREW KLAAS POELMAN

Hearing: 26 May 2004

Coram: Anderson P Chambers J O'Regan J

Appearances: C B Cato and A G Speed for Appellant J C Pike for Crown

Judgment: 11 June 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Two drug searches in Auckland

[1] On 28 November 2002 the police applied for a warrant to search 379 Wairau Road, Glenfield, Auckland. The warrant was granted and executed the same day. When the police arrived at the address Andrew Poelman was in the lounge with another man. Methamphetamine and money were on a table by the two men. The
police then searched the house. They found in excess of $100,000 in cash, a tick list (i.e. a record of drug debts and debtors) and electronic scales in Mr Poelman’s bedroom. In another lounge they found more cash, tick lists, methamphetamine, ecstasy, and amphetamine. Mr Poelman admitted he was a tenant in the house and that he occupied the bedroom in which the money and other items were found. The house had a visual security surveillance system. The police arrested Mr Poelman. As a result of this search, he was charged with a variety of drug dealing offences.

[2] Mr Poelman applied for and was granted bail. Seven months later, in July 2003, the police again received information that Mr Poelman was dealing in drugs. They obtained and executed a further search warrant. On this occasion, the police found a scanner set to the North Shore police channel, methamphetamine, $34,000 in cash, a tick list, scales and a glass beaker containing traces of methamphetamine. As a result of this search, Mr Poelman was charged with supplying and possessing for supply methamphetamine.

[3] Mr Poelman awaits trial on the charges resulting from the two searches. Ronald Young J has ordered that all counts will be heard at the same trial. There has been no appeal from that decision.

[4] Mr Poelman notified the Crown that he challenged the admissibility of the evidence discovered on the two searches. Mr Poelman contends that both searches were “unreasonable” for the purposes of s21 of the New Zealand Bill of Rights Act 1990, and that the evidence resulting from them should be declared inadmissible. The Crown, on being advised of that challenge, applied under s344A of the Crimes Act 1961 for an order that the evidence obtained as a result of the execution of the warrants is admissible.

[5] Ronald Young J heard the application on 19 and 20 March this year. He delivered a judgment on 23 March: High Court Auckland, T025716. He made an order that the disputed evidence was admissible.

[6] Mr Poelman now seeks leave to appeal against that decision.

Issues on the appeal

[7] The principal issues on the appeal are whether either or both of the two drug searches were “unreasonable” for the purpose of the Bill of Rights. Each search must be considered separately, as different considerations apply.

[8] If the searches were unreasonable, then the next step is to consider what the consequence should be. That gives rise to the balancing exercise required by R v Shaheed [2002] 2 NZLR 377 (CA).

Some general comments about search warrants

[9] The submissions advanced on the present appeal lead us to reiterate some important considerations in search warrant cases. The leading New Zealand authority on search warrants remains R v Grayson & Taylor [1997] 1 NZLR 399. R v Sanders [1994] 3 NZLR 450 (CA) also remains an important authority, especially the judgment delivered by Fisher J.

[10] Applications for search warrants are most frequently made under s198 of the Summary Proceedings Act 1957. These applications may be considered by any District Court Judge or Justice of the Peace or by any District Court Registrar or deputy registrar (not being a constable). The applications have been aptly termed “of a quasi-judicial nature”: see Sanders at 460. The judicial officer considering the application for a search warrant may issue it only if satisfied that there is reasonable ground for believing that there is present on the property to be searched:

(a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

(b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

(c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence.
[11] A search warrant issued under s198 is amenable to challenge on jurisdictional grounds. That challenge could be mounted in proceedings instituted for that purpose. The search warrant can also be challenged in collateral trial proceedings in which the obtaining of the warrant and the finding of the property in question are impugned: see Grayson at 408.

[12] Sometimes the challenge will be directed to the decision of the judicial officer who issued the warrant. The assertion will be that such judicial officer was plainly wrong to issue the warrant on the basis of the sworn evidence in support of the application. In short, the assertion will be that the judicial officer must have misdirected himself or herself at law in coming to be satisfied in terms of s198. Where the challenge to the search warrant is of this nature, there is, of course, no need for evidence, still less for cross-examination of the deponent police officer who applied for the warrant in question. The challenge is not to what the police did, but rather to the quality of the judicial officer’s conclusion.

[13] It is axiomatic that the result should be the same whichever procedural route to challenge the judicial officer's decision is chosen. That is to say, invalidity should be neither more nor less likely to be found whether challenged in a collateral trial proceeding, as here, or by way of the Judicature Amendment Act 1972. It is important to remember that a warrant issued by a judicial officer, unless perhaps on its face patently invalid, is treated as valid and effective in law unless and until set aside: see Grayson at 409. It is for the proponent of invalidity to carry the burden of proving such invalidity, regardless of the form of the proceeding in which the challenge is mounted.

[14] Sometimes the challenge to the grant of a search warrant is not directed to the judicial officer who granted it, but to the police officer who applied for it. In these instances, the usual complaint is that the police officer failed to disclose relevant material in the application or otherwise put untrue information in the application. In essence, the judicial officer was not given a full and accurate picture; had he or she been, the warrant would not have been granted. This type of challenge is quite different from the first. The jurisprudence in this area is really akin to that which has developed concerning ex parte applications in civil proceedings. In civil
proceedings, an applicant applying ex parte, has a duty to make the fullest disclosure to the court of all facts relevant to the application: see United People’s Organisation (Worldwide) Inc v Rakino Farms Ltd (No 1) [1964] NZLR 737. Failure to do so may in itself furnish the ground for reviewing the order. Similar principles must apply to an application for a search warrant, given that it is of necessity made on an ex parte basis. Inevitably evidence will be required for a challenge on this ground. Frequently too, cross-examination will be in order.

[15] If a defendant were to challenge the validity of a search warrant by separate proceedings, the defendant would need to set out the grounds of challenge and any evidence in support of it. The position should not be radically different where the challenge is mounted through a collateral trial proceeding. At the very least, the defence ought to notify the Crown of the precise ground of challenge. That may then prescribe what evidence, if any, the Crown should call. It may also determine whether a voir dire is necessary.

The first search

[16] Ronald Young J found that the first search warrant had been “improperly obtained”. He found that Detective Andrew Coster’s affidavit in support of the search warrant was deficient because it contained “no material relating to the source of the information provided by either the main or other informants”. His Honour considered that the deputy registrar who granted the warrant “simply did not know whether the informant’s source was reliable or no more than derived from common rumour or gossip”. Notwithstanding that finding, His Honour concluded that the search was reasonable.

[17] Mr Cato, leading counsel for Mr Poelman, supported Ronald Young J’s finding on illegality. He submitted that there was no evidential basis “upon which the Registrar could infer that criminal offending or items associated with that offending could reasonably be present on those premises”.

[18] We do not accept Mr Cato’s submission. Mr Poelman has not established that the deputy registrar who issued the first search warrant acted wrongly in
granting the application. It is true that some aspects of the application could have been more felicitously worded, but there was nonetheless sufficient information in it for the deputy registrar to be satisfied that there was reasonable ground for believing that a search of Mr Poelman’s property would reveal evidence of drug dealing.

[19] The police received information concerning Mr Poelman and his activities from no fewer than four informants. The information supplied by the first “confidential informant” is set out in paragraphs 3-6 of Detective Coster’s affidavit. The introduction to this section of the affidavit is paragraph 2 in which Detective Coster deposed that, as a sworn member of police, he had “cultivated and operated numerous confidential informants who had supplied reliable information regarding a range of criminal activities”. It is reasonable to infer that the “confidential informant” whose specific information is then relayed in paragraph 3 and following, is in fact one of those “confidential informants” who had supplied Detective Coster with reliable information in the past.

[20] This first confidential informant advised Detective Coster that a man called Andy was “a middleman/street dealer of methamphetamine”. He was operating from his house in Wairau Road, Glenfield. Although the informant did not give the number of the house, he did nonetheless provide a detailed description of it, which Detective Coster recorded. This description was so detailed that the only reasonable inference is that the informant himself had been to, or at least seen, the particular house. The description of the house, which the informant said was in Wairau Road, accurately matches 379 Wairau Road, which is the home of Andrew Poelman. The informant told Detective Coster that “Andy presently supplies and stores drugs at his address”. Detective Coster confirmed that the particular informant had previously supplied “a range of information relating to activity in the Auckland drug scene” that had been verified as reliable.

[21] Three other informants gave information to the police identifying Andrew Poelman as a methamphetamine dealer. Two of those also said that he lived at 379 Wairau Road, Glenfield. Two of the three had previously provided reliable information which had formed the basis for search warrants. The execution of those warrants had resulted in the seizure of controlled drugs.
[22] At the time of the application Mr Poelman faced an active charge for unlawful possession of a pipe (for cannabis).

[23] All of that evidence must be considered together. The deputy registrar in this case was fully entitled to take into account that four different informants had identified Andrew Poelman as a methamphetamine dealer, and one of them went so far as to say that he was presently storing the drug at his Wairau Road address. Three of the four had a track record with the police in the sense that information that they had supplied had proved reliable. We note the point that it is theoretically possible that all four informants had obtained their information from the same source; we accept that this was not a case where the four informants independently confirmed that they had themselves dealt with Mr Poelman or seen the drugs at his house. But proof to that standard is not required.

[24] Mr Poelman has not established that it was not open to the deputy registrar to form the view he did when determining to grant the search warrant.

[25] Before concluding this section of the judgment we wish to make two observations. The first concerns the fact that the defence obviously asked for Detective Coster to be present for cross-examination. A voir dire was held. That was quite unnecessary, as the attack was exclusively on the judicial officer’s decision, given what was said to be the deficient nature of the application. There was no assertion that Detective Coster had withheld information or misled the court. In these circumstances the cross-examination established nothing. The appropriateness of the deputy registrar’s decision should have been considered solely on the basis of the material (ie the sworn application) before him. Pretrial applications should not be regarded as facilities for indiscriminate fishing.

[26] Our second observation concerns the drafting of search warrant applications. Even though we have upheld the search warrant and the application on which it was based, we nonetheless observe that the police could have avoided this challenge by improving their drafting technique. We inquired of Mr Pike, for the Crown, as to whether there was a police manual setting out for police officers how to prepare an application for a search warrant. We said to him that we were concerned that there
were so many of these cases, in a number of which this court had been critical of the form of the particular application for a search warrant. It seems there is no applicable police manual, although Mr Pike advised that work had begun on the preparation of such a manual. We think that appropriate training in this area must tend to ensure more obvious legal compliance.

[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.

[29] Thirdly, deponents should avoid passive expressions such as “Information has been received from ...”. Instead, they should use the active voice and say who received the information and when.

[30] For the foregoing reasons we find that the first search warrant was lawfully issued. Having so found, we conclude that the search undertaken pursuant to it was both legal and reasonable. Evidence may be given as to what was found during that search.

The second search

[31] Ronald Young J concluded that the second search warrant was properly issued. He concluded that Detective Andrew Berry, who made the application, had
established the reliability of his informant and established that the source of the informant’s information was “either his personal knowledge or information provided by an associate of Mr Poelman who was selling drugs on his behalf”. His Honour concluded that there was “ample justification” for the deputy registrar’s conclusion that there were reasonable grounds to suspect that the residence at 379 Wairau Road contained drug paraphernalia, drugs and documents relating to the supply of drugs.

[32] We agree. Mr Speed, junior counsel for Mr Poelman, accepted that Detective Berry’s affidavit was “more fulsome” than Detective Coster’s. He complained that some of the information might have been “stale”. Some of it was – he said - “unsubstantiated”. Mr Speed was somewhat hampered by the fact that he was operating from an affidavit with court permitted excisions for the protection of the informant’s identity.

[33] We were given an unedited version of the affidavit, as the deputy registrar would have had. Some things which seemed unclear to Mr Speed were in fact, quite clear in the unedited version. Detective Berry’s affidavit was a model of its kind.

[34] We agree with Ronald Young J’s reasoning, but make two observations. First, at para [25] of his decision, His Honour was discussing the difficulties defence counsel had in dealing with affidavits containing deletions in order to protect informants’ identity. His Honour observed:

While protection of informants is an important part of police investigation, affidavits can typically be drafted in a way that ensures the provision of the essential information to the judicial officer considering the search warrant application is not compromised and ensuring most, if not all, of the material can be provided to the accused.

[35] With respect, we do not agree with that comment, which was not part of His Honour’s reasoning. 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.

[36] Secondly, we note that Ronald Young J did not consider it necessary to see the unedited affidavit. Although His Honour came to the right conclusion on this search warrant, we would still recommend as a matter of practice that the judge considering a challenge of this kind should read the unedited affidavit. That is what the issuing officer had in front of him or her. Since it is that decision that is under challenge, the reviewing judge should see exactly what the issuing officer saw. In the present case, the answer to the challenge was readily apparent upon reading the unedited version.

[37] Finally, we observe that in this challenge, as in that to the first search warrant, the defence was complaining about the deputy registrar’s decision given the information before him. There was no complaint that Detective Berry had misled the issuing officer. In those circumstances, as with Detective Coster, the cross- examination of Detective Berry achieved nothing. The half day voir dire was unnecessary.

Result

[38] We uphold both search warrants. We find therefore that both searches were reasonable and the evidence obtained in the course of them admissible. Those were the findings of Ronald Young J as well.

[39] Accordingly, while we grant leave to appeal, we dismiss the appeal.

Solicitors:

Crown Law Office, Wellington