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R v Anslow CA344/04 [2004] NZCA 436 (28 October 2004)

Last Updated: 30 December 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA344/04

THE QUEEN

v

CLIFFORD THOMAS JOHN ANSLOW

Hearing: 19 October 2004 Coram: McGrath J
Potter J
Rodney Hansen J

Appearances: PG Mabey QC for the Appellant
A R Burns for the Crown Judgment: 28 October 2004

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

Introduction

[1] The appellant faces charges of possession of the Class A controlled drug, methamphetamine, for the purpose of supply and of supplying methamphetamine. The charges arise out of the surveillance and subsequent search of the house he occupied with his partner and their daughter in Huntly. The appellant challenged the admissibility of evidence found in the course of the search on the ground that the

R V ANSLOW CA CA344/04 [28 October 2004]

search warrant was not validly issued. In a judgment dated 16 August 2004, Randerson J rejected the challenge.

Background

[2] The application for the search warrant was made on 11 March 2004. The affidavit filed in support was extensive, running to 159 paragraphs. It was relied on to support the issue of search warrants for twenty different addresses and numerous motor vehicles. Each had been the subject of police surveillance or had been observed in the course of a police operation, known as Operation Kick, initiated for the purpose of determining the extent of drug dealing activities at the appellant’s home in Huntly. The officer in charge of the operation deposed to his belief that a search of the premises and vehicles identified would locate evidence of offences against the Misuse of Drugs Act 1975, including the possession, supply and manufacture of Class A, B and C drugs.

[3] In the affidavit, the officer deposed that the operation began following receipt of a letter in August 2003 from an anonymous informant stating that the occupants at the address were selling methamphetamine and the occupants of another identified address were growing cannabis hydroponically. The reliability of the information given had been confirmed by a search of the other address, which found cannabis plants being grown hydroponically. On the day the operation began, a second anonymous letter was received from a different informant also stating that the occupants of the appellant’s address were selling methamphetamine.

[4] Surveillance of the property took place over the period 17 September to 10 December 2003. During that period, police observed numerous visits to the address. Through vehicle registration numbers, the identity of the visitors was established. Most turned out to have convictions for drug offending or a known association with the trade in illegal drugs.

[5] The affidavit disclosed that the appellant and his partner lived at the address and had done so for some years. There was reference also to evidence of prior involvement with illegal drugs. The appellant had two previous convictions for
cannabis offences and, in January 2002, he and his partner were stopped and found to be in possession of small quantities of methamphetamine and cannabis. They were let off with a warning.

[6] In the course of but independently of Operation Kick, on 27 October 2003, police in Auckland searched a motor vehicle being used by the appellant and his partner. Cannabis plant material and cannabis oil were found. Following their arrest, the appellant was searched and six grams of pure methamphetamine was found in his underwear. The appellant was also in possession of over $4,000 in cash. Both the appellant and his partner face charges as a result.

[7] In an affidavit filed for the purpose of the High Court hearing, the officer in charge of Operation Kick explained why the application for a warrant was not made until almost three months after surveillance ceased. He said that because of pressures on police resources, it was not possible to continuously monitor activities at the address. Instead, it would be monitored on discrete occasions for a few days at a time. As information was received, further enquiries would be made to establish the identity of visitors and their association with the drug scene. Because of the volume of information to be processed and the need to attend to other duties, the application for the issue of search warrants could not be completed immediately after surveillance ceased.

[8] The warrant for the appellant’s address was executed on 12 March 2003, the day after it was issued. The evidence found included two bags containing, respectively, 78 mg and 228 mg of pure methamphetamine, $810 in cash and numerous snap-lock bags commonly used for packaging methamphetamine. When searched, the appellant was found to be carrying 4.2 grams of methamphetamine and a tick list said to record drug dealing transactions.

Grounds of challenge

[9] Before Randerson J, Mr Mabey QC, for the appellant, argued the information in the application was inadequate to support the issue of a warrant. That argument was rejected. The Judge found the information was “amply sufficient” to show there
was an ongoing drug operation centred on the property and that the appellant and his partner were involved. On appeal there is no challenge to this finding.

[10] The second ground of challenge, and the focus of argument before us, was that the information contained in the warrant was stale. It was contended that, with observations of the property ceasing in December 2003, there was no basis for the Registrar to conclude in March 2004 that offending may be continuing. The Judge also rejected this submission, holding that, despite observations ceasing in mid- December 2003, it was open to the Registrar to form the belief that the pattern of offending suggested by the evidence was likely to be continuing when the application was made.

Arguments

[11] On appeal, Mr Mabey submitted that the Judge erred in his latter finding. He accepted that, had the application been made promptly after the evidence had been gathered, there would be no basis for objecting to the issue of the warrant. He argued that because of the lapse of time, the information relied on by the police was insufficient to provide reasonable grounds for a belief that evidence of drug dealing would be found at the premises. He said the absence of evidence of unlawful activity at the residence after December 2003 left no room for an inference that drug dealing was likely to be taking place at the time the application was made.

[12] Mr Burns, for the Crown, submitted the Judge was right to find the warrant had been validly issued and the search to have been both lawful and reasonable. Alternatively, he submitted that even if the search warrant was invalid and the search unlawful and unreasonable, the evidence obtained should be admissible pursuant to the principles in R v Shaheed [2002] 2 NZLR 377.

Relevant principles

[13] The application was made under s 198 of the Summary Proceedings Act 1957 which relevantly provides:

“Any ... Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place—

(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—

may issue a search warrant in the prescribed form.”

[14] The proper approach to the exercise of the jurisdiction is well established and was succinctly stated by the Judge at paras [25] and [26] of his judgment, citing the leading New Zealand authorities of R v Sanders [1994] 3 NZLR 450 (CA) and R v Grayson and Taylor [1997] 1 NZLR 399 (CA). An applicant for a warrant must give sworn evidence of the primary facts upon which the judicial officer is to decide whether there is reasonable grounds for the relevant belief. What will constitute a reasonable belief will largely turn on the facts of the case, but the belief has to be more than mere suspicion. Whether there are reasonable grounds for belief is to be determined on an objective assessment of the circumstances as they are presented at the time. For this purpose, the applicant should lay before the judicial officer all facts which could reasonably be regarded as relevant to the judicial officer’s task: R v McColl [1999] NZCA 131; [1999] 17 CRNZ 136 (CA).

Discussion

[15] Mr Mabey relied on McColl in submitting that the application failed to provide reasonable grounds for belief under s 198. In McColl, the police received information from an informant that Mr McColl had sold cannabis three weeks earlier. Two months after receiving the information, and nearly three months after the transaction relied on, a detective applied for a search warrant. In the supporting affidavit, the detective deposed that the police had received reliable and confidential information stating that Mr McColl “is currently selling and supplying cannabis from his home address”. The Court upheld a finding that the affidavit was misleading in
asserting that the appellant was “currently” selling and supplying cannabis from his home. It went on to hold that even if the facts had been accurately portrayed:

“... the judicial officer probably would, indeed should, either have declined to issue the warrant altogether, or adjourned the application so that further more up-to-date evidence could be obtained to support the contention that the suspect was continuing to deal in cannabis. The information on which the application was based had become too stale at the time it was relied on: compare by analogy s 198(3) of the Summary Proceedings Act 1957 which requires a warrant to be executed within one month from when it was issued. There was no satisfactory explanation for the delay. This should have been given in the affidavit but it was not even forthcoming in the detective’s evidence before the Judge. Indeed the detective’s inability to account for or explain what had happened in the meantime is surprising.”

[16] In this case it is not suggested that the affidavit is misleading. We are asked to assess the information relied on precisely in the terms in which it appears in the affidavit. Mr Mabey was critical of the officer’s failure to state specifically that surveillance of the appellant’s residence had ceased but he did not suggest that the failure to do so might have conveyed to the registrar that surveillance had continued or in some way added to the case for a warrant. He accepted that the applicant had laid all relevant information before the Registrar.

[17] The issue then is simply whether the information in the affidavit, objectively, provided sufficient grounds for the Registrar to conclude that offending was likely to be continuing at this address. We are satisfied that it did. The evidence gathered by the police and put before the Registrar showed the appellant had been involved with illegal drugs over a period of years. During the time he was subject to intense surveillance, there was compelling evidence to suggest that his home was regularly being used for drug dealing. The activity continued, apparently unabated, while he was on bail following his apprehension in Auckland in October. The picture which emerges is of a determined long-term involvement in illegal drug activities. It was clearly open to the Registrar to infer that this was likely to have continued past the date on which activities were last observed.

[18] The circumstances are readily distinguishable from McColl where the only evidence was of a single transaction. There was no basis on which a continuing pattern of activity could have been inferred. The evidence degraded rapidly with the passage of time: see the discussion in R v Potae [2000] NZCA 152; [2000] 3 NZLR 375 at paras [9] –
[12]. In further contrast to McColl, there was here a commendably full affidavit in support of the application which meticulously recorded the course of the police investigation and the information relied on. It may have been improved by making explicit that surveillance ceased in December 2003 and explaining the delay in applying for a warrant, but it was fully adequate to support the issue of a warrant.

Result

[19] For these reasons, the appeal is dismissed.

Solicitors:

Paul Devoy, Tauranga for Appellant Crown Solicitors, Auckland