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The Queen v Cummings [2006] NZCA 153 (6 July 2006)

Last Updated: 19 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/06

THE QUEEN

v

HARLEY MORGAN CUMMINGS

Hearing: 28 June 2006

Court: Glazebrook, John Hansen and Potter JJ

Counsel: J H M Eaton for Appellant
K J Beaton for Crown

Judgment: 6 July 2006

JUDGMENT OF THE COURT

A The application for leave to appeal against a pre-trial ruling is allowed.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by John Hansen J)

[1] Following a pre-trial hearing on 23 March 2006, in the High Court at Christchurch, Chisholm J ordered that evidence obtained under a search warrant at the appellant’s address at 398 Halswell Junction Road was admissible at trial.

Background

[2] Pursuant to s 198 of the Summary Proceedings Act 1957 the police sought, and obtained, a search warrant in relation to 398 Halswell Junction Road. The affidavit of Detective Jason Bracegirdle ran to some 54 paragraphs. The first part of the affidavit provided background information, including the fact that individuals within an organised crime group were being targeted, and information relating to methamphetamine and cannabis.
[3] The key paragraphs, 21 to 54, appear under a heading "Police Enquiries". Those paragraphs refer to information provided by informants to Detective Sergeant Hill, Detective Bracegirdle and Constable Seal. Edited copies of the application for the search warrant were made available to the appellant. Deletions had been made to portions of paragraphs 21, 23, 31, 33, 40, 44 and 45. Paragraphs 34, 35, 37 - 39 and 47 were deleted in their entirety.
[4] The Judge concluded that with one exception the deletions were necessary to preserve the confidentiality of informants.
[5] The Judge noted that the defence took issue with the substantial delay from the receipt of the last informants’ information and the application for a search warrant, sloppy drafting evidenced by failing to delete various matters, inaccuracies, failure to present full information, failure to use the exact language of the informants, and failure to detail the informants’ sources.
[6] The Crown accepted there were deficiencies but overall emphasised that sufficient primary information existed to support the threshold of reasonable grounds for belief as required by s 198.
[7] In his ruling the Judge accepted there was relatively lengthy delay in this case but found there was sufficient detail in the deleted information to reasonably explain such delay. Nor did he consider that the judicial officer issuing the warrant was misled in any way by the delay issue. Justice Chisholm said that the contents of the affidavit meant that the judicial officer would have appreciated there was a delay and the reason for it. For that reason he distinguished the case from R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136.
[8] The Judge then went on to consider the other complaints and was satisfied that the information placed before the judicial officer was sufficient to meet the threshold of a reasonable grounds for belief.

Submissions

[9] Mr Eaton renewed the complaints he had placed before the High Court. In particular he stressed that in this case the information was at least five months old at the time the application for the search warrant was made. He submitted that none of the other cases of delay approached five months, with the longest delay being the three months in R v Anslow CA344/04 28 October 2004. Furthermore, he submitted in that case there was a clear line of evidence that would allow the judicial officer to reasonably infer the house was still being used as a drug house. He said there was nothing to indicate that in the present case.
[10] As well as delay Mr Eaton submitted that there were a number of flaws in the application for the search warrant. Firstly, he submitted that the passage dealing with methamphetamine and cannabis was general information and the affidavit gave no indication of the source of the detective’s knowledge of this information. He said such a failure was criticised in R v Baptista (2005) 21 CRNZ 479.
[11] Next Mr Eaton submitted that in a number of paragraphs there was a failure to identify the source of the information the informant gave to the various police officers and there was a further failure to supply dates. While not alleging bad faith he submitted that the applicant officer had failed to be candid and accurate and to present a full picture. He further criticised conclusory statements contained within the application and the failure of the police to reveal the enquiries they had made that led to the conclusory statements.
[12] He submitted the Court could not have regard to extrinsic material beyond the affidavit: R v Pineaha (2001) 19 CRNZ 149. He further submitted that in the absence of the source of informant’s information and dates it was impossible for the judicial officer to be satisfied as to the reliability of the confidential informant.
[13] He referred in general to the sloppiness of the drafting of the affidavit and the fact that the warrant extended to aircraft, ships, carriage, and box etc which was a form of drafting deprecated by this Court: Baptista.
[14] He submitted in relation to the informant who gave information to Constable Seal there is a complaint that it is not disclosed that he was withdrawing from methamphetamine at the time, which would have cast his reliability in a different light. The failure to refer to primary facts and the identifying of the person Harley was criticised as not being consistent with the information in the job sheet where the informant stated he did not know the person’s full name but knew him only by the nickname of Harley.
[15] Finally, he submitted that in paragraph 44 there is a statement that the informant saw at least 20 medicine bottles which he believed contained medicine used for the manufacture of methamphetamine. This is characterised as inaccurate when compared with the disclosed part of Constable Seal’s job sheets where it was stated the informant had not enquired about their content.
[16] For the Crown, Ms Beaton accepted that there were deficiencies in Detective Bracegirdle’s affidavit and it did not meet best practice. However, she submitted that the properly deleted material gave adequate explanation for the delay. Further, notwithstanding the accepted deficiencies there was sufficient correct information in the affidavit to provide for reasonable grounds for belief that evidence of drug offending would be located at the specified address.

Discussion

[17] As with all applications of this sort the defence have been placed in a difficult situation. However, we agree with the Judge’s conclusion that the deletions approved by him have been properly made in the circumstances of this case.
[18] The correct approach to the exercise of the jurisdiction is well established. It is necessary for the applicant for a warrant to give sworn evidence of the primary facts upon which the judicial officer is to decide whether there are reasonable grounds for the relevant belief. What will constitute a reasonable belief will largely turn on the circumstances and facts of the individual case, but the belief has to be more than mere suspicion: R v Grayson & Taylor [1997] 1 NZLR 399.
[19] The judicial officer is required to determine whether there are reasonable grounds for belief, based on an objective assessment of the circumstances as they were presented at the time. The applicant is required to lay before the judicial officer all reasonably relevant facts: R v McColl. It is the global picture that is important: R v Fox (2002) 19 CRNZ 652.
[20] There is a duty on the applicant to be candid, and not selective, with the facts said to provide reasonable grounds: R v Thompson [2001] 1 NZLR 129.
[21] In R v H CA340/00 27 September 2000 this Court stated at [14]:

[14] The test in s 198 is not to be set so high as to require proof of the commission of the alleged offence before a search warrant can issue. Neither is it to be set so low as to authorise investigations founded on mere suspicion or less. Reasonable grounds are to be looked at in all the circumstances and in a common sense way. Necessarily there must be a sufficient linkage shown between the crime, the suspect and the things for which authority to search is sought.

[22] The warrant is to be treated as valid and effective in law, unless and until it is set aside. The proponent of invalidity carries the burden of proving the judicial officer was "plainly wrong" to issue the warrant on the basis of the available evidence: R v Poelman (2004) 21 CRNZ 69 at [12] - [13].
[23] The question is whether or not there is sufficient evidence from which the judicial officer who issued the warrant could be satisfied on an objective basis that there were reasonable grounds to believe, not whether the deponent had reasonable grounds for belief: R v Sanders [1994] 3 NZLR 450.
[24] When considering the validity of a warrant, where some of the material in the supporting affidavit is tainted, it is necessary to consider whether the remaining material would have justified the warrant’s issue. In R v Butler CA439/00 10 April 2001 this Court stated at [32]:

[32] The question then becomes one of assessing the seriousness of the error including whether the appellant has been prejudiced by it. That largely comes down to whether but for the mis-statement the judicial officer would or should have declined to issue the warrant, McColl para 30. ...

[25] We have carefully considered the contents of the deleted paragraphs 46 and 47. Not only do they satisfactorily explain the delay, but they also invest the other material in the affidavit with sufficient currency to have allowed the judicial officer to be satisfied that the evidence objectively founded a reasonable ground to believe.
[26] We accept that many of Mr Eaton’s complaints in relation to the affidavit are valid. It is disappointing that affidavits should appear in this form, despite numerous decisions of this Court critical of the approach adopted by the Detective Bracegirdle. This Court deprecates the use of "cut and paste" techniques and a failure to tailor affidavits in support of an application for a search warrant to the circumstances of the individual case. There has also been a failure of the officer to identify his expertise to give the background material at the commencement of the affidavit. The formulaic approach is evident in that the application, ridiculously, seeks a warrant in respect of aircraft and ships at the address, which clearly has no application. There are some conclusory statements with no identification of the material relied on. In addition, there are failures to identify the sources of information, why it is considered reliable, and, on some occasions, dates.
[27] Notwithstanding the validity of that criticism, we agree with Ms Beaton’s submission that the remaining material provides sufficient detail to meet the threshold standard of reasonable grounds of belief. Viewed objectively this material would satisfy the judicial officer that there were reasonable grounds to believe there were controlled drugs and items used in the manufacture of controlled drugs at 398 Halswell Junction Road.
[28] Given our finding that the search warrant was validly issued, it follows that the search was lawful and it is unnecessary to go further and discuss the balancing exercise required by R v Shaheed [2002] 2 NZLR 377. No doubt Chisholm J carried out this exercise from an abundance of caution.
[29] We grant leave to appeal against the pre-trial ruling, but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[2]	Pursuant to s 198 of the Summary Proceedings Act 1957 the police sought, and obtained, a search warrant in relation to 398 Halswell Junction Road. The affidavit of Detective Jason Bracegirdle ran to some 54 paragraphs. The first part of the affidavit provided background information, including the fact that individuals within an organised crime group were being targeted, and information relating to methamphetamine and cannabis.
[3]	The key paragraphs, 21 to 54, appear under a heading "Police Enquiries". Those paragraphs refer to information provided by informants to Detective Sergeant Hill, Detective Bracegirdle and Constable Seal. Edited copies of the application for the search warrant were made available to the appellant. Deletions had been made to portions of paragraphs 21, 23, 31, 33, 40, 44 and 45. Paragraphs 34, 35, 37 - 39 and 47 were deleted in their entirety.
[4]	The Judge concluded that with one exception the deletions were necessary to preserve the confidentiality of informants.
[5]	The Judge noted that the defence took issue with the substantial delay from the receipt of the last informants’ information and the application for a search warrant, sloppy drafting evidenced by failing to delete various matters, inaccuracies, failure to present full information, failure to use the exact language of the informants, and failure to detail the informants’ sources.
[6]	The Crown accepted there were deficiencies but overall emphasised that sufficient primary information existed to support the threshold of reasonable grounds for belief as required by s 198.
[7]	In his ruling the Judge accepted there was relatively lengthy delay in this case but found there was sufficient detail in the deleted information to reasonably explain such delay. Nor did he consider that the judicial officer issuing the warrant was misled in any way by the delay issue. Justice Chisholm said that the contents of the affidavit meant that the judicial officer would have appreciated there was a delay and the reason for it. For that reason he distinguished the case from R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136.
[8]	The Judge then went on to consider the other complaints and was satisfied that the information placed before the judicial officer was sufficient to meet the threshold of a reasonable grounds for belief.

[9]	Mr Eaton renewed the complaints he had placed before the High Court. In particular he stressed that in this case the information was at least five months old at the time the application for the search warrant was made. He submitted that none of the other cases of delay approached five months, with the longest delay being the three months in R v Anslow CA344/04 28 October 2004. Furthermore, he submitted in that case there was a clear line of evidence that would allow the judicial officer to reasonably infer the house was still being used as a drug house. He said there was nothing to indicate that in the present case.
[10]	As well as delay Mr Eaton submitted that there were a number of flaws in the application for the search warrant. Firstly, he submitted that the passage dealing with methamphetamine and cannabis was general information and the affidavit gave no indication of the source of the detective’s knowledge of this information. He said such a failure was criticised in R v Baptista (2005) 21 CRNZ 479.
[11]	Next Mr Eaton submitted that in a number of paragraphs there was a failure to identify the source of the information the informant gave to the various police officers and there was a further failure to supply dates. While not alleging bad faith he submitted that the applicant officer had failed to be candid and accurate and to present a full picture. He further criticised conclusory statements contained within the application and the failure of the police to reveal the enquiries they had made that led to the conclusory statements.
[12]	He submitted the Court could not have regard to extrinsic material beyond the affidavit: R v Pineaha (2001) 19 CRNZ 149. He further submitted that in the absence of the source of informant’s information and dates it was impossible for the judicial officer to be satisfied as to the reliability of the confidential informant.
[13]	He referred in general to the sloppiness of the drafting of the affidavit and the fact that the warrant extended to aircraft, ships, carriage, and box etc which was a form of drafting deprecated by this Court: Baptista.
[14]	He submitted in relation to the informant who gave information to Constable Seal there is a complaint that it is not disclosed that he was withdrawing from methamphetamine at the time, which would have cast his reliability in a different light. The failure to refer to primary facts and the identifying of the person Harley was criticised as not being consistent with the information in the job sheet where the informant stated he did not know the person’s full name but knew him only by the nickname of Harley.
[15]	Finally, he submitted that in paragraph 44 there is a statement that the informant saw at least 20 medicine bottles which he believed contained medicine used for the manufacture of methamphetamine. This is characterised as inaccurate when compared with the disclosed part of Constable Seal’s job sheets where it was stated the informant had not enquired about their content.
[16]	For the Crown, Ms Beaton accepted that there were deficiencies in Detective Bracegirdle’s affidavit and it did not meet best practice. However, she submitted that the properly deleted material gave adequate explanation for the delay. Further, notwithstanding the accepted deficiencies there was sufficient correct information in the affidavit to provide for reasonable grounds for belief that evidence of drug offending would be located at the specified address.

[17]	As with all applications of this sort the defence have been placed in a difficult situation. However, we agree with the Judge’s conclusion that the deletions approved by him have been properly made in the circumstances of this case.
[18]	The correct approach to the exercise of the jurisdiction is well established. It is necessary for the applicant for a warrant to give sworn evidence of the primary facts upon which the judicial officer is to decide whether there are reasonable grounds for the relevant belief. What will constitute a reasonable belief will largely turn on the circumstances and facts of the individual case, but the belief has to be more than mere suspicion: R v Grayson & Taylor [1997] 1 NZLR 399.
[19]	The judicial officer is required to determine whether there are reasonable grounds for belief, based on an objective assessment of the circumstances as they were presented at the time. The applicant is required to lay before the judicial officer all reasonably relevant facts: R v McColl. It is the global picture that is important: R v Fox (2002) 19 CRNZ 652.
[20]	There is a duty on the applicant to be candid, and not selective, with the facts said to provide reasonable grounds: R v Thompson [2001] 1 NZLR 129.
[21]	In R v H CA340/00 27 September 2000 this Court stated at [14]:

[22]	The warrant is to be treated as valid and effective in law, unless and until it is set aside. The proponent of invalidity carries the burden of proving the judicial officer was "plainly wrong" to issue the warrant on the basis of the available evidence: R v Poelman (2004) 21 CRNZ 69 at [12] - [13].
[23]	The question is whether or not there is sufficient evidence from which the judicial officer who issued the warrant could be satisfied on an objective basis that there were reasonable grounds to believe, not whether the deponent had reasonable grounds for belief: R v Sanders [1994] 3 NZLR 450.
[24]	When considering the validity of a warrant, where some of the material in the supporting affidavit is tainted, it is necessary to consider whether the remaining material would have justified the warrant’s issue. In R v Butler CA439/00 10 April 2001 this Court stated at [32]:

[25]	We have carefully considered the contents of the deleted paragraphs 46 and 47. Not only do they satisfactorily explain the delay, but they also invest the other material in the affidavit with sufficient currency to have allowed the judicial officer to be satisfied that the evidence objectively founded a reasonable ground to believe.
[26]	We accept that many of Mr Eaton’s complaints in relation to the affidavit are valid. It is disappointing that affidavits should appear in this form, despite numerous decisions of this Court critical of the approach adopted by the Detective Bracegirdle. This Court deprecates the use of "cut and paste" techniques and a failure to tailor affidavits in support of an application for a search warrant to the circumstances of the individual case. There has also been a failure of the officer to identify his expertise to give the background material at the commencement of the affidavit. The formulaic approach is evident in that the application, ridiculously, seeks a warrant in respect of aircraft and ships at the address, which clearly has no application. There are some conclusory statements with no identification of the material relied on. In addition, there are failures to identify the sources of information, why it is considered reliable, and, on some occasions, dates.
[27]	Notwithstanding the validity of that criticism, we agree with Ms Beaton’s submission that the remaining material provides sufficient detail to meet the threshold standard of reasonable grounds of belief. Viewed objectively this material would satisfy the judicial officer that there were reasonable grounds to believe there were controlled drugs and items used in the manufacture of controlled drugs at 398 Halswell Junction Road.
[28]	Given our finding that the search warrant was validly issued, it follows that the search was lawful and it is unnecessary to go further and discuss the balancing exercise required by R v Shaheed [2002] 2 NZLR 377. No doubt Chisholm J carried out this exercise from an abundance of caution.
[29]	We grant leave to appeal against the pre-trial ruling, but the appeal is dismissed.