Admissibility of Evidence in Drug Case
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NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CRI-2006-009-015784
REGINA
P
Accused
Hearing: 31 August 2007
Appearances: S C Poore for Crown
G M Lynch for Accused
Judgment: 31 August 2007
ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN
[1] Pursuant to s344A of the Crimes Act, Mr P has challenged the admissibility
of evidence of a number of witnesses. The heart of the challenge goes to evidence
obtained pursuant to a search warrant issued on the basis of an application and
affidavit by Detective Syme of the Christchurch Drug Squad.
[2] In particular, there is a challenge by Mr Lynch as to the effect of the evidence
mentioned in the affidavit relating to text messages and intercepted conversations
and communications, and the statement of belief of the detective concerned. There
are a number of peripheral challenges, including the fact that the detective has failed
to set out fully his qualifications and knowledge to speak of the matters contained in
the affidavit; that the first portion, under Summary, appears to be yet another cut and
R V PHILLIPS HC CHCH CRI-2006-009-015784 31 August 2007
paste; and that the information contained in the Background section is historical and
would have the effect of colouring the approach of the officer responsible for issuing
the search warrant.
[3] Since this affidavit was filed the police have had the advantage of the
decision of the Court of Appeal in R v Williams & Ors [2007] NZCA 52, which at
[224] and following extensively summarises what is expected (indeed required) in a
search warrant application.
[4] As I noted in the course of submissions, it seems to me that there is nothing
radical contained in Williams: it is an extensive review of authority, including many
previous New Zealand decisions. It gives examples of common faults, and in an
attempt to assist those seeking the issue of search warrants, summarises what is
required. I say “nothing radical”, because it seems to me that there are sufficient
decisions of both this Court and the Court of Appeal over a number of years that
have spelled out to the police what is required in the affidavits. Notwithstanding
that, the police continue to fail to meet the standards that the Courts have set for
them, placing at risk the admissibility of important evidence in serious cases. I am
sure it is not deliberate, but one has the impression that they are content (or intent) to
rely on the necessary balancing act in relation to the evidence.
[5] In this particular case the matters pertaining to the text messages are set out
between paragraphs 16 and 21. The closest any of these gets to being of assistance is
one of 7 November where it says:
Gidday Rik asked me to ask yaz what time is gd 4 ya 2 do gullz and wht $ if
its still all gd 2 do
[6] The problem relating to that is that the officer has made no attempt to explain
or interpret what the term “gullz” may mean in the sub-culture with which we are
dealing. Mr Poore has very responsibly accepted that the text messages on their own
are ambiguous, and that the officer has failed to state grounds for belief. Having set
out the text messages:
6 November
Glover to Snow:
He just got back and needs to know how Rik got on with that other
9 November 2006
Snow to Glover:
Just me Riks all gd when uz are
Then Glover to Snow:
Tell your man we cant get a hold of the dude where it is but Ill stop over and
see use
Then P to Glover:
are you gona head over these ways like last time he just rang me?
10 November 2006
Glover to Snow:
Has Rik been and sorted that side just dont have hours tonight
Then Snow to Glover:
Hes gna pik up the $ now
Then Snow to Glover
He wants 2 c it like last time whta fckn clown rik said sry but yea
Then Glover to Snow
sweet as Ill be leaving home in about 10 hes just stopped for gas
the officer simply goes on to say:
I believe that the above text messages sent between Kara SNOW and Lynda
GLOVER, and Riki PHILLIPS and Lynda GLOVER, are indicative of
communications relating to the organising of selling and supplying drugs.
[7] It gives no basis for that belief, and given his failure to explain any of the
terms and relate them to some form of shorthand or code for drugs or drug dealing,
or drug manufacture, it falls well short of what is required.
[8] Mr Poore has properly said that the text messages should not be read in
isolation. He said they should be read in the context of the intercepted
communications. They are set out between paragraphs 24 and 26. I note in the
context of intercepted telephone conversations they are not set out in full.
[9] In Williams, in the summary at [224](j) it states:
As far as possible, report information from an informant in the informant’s
own words. Consider attaching the original notes of the conversation to the
application.
[10] With respect, it seems to me that this should extend to intercepted
conversations, and they can be added from the log to any affidavit that is filed in
support of a search warrant.
[11] In any event, at paragraph 24, on 9 November there is a conversation between
Snow and Glover, where Snow asks if it is OK to come over, to which Glover
agrees. Snow tells her that Rik (that is, Mr P ) wants to know if Glover “could do
the same”. Glover says she will have to wait until Richardson gets home. There is
no explanation of what this is supposed to mean, any code or whatever.
[12] At paragraph 25, on 17 November there is part of a conversation between
P and Glover which says “He can do that little one”. There is nothing to suggest
that “little one” is code, or has some particular meaning.
[13] Mr Poore particularly relied on paragraph 26. Again, the intercepted
communication is not set out, it is summarised. It is on the evening of 18 November.
Glover telephones Mr P on his cellphone to ask how he got on last night. Mr P
said he was heading up there soon to see some unknown male. Mr P then told Ms
Glover that this unknown male had “run out of something he had needed to put
in it”. The paragraph then goes on with matters that are of no great assistance to the
task we are involved in today.
[14] Mr Poore says that “run out of something he had needed to put in it” clearly
refers to a methamphetamine cook having run out of some requisite precursor
substance. “Something”, it is said, means a precursor substance. If that is the case,
again that should have been stated by the detective. It is a word in very common
usage, which of course may make it attractive as a code term between people
involved in drug manufacture and sale. But if that is the case, it requires the
detective to say so. The ambiguity of the text messages, in my view, is not saved in
any way by the intercepted communications, and once again, from the few bald
statements I have referred to, the deposing officer goes on to say:
I believe that the telephone conversation intercepted on the evening of 18
November between GLOVER and PHILLIPS relates to PHILLIPS going to
see his methamphetamine cook and intending to supply some of the finished
product to GLOVER.
[15] That may be so, if the words have meanings other than their literal meanings,
but none of that information has been placed before the issuing officer.
[16] It follows, in my view, that this affidavit falls well short of what is required,
which then requires the Court to go on an consider the matters set out in s30 of the
Evidence Act 2007. Given the manner in which the affidavit has fallen below what
is required, the evidence becomes improperly obtained. Counsel, in their written
submissions, have referred to the matters set out in s30(3)(a) of the Act, and given its
newness I am grateful to them for that. The Court needs to balance firstly the
importance of any right breached by the impropriety and the seriousness of the
intrusion on it. It is accepted by the Crown that citizens have a high expectation of
privacy in private residence, and expect their privacy will only be invaded if the law
allows such invasion. The privacy of the home would stand only second to privacy
of the person. There is an important right that has been breached here.
[17] Secondly, the nature of the impropriety, in particular whether it was
deliberate, reckless, or done in bad faith. Mr Lynch quite properly makes no
allegation of bad faith. However, one must say that this affidavit falls so far short of
what is required, it must border on the reckless. Frankly, it turns a blind eye to many
decisions of this Court and the Court of Appeal as to what is required, and is most
unsatisfactory.
[18] The next inquiry is the nature and quality of the improperly obtained
evidence, and quite clearly in this case hard evidence of equipment used to
manufacture methamphetamine was found.
[19] Next there is the seriousness of the offence with which the defendant is
charged. Class A drug manufacture is very serious offending, as Mr Poore has
properly noted, carrying with it a sentence of life imprisonment. He has also
properly pointed out that in Williams the Court of Appeal referred in this category to
public safety issues, and the well known danger which judicial notice can be taken
of, of the operation of clandestine laboratories.
[20] The next matter is not relevant. The next is whether there are any alternative
remedies, but it is accepted that that is not the case.
[21] Under s(30)(2)(b), the Court must determine whether or not the exclusion of
the evidence is proportionate to the impropriety by means of a balancing process that
gives appropriate weight to the impropriety but also takes proper account of the need
for an effective and credible system of justice. That is always, of course, a difficult
balancing act, because in so many search warrant cases hard evidence of serious
offending is obtained. But in my view the impropriety here is serious. The affidavit
in support of the application for a search warrant falls well short of what is expected
and required. Considering the matters I have set out above, as I am required to do, it
seems to me appropriate in this case to rule that the evidence is inadmissible. The
affidavits fall so far short that I think that is the response that the Court needs to
make. It has led to a very real and serious breach of privacy in this case, and
notwithstanding the other matters of public interest, the seriousness of the offending,
and the quality of the evidence obtained, in my view the only response is to rule the
evidence inadmissible.
[22] Accordingly, in terms of the application before the Court, the evidence of
Nikora Jonathan, Vaughn Sweetman, Melanie Noonan, Darryl Sweeney, Craig
Lattimore, Jeffrey Attwood, Thomas Lamborn, Bryan Price and Paul Kuppevelt is
ruled inadmissible.
Solicitors:
Crown Law Office, Christchurch
G M Lynch, Christchurch
Common questions
Powered by AIJustice Hansen identifies that the improperly obtained evidence includes hard evidence of methamphetamine manufacturing equipment. Despite its apparent significance, he evaluates the impropriety in obtaining such evidence as severe enough to necessitate exclusion. He weighs the importance of safeguarding legal standards and individual rights over the evidence's practical utility in proving serious charges .
The court needs to balance the importance of the right breached by the impropriety and the seriousness of the intrusion on privacy, against the nature of the impropriety, whether deliberate or reckless, and the nature and quality of evidence obtained. It also considers the seriousness of the offense charged and the legitimacy of evidence exclusion as a response to impropriety, all while ensuring the justice system remains effective and credible .
Justice Hansen concludes that the evidence should be ruled inadmissible due to serious impropriety in the affidavit supporting the search warrant application. This decision reflects a significant breach of privacy and an adherence to ineffective standards despite judicial precedents. Hansen emphasizes that the affidavit presented failed to meet established requirements, causing a serious breach of rights, warranting exclusion despite the seriousness of the charges and evidence's potential reliability .
Justice Hansen observes that, despite clear guidance from court decisions like R v Williams, the police routinely fail to meet established standards for search warrant applications. He suggests this continual shortcoming risks the admissibility of critical evidence and implies a potentially systemic issue within the police force in adhering to judicial expectations, indicating a need for improvements in knowledge and adherence to legal protocols .
Justice Hansen points out that the affidavits fell short because they did not provide a thorough explanation of terms used within the intercepted communications, failing to establish a credible link to drug-related activities. The affidavits ignored past judicial decisions that outlined clear expectations, bordering on recklessness by repeating mistakes from earlier cases. As a result, the affidavits did not fulfill the requirements necessary for admissibility .
The ruling underscores a critical balance between privacy rights and law enforcement practices, highlighting the judiciary's role in maintaining this equilibrium. Justice Hansen illustrates that despite the need for effective law enforcement against serious offenses like drug manufacturing, safeguarding individual privacy rights remains paramount. The decision to render evidence inadmissible serves to reinforce stringent standards for search warrants, ensuring that police practices do not infringe on protected rights without due process .
Justice Hansen notes that the standards set by previous court decisions for search warrant applications are clear and well-defined, yet the police continue to fail to meet these standards, risking the admissibility of important evidence. The Court of Appeal's decision in R v Williams & Ors extensively summarizes these expectations, indicating that there should be no ambiguity about what is required .
Justice Hansen criticizes the lack of explanation or interpretation of the term 'gullz' by the officer involved, who failed to elucidate its potential meaning within the sub-culture. He emphasized the text messages on their own are ambiguous and suggested that they should have been properly explained or linked to a code for drug-related activities by the detective involved .
The intercepted communications and text messages significantly impacted the legal proceeding by contributing to the ruling of evidence inadmissibility. Their ambiguous nature, coupled with inadequate explanations linking them to criminal activity, highlighted deficiencies in the evidence-gathering process. This lack of clear rationale rendered the evidence insufficiently supportive of lawful search warrants, ultimately affecting the court's ruling .
Justice Hansen notes that intercepted communications are not to be read in isolation; they must provide context for text messages. However, he acknowledges the failure to present these communications in a manner that clarifies ambiguous terms or provides a logical link to illicit activities. The intercepted conversations lack detailed explanations and do not salvage the ambiguity inherent in the text messages .