Andrews v Rca476/2010Edmonds v R

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 15 October 2010
• Neutral Citation: [2010] NZCA 467
• Docket Number: CA476/2010
• Court: Court of Appeal
• Date: 15 October 2010

BETWEEN

Shannon Richard Andrews

Appellant

and

The Queen

Respondent

AND BETWEEN

Mowena Temoki Edmonds

Appellant

and

The Queen

Respondent

[2010] NZCA 467

Court:

Glazebrook, Potter and Asher JJ

CA476/2010

CA554/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

A Malik for Appellant Andrews

G W Calver for Appellant Edmonds

S B Edwards for Respondent

JUDGMENT OF THE COURT

• A The application for leave to appeal is granted.

• B The appeal is dismissed.

• C Order prohibiting publication of the judgment and any part of the proceedings in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Asher J)

Introduction

1 Shannon Andrews and Mowena Edmonds seek leave to appeal a finding of Judge Rea in the District Court at Napier that evidence found at a search of 20 Weddell Street Flaxmere is admissible at their trial.

2 Mr Andrews faces one count of burglary, one count of conspiracy and three counts of receiving. Ms Edmonds faces 29 separate counts of receiving. The parties are jointly charged with one of the receiving charges. These charges arise from a spate of at least 28 residential burglaries between April and August 2009 in Napier and Hastings. The burglaries had various common features:

• (a) homes were broken into during the day;

• (b) entry was effected by jemmying a window;

• (c) the burglaries appeared to be hurried and often messy; and

• (d) items targeted included jewellery, electrical goods such as flat screen televisions, DVD players, computers, cameras and personal accessories and toiletries.

3 In July 2009 the police in Hastings took the view that Mr Andrews was connected to at least one of the burglaries. This was a burglary that had taken place on 30 June 2009 at a house at 812 Lumsden Road, Hastings.

The application for the warrant

4 On 9 July 2009 Constable Potaka who was involved in the investigation applied for and obtained a search warrant to obtain some mobile phones belonging to Mr Andrews. A further search warrant was obtained on 22 July 2009 in relation to call data and text messages. On 1 September 2009 the search warrant that is the subject of this application was obtained. The search warrant stated that there were reasonable grounds for believing that there were at 20 Weddell Street, Flaxmere a number of particularised items of stolen property. However, the authority section of the warrant authorising the entry and search referred not to 20 Weddell Street, Flaxmere but rather to 3/4 Leyland Road, Haumoana. This latter entry was a mistake. 1

5 On 2 September 2009 a team of Hastings police officers executed the search warrant at 20 Weddell Street in Flaxmere. A significant quantity of property was taken which related to a number of relevant burglaries. As a result of the search Mr Andrews was charged. His partner, Ms Edmonds, was also charged in relation to the receiving charges.

6 Mr Malik, for Mr Andrews, and Mr Calver, for Ms Edmonds, challenged the admissibility of the evidence obtained by the execution of this warrant. The error in stating the address in the authority section of the warrant was one of the grounds of objection, but was not the focus of the appeal. Rather, counsel were widely critical of the affidavit in support of the application for the warrant filed by Constable Potaka. It was their general submission that there were no reasonable grounds for the search. They pointed to the requirement in s 198 of the Summary Proceedings Act 1957 that there must be “reasonable grounds to believe” that there will be in a stated location items that will be evidence of the commission of an offence, relying

on R v Williams. 2 They submitted that there were not sufficiently “reasonable grounds” put forward in the affidavit of Constable Potaka in support of the application for the search warrant. They also submitted that the application was both misleading and contained material omissions and for that reason the evidence obtained should not be admitted.

7 We propose examining the documents in support of the warrant with circumspection, as the defect in the second mentioned address raises the question of how carefully the issuing officer went about his task.

Were there reasonable grounds for a warrant to issue?

8 In his affidavit in support, Constable Potaka described the break-in at 812 Lumsden Road, Hastings and referred to some of the property that was stolen, including a Philips 37-inch LCD television with remote and a “Mother Care” cot set, and that items were stolen from the porch. The property stolen was set out in an appendix. The police had obtained ear buds from one of the bedrooms of the burgled property and these had been taken away for testing by ESR.

9 The officer stated in his affidavit:

• 7. THAT on the 7 ^th of July 2009 at approximately 3.00pm I received a call from an informer who has provided Police with information on the basis of strict confidentiality, and Police have undertaken to protect that person's identity. I have genuine fears for the safety of the informer should their identity be disclosed. The informer is known to Police and has a history of dishonesty offending and family violence involvement. As far as I am aware they have not given information to Police before however I have no reason to doubt the information that they have given.

• 8. THAT the informant stated that Shannon ANDREWS has been really busy doing burglaries. He is not receiving any benefit and has been doing burglaries to survive. He is doing burglaries every day. He is active in Hastings, Havelock North and possibly Te Awanga. His mother Paula SULLIVAN has just shifted out to Te Awanga and so he has been going out there to visit her as well. Last week he had with him a flat screen television, box of nappies, I-pod and games. He told me he got the gear from Lumsden Road and Churchill Street. He also told me that he got the nappies and stuff from the porch of one of the addresses and that they had just been delivered.

• 9. THAT Police contend that this is clearly a reference to the burglary at 812 Lumsden Road, HASTINGS.

10 More detail was given about what the informant said about Mr Andrews' pattern of carrying our burglaries and a cellphone number. It was observed by Constable Potaka that Mr Andrews was known to the police and had a significant history for dishonesty and drug-related offending. The history included numerous burglary and receiving charges. The affidavit went on to state that on 12 August 2009 the police received notification from ESR that the DNA profile from the ear buds flagged Mr Andrews as the major contributor of the DNA.

11 Constable Potaka also referred to another burglary that had taken place on 26 August 2009 at 1028 Frederick Street, Hastings. Stolen in that burglary was a 1996 Land Rover Discovery vehicle and further property that was identified in an appendix.

12 Constable Potaka deposed that some days later a Mr Hohepa Sullivan was apprehended driving the Land Rover motor vehicle. He stated that Mr Sullivan was known to the police and had a significant history of violence and dishonesty. He also had an entry in the Police National Intelligence Application (Police NIA system) with a gang alert. He stated:

21. THAT in an interview SULLIVAN stated that he went to HASTINGS to visit his Aunty Paula and ended up at the Mongrel Mob pad in Camberley looking for Shannon ANDREWS. While there he was given a set of keys to the Land Rover Discovery and paid $100.00 for it knowing it was stolen. At some stage he visited Shannon's address and while there saw a 52 inch and 32 inch Televisions as well as computers. While he did not know the actual address he was able to describe it and indicating that it was on a street off Kingsley Drive down a long drive way.

13 Constable Potaka deposed that he was familiar with the address referred to by Mr Sullivan “having visited it on a number of occasions”. He also went on to say that the Police NIA system revealed that Mr Andrews had numerous links to the address. The Constable also observed that Mr Andrews' mother is the sister of Mr Sullivan's mother. He stated that the addresses would lead to the location of the outstanding property.

14 All this evidence can be described as of good quality. There is no secondary hearsay. The unnamed informant gave the Constable direct evidence of what had been seen and it corresponded in some detail to what was stolen from Lumsden Road. Mr Andrews had stated to the informant that it was from Lumsden Road. The DNA evidence was of strong probative value linking Mr Andrews to the Lumsden Road burglary. The weakest evidence was the rather unspecific statement of Mr Sullivan. Mr Sullivan, while identified as an active criminal, had links with Mr Andrews and gave direct evidence of him having an item that roughly corresponded to what was taken during the burglary from Lumsden Road. Finally, the officer had strong direct evidence from his own knowledge of Mr Andrews' connection with Weddell Street.

15 We have no doubt that on the face of the affidavit there were reasonable grounds for believing that items would be found that had been stolen in the burglary of Lumsden Road at any address where Mr Andrews would reside, whether permanently or temporarily.

Criticism of the delay in making the application

16 Mr Malik submitted that the application was inexplicably delayed and this was a reason for holding the evidence inadmissible. He pointed to the fact that, from other warrant applications, it was clear that the unnamed informant, who turns out to have been Ms Edmonds, had contacted the police on 7 July 2009. Further, the DNA evidence had been obtained on 12 August 2009. However, no application was made until 1 September 2009.

17 These delays are of relatively...