DRAFT

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CRI 2011-470-13

BETWEEN

PETER JOHN ORENDOWICZ Appellant THE QUEEN Respondent

AND

Hearing:

16 September 2011

Appearances: B Nabney for appellant J J Rhodes for respondent Judgment: 26 September 2011 JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11.30 am on Monday 26 September 2011

Solicitors:

B Nabney, Tauranga, bill@tgachambers.co.nz Crown Solicitor Tauranga

PETER JOHN ORENDOWICZ V R HC TAU CRI 2011-470-13 [26 September 2011]

[1]

Mr Orendowicz appeals against his conviction on charges of possession of

cannabis for supply and of possession of equipment for the cultivation of cannabis. The police case was based entirely upon evidence obtained following execution of a search warrant in respect of Mr Orendowiczs house. Mr Nabney argues that the warrant ought not to have been issued because the evidence advanced in support of it did not reach the threshold prescribed by s 198 of the Summary Proceedings Act 1957. [2] In a second ground of appeal he argues that the evidence did not support a

conviction for possession of equipment for the cultivation of cannabis. Background

[3]

On 4 March 2010, Detective Sgt Verry of the New Zealand Police applied for

a search warrant pursuant to s 198 of the Summary Proceedings Act, and s 18(1) of the Misuse of Drugs Act 1975. The application was accompanied by affidavits sworn on 4 November 2008 by Detective Senior Sgt Hansen, and Detective Sgt Mackie. The search warrant was issued by the Registrar of the District Court on the date of the application, 4 March 2010, and a search pursuant to the warrant was undertaken at the appellants home by police officers on 16 March 2010. [4] During the search, the police located some 422 grams of cannabis head

material, 373 grams of poor quality leaf material, literature on the use and cultivation of cannabis, a harvest bag, a light shade, an electronic timer and a light bulb. [5] The appellant gave evidence at his trial. He admitted growing cannabis on a

prior occasion, some ten years ago, and that the cannabis located on this occasion was his, but claimed that it was for his personal use rather than for sale or supply. [6] Mr Nabney challenged the validity of the search warrant in the District Court.

On 29 September 2010, the admissibility of the warrant was the subject of a separate preliminary argument before Judge Geoghegan. The search warrant application was produced. The application disclosed that the police had been conducting a nation-

wide covert operation investigating the activities of retail stores selling indoor growing equipment, hydroponic equipment, associated nutrients and materials in circumstances that suggested that these items would be used for the cultivation of cannabis. A significant portion of this operation was devoted to an investigation of a chain of retail shops known as Switched on Gardener. The Tauranga shop had been under surveillance by the police for a period prior to the events in question in this appeal. The police came to the conclusion that those connected to the store were knowingly selling indoor growing equipment and associated materials for the purpose of cannabis cultivation. Evidence to that effect was included in the

materials placed before the Registrar who issued the warrant. [7] The application also asserted that on 11 February 2010, the appellant was

seen entering Switched on Gardeners Cameron Road store in Tauranga. He is said to have left the store with a black plastic bag (similar to that in which undercover officers had earlier carried from the store purchased equipment and materials for growing cannabis), and drove to a supermarket. There, he was observed looking at plastic potting bags and plant tie equipment in the gardening section of the store. Eventually he purchased plastic ties and then drove to his home address. [8] The application for the warrant further disclosed that the appellant had

previous criminal convictions, including for cultivating cannabis. The cultivation conviction related to an incident in February 2000 where the police located 167 cannabis plants growing at the appellants then residence, in what was earlier described as an elaborate indoor cannabis growing set up. The application advised that the police had conducted on-going surveillance of customers coming and going from the Switched on Gardener at 427 Cameron Road, Tauranga and background checks have shown that approximately 80% of the customers observed have drug related criminal convictions. The application also included advice to the effect that:
as part of the investigative process of Operation LIME, this surveillance technique has been employed around New Zealand and a number of search warrants have been conducted in the same manner as this application, and so far the police have found evidence of cannabis cultivation and possession on all occasions.

The District Court judgment

[9]

Both in the District Court and in this court, it was agreed that where a warrant

is applied for pursuant to s 198 of the Summary Proceedings Act 1957, a judicial officer can issue a warrant only if satisfied that there are reasonable grounds for belief that a search will turn up the items named in the warrant. The issuing officer must hold the view that the state of affairs described by the applicant officer actually exists. Reasonable grounds to believe involves a higher standard than reasonable ground to suspect.1 [10] Judge Geoghegan carefully set out the relevant principles in his oral

judgment, and referred to the leading Court of Appeal authorities. He then gave his reasons for determining that the issuing officer was entitled to hold the view that a search would turn up the items named in the warrant, and that the warrant was valid:
[12] The question therefore is, Could it be said that there could be a reasonable belief of the commission of an offence and the other matters based on the affidavit evidence provided? When looking at this situation, I think that there are a number of factors which need to be taken into account. I record those factors as follows: (a) There is clear evidence of the deponents involvement in Operation Lime and the surveillance of the Switched on Gardener store at 427 Cameron Road, Tauranga; There is clear evidence of the visits conducted by undercover officers for the purposes of gathering intelligence on possible drug offending at the retail premises and of the supply to those officers of advice on cultivation of cannabis, the supply of equipment for the purposes of cultivating cannabis and in one case the supply of cannabis seedlings. The police investigation carried out was within the wider context of a national operation involving investigation regarding the operation of premises under the name the Switched on Gardener and specifically referring to the alleged commission of offences under the Misuse of Drugs Act. The affidavit in support of the application outlines surveillance of the defendant undertaken by the deponent of the affidavit and which confirmed, on the face of it, the purchase by the defendant of admittedly unidentified items from Switched on Gardener followed by the purchase very shortly thereafter of plastic tie material used in horticulture.

(b)

(c)

(d)

R v Williams [2007] 3 NZLR 207 (CA) at [213].

(e)

The defendant has a previous conviction in 2000 for cultivation of 167 cannabis plants in what is referred to as an elaborate indoor cannabis growing set up. A number of search warrants have been conducted in the same manner as this application resulting in the evidence of cannabis cultivation during the course of Operation Lime. There is a suggestion, and I put it no more highly than that, that a high proposition of customers attending the Switched on Gardener premises have drug-related convictions carrying with it the inference that the premises may be operating as a type of cannabis supermarket. There is clear evidence in the affidavit that there are reasonable grounds for believing that the items referred to in the application would be found at the address referred to therein as the deponent of the affidavit had referred to the defendant returning to his home address immediately after purchasing the items referred to and his previous offending had involved the cultivation of cannabis at the defendants home.

(f)

(g)

(h)

[13] If this were a defendant with no drug convictions or even with drug convictions involving minor possession, it may be difficult to form a reasonable belief. However, that is not the case here. The defendants conviction involving, as it does, cultivation of a significant quantity of cannabis in an indoor set up, when taken with all of the other factors that I have referred to, provides a reasonable ground to believe that there has been the commission of an offence and that the items referred to in the application may be found at the defendants home. It raises the matter from one of mere suspicion, which may be the case if, for example, the outlet was not the subject of the police surveillance and intelligence involved or the police were dealing with someone with no convictions for relevant offences. As I have said, that is not the case here.

[11]

In consequence of that decision, the case against the appellant went to trial on

1 February 2011, before Judge Geoghegan sitting in the summary jurisdiction. The Judge found the case proved, and on 17 March 2011 he sentenced the appellant to five month home detention, together with 200 hours community work on each charge. There is no appeal against sentence. Discussion

[12]

The issue for this court is whether the Judge was entitled to reach the view

that the issuing officer had reasonable grounds to believe that evidence associated with cannabis offending would be found at the appellants home address, if the warrant was issued. I have concluded that there was insufficient evidence to give

rise to a reasonable ground for such a belief. In my view, the evidence fell well short of justifying the issue of a warrant. [13] In the first place, the evidence relating to Switched on Gardener generally

could be of only limited probative value, in the context of the question of whether a particular customer is likely to have cannabis in his home. Second, the surveillance evidence of the appellant did not of itself constitute evidence relating to cannabis cultivation by the appellant at his home address. Except for the fact that Switched on Gardener was known to be frequented by cannabis growers, there was nothing whatever suspicious about the appellants activities as observed by the police. He simply went shopping on the day in question. The evidence does not indicate what he purchased from Switched on Gardener. It appears that he purchased a few

gardening supplies from another retailer, but they were simply everyday gardening supplies, and add little to the evidence against the appellant. [14] The appellants prior conviction related to an incident in February 2000. But

that was ten years ago. There is nothing to suggest that the appellant had offended since. The existence of a ten year old conviction provides little support for an argument that the objective threshold test had been met. Further, the accompanying affidavit evidence (about Operation Lime) was four months old at the date of the application, and the warrant itself was executed some 33 days after the surveillance of the appellants activities on 11 February 2010. [15] It is well established that the passage of time diminishes the value of

evidence tendered in support of a warrant application. Moreover, the application for the warrant is silent as to the items that were to be the subject of the search. Detective Sgt Verry deposes to his belief that a search of the appellants residence would locate the items listed in appendix A, and that they would be evidence to support the charges of cultivation of cannabis, and possession of equipment or materials for cultivating cannabis. But the original application, as provided to the issuing officer, contained no appendix A. [16] Judge Geoghegan was plainly right when he thought that, putting aside the

appellants previous drug related conviction, there was insufficient evidence to

support the warrant, but a ten year old conviction for cannabis offending is of very little probative significance and quite insufficient to make any difference to the strength of the warrant application. [17] Counsel for the Crown referred the court to Haggie v R.2 That was a case

involving another accused from the same police operation. The Court of Appeal there agreed with the District Court Judges decision that there was an insufficient basis for the issue of the warrant, and that the evidence had been improperly obtained. One of the aspects relied upon by the police in that case was anonymous information that the appellant was growing cannabis at his home address. In the present instance there is nothing like that. The evidence is even more deficient than in Haggie. [18] I consider therefore that the warrant ought not to have been granted, and that

the evidence was unlawfully obtained. That being the case, the search was also unreasonable under s 21 of the New Zealand Bill of Rights Act 1990. An unlawful search will normally be unreasonable unless the illegality was minor or technical.3 [19] Here, the police entered and searched a private home without sufficient

grounds to justify the warrant. It could not be said that the breach was simply technical. [20] It is necessary therefore to consider the provisions of s 30 of the Evidence

Act 2006. Balancing

[21]

Improperly obtained evidence must be excluded unless the court determines,

in accordance with s 30(2), that its exclusion would be disproportionate to the impropriety.4 Section 30(4) requires the court to undertake a balancing process that

2 3

Haggie v R [2011] NZCA 221. Hamed v R [2011] NZSC 101 at [174]. 4 Evidence Act 2006, s 30(4).

gives appropriate weight to the impropriety, but also takes proper account of the need for an effective and credible system of justice.5 [22] For the purposes of s 30(2), the court is entitled to have regard to a number of

factors set out in s 30(3): the first is the importance of the right breached;6 the search of a private dwelling house is a serious invasion of privacy. Such a search undertaken on the basis of insufficient evidence amounts to a serious intrusion on the rights of the owner of that dwelling house. [23] The next question is as to the nature of the impropriety. 7 There is no

suggestion here of bad faith. The officer acted responsibly by obtaining a warrant. Nevertheless, neither the warrant applicant nor the issuer had objectively reasonable grounds for believing that there was cannabis in the appellants home. The warrant was highly deficient in that it failed to meet the required standard by a considerable margin. [24] Next is the nature and quality of the evidence concerned.8 The physical

evidence to support the charge was found in the appellants possession. He admits that the cannabis belonged to him, so evidence of considerable probative importance was located, as a result of the execution of the warrant. [25] The next question is as to the seriousness of the offence. 9 As a rule of thumb,

an offence is serious if it attracts a starting point in the vicinity of four years imprisonment or more.10 The charges proceeded summarily and the Judge assessed the appropriate term for the appellants offending at ten months imprisonment (falling within band 1 of R v Terewi),11 and ultimately sentenced him to five months home detention. [26] This offending fell short of the class of serious offences envisaged by the

Court of Appeal in R v Williams. To that extent, this case can be distinguished from
5 6

Evidence Act 2006, s 30(2)(b). Evidence Act 2006, s 30(3)(a). 7 Evidence Act 2006, s 30(3)(b). 8 Evidence Act 2006, s 30(3)(c). 9 Evidence Act 2006, s 30(3)(d). 10 R Williams at [135]. 11 R v Terewi [1999] 3 NZLR 62 (CA).

Haggie, where the starting point fell within band 2 of Terewi and the offending and corresponding charges were clearly more serious than here. The seriousness of the offending was one of the principal factors which led the court to admit the impugned evidence in that case.12 [27] The next question is concerned with the availability of other investigatory

techniques.13 Here, further investigations were possible. There is nothing to suggest that the police could not have taken further time to investigate the offending of which the appellant was suspected. [28] The next question is as to the availability of alternative remedies to

exclusion.14 It is common ground that there are no such available remedies. Neither is it suggested on behalf of the police that the impropriety was necessary to avoid apprehended physical danger to the police or others,15 or that there was an element of urgency in this case.16 [29] Drawing these threads together, I am satisfied that the evidence ought to have

been excluded. It was proportionate to the impropriety to do so. There was really no evidence to connect the appellant with cannabis offending, save for his ten year old conviction. The fact that a number of customers of Switched on Gardener were engaged in criminal activity is quite irrelevant to the question of whether the police had sufficient evidence on this particular occasion against this particular appellant to justify applying for a warrant. [30] The search involved a high level invasion of the appellants privacy, because Moreover, the offence, while not

it involved a full scale search of his home.

insignificant, was nevertheless towards the lower end of the hierarchy of drug related offences.

12 13

R v Terewi at [25]. Evidence Act 2006, s 30(3)(e). 14 Evidence Act 2006, s 30(3)(f). 15 Evidence Act 2006, s 30(3)(g). 16 Evidence Act 2006, s 30(3)(h).

[31]

Once the challenged evidence is excluded the Crown is unable to make out a

case against the appellant. Result

[32]

For the foregoing reasons, the appeal is allowed. The decision of Judge

Geoghegan on 29 September 2010 to admit evidence obtained as a result of the police search of the appellants residence is set aside. The appellants conviction, entered by Judge Geoghegan on 1 February 2011, is quashed. The appellant is acquitted on each charge.

C J Allan J