RAMEKA v R [2020] NZCA 75

RAMEKA v R [2020] NZCA 75 [23 March 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA374/2019[2020] NZCA 75BETWEEN TE IWI NGARO RAMEKAAppellantAND THE QUEENRespondentHearing: 27 February 2020Court: Clifford, Simon France and Lang JJCounsel: Appellant in PersonR M A McCoubrey for RespondentJudgment: 23 March 2020 at 11 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] On 20 January 2016 the police executed a search warrant at Mr Rameka'saddress. They found a total of 48 cannabis plants growing in the vicinity of thedwelling located on that property occupied by Mr Rameka.1[2] Following a jury trial in the District Court at Kaikohe in April 2019Mr Rameka was found guilty of cultivating cannabis. He was subsequently convicted1 Mr Rameka lives on whenua collectively owned by him and his relations. Mr Rameka emphasisedthat, therefore, neither that land, nor the buildings located on it, were "his".and sentenced to nine months' supervision and ordered to undertake 350 hours ofcommunity work in July 2019.2[3] Mr Rameka now appeals his conviction, but not his sentence.Context[4] This matter has a somewhat lengthy history.[5] The police search of Mr Rameka's property in January 2016 was part of awider operation targeting cannabis offending in Northland, undertaken by the police'sNational Cannabis Recovery Operation. The warrant authorising the search ofMr Rameka's property, as part of that operation, was based on informant information.From the outset, Mr Rameka has been of the view that the person who informed onhim was a relative, the occupier of a nearby property which Mr Rameka had seen thepolice searching the previous day. Mr Rameka's evidence at trial was that the cannabisfound at his address belonged to that person. Mr Rameka had not cultivated thatcannabis. That person had successfully deflected the police's attention away fromhimself, and onto Mr Rameka, by informing on Mr Rameka. Moreover that personhad not been prosecuted, Mr Rameka asserted, notwithstanding the police had foundcannabis on his property as well.[6] Mr Rameka acknowledged, however, he did from time to time cultivatecannabis at the searched property. He suggested that, when answering policequestions, his statements reflecting that effect were construed — wrongly he said —as admissions of his responsibility for the cannabis found during the search.[7] Mr Rameka was initially tried by a Judge alone in the District Court atKaikohe, and found guilty and convicted.3 He successfully appealed that convictionin the High Court, on the basis that he had been denied the right to a trial by jury,which he had sought.4 Mr Rameka applied before that jury trial for a copy of thesearch warrant application, and for the evidence of cannabis found by the police to be2 R v Rameka [2019] NZDC 16099.3 Police v Rameka [2016] NZDC 22791.4 Rameka v Police [2017] NZHC 2622.excluded. He contended that application would show that his relative/neighbour wasthe informant, providing a basis for the exclusion of that evidence.[8] Mr Rameka's application for a copy of the search warrant was declined, butthe Court did order that a redacted version be provided. There were, the Judge said,good reasons for that decision in terms of the provisions of the Criminal DisclosureAct 2008 relating to informant evidence.5 As for Mr Rameka's argument that therewere not sufficient grounds for the issue of the warrant the Judge, having consideredan unredacted copy of the application,6 reached the following conclusions:[12] As to whether or not the issuing officer had the requisite suspicion,the application reveals that an informant told police that the defendant had anindoor cannabis growing operation in place. This informant had beenregistered with the police for nearly a year before supplying this information.The application notes that the informant had previously supplied informationwhich resulted in the seizure of two clandestine laboratories and the recoveryof illegally held firearms, ammunition, methamphetamine and cash. Also theinformant had provided information of a cannabis growing operation atanother property where cannabis was located and seized. Therefore, theapplicant asserts that the information provided by the informant is reliable.[13] Further information supplied in the application notes that thedefendant has two previous convictions for cultivating cannabis at the sameaddress. Also information was supplied in the application to the effect that thedefendant was known to still be residing at the target address.[14] When all that information is taken into account it is clear that theissuing officer had reasonable grounds to suspect that cannabis was beinggrown at the address in question, and to further believe that a search wouldfind evidential material in respect of the offence of cultivation of cannabis.[9] At the subsequent jury trial, the police case relied on the undisputed evidenceof the cannabis that was found, together with what the prosecution argued was thenatural and ordinary meaning of the way in which Mr Rameka had answered the policequestions and explained his own involvement in cannabis cultivation and use overtime.[10] The defence case rested principally on Mr Rameka's evidence that, althoughhe had grown cannabis on the property, the cannabis the police found during the search5 R v Rameka [2019] NZDC 3890 at [9].6 We record that at the hearing of Mr Rameka's appeal we indicated we would also review anunredacted version of the warrant documentation. We confirm we have subsequently done so.On the basis of that review, we endorse the Judge's conclusions recorded above.was not his: rather it belonged to his relative/neighbour. Hence his observations to thepolice (which the police witnesses maintained had not been made to them) when theyarrived at his property that, if they found anything unlawful, it was not his and, later,that they should return the cannabis to that person at the property they had searchedthe previous day.[11] By their verdict, the jury did not accept Mr Rameka's explanation.This appeal[12] On appeal, Mr Rameka again relies on his view that it was hisneighbour/relative, whose cannabis it was, who provided the evidence on which thepolice based their search. He says, moreover, that at his jury trial he was stopped fromadvancing that theory: he says he was told that issue had been disposed of at thepre-trial application.[13] For the Crown, Mr McCoubrey pointed first to the fact that, in evidence,Mr Rameka's theory had been put to the police. Mr McCoubrey identified thefollowing passage where Mr Heather, Mr Rameka's counsel at trial, was questioningone of the officers involved:Q. And there was a connection between the two addresses wasn't there?A. No, they're separate — separate warrants.Q. I put it to you that arising from your search of the previous day wasinformation which led you to Mr Rameka's address?A. No, that's not correct.[14] That exchange followed the Judge having asked the officer a number of generalquestions about the nature and extent of the police operation. The officer hadexplained that, the day before and the day after, they had been executing other warrantsat properties also located on the road in question.[15] Mr McCoubrey noted that the police officer had not been required to answerthe question in the way he did. His answer, however, established that Mr Rameka'ssuspicion was unfounded.Analysis[16] In our view, that exchange between Mr Heather and the police officer duringthe jury trial provides the answer to the issues Mr Rameka raises again in this appeal.That is:(a) First, it was directly put to the officer that the information which led toMr Rameka's property being searched had been obtained during asearch the previous day. The officer's denial was not challenged. In hisoral judgment following the Judge-alone trial, Judge D G Harvey hadrecorded the name and address of the person Mr Rameka suspected asbeing the relevant informant. Mr Heather could have put thatinformation to the officer. He did not.(b) Secondly, that exchange addresses Mr Rameka's assertion that he wasnot allowed to raise the issue of his concerns about the informant at hisjury trial. In saying that we acknowledge that during Mr Rameka'scross-examination the Judge did direct him to stop asking questions ofthe prosecutor. That is a proper direction. If Mr Rameka's counsel hadconsidered it appropriate, he could have raised issues arising inre-examination.[17] In our view, those are sufficient reasons to dismiss Mr Rameka's appeal.Result[18] Mr Rameka's appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent