ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) 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.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000185 [2015] NZHC 1487

BETWEEN	JUSTIN KYLE GUYMER AND
TRACEY MARIE PINFOLD Appellants	

AND	
THE QUEEN Respondent	

Hearing:	30 June 2015	

Appearances:	
R Fairbrother for J K Guymer
J W A Rainger for T M Pinfold
M Mitchell for Crown	

Judgment:	
30 June 2015	

(ORAL) JUDGMENT OF ANDREWS J [Appeal against pre-trial order]

GUYMER AND PINFOLD v THE QUEEN [2015] NZHC 1487 [30 June 2015]

Introduction

[1]       Mr Guymer and Ms Pinfold have appealed against the decision of Judge Adeane, given in the Napier District Court on 20 March 2015, in which the Judge dismissed an application to exclude evidence on the grounds that it was unlawfully obtained.1

Background

[2]       On  5  September  2014  a  photograph  of  Ms  Pinfold  holding  a  firearm, described as being a bolt-action rifle with silencer, was uploaded onto the Facebook page of Mr Guymer (who is also known as Justin Jenkins).

[3]       The Police subsequently applied under s 6 of the Search and Surveillance Act

2012 (the Act) for a search warrant to search the property at 1 Rimu Place, Taradale, said by the Police to be the home address of Mr Guymer and Ms Pinfold.   The warrant was sought on the grounds that the Police had reasonable grounds to believe that the search would find evidential material, being firearms, including but not limited to a bolt-action rifle with silencer, at the address, and reasonable grounds to suspect that the offence of unlawful possession of a firearm had been or was being committed at the address.

[4]       The Police statement in support of the application (“the Police statement”) set out confidential information supplied to the Police (redacted from the version provided to Mr Guymer and Ms Pinfold), and set out information from the Facebook page, together with other relevant information.

[5]       The search warrant was issued on 19 September 2014 and executed on 22

September 2014.  The Police did not locate the firearm shown in the photograph of

Ms Pinfold, but did locate:

(a)	A Super-Sport brand revolver loaded with five .22 calibre rounds;

1	Police v Guymer & Pinfold [2015] NZDC 4609.

(b)       A Remington 597 rifle with the barrel sawn down to 525 mm in length and the serial number grounds off.   The magazine attached to the Remington was loaded with  eight .22 calibre rounds and there was a single round in the breech of the firearm;

(c)	126 rounds of various brands of .22 ammunition;

(d)       Three glass pipes used for smoking methamphetamine, together with scales and snap-lock bags.

[6]       Neither Mr Guymer nor Ms Pinfold is the holder of a firearms licence.  They were subsequently charged with two charges of unlawful possession of a firearm, unlawful possession of ammunition, and possession of methamphetamine pipes.

District Court judgment

[7]       The  evidence  obtained  from  the  search  warrant  was  challenged  on  two grounds: first, that the application for the warrant misrepresented Mr Guymer as being a “prospect for a gang”; and secondly, that the application for the search warrant failed to disclose grounds (other than the Facebook photograph) for a reasonable belief that evidential material would be found at Mr Guymer’s home address and for a reasonable suspicion that an offence had been or was being committed at that address, and failed to explain the delay (after the photograph was uploaded) in seeking the warrant.

[8]       The Judge dismissed the first ground of challenge, on the basis that it was highly unlikely, given the other information available to the issuing officer, that that factor carried any weight at all.2

[9]       The Judge dismissed the second ground of challenge on the basis that the information before the issuing officer was “sufficient in all respects” to meet the requirements of s 6 of the Act.3   The Judge referred to the photograph of Ms Pinfold,
the presence of Mr Guymer’s car, the fact that Ms Pinfold was presenting a rifle with

2	At [2].
3	At [6].

a suppressor over the roof of the car, a comment on the Facebook entry attributed to Mr Guymer relating to Ms Pinfold and the rifle, the fact that the Police had ascertained that neither Mr Guymer nor Ms Pinfold had a firearms licence such that, prima facie, an offence was being committed, information set out in a redacted portion of the Police statement, and the fact that Mr Guymer had two previous convictions for possession of weapons, one of which was in 2013.

[10]     As to the submission that the Police had failed to explain why it was thought that firearms might be found at the defendants’ home, the Judge concluded that if there were good grounds to suspect criminal offending, and if the person suspected had a stable address, that was the place to which the search warrant  would be addressed, rather than any other place.

Appeal submissions

[11]     On appeal, Mr Fairbother QC for Mr Guymer focussed on the redactions in the Police statement in support of the application for the search warrant.   He submitted  that  Mr  Guymer  is  “flying  blind”  and  still  does  not  know  what  the redacted information is, or what issues it addresses.  In the absence of the redacted information Mr Guymer does not know why it was believed that there would be evidence of possession of a firearm at an address different from that of previous offending, why such evidence would still be in existence two weeks after the Facebook  posting,  why  the  Facebook  posting  excluded  the  possibility  of  the presence of a person authorised to possess  a firearm, and  why a search of the personal belongings in Mr Guymer’s bedroom was necessary.

[12]     Mr  Fairbrother  accepted  it  is  in  the  public  interest  that  confidential information is protected from disclosure and, in essence, sought assurance that the material submitted to the issuing officer was sufficient to address and satisfy the concerns he had raised.   He accepted that the appeal would be determined by my reviewing the redacted portions of the Police statement.

[13]     Mr Rainger, on behalf of Ms Pinfold, adopted Mr Fairbrother’s submissions. He referred me to an application under s 30 of the Act, filed on 30 January 2015, seeking disclosure of an unredacted version of the Police statement.

[14]     For  the  respondent,  Ms  Mitchell  acknowledged  that  the  redaction  to  the Police statement constrains Mr Guymer’s ability to oppose the admissibility of the evidence arising from the search.   However, she submitted that the content of the redacted information is sufficient to answer the issues raised by Mr Fairbother.  She further submitted that the application discloses reasonable grounds to suspect that an imprisonable offence had been, or was being, committed, and that there were reasonable grounds to believe that evidential material relating to that offence would be found at the specified address.  As such, she submitted, the search warrant was properly issued and the evidence obtained from the subsequent search is admissible.

Discussion

[15]     Applications  for  search  warrants  are  often  obtained  on  the  basis  of information supplied to the Police on the understanding (express or implied) that the identity of the supplier of the information will not be disclosed, and will be kept confidential.  The privilege attaching to such information is recognised and protected by s 136(1)(h) of the Act and s 64 of the Evidence Act 2006.

[16]     A copy of the unredacted version of the Police statement was provided to me for perusal before the appeal hearing.  I am satisfied that information was supplied to the Police on the basis that the supplier of the information had a reasonable expectation  that  his  or  her  identity would  not  be  disclosed.    Disclosure  of  the redacted material would disclose, or would be likely to disclose, the informer’s identity.   For that reason, I am not prepared to require the Police to provide an unredacted version of the statement.

[17]     Having read the unredacted statement, I am not persuaded that the Judge erred in holding that the application for a search warrant contained sufficient information to justify the search warrant being issued.  The information set out in the Police statement clearly justified issuing a search warrant under s 6 of the Act.  In particular,  the statement  discloses  evidence other than the Facebook  photograph which gives reasonable grounds to suspect that the offence of unlawful possession of a firearm was being committed, and reasonable grounds to believe that evidential material would be found at Mr Guymer’s home address.   Further, the evidence

discloses   grounds   for   believing   that   the   suspected   offence   was   ongoing. Accordingly,  I am  satisfied  that  the  warrant  was  validly issued.    The  evidence obtained as a result of the search is admissible.

Result

[18]     Accordingly, the appeal is dismissed.

Andrews J