Aranguiz v Police - [2019] NZCA 535

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA402/2019
[2019] NZCA 535

BETWEEN	EMILIO NICHOLAS EXEQUIEL ARANEDA ARANGUIZ Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Miller, Simon France and Hinton JJ
Counsel:	L L Heah for Applicant R K Thomson for Respondent
Judgment: (On the papers)	4 November 2019 at 3.00 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Mr Aranguiz seeks leave to bring a second appeal under s 237(1) of the Criminal Procedure Act 2011 in relation to convictions for intentional damage and intentionally making an intimate visual recording.[1] Mr Aranguiz filed submissions on his own behalf; subsequently a grant of legal aid enabled Ms Heah to file further submissions. Both have been considered. The issue at each stage of the proceeding has been the admissibility of the evidence on which the prosecution is based.

Facts

[1]Police v Aranguiz [2018] NZDC 2534 [Sentencing notes]; and Aranguiz v Police [2019] NZHC 1765 [HC decision].

Over a two-week period staff at a Christchurch mall noticed that small holes had appeared in the wall of a toilet cubicle. It was in the male toilet and it was the wall of a cubicle next to the urinal. The holes allowed an occupant of the cubicle to view anyone using the urinals.
Analysis by mall staff of CCTV footage of the mall and car park identified Mr Aranguiz as a user of the toilets on the relevant occasions.
On 12 January 2018 Mr Aranguiz’s car was spotted in the car park. The cubicle was checked and the repaired holes were intact. Staff then returned a few minutes later to find the cubicle occupied and that one of the holes had reappeared. Police were called. By the time they arrived the cubicle had been occupied by the same person for 50 minutes. The attending police officers were briefed by mall staff about the sequence of events over the preceding two weeks, including that day.
An officer went into the adjacent cubicle and looked over the top into the cubicle occupied by Mr Aranguiz. He was sitting on the toilet, trousers lowered, holding a phone. The officer went back out and knocked on the cubicle door, announcing he was coming in. This he did, whereupon Mr Aranguiz was arrested for wilful damage.[2] The first trial and appeal issue was the lawfulness of the officer looking into the occupied cubicle, and whether that was causative of the obtaining of evidence used at trial.
[2]Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment or a fine of $2,000.
The officers tried to ascertain Mr Aranguiz’s identity. English is not his first language. The officer asked if Mr Aranguiz had a driver’s licence. To assist communication, with the back of his hand he tapped the front pocket of Mr Aranguiz’s jeans. There are concurrent findings of fact that the officer’s purpose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZCA 535
Decision Date: 4 November 2019 at 3.00 pm

CaseChat Overview and Summary

Emilio Nicholas Exequil Araneda Aranguiz has applied for leave to bring a second appeal against his convictions for wilful damage and making an intimate visual recording. The application was heard and dismissed by the Court of Appeal of New Zealand. The central issues were the admissibility of the evidence obtained by the police, which led to the convictions. The first issue concerned whether the officer's glance into the occupied cubicle was lawful and if it led to the discovery of evidence used at trial. The second issue was whether the screwdriver found in the applicant's pocket was lawfully obtained, and the third was whether the search of the applicant's phone was lawful and if the evidence obtained was admissible.

The Court of Appeal found that the application for leave to bring a second appeal did not meet the criteria under section 237(2) of the Criminal Procedure Act 2011, as it did not involve a matter of general or public importance nor did it suggest a miscarriage of justice had occurred. The Court observed that the balancing exercise under section 30 of the Evidence Act 2006 was a case-specific exercise, and while the impact of the facts on the reasonable expectation of privacy in a toilet cubicle could be a matter of public importance, it had already been resolved in the applicant's favour. Therefore, the Court declined the application for leave to bring a second appeal.

Orders