Aranguiz v Police
[2019] NZCA 535
•4 November 2019 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA402/2019 [2019] NZCA 535 |
| BETWEEN | EMILIO NICHOLAS EXEQUIEL |
| AND | NEW ZEALAND POLICE |
| Court: | Miller, Simon France and Hinton JJ |
Counsel: | L L Heah for Applicant |
Judgment: | 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 was to assist communication by indicating Mr Aranguiz should take out his wallet. As it happens, the object in the pocket was a screwdriver, which was seized. The second trial and appeal issue was the admissibility of evidence concerning possession of the screwdriver.
Mr Aranguiz was taken to the police station. On the way the police officer told Mr Aranguiz he wanted his phone. He also said Mr Aranguiz was required to tell him the password or he may be committing an offence. Mr Aranguiz complied. On the phone were images of persons using the urinals and Mr Aranguiz was later charged with making an intimate visual recording.[3] The admissibility of this evidence was the third trial and appeal issue.
Prior decisions
[3]Crimes Act 1961, s 216H, maximum penalty three years’ imprisonment.
The District Court considered the officer peering over the top of the cubicle was a reasonable search, if one at all.[4] Mander J disagreed, considering it was a lawful but unreasonable search.[5] There was a reasonable expectation of privacy, and it was unnecessary to look into the cubicle without warning.[6] Other methods were available, and there was no need for urgency.[7]
[4]Police v Aranguiz [2018] NZDC 25424 [Admissibility ruling] at [36].
[5]HC decision, above n 1, at [27].
[6]At [23].
[7]At [25].
Mander J doubted the unreasonable search was causative of the discovery of any evidence used at trial.[8] It was inevitable that Mr Aranguiz would have to leave the cubicle, would eventually be searched and the items located. The visual observation was of little relevance. Alternatively, if causative, “by some margin” the balancing exercise under s 30 of the Evidence Act 2006 favoured admissibility.[9] The undoubtedly high expectation of privacy in a toilet cubicle had diminished in the present case because of the known circumstances. It was plain the cubicle was not being legitimately used. The evidence was of central importance, and the offending one of concern. Exclusion of the evidence would therefore be disproportionate.[10]
[8]At [28]–[29].
[9]At [33].
[10]At [33].
Concerning the screwdriver possession, the concurrent finding of fact as to the officer’s purpose meant there was no search.[11] The discovery of the screwdriver was in any event inconsequential as a search at the police station would inevitably have disclosed it.[12]
[11]At [34].
[12]At [38].
In relation to the phone, the District Court had held the search to be unreasonable because Mr Aranguiz had only been arrested for wilful damage, concerning which the phone would not be evidence.[13] On appeal Mr Aranguiz challenged the s 30 balancing exercise that occurred subsequent to this conclusion of unreasonable search. Mander J addressed the issue on the basis of how it was presented, but noted doubts over the conclusion of unreasonableness.[14] The phone was likely to have images such as those found; those images in turn point to the use of the holes that were the subject of the wilful damage charge, and link Mr Aranguiz to them. It could therefore have been concluded the phone was likely to have evidence relating to the wilful damage charge.
[13]Admissibility ruling, above n 4, at [45]–[47].
[14]HC decision, above n 1, at [42].
Mander J agreed on the s 30 analysis, noting that there was a considerable expectation of privacy in a mobile phone but that the other circumstances all pointed towards admissibility.[15] A warrant should have been obtained before the search rather than after (as occurred), but if sought one would have been issued.
A further appeal?
[15]At [46]–[48].
On appeal it would be argued on Mr Aranguiz’s behalf that:
(a)the glance into the cubicle was causative because the officer saw the phone in Mr Aranguiz’s possession;
(b)the balancing exercise could be answered in Mr Aranguiz’s favour by reweighing the factors, especially the expectation of privacy; and
(c)the phone search was correctly held to be unreasonable, and, again, the s 30 analysis was incorrect.
Leave to bring a second appeal
Section 237(2) of the Criminal Procedure Act 2011 provides that leave is to be given only if the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred. These tests are not met here.[16] Mr Aranguiz seeks a further consideration of the balancing exercise required by s 30 of the Evidence Act, and that of itself is not a matter of general or public importance. It is very much a case-specific exercise to be conducted against the background of settled law.
[16]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 confirms that the test for a second appeal is a high one.
We accept the impact of facts such as the present on the reasonable expectation of privacy inherent in occupation of a toilet cubicle could be a matter of public importance, but as matters stand this issue has been resolved in Mr Aranguiz’s favour. It does not therefore provide a basis for a further appeal. We observe, however, that the decision not to grant leave for a further appeal is not to be taken as endorsement of the conclusions in the High Court. We consider the issue of reasonableness on these facts could merit further exploration, but, for the reasons given, the circumstances of the case do not merit it.
For completeness, we note we have no concern over the existence of a possible miscarriage of justice. We regard the conclusions reached on the s 30 analyses as inevitable.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent