Aranguiz v Police - [2019] NZHC 1765

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-23

[2019] NZHC 1765

BETWEEN
EMILIO NICHOLAS EXEQUIEL ARANEDA ARANGUIZ

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 May 2019

Appearances:

N Wham for Appellant

K Courteney for Respondent

Judgment:

25 July 2019

JUDGMENT OF MANDER J

This judgment was delivered by me on 25 July 2019 at 2.30 pm.

Registrar/Deputy Registrar Date: .

ARANGUIZ v POLICE [2019] NZHC 1765 [25 July 2019]

[1] The appellant, Emilio Aranguiz, was found guilty by Judge Gilbert of a representative charge of intentionally making an intimate visual recording of another person, and a charge of intentional damage. Prior to reaching his verdicts, the Judge made rulings regarding the admissibility of evidence. Mr Aranguiz appeals his convictions on the basis that the Judge erred in not excluding this evidence which he maintains was obtained in breach of his right to be free from unreasonable search.1 In the absence of that evidence, he maintains his convictions cannot be sustained.

Background

[2] Between 28 December 2017 and 12 January 2018, Mr Aranguiz would periodically visit the Westfield Riccarton shopping mall. On these occasions he would park his vehicle in the car park and then proceed to a male bathroom inside the mall. Staff had viewed CCTV footage to identify Mr Aranguiz as the person who would visit the men’s toilet during this period. Their interest in Mr Aranguiz arose because small holes had been made in the wall of a toilet cubicle situated next to the urinals. The holes allowed a person sitting on the toilet to view a person using the urinal. These holes had been repaired a number of times only for them to reappear. It was believed that Mr Aranguiz was responsible for the repeated damage to the cubicle.

[3] On 12 January, the retail manager at the mall observed a vehicle in the car park which he believed was linked to Mr Aranguiz. As a result, he went to the bathroom in question. He noticed the repaired holes were intact. The manager left the toilets but returned some minutes later. On his second visit he noticed the toilet cubicle closest to the urinal was occupied and that one of the holes had reappeared. He called the police. Two officers attended. By the time the police arrived the cubicle had been occupied for some 50 minutes. One of the officers, Constable Arthur was briefed by the manager regarding his suspicions that the person occupying the cubicle was the same person who had been visiting the toilets over the previous two weeks and damaging the stall.

[4] Constable Arthur went to the adjacent cubicle and levered himself up by placing a foot on the toilet. He looked over the partition to view the occupant of the

1 Bill of Rights Act 1990, s 21.

next stall. There, he observed Mr Aranguiz sitting on the toilet with his pants down, holding his mobile phone. The constable then got…

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.

Keep reading for free

Create a free CaseChat account to read Aranguiz v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 1765
Decision Date: 25 July 2019

CaseChat Overview and Summary

Emilio Aranguiz, the appellant, was found guilty by Judge Gilbert of intentionally making an intimate visual recording of another person and of intentionally damaging a toilet cubicle. Mr Aranguiz appealed his convictions on the basis that the Judge erred in not excluding evidence obtained from a search of his person and a search of his mobile phone, which he submitted had been obtained in breach of his right to be free from unreasonable search. In the absence of that evidence, he submitted his convictions could not be sustained. The High Court was required to determine whether the searches were unreasonable, and whether excluding the evidence obtained as a result of the searches constituted a proportionate response to the breach of Mr Aranguiz's rights. The High Court held that Constable Arthur's viewing of Mr Aranguiz from the neighbouring cubicle did constitute a search, and that, in the absence of taking preliminary steps to communicate with him in some way, the officer's actions in immediately peering over the top of the cubicle was unreasonable. However, the High Court found that excluding the evidence obtained as a result of that search, as well as the evidence obtained from the search of the appellant's phone, constituted a disproportionate response to the impropriety. Mr Aranguiz's appeal was dismissed.

Orders