Campbell v Police HC Rotorua CRI 2006-463-87

[2007] NZHC 1798

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-463-87

CHRISTOPHER CAMPBELL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 May 2007 (Heard at Rotorua)

Appearances: DPH Jones QC for Appellant

F Pilditch and J Munro for Respondent

Judgment:      7 June 2007 at 3:30 pm

JUDGMENT OF ASHER J

This judgment was delivered by me on 7 June, 2007 at 3:30 pm pursuant to Rule 540(4) of the High Court Rules

………………………………………..

Registrar/Deputy Registrar

………………………………………..

Date

Solicitors:

J. Chadwick, Chadwick Law, PO Box 95 Rotorua Gordon Pilditch, Crown Solicitor, PO Box 740 Rotorua Copy:

DPH Jones QC, PO Box 1750 Shortland Street Auckland

CAMPBELL V NZ POLICE HC ROT CRI 2006-463-87  7 June 2007

Table of Contents

Paragraph Number

Introduction  [1] The application for a search warrant  [8] This appeal   [14] The test to be applied  [16] Was the search warrant unlawfully obtained?  [22] The approach  [22]

Limitation on the issue of a search warrant  [26]

The acceptable contents of an application for a search warrant

Are the facts in the affidavit sufficient to disclose reasonable  grounds  for  believing  an  offence  against ss 123, 124, 127 or 129 was being committed?

[28] [31]

Discussion of lawfulness of issue of warrant  [45]

Was the application for the warrant in bad faith?  [51]

The District Court decisions  [56]

Conclusion  on  lawfulness  of  issue  of  warrant  and subsequent search

[64]

Was the search unreasonable?  [65] The Shaheed balancing exercise  [68] Extent of the illegality  [70]

Nature of the privacy interest  [71] Factors aggravating and mitigating the breach  [72] Overall conclusion on seriousness  [76]

Public interest factors  [77] The seriousness of the offence  [78] The nature and the quality of the evidence  [83]

Conclusion on public interest factor  [84]

Is  the  exclusion  of  the  evidence  proportionate  to  the breach?

[85]

Result  [88]

Introduction

[1]      This is an appeal by Christopher Glen Campbell against his conviction on three charges of possession of objectionable publications under s 131(1) of the Film, Video and Publications Classification Act 1993 (“the FVPC Act”), for which he was fined $1,000 on each charge.

[2]      Mr Campbell had been charged that without lawful authority or excuse, he had in his possession objectionable publications, namely:

a)        73 images of child pornography contained in the hard disk drive of an

Arche Artec personal computer;

b)       Three images of child pornography contained in an item of removable media, namely a floppy diskette; and

c)        Three images of child pornography printed on A4 paper.

[3]      Objectionable  material  is  defined  in  s 3  of  the  FVPC  Act.    It  includes publications that promote or support or tend to promote or support the exploitation of children or young persons or both for sexual purposes.

[4]      The sole ground of appeal is that the Police search of Mr Campbell’s home, and the seizure of his computer and other material in the course of executing the search warrant were unlawful.   It is submitted that there were insufficient grounds for the search warrant to properly issue, and that all evidence obtained as a result of the execution of the warrant should have been excluded.

[5]      It is common ground between Crown and defence that if the appellant is successful on this ground of appeal, the convictions should be set aside.   This is because the convictions were dependent on the evidence obtained by the Police as a consequence of the execution of the search warrant.

[6]      The validity of the search warrant  was challenged both at  a preliminary hearing at the start of the trial on 1 February 2005 and for a second time during the course of the substantive hearing on 6-7 March 2006.  A decision was issued by the District Court on the first challenge on 2 February 2005 (“the first judgment”) and after the part-hearing of the evidence of the substantive trial on 6-7 March 2006, by a reserved judgment of 18 May 2006 (“the second judgment”).  I am informed that the second  judgment  on the warrant  was required because of a renewed application during the course of the trial by Mr Campbell’s counsel, and a submission that there was further relevant evidence to be considered in support of the application.

[7]      Mr Jones QC for the appellant did not seek to argue that there was any overt error of principle in the District Court judgments.  Rather, his submissions focused on the facts.  He submitted that there was insufficient evidence to meet the statutory test for the issue of a warrant by a considerable margin, and that the decision to do so was clearly wrong.  He submitted that the affidavit in support had a number of major defects and did not contain a sufficient evidential basis for the issue of the warrant.

The application for a search warrant

[8]      The  application  was  filed  on  27 June 2003.    It  was  accompanied  by  an affidavit from Detective Sergeant Garry Hawkins, who was in charge of the child abuse team at the criminal investigation branch of the Rotorua Police.  The affidavit stated   that   the   Police   believed   that   Mr Campbell’s   computer   and   related documentation contained “objectionable images of young children and adults who have not consented to their photographs being placed on the computer and traded over the internet.” It briefly set out a description of Mr Campbell, stating that he was a “high profile” disc jockey aged 35.   It was stated that in his role he attended schools and was involved in children’s sporting activities, and set out some particulars.  It also stated that he was a local district councillor and that a number of his   council  engagements   centred   around   school  children.      It   asserted   that Mr Campbell had an infectious personality and related well to children.  It was said: “In this instance he uses his personality to groom ‘potential victims’.”

[9]      The affidavit claimed that Mr Campbell had been involved in text message exchanges with two 14-year-old girls.   The messages contained sexual references, although with one exception did not seek any direct sexual activity.  There was no reference to photographs or pornography.  The affidavit did not suggest that activity with the 14 year olds had come from these exchanges.

[10]     It also asserted that Mr Campbell’s former spouse, Ms Robinson, had “come forward” to the Police and given evidence as to incidents that she had personally witnessed.    It  was  stated  that  Ms Robinson  had  come  home  from  work  at  the beginning of 2001 to find Mr Campbell masturbating in front of the home computer, on which there was an image of a naked girl who was approximately six years old. Following   this   incident   Mr Campbell   removed   those   images.      However, approximately two months later Ms Robinson came home and found that he had been revisiting the same pornographic sites, and that pictures depicting young girls performing sexual acts with older men were on the computer.  She had also advised the Police that she had heard from other persons that her and Mr Campbell’s home was used as a lunchtime meeting point for school students.

[11]     The  affidavit  also  reported  that  Ms Robinson  noticed  that  Mr Campbell began bringing home a polaroid camera around this time.   She said it was a work camera but that it had not been paid for by Mr Campbell’s employer.  Polaroid film had  been purchased, and since the break-up of their  marriage  Ms Robinson had received information that Mr Campbell had had two 19-year-old women at his home and engaged in a consensual sexual relationship with them.   It was stated in the affidavit that it was reported that during the sexual relationship Mr Campbell had taken a number of photographs of the women in naked poses without their consent, and that he had placed these photographs on the internet for trading purposes.

[12]     It was stated in the affidavit that this information had been corroborated by a second source, but the young women themselves were too embarrassed to come forward to personally report the matter.   It was further asserted that the Detective Sergeant  had  spoken  with  Mr Campbell’s  immediate  employer.    The  employer confirmed that he had spoken to a father of one of the 14-year-old girls to whom

Mr Campbell had sent inappropriate text messages, and that the radio station was taking legal action for the purposes of terminating Mr Campbell’s employment.

[13]     Detective Sergeant Hawkins swore that he believed that he would locate a number  of  objectionable  images  on  the  home  computer  of  Mr Campbell  if  the warrant  were executed.   He also  stated that he believed that  he would  locate a number of objectionable polaroid images of women in various naked poses.  It was on the basis of this affidavit that a Deputy Registrar issued the search warrant.

This appeal

[14]     Mr Campbell has a general right of appeal against conviction or sentence under the FVPC Act pursuant to s 115 of the Summary Proceedings Act 1957.  The general appeal is by way of a rehearing (s 119).   The principle that an appellate Court will only interfere with the trial Judge’s findings of fact in exceptional circumstances applies: Rae v International Insurance Brokers (Nelson Marlborough) Ltd  [1998] 3 NZLR 190; Tootell  v  Police  HC  ROT  CRI  2005-470-000037

16 November 2005, Harrison J.

[15]     I will consider the two District Court decisions later in this judgment, after considering in detail the affidavit prepared by the Police in support of the search warrant and its lawfulness and reasonableness.   I will do it in this order as I have concluded, for reasons that will be given, that the two decisions did not fully address and reason through the relevant issues and were, with respect, plainly wrong.

The test to be applied

[16]     It is necessary first to consider the test that must be applied by the judicial officer who considers the application for a search warrant.  The relevant section in

2003 was s 109 of the FVPC Act.  At that time, it read:

109     Search warrants

(1)       Any District Court Judge, Justice, or Community Magistrate, or any Registrar (not being a member of the Police), who, on an application in  writing  made  on  oath,  is  satisfied  that  there  are  reasonable grounds for believing that there is in or on any place or thing—

(a)       Any  objectionable  publication  that  there  are  reasonable grounds to believe is being kept for the purpose of being so dealt with as to constitute an offence against section 123 or section 124 or section 127 or section 129 of this Act; or

(b)       Any thing that there are reasonable grounds to believe will be evidence of the commission of such an offence; or

(c)       Any thing that there are reasonable grounds to believe is intended to be used for the purpose of committing such an offence –

may issue a search warrant.

(2)      An application under subsection (1) of this section may be made by any Inspector or any member of the Police.

(emphasis added]

[17]     A warrant is valid until set aside.  The burden is on the party seeking to set it aside: R v Lerm CA52/05 23 May 2005 at [12].

[18]     It is to be noted that the judicial officer who considers the application for the warrant must be satisfied that there are reasonable grounds for believing two matters. First, that there is an objectionable publication or thing in or on “any place or thing”; and, second, that there are reasonable grounds for believing that it will be kept for the purpose of an offence (s 109(1)(a)), or will be evidence for the commission of such an offence (s 109(1)(b)), or that it is intended to be used for the purpose of committing such an offence (s 109(1)(c)).

[19]     Section 198 of the Summary Proceedings Act  1957, which authorises the issue of a warrant in respect of other offences and crimes, also requires reasonable grounds for belief that evidence might be found in order to issue a search warrant. The authorities relating to s 198 are therefore applicable to s 109 of the FVPC Act.

[20]     It was stated in R v McManamy (2002) 19 CRNZ 669 (CA) in relation to s 198 at [25] that:

The obligation was to provide sufficient information to establish that there were reasonable grounds to believe that evidence might be found at that address. That requires more than suspicion or even a reasonable suspicion.

[21]     Having “reasonable grounds to believe” is a higher standard than “reasonable grounds to suspect”, the test used on occasions in other enactments: R v Williams CA372/05 7 March 2007 at [213].  Belief means that there has to be an objective and credible basis for thinking that a search will turn up the items named in the warrant, while suspicion means thinking that it is merely likely that such a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists: R v Williams at [213]; R v Sanders [1994] 3 NZLR 450 (CA) at 461.

Was the search warrant unlawfully obtained?

The approach

[22]     The practice adopted in the recent Court of Appeal decision dealing with evidence allegedly obtained by unreasonable search and seizure, R v Williams, is to first consider whether the warrant was unlawfully obtained: [154].

[23]     The general test to be applied to a consideration of unlawfulness was not specifically considered in R v Williams.  However, it was addressed in R v McColl (1999) 17 CRNZ 136 (CA) at [20]-[22].  There it was stated in the judgment of the Court of Appeal, per Tipping J:

[20]     …  An  applicant  should  not  present  the  judicial  officer  with  a selective or edited version of the facts.

…

[22]      A miscarriage will arise if the defect has caused significant prejudice to the person affected, ... That would be so if we were satisfied, as Mr Brosnahan submitted, that,  absent the defects, the judicial officer  would probably not have issued the warrant. There would also be a miscarriage of justice if we were satisfied that the defects rendered the application an abuse of process … In terms of s 204 [Summary Proceedings Act 1957] a warrant issued in such circumstances represents a miscarriage of justice.

(emphasis added)

In R v McManamy (2002) 19 CRNZ 669 it was put this way at [22]:

There was insufficient material in the application for the warrant to justify its issue. We accept the submission that given the statements in the application, at best there was a suspicion.

[24]     The test, therefore, is an objective one.  The Court must conclude whether the material in the affidavit in support of a search warrant, absent any defects, met the required standard of reasonable grounds to believe.   The standard of reasonable grounds to believe is more than mere suspicion.   Clearly the test is not met by a rumour or gossip.   The distinction  between  belief and  mere suspicion  has  been emphasised in a number of cases: R v Laugalis (1993) 10 CRNZ 350 (CA) at 355 and Hill v Attorney-General (1990) 6 CRNZ 219 (CA) at 222. As was stated in R v H CA 340/00 27 September 2000 at [14] and repeated in R v Cummings CA 105/06

6 July 2006 at [21]:

The  test  in  s 198  is  not  to  be  set  so  high  as  to  require  proof  of  the commission  of  the  alleged  offence  before  a  search  warrant  can  issue. Neither is it to be set so low as to authorise investigations founded on mere suspicion  or  less.     Reasonable  grounds  are  to  be  looked  at  in  all circumstances  and in a  common sense way.    Necessarily  there  must  be sufficient linkage shown between the crime, the suspect and the things for which the authority to search is sought.

[25]     Thus, I will approach the issue of whether this warrant was issued lawfully by considering whether, on an objective basis, there was sufficient material, absent any defects, to establish reasonable grounds to believe that there was at Mr Campbell’s home publications or things that would indicate any of the matters set out in s 109(1)(a), (b) or (c) of the FVPC Act .  To put it another way, the judicial officer must objectively have been able to conclude that there were reasonable grounds to believe on the evidence properly in the affidavit that material was being kept to commit a relevant offence, or that material that would be evidence of, or was intended to be used for, a relevant offence would be found.

Limitation on the issue of a search warrant

[26]     It is necessary to consider what offences could give rise to the issue of a search warrant under s 109 at the relevant time.  In 2003 the power to obtain a search warrant under s 109 only applied to the offences listed in ss 123, 124, 127 and 129,

namely making objectionable publications, copying, importing or possessing objectionable publications for purposes of supply or distribution, supplying or distributing objectionable publications, exhibiting objectionable publications for payment, exhibiting objectionable publications to minors or exhibiting objectionable publications in a public place.   I will refer to this hereafter as making, copying, supplying or trading objectionable publications, or possessing them for that purpose. Search warrants could not at that time be obtained for simple possession of objectionable publications, although this position has been subsequently amended.

[27]     This is a point of significance, as ultimately Mr Campbell was convicted only of possession offences under s 131(1) of the FVPC Act.  He was never convicted of or indeed charged with the more serious offences to which the power in s 109 to issue a search warrant relates.

The acceptable contents of an application for a search warrant

[28]     I  set  out  earlier  in  this  judgment  in  summary  form  the  contents  of  the affidavit filed in support of the application.  While it is referred to as an affidavit, it is in fact, as observed in R v Sanders [1994] 3 NZLR 450 (CA) at 460, a sworn statement of personal belief accompanied by an oath, given in accordance with the requirements of ss 3, 4 and 15 of the Oaths and Declarations Act 1957.

[29]     It is clear that an affidavit is not confined to evidence that will be admissible in Court proceedings.  However, the fact that s 198(1) of the Summary Proceedings Act 1957 requires sworn evidence indicates that the deponent  must  expressly or impliedly assert his or her personal belief in the truth of the primary facts to which he or she is deposing: R v Sanders at 460; Rural Timber Ltd v Hughes [1989] 3

NZLR 178 (CA) at 183.

[30]     While hearsay evidence can be accepted, the evidence must be of probative value.  There is no place in the affidavit for rumour or innuendo.  As stated, mere suspicion is insufficient: R v McManamy at [25].   If the evidence is hearsay, the sources of the hearsay should be fully and clearly stated, so that the judicial officer determining the application can consider  them:  R  v  Sanders  at 460. Particular

vigilance  is  necessary in  matters such  as  alleged  child  pornography,  which  can provoke an understandable emotive  response and  may  cloud  the  need  for  strict compliance with the required test.

Are the facts in the affidavit sufficient to disclose reasonable grounds for believing an offence against ss 123, 124, 127 or 129 was being committed?

[31]     It is necessary to examine the affidavit to see whether it disclosed reasonable grounds for believing that the serious offences in contravention of ss 123, 124, 127 and  129  were  taking  place,  namely  that  in  or  on  any  place  an  objectionable publication or other thing was being kept for the purpose of an offence against the more serious sections of the FVPC Act, or which would be evidence of the commission of such an offence, or was intended to  be used for the purpose of committing such an offence.  It is to be emphasised that at the relevant time in 2003, evidence of possession of objectionable publications alone was not enough to justify the issue of a warrant.  The offences had to involve the more serious misconduct of making,  copying,  supplying  or  trading  objectionable  publications,  or  possessing them for that purpose.

[32]     There was no direct reference in the affidavit to any making of objectionable publications, or trading of such publications in the sense of selling it or exchanging it.   The affidavit does, however, under the heading “Trading of Images”, refer to photographs being taken of two naked 19-year-olds on a polaroid camera, and those photographs being placed on the internet.   It was expressed in these terms in the affidavit under the heading of “Trading of Images”:

41.That  since  the  break-up  of  their  marriage  information  has  been received that Campbell has had two 19-year-old girls at his address and has engaged in a consensual sexual relationship with them.

42.That during the sexual relationship he has taken a number of photographs  of  these  women  in  naked  poses  and  without  their consent  has  placed these photographs  on the internet  for  trading purposes.

43.That this information has been corroborated from a second source[.] However, the girls involved are too embarrassed to come forward personally to report the matter.

44.The trading or posting of these images on the internet without their consent is against the provisions of this Act.

[33]     This information did not on analysis remotely warrant the heading “Trading of Images”.   The information was of photographing nude 19-year-old women, and placing those photographs on the internet.  There was nothing to indicate trading, in the sense of receiving something in exchange, although the information did, on its face, indicate the supplying of images.  This was, therefore, a misleading heading.

[34]     Even on the face of the affidavit, the material is clearly hearsay.   Detective Sergeant Hawkins is recounting information about the photographs given by third parties.    It  is  not  clear  whether  the third parties have given  the  information  to Detective Sergeant  Hawkins directly or to  another  Police officer  who  has since passed it on to Detective Sergeant Hawkins.   It is entirely unclear from whom the information has come originally.   The meaningless phrase “information has been received” has been used, and then the bland “this information has been corroborated from a second source”.

[35]     Detective Sergeant Hawkins and Ms Robinson were cross-examined on these statements.   It transpired that it was Ms Robinson who had passed on information about the polaroid photographs of the 19-year-old women referred to in the affidavit. However, it turned out that she had not observed the events herself, but had been told of  them  by  an  unknown  third  person.     It  also  turned  out  that  the  claimed corroborative source was Ms Black, the manager at the appellant’s place of work. Again,  she  was  not  an  eye  witness,  and  had  not  identified  the  young  women allegedly involved.  It appears that Detective Sergeant Hawkins did not believe that Ms Black  herself  had  spoken  directly  to  either  of  the  young  women.    It  also transpired that Detective Sergeant Hawkins did not himself speak to Ms Robinson. This was done by a Detective Halton, who did not swear an affidavit.

[36]     The sources of the alleged information were unidentified persons, and far removed from the persons actually spoken to by the Police.  Although the evidence was clearly hearsay on the face of the affidavit, the extent of the Police officer’s removal  from  the  source  of  the  information,  the  affidavit’s  complete  lack  of precision and the Police ignorance of the identity of the 19-year-old women, were not  disclosed.    This  information  was  fairly  described  by  Mr Jones QC  in  his submissions as no more than rumour or innuendo. It had no real probative value.

[37]     It was not evidence upon which any weight could be based.   It should not have been put in the affidavit.   It was, however, used to create the very damaging and prejudicial impression that the appellant did place photographs on the internet. In considering whether a warrant should have issued, I will put  this part of the affidavit entirely to one side.

[38]     It  is  necessary,  then,  to  consider  what  evidence was  properly  before the Court.  There was evidence of Mr Campbell exchanging text messages with 14-year- olds which were sexually explicit and completely inappropriate.   Those messages showed that  he had a sexual interest  in 14-year-olds.   The Police worked off a transcript of the messages prepared by a parent, rather than the texts showing on the mobile phone itself.   Mr Jones submitted that the transcripts of the text messages were not the best available evidence.  In the circumstances, although the practice was not ideal, there is nothing to indicate that the texts were not a correct transcript of the exchanges.  A Court must be cautious about requiring too much evidential perfection from the Police at the warrant stage.   The texts, while avoidable hearsay, were it seems transcribed from the phone, and in my view could be properly considered by the judicial officer.

[39]     However, the texts cannot  be  taken  any  further  than  indicating  a  sexual interest in 14-year-old girls.  There is nothing to indicate a wish to take photographs, or in relation to the girls, to  take steps in any way connected to  objectionable publications.

[40]     There was also credible evidence in the affidavit that Mr Campbell had on his computer pornographic material showing young girls performing sexual acts with men.   On one occasion Ms Robinson stated that  she had observed him standing masturbating in front of the computer, while it displayed an image of a naked girl of approximately six years of age.

[41]     There was also evidence that Mr Campbell in the course of his employment mixed with young children when he was in a position of trust as a disc jockey for a radio station that had young people as part of its audience.  School students would meet at his house at lunchtime.   There was evidence also that he had acquired a

polaroid camera.   There was, however, no evidence of wrongdoing in relation to these contacts with children.

[42]     The  affidavit,  in  summary,  undoubtedly  disclosed  reasonable  grounds  to believe that Mr Campbell had in his possession of objectionable publications in the form of pornographic images of children.   The text  message evidence was also sufficient to disclose that there were reasonable grounds to believe that Mr Campbell had a prurient and inappropriate interest in teenage girls.  There was evidence that in his job he had contact with children, and was in a position of trust in relation to these children.    The question arises,  however,  as to  whether  anything  more  could  be reasonably inferred.

[43]     Mr Pilditch for the Crown accepted that the Police could have provided better information.  However, he submitted that evidence of making, copying, supplying or trading  objectionable  publications,  or  holding  them  for  that  purpose,  could  be inferred from the following factors, which I paraphrase:

a)        Mr Campbell held child pornography on his computer;

b)       He must have downloaded child pornography onto his computer;

c)        He viewed child pornography;

d)       He was attracted sexually to young girls. e)    He sought the company of teenage girls;

f)        He communicated with young girls in a sexually charged manner;

g)       He had a polaroid camera; and

h)       He had some electronic expertise, because he could text and top up mobile phones.

Mr Pilditch also relied on Mr Campbell’s use of the camera to take pictures of 19- year-old women and posting those on the internet.  I have already concluded that this evidence should not have been included in the affidavit and had no probative value.

[44]     The question is whether these facts, which were properly before the judicial officer and which could be taken into account, provided reasonable grounds for believing that the serious offending was taking place.   Given the absence of any express evidence on this point, Mr Pilditch acknowledged that the conclusion could only be reached as a matter of inference.  He drew the analogy of strands in a rope, and submitted that there were sufficient strands to warrant drawing the conclusion that serious offending was taking place.  It is no doubt correct that facts proved by the Crown, examined separately, may not have a very strong probative value. However,  I  accept  that  notionally,  a  number  of  factors  taken  together  can  be sufficient to establish reasonable grounds for belief.  The issue here is whether the required inference could be drawn from the material properly in the affidavit.

Discussion of lawfulness of issue of warrant

[45]     I have concluded that on an objective test, it is quite impossible to draw an inference to the required standard of having reasonable grounds to believe that there would be found at Mr Campbell’s house items connected to the making and copying, supply  or  trading  of  objectionable  publications  or  possession  of  them  for  that purpose.  Reasonable grounds to believe presuppose a level of satisfaction that, while not proof of the commission of an offence, is more than mere suspicion: R v H CA

340/00 27 September 2000 at [14]. As stated earlier, the evidence must disclose sufficient material whereby, by an objective process of reasoning, a judicial officer could conclude that it was likely that making, or copying, supplying, or trading objectionable publications or holding them for that purpose, was taking place.

[46]     The simple  fact  of possession of objectionable  images or  a  prurient  and inappropriate interest in 14-year-olds does not lead a reasonable observer to that conclusion.   The possession of a polaroid camera adds little, particularly as such cameras are not digital cameras and photographs from it could not be put on the internet  without a scanner.   There was no  evidence that  a scanner  was present.

Similarly, the fact that Mr Campbell was able to text and top up mobile phones does not prove or even indicate an ability to trade on the internet.

[47]     It is equally consistent with all the information that was before the Court that Mr Campbell enjoyed having in his possession and viewing pornographic images of young children, and having sexually charged exchanges with 14-year-olds, but took no further active steps than those specific referred to.   He might well have been a passive observer of pornography who, while involved in wrongful flirtations, had no interest in making, copying, supplying or trading objectionable publications, or possessing  them  for  that  purpose.     Mr Campbell’s  propensity  to  watch  child pornography, his sexual interest in 14-year-olds and the fact that his job involved mixing with children could not, as a matter of logic, create a sound and reasonable belief in an observer that evidence of involvement in making, copying, supplying or trading objectionable material would be found at his address.

[48]     Ultimately, Mr Campbell was not convicted of or indeed charged with counts more serious than simple possession.  The Police did not have any hard evidence of making, copying, supplying or trading objectionable publications or possessing them for that purpose at the time they sought the warrant.  Nor did they obtain any such evidence in the search or subsequent investigations that followed the issue of the warrant.  The Police found some photographs of nude adult women in sexual poses, which had been taken with the polaroid camera, but there was nothing to indicate that these had been placed on the internet.   There was nothing to  indicate that photographs had been taken of children.

[49]     The fact that the affidavit did not provide reasonable grounds to believe that the more serious offences were being carried out at the premises was indicated by paragraph 49 of the affidavit, in which Detective Sergeant Hawkins stated that he believed a number of polaroid images depicting objectionable images of women in various naked poses would be found.  This was a statement that what was expected to be found was no more than possession of objectionable images.   He gave no indication in relation to the photographs of naked women, why they might be objectionable.  The officer did not state that he expected to find material or images indicating  the  process  of  making,  copying,  supplying  or  trading  objectionable

publications or possessing them for that purpose.   His supposition was ultimately accurate.   All that was found were images.   No evidence was found of the more serious offending that would have justified the issue of a warrant.

[50]     In R v Williams at [224] the Court of Appeal set out fourteen requirements with which applications for warrants should comply.   Although that judgment was delivered some years after this search warrant was obtained, it was summarising what had been established as good practice in earlier cases.  In terms of what was set out in that case as the necessary components of such an application, this application was defective in that:

a)       While it referred to ss 123 and 124 of the FVPC Act it did not at the outset clearly state the offences to which the search was to relate and ultimately did not state that it was expected that evidence of making, copying, supplying or trading objectionable material, or holding it for that purpose, would be found.

b)       The affidavit did not  contain a description of relevant  information held or received.  In particular, information unhelpful to the allegation of trading that was known by Detective Sergeant Hawkins at the time he  sought  the  warrant,  namely  that  there  was  no  landline  at  the address where the search warrant was to be executed, was not disclosed.  The fact that there was no landline was clearly relevant, as it indicated that there was probably no connection to the internet, and therefore the inference in the affidavit that internet trading was taking place was less likely (although it was always possible that a wireless connection to the internet was being used).

c)       As I have outlined, there was a remarkable failure to state the date when information was received, who received it and in what circumstances.   No assessment with reasons was given of the significance and reliability of the information.  Related to this, there was   insufficient   information   as   to   who   exactly   received   the information    from    Ms Robinson    and    in    what    circumstances.

Surprisingly, disclosure revealed no notes of Police discussions with any witness prior to the application  for  a search warrant.    In the circumstances,  it  was  poor  practice  to  fail  to  take  notes of  those discussions.

d)       There   was   little   attempt   to   report   information   received    from

Ms Robinson and Ms Black in their own words.

There  was  a  significant  departure  from good  practice  in  the  preparation  of  the affidavit, and that in itself supports a finding that the warrant was unlawful: see R v Williams at [225].

Was the application for the warrant in bad faith?

[51]     Mr Jones submitted that the warrant was obtained in bad faith, and for this reason its issue and the subsequent search were unlawful.   He pointed to the withholding of information, and the fact that although the warrant purported to be in support of the more serious charges, all that was really wanted was to find whether Mr Campbell was in possession of child pornography.  Mr Pilditch, while accepting deficiencies in the affidavit and bad practice, strongly submitted that the errors were no more than this and were not examples of bad faith.

[52]     I do not think that Detective Sergeant Hawkins’ conduct can be described as being in bad faith.  The warrant was undoubtedly obtained for a legitimate purpose, namely to obtain permission to conduct a search, which would provide evidence upon which Mr Campbell could be charged with the possession of objectionable publications.     The  power  was  sought  to  be  exercised  for  a  legitimate  law enforcement purpose, and not for an ulterior purpose: R v Williams at [37].

[53]     I do not accept that the application for the warrant was a “mere ruse”.   As was stated in R v Williams, a conclusion that the purported purpose for a lawful search was a ruse will be very rarely drawn: at [43].   The application has to be judged from the totality of the circumstances, taking into account both subjective and objective factors.   Nothing was elicited from the cross-examination of Detective

Sergeant Hawkins, or appears in the documents, to indicate that he was acting in bad faith as that term is generally understood.   The fact that the purpose stated in the conclusion to the affidavit  was clearly  legally insufficient,  demonstrates more a serious and obvious lack of understanding of the legal requirements for the issue of a warrant, rather than a deliberate ulterior purpose.

[54]     The affidavit was not well prepared, and I have found that it did not meet the required standard for the issue of a warrant.   There were some instances of misdescription in the affidavit.   However, I agree with the District Court Judge’s view, expressed in the second decision, that these factors did not show bad faith.

[55]     For these reasons I do not accept that as an additional basis for a finding of unlawfulness that Detective Sergeant Hawkins acted in bad faith.

The District Court decisions

[56]     The first District Court judgment sets out the contents of the affidavit  in detail as well as the arguments of counsel.   It concludes that the Registrar (the judicial officer) had reasonable grounds to believe that evidence of the more serious offences could be found at the address.   It does not explain how that could be so, given  the  nature  of the  evidence  already  referred  to.  There  was  no  process  of reasoning explaining why the defence objections should fail.

[57] In the second judgment the Judge concluded that posting images on the internet of photographs taken by Mr Campbell might well be “objectionable”: at [50]. If the learned Judge was indicating in this conclusion that there was acceptable evidence in the affidavit that Mr Campbell had taken objectionable photographs and placed them on the internet, that was clearly a wrong conclusion, as there was no acceptable evidence of this in the affidavit, as had been confirmed by the evidence at the hearing over which he presided.

[58] In the second judgment he also found that the errors and omissions in the affidavit were not sufficient collectively to have caused the judicial officer to decline to issue the warrant: at [29]. He went on to state that there was “corroboration” of

the evidence as to the photographs of young women from Ms Black.   As stated earlier, the evidence from Ms Black was no more than rumour, and could not be regarded as corroboration.  The learned Judge concluded that it was clear from the face of the affidavit that it contained hearsay, and that there was sufficient evidence in the affidavit from Ms Robinson to “advise the reader why it should be believed to be reliable”.

[59]     It  is  difficult  to  see  the  basis  for  this  conclusion.    In  relation  to  the photographs of the young women, Ms Robinson’s advice was itself hearsay evidence from an unidentified third or fourth party source.   On the face of the affidavit, general and unspecific evidence based on “information received” was not enough.

[60]     The learned Judge did not accept that there was evidence of bad faith on the part of the Detective Sergeant swearing the affidavit.  He rightly did not place much weight on the fact that one of the documents that was in fact disclosed was marked “confidential  –  not  for  disclosure”,  and  some  discrepancies  in  the  detail  of Ms Robinson’s evidence as to the age of the girl being looked at by Mr Campbell when he was masturbating, and whether Ms Robinson came forward to the Police or was first approached by the Police.   It is not surprising that there would be some discrepancies between what was in the affidavit and what was said in Court, given the   passage   of   approximately   five   years   between   the   events   observed   by Ms Robinson and the actual Court  case.   None of these  matters individually or indeed collectively showed bad faith.  I agree with this part of the second judgment.

[61]     The Judge ultimately approached his task as being to decide whether he was misled in any material way in reaching his conclusions in his first judgment.   He concluded that the evidence he had heard in the course of the trial did not result in his reaching conclusions different from those reached earlier, and that he was not misled.

[62]     It is difficult to see how the Judge could reach this conclusion, given the fact that the evidence adduced at the hearing established that there was no direct evidence available at all as to the photographing of the young women, and that the claim amounted to no  more than rumour  from unidentified  persons about  unidentified

persons.  I have also referred to the fact that the first judgment itself does not address the real issues as to the deficiencies of the evidence.

[63]     The District Court judgments did not, therefore, fully address and reason through the relevant issues.   In this respect they were in error, and apart from the decision on bad faith which was correct, the conclusions were for the reasons that I have given, plainly wrong.  I put them to one side.

Conclusion on lawfulness of issue of warrant and subsequent search

[64]     The affidavit was significantly deficient.  There was not sufficient material in the application, excluding the defective material referring to the rumour about the young women, to establish reasonable grounds to believe that there was an objectionable publication or thing being kept for one of the purposes stated in ss 123,

124, 127 or 129 of the FVPC Act.  On an objective analysis, excluding the defective material, the warrant should not have been issued.  The search that was carried out in reliance on it was unlawful.

Was the search unreasonable?

[65]     Section 21 of the New Zealand Bill of Rights Act 1990 (“the Bill of Rights”)

provides:

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

The concepts of lawfulness and reasonableness are distinct, and a lawful search may nonetheless be an unreasonable search, and an unlawful search can nevertheless be reasonable, but in the latter case only where the illegality arose as a result of a technical or inconsequential procedural breach: R v Williams at [12] and [21]. However, this breach was not minor or technical.   The search warrant from which the search was based should never have been issued on the information available.  If the true information had been given, it could not have issued, as there was nothing to show the more serious offending required by s 109.  These were serious and indeed fundamental failings in the issue of the warrant.  Given this situation, the search was unreasonable in the ordinary sense of that  word.   It  is relevant that even if the

affidavit had been prepared properly, and with an accurate knowledge of what was at the house, a warrant could not have been lawfully issued.

[66]     It has also been stated that the unlawfulness of a search invites the conclusion that the search was also unreasonable, unless there was some countervailing factor or combination of factors allowing the Court to  say that,  although  the  search  was unlawful, it was not appropriate to characterise it as unreasonable: R v McMahon CA291/06 16 March 2007 at [29] and [30]. There are no such factors in this case.

[67]     I therefore conclude that this search was unreasonable.

The Shaheed balancing exercise

[68]     Given that the search warrant should not have been issued and the subsequent search was unlawful and unreasonable, it is necessary to turn to the R v Shaheed [2002] 2 NZLR 377 (CA) balancing exercise before reaching a conclusion as to whether the Crown should have been permitted to adduce the evidence obtained from the search.

[69]     The aim of the Shaheed balancing test is to assess whether  exclusion of evidence in the circumstances is a balanced and proportionate response to the circumstances of the breach: R v Williams at [104].   The first step in the Shaheed balancing test is to assess the magnitude of the breach: R v Williams at [115] and [245].  This can involve a consideration of the extent of the illegality, the nature of the  privacy  interest  considered  objectively,  and  any  aggravating  or  mitigating factors.

Extent of the illegality

[70]     The warrant should not have issued because of deficiencies in the application and because, if the defective evidence were put to one side, the application did not provide a basis for the judicial officer to have reasonable grounds to believe that evidence of making, copying, supplying  or trading  objectionable  publications or possessing them for that purpose, would be found at the address.  The search was,

therefore, illegal, and the evidence gained was gained unlawfully.  It was illegal not for any technical reason, but for the central and important reason that there was no probative evidence of the serious proactive child pornography offences that were alleged.  The evidence was, rather, suggestive only of the less serious possession of objectionable publication charges, in respect of which there was at that time no legal right to obtain a warrant.

Nature of the privacy interest

[71]     It was the home of Mr Campbell that was searched.  In such a case there is a significant expectation of privacy.  Residential property has the highest expectation of privacy  attached to  it:  R  v  McManamy  at  [29]-[32];  R  v  Williams  at  [113]. Mr Campbell’s  personal computer  was  also  searched,  and  there  is  a  significant expectation of privacy in relation to such an item.

Factors aggravating and mitigating the breach

[72]     I have already rejected the allegation of bad faith in relation to the assertion of unlawfulness, which would be an aggravating factor.  I do not consider that the affidavit was a “ruse” as alleged by Mr Jones for the accused.

[73]     There has been some reference to the circumstances of obtaining the warrant. In fact the warrant at Detective Sergeant Hawkin’s request initially went before a High Court Judge who declined to issue the warrant for jurisdictional reasons, and returned  it to the Registrar  with a  favourable comment.    Contrary to  Mr Jones’ submission, I consider that the Detective Sergeant’s conduct in asking that it be placed before a Judge and not a Registrar at the time indicated good faith, and that he was not seeking to play the system or to deliberately mislead the judicial officer. The undoubted shoddiness and errors in the affidavit I attribute to mixture of zeal and poor training, rather than to any deliberate wrongful act.

[74]     It is also the case, however, that the fact that the Police have acted in good faith is not to be regarded as a mitigating factor.  It is, in the circumstances, neutral: R v Williams [130]-[131] and at [248].

[75]     While I do not consider that there are any particular aggravating factors, it is also the case that there are no significant mitigating factors.  I turn to consider some of the matters referred to as possible mitigating factors in R v Williams.  The search did not take place in a situation of pressing urgency as the alleged child pornography matters complained of had taken place some years earlier.  There was time to present a correct application.  The strength of the connection between Mr Campbell and the address  was  not  weak.    It  was  his  home.    Nor  was  there  any  inevitability  of discovery.  Indeed, as I have observed, what was discovered was inconsistent with the implied assertions in the body of the affidavit that there would be evidence at the home of the more serious offences.

Overall conclusion on seriousness

[76]     I conclude that the breach was serious.  The search was entirely illegal, that illegality relating to a fundamental lack of evidence which could meet the required test.   There was a significant  intrusion into  a citizen’s privacy in circumstances where the unlawfulness of the search arose from poor preparation of an affidavit required to obtain a search warrant.

Public interest factors

[77]     I now turn to the public interest factors which might point towards admission of the evidence.  These are the seriousness of the offence and the nature and quality of the evidence.

The seriousness of the offence

[78]     The allegation against the appellant was essentially that he was an active participant in the child pornography trade, as distinct from a passive viewer.

[79]     At the time, even in relation to the more serious offending, the potential penalties were, if there was knowledge that the publication was objectionable, a term of imprisonment not exceeding one year or a fine not exceeding $20,000.

[80]     It was stated in R v Williams that the crime  is considered serious  if the starting point of any sentence is likely to be in the vicinity of four years or more, or there are elements of a threat to public safety involved, such as the carrying of a loaded weapon in public.  The more serious the crime the more weight this factor is accorded: R v Williams at [135]-[139].

[81]     Since  2003  the  penalties  for  offences  against  the  FVPC  Act  have  been increased.  The maximum term of imprisonment for the more serious offences is now

10 years’  imprisonment.     For  knowing  possession  (s 131A)  it  is  five  years’ imprisonment and up to a $50,000 fine. Section 109 has been amended so that search warrants can now be obtained in respect of possessory offending under ss 13 and

13A.  However I do not consider that I can properly take into account these increases in penalty.   The Shaheed balancing act should be carried out, in fairness to the citizen, on the basis of the law in place at the time the warrant was obtained.  To do otherwise would, for the purposes of the Shaheed exercise, take away from a citizen something he could have called in aid at the time of the alleged offence.  It has the flavour of retrospectively impugning conduct, and unfairly visiting on a citizen the consequences of a subsequent change in penalty.

[82]     However,  while Mr Campbell did not  face a starting  point  of four  years imprisonment, or indeed anything like that, there is a significant public interest in preventing the sexual abuse of children.    It  is a  fact  that  every image of child pornography involves an act of serious violence to or rape or other exploitation of a child.  Even the viewing of such images indirectly encourages such appalling crimes. Any viewing of such material indicates a sexual interest in children.   The public interest in protecting children from brutality and exploitation makes the offending serious.  I conclude that the offence was serious.

The nature and the quality of the evidence

[83]     The evidence obtained in this search was critical to the prosecution.  Without it the prosecution could not proceed.

[84]     There are significant public interest factors in favour of the admission of the evidence.

Is the exclusion of the evidence proportionate to the breach?

[85]     It is necessary to weigh the serious breach of an important right against the public interest factor of bringing to justice those involved in the serious offences of involvement in child pornography.

[86]     The  matters  that  are  particularly  significant  and  which  indicate  that  the evidence should be excluded are the seriousness of the illegality of the search, the importance of the privacy right that was interfered with, and the fact that the Police had  no  evidence,  and  no  evidence  was  obtained,  of offending  that  would  have provided good cause for the issue of the warrant.   The counterbalance of public interest, especially given that there is no evidence that Mr Campbell was guilty of the more serious offending under the FVPC Act, is of considerably less weight, even though possession of child pornography alone is a serious offence.   Illegality, the serious breach of the Bill of Rights, and the fact that there was no offending that would have supported the issue of a warrant, outweigh the  public  interest  by a significant margin.

[87]     I am therefore driven to the conclusion that the evidence obtained as a result of the search should be excluded.   This is the only proportionate response to the breach.   I appreciate that this means that Mr Campbell will go unpunished for the offence of the possession of objectionable publications.  That is a serious matter, but in all the circumstances it is of less weight than the need to protect a basic privacy right from what was at the time, an entirely unlawful and an unjustified intrusion.  A warrant should never have been sought in this case in the first place.

[88]     As I have stated, it is accepted by the parties that the point raised on this appeal is determinative.    The success of the  prosecution  was  dependent  on  the evidence obtained as a result of the search, and the convictions have to be set aside if that evidence cannot be adduced.  The result of this appeal is therefore:

a)        The appeal is allowed.

b)       The three convictions entered by the District Court on 24 August 2006 are set aside.

……………………… Asher J