Giddens v Police - [2024] NZHC 3744

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-255

[2024] NZHC 3744

BETWEEN
RUSSELL ALAN GIDDENS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 November 2024

Appearances:

R George for Appellant

B W D Alexander for Respondent

Judgment:

10 December 2024

JUDGMENT OF BOLDT J

[1] The applicant, Russell Giddens, is on the Child Sex Offender Register. As a “registrable offender”, he is obliged to disclose a considerable body of personal information to the Police, including the “details of any username for any online social networks, online gaming accounts, or online storage accounts” he uses.1 Failure to comply with an applicable reporting obligation, without reasonable excuse, is an offence.2

[2] The Police allege Mr Giddens breached his reporting obligations by failing to disclose a WhatsApp account with the username “Choppa@chch”. This case is about how the Police found out about Mr Giddens’ WhatsApp account.

1 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 16(1)(o).
2 Section 39. Maximum penalty one year’s imprisonment or a $2,000 fine.

GIDDENS v NEW ZEALAND POLICE [2024] NZHC 3744 [10 December 2024]

[3] The Police learned of the account when they searched Mr Giddens’ phone, having seized it under warrant.3 Mr Giddens says the information Police relied on to obtain the search warrant was improperly obtained, and argues the evidence they discovered when the warrant was executed should be excluded.

[4] On 8 October 2024, Judge B P Callaghan rejected Mr Giddens’ application to exclude the evidence, and made an order that the discovery of the WhatsApp account was admissible.4 Mr Giddens applies for leave to appeal against that decision.5

Background

[5] Mr Giddens was placed on the Child Sex Offender Register in April 2022. He was also subject to special release conditions following a term of imprisonment, including that he must not associate with anyone under the age of 16.

[6] Mr Giddens developed a new relationship with a woman who had young children; the presence of children in the household led to his being served with an order prohibiting him from associating with his new partner.

[7] On 27 October 2023 Mr Giddens was arrested and charged with breaching his release conditions; the Department of Corrections had obtained CCTV footage showing Mr Giddens at the Christchurch Gondola in the company of his then-partner and her daughter.

[8] Constable Jeremy Roverts was Mr Giddens’ case manager. He visited Mr Giddens in the Police cells on the morning of his arrest and interviewed him. There is no dispute the constable explained Mr Giddens’ rights, including his right to a lawyer and his right to silence, and that Mr Giddens confirmed he understood them.

[9] Mr Giddens answered the constable’s questions without apparent reticence. He said he knew he was there because he had been “hanging out” with his partner, and that he knew he had been ordered not to associate with her. He accepted he had been

3 In fact, the Police obtained…

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.

Continue reading Giddens v Police

Details

AGLC: Giddens v Police [2024] NZHC 3744
Case: [2024] NZHC 3744
Decision Date: 10 December 2024

CaseChat Overview and Summary

In the case of Giddens v Police, the High Court considered whether the discovery of an unreported WhatsApp account on the appellant's phone, which was seized under a search warrant, should be excluded from evidence. The appellant, Russell Giddens, argued that the information obtained by the Police to secure the search warrant was improperly obtained. The key issue before the Court was whether the reference to Giddens meeting his partner through Tinder, which led to the discovery of the unreported WhatsApp account, was obtained in breach of the Chief Justice’s Practice Note on Police Questioning.

The Court found that the informal conversation between Giddens and the constable, which occurred after the formal interview, did not breach the Practice Note. The Judge concluded that the constable was not attempting to extract any information from Giddens but was instead providing pastoral care. Furthermore, the Judge determined that even if the constable's actions were improper, the seriousness of the offence Giddens was charged with, which was a non-disclosure offence with a maximum penalty of one year's imprisonment, outweighed the need to exclude the evidence.

The Court granted leave to appeal but dismissed the appeal. It held that the reference to Tinder was not improperly obtained and that the warrant was supported by reasonable grounds. The Court also noted that the impropriety, if any, was not deliberate or reckless and that the purpose of the Child Protection Act outweighed the need to exclude the evidence. The Court concluded that there was no unfairness and no material breach of the Practice Note, and that the evidence should not be excluded.

Orders