Giddens v Police
[2024] NZHC 3744
•10 December 2024
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 two relevant warrants, one to seize Mr Giddens’ Samsung phone and one to search within it. Mr Giddens makes the same objection to both warrants.
4 Police v Giddens [2024] NZDC 24189 [Decision under appeal].
5 Criminal Procedure Act 2011, s 215.
with his partner and her children at the Gondola a couple of weeks earlier. He accepted he had associated with his partner on an “ongoing” basis, despite the non-association order. He admitted he had seen one or both of his partner’s children “quite a few” times.
[10] The interview was not video recorded, but Constable Roverts wrote down his questions and Mr Giddens’ answers, and Mr Giddens signed the constable’s notebook. The interview was short, lasting only eleven minutes.
[11] After the interview, Constable Roverts kept talking with Mr Giddens. In evidence, he said he did so because Mr Giddens was visibly upset about the inevitable end of his relationship. The constable said part of his job as Mr Giddens’ case manager was to provide pastoral care and support. The constable described the post-interview conversation as a “general chat”, and said he was trying to empathise with Mr Giddens, including by reassuring him the breaches he had admitted were not especially serious.
[12] In the course of that informal post-interview conversation, Constable Roverts asked Mr Giddens how he and his partner had met. Mr Giddens replied he had met her through Tinder. The constable said he thought nothing of that answer at the time. The informal discussion lasted only around five minutes.
[13] The constable said that later, on reflection, he thought it would be prudent to check whether Mr Giddens had reported a Tinder account. He had not. On that basis, the constable applied for a search warrant, first to seize Mr Giddens’ phone (which had been taken into custody when Mr Giddens was arrested), and then to search within it. Warrants were duly issued.
[14] As it turned out, Mr Giddens did not have a Tinder account. He had reported an account on Bumble, and it appears he met his partner using that platform. When Mr Giddens was re-interviewed in December, he acknowledged he must have mixed Tinder and Bumble up. But in the course of searching for the Tinder account the Police discovered Mr Giddens had an undisclosed WhatsApp account.
[15] Mr George, on behalf of Mr Giddens, argued the evidence of the discovery of the WhatsApp account should be excluded. He contended the reference to Mr Giddens meeting his partner through Tinder — which provided the evidential foundation for the warrant — was improperly obtained.
[16] Mr George submitted Constable Roverts should not have engaged in further informal conversation with Mr Giddens after the interview concluded, and that he was obliged to re-caution Mr Giddens before asking how he had met his partner. He argued the signing of the notebook, and the shift in the conversation from formal interview to general chat, would have led Mr Giddens to lower his guard.
[17] Mr George submitted the constable was, at a minimum, obliged to make a note of the reference to Tinder and invite Mr Giddens to check it; if that had occurred Mr Giddens may have realised his error. He argued the informal part of the interview breached the Chief Justice’s Practice Note on Police Questioning (the Practice Note).6 Paragraph [5] of the Practice Note includes the following passage:
The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.
District Court ruling
[18] Constable Roverts gave evidence at the District Court hearing and was cross-examined. Mr Giddens did not give evidence.
[19]Judge Callaghan made a number of findings of fact. He found:
(a)The informal interview occurred within minutes of the formal interview. Mr Giddens must have been conscious of his rights, given they had just been explained to him. The Judge observed the formal interview had just finished, and the general topic did not change.7
6 Practice Note - Police Questioning (s 30(6) Evidence Act 2006) [2007] 3 NZLR 297.
7 Decision under appeal, above n 4, at [23].
(b)The informal part of the interview was a general, conversation-type discussion. There was no pressure or inappropriate conduct by Constable Roverts.8
(c)The constable was engaging Mr Giddens in general discussion as part of his pastoral duties as Mr Giddens’ case manager.9
(d)The constable did not extract the information about how Mr Giddens met his partner as part of any ongoing inquiry.10
(e)It only occurred to the constable later that the reference to Tinder meant Mr Giddens may have had access to an unreported online platform.11
(f)While Mr Giddens did express some confusion between Bumble and Tinder when interviewed in December, he referred to Tinder in the October interview, and did not indicate any uncertainty or confusion.12
[20] In light of those findings, the Judge held the reference to Tinder — which led to the search warrants, which in turn led to the discovery of the unreported WhatsApp account — was not obtained in breach of the Practice Note, nor was it improperly obtained on any other basis.13
[21] Nonetheless, and in case he was wrong, the Judge went on to consider whether exclusion of the evidence would be proportionate to the impropriety. He held it would not.
[22] Weighing the factors listed in s 30(3) of the Evidence Act 2006, the Judge acknowledged the importance of the rights protected by the Practice Note. But he found the impropriety — assuming the constable’s actions rose to that level — was
8 At [23(a)].
9 At [23(b)].
10 At [23(c)].
11 At [24].
12 At [25].
13 At [26].
not deliberate or reckless, and that at worst the constable was careless.14 The Judge described the offence as moderately serious.15
[23] In conducting the hypothetical balancing exercise under s 30(2)(b), the Judge concluded the purpose of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 — to protect children from sexual offenders — outweighed “the need to rule the evidence as to the Tinder account inadmissible in this case because of the seriousness of sexual offending against children”.16
The appeal
[24] Pursuant to s 215 of the Criminal Procedure Act 2011, a defendant must seek leave to appeal against a pre-trial decision. This Court may refuse leave if it is expedient for the appeal to be determined after trial but may also refuse leave for any other reason.17 The decisive factor is always the interests of justice.18
[25] Mr George submits leave should be granted because the evidence is central to the prosecution case and the merits of the proposed appeal are strong. He submits the Judge was wrong to find there was nothing improper about the way the constable elicited Mr Giddens’ reference to Tinder.
[26] Mr George argues there were three ways in which the evidence was improperly obtained. First, he submits the constable should have re-cautioned Mr Giddens before engaging him in any informal discussion which might lead him to incriminate himself. He notes there is ample authority warning of the dangers of off-camera (or otherwise unrecorded) discussions.19 The courts have characterised exchanges after a formal interview as a “high risk” area. In R v Wallace, the Court of Appeal observed that Police actions will be closely scrutinised if something relevant is said, and that distinct prudence is required.20 A need to re-caution might arise in some cases.
14 At [27]–[28].
15 At [30].
16 At [35].
17 Criminal Procedure Act, s 216.
18 Wind v R [2024] NZHC 1907; and W v R [2023] NZCA 397 at [52].
19 See R v Neho-Watts [2021] NZHC 2444; and R v Wallace [2007] NZCA 265.
20 R v Wallace, above n 19, at [70].
[27] Second, Mr George argues there was a further clear breach of the Practice Note. He submits the constable should have video-recorded the formal interview, and should not have allowed any part of the discussion to go unrecorded.
[28] Third, Mr George submits Mr Giddens should have been given the opportunity to check and confirm the reference to Tinder before it was used to obtain a search warrant. Given the Judge’s finding the constable did not appreciate the potentially-incriminating nature of the remark until later, Mr George submits the constable was obliged to go back to Mr Giddens and check the reference to Tinder before he used it in the warrant application.
[29] Mr George submits the Judge also made errors when conducting the (hypothetical) s 30 balancing exercise. He argues the Judge was wrong to conflate the seriousness of child sex offending, which the wider legislative scheme is designed to prevent, with the actual offending Mr Giddens is accused of having committed. The Evidence Act requires the Court to consider the seriousness of the offence “with which the defendant is charged”.21
Discussion
[30] I accept the challenged evidence is pivotal to the case against Mr Giddens, and that it is appropriate for the question of admissibility to be resolved before trial. It is in the interests of justice to grant leave to appeal.
[31] Nonetheless, I regard the Judge’s findings of fact as decisive. Most importantly, there is no basis to depart from his finding that Mr Giddens must have known he was under no obligation to respond when the constable asked how he had met his partner. As the Judge observed, the formal interview had been short, and the topic of conversation did not change substantially afterwards. Given Mr Giddens had been cautioned only 15 minutes earlier, the Judge was amply entitled to infer Mr Giddens knew he was still under no obligation to answer questions. Mr Giddens did not suggest otherwise.
21 Evidence Act 2006, s 30(3)(d).
[32] Moreover, Mr Giddens had no reason to be on guard when he answered the critical question. It appears he actually met his partner on Bumble, a dating platform he had reported and was lawfully entitled to use. Mr Giddens mixed Tinder and Bumble up, but he had no reason to believe he might be incriminating himself. In those circumstances, there is no reason to suppose he would have declined to answer the question even if the constable had reminded him of his right to silence.
[33] Every case is different. As the Court of Appeal has emphasised, unrecorded post-interview conversations are an area of high risk.22 It is plainly improper for Police to try to obtain additional admissions once a formal interview has concluded; it is particularly inappropriate for Police to try to extract, in an informal conversation, information the suspect was unwilling to provide during the formal interview.
[34] But that is not what happened in this case. The Judge found the constable was not trying to elicit evidence during the informal part of the conversation. The constable was doing his best to console Mr Giddens, who was distressed about the end of his relationship. Even when Mr Giddens mentioned Tinder, the constable did not immediately recognise it as a potentially incriminating remark. It was only later it occurred to him to check whether Mr Giddens had reported a Tinder account.
[35] The Judge’s findings also answer Mr George’s remaining submissions. It is true the Practice Note provides that a formal interview should “preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video”. Nothing turns on that in this case. There is no dispute the constable recorded the formal interview accurately, and there has never been any challenge to its admissibility.
[36] As for the suggestion the constable may have misheard or misremembered Mr Giddens’ answer, the Judge found the constable had accurately recalled the exchange, and that Mr Giddens expressed no hesitation or uncertainty. Once again, Mr Giddens did not contradict the constable’s account.
22 R v Wallace, above n 19, at [70].
[37] As a result, no prejudice arose from the fact the constable did not write the reference to Tinder down or check it before applying for the warrant. It is speculative to suggest Mr Giddens might have corrected the record if that had occurred. He was re-interviewed in December, after the warrants were obtained, and initially maintained Tinder was the correct platform. The confusion was only cleared up when the constable referred to Bumble, and Mr Giddens realised he must have been mistaken.
[38] It follows the reference to Tinder was not obtained improperly. Mr Giddens gave an innocent answer to an innocuous question. The constable was not seeking an admission, and Mr Giddens did not think he was making one.
[39] In light of that conclusion, I need not conduct the s 30 exercise afresh. The constable acted in good faith throughout and there was no impropriety. That said, I agree with Mr George that the Judge would have been wrong to weigh the seriousness of child sex offending (in general) against the hypothetical impropriety he was considering. The relevant offence was Mr Giddens’ non-disclosure of a WhatsApp account. That offence, which carries a maximum penalty of one year’s imprisonment, can properly be described as minor to moderate.
[40] Finally, I have not had to examine whether, and to what extent, the fact the information was used to support an application for a search warrant, rather than as evidence at trial, alters the admissibility analysis. There is no dispute the application disclosed reasonable grounds to suspect Mr Giddens had committed an imprisonable offence, and that evidence of it would be found on his phone.23
[41] Information on which Police rely when seeking a warrant need not itself be admissible in court. Applications commonly rely on hearsay, and sometimes on information from unnamed informants. There is nothing objectionable about that, provided the supporting affidavit contains sufficient information for the issuing officer to assess its reliability.24
23 Search and Surveillance Act 2012, s 6.
24 See R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [216].
[42] In R v Alsford, the Supreme Court considered whether evidence ruled inadmissible because it was improperly obtained may nonetheless be used in an application for a warrant. The Court unanimously confirmed that questions of admissibility are always proceeding-specific. It acknowledged there may be situations of egregious wrongdoing where it would be abhorrent to rely on inadmissible information for any purpose, including when seeking a warrant.25 Nonetheless, it held that impropriety which renders evidence inadmissible in court will not necessarily be sufficient to invalidate a warrant obtained in reliance upon it. Nor will it necessarily render downstream evidence, located when the warrant is executed, inadmissible.26
Conclusion
[43] Mr Giddens was undoubtedly unlucky. It was an honest mix-up between dating platforms which led him to mention Tinder. That error, in turn, provided the foundation for the warrant, and led to the discovery of the undeclared WhatsApp account.
[44] Nonetheless, in light of the Judge’s findings I am comfortably satisfied there was nothing improper in the circumstances which led Mr Giddens to mention Tinder. I agree there was no unfairness, and no relevant or material breach of the Practice Note.
[45] Moreover, I am satisfied that none of the steps Mr George says Constable Roverts should have taken, such as re-cautioning Mr Giddens prior to the informal part of their conversation, would have made any difference to the way Mr Giddens responded when asked how he and his partner had met.
25 R v Alsford [2017] NZSC 42, [2017] 1 NZLR 701 at [92].
26 See the judgment of the majority at [93], [95] and [99], and the dissenting judgment of Elias CJ at [112].
Result
[46]The application for leave to appeal is granted, but the appeal is dismissed.
Boldt J
Solicitors:
Andrew Bailey Barrister, Christchurch for Appellant Crown Solicitor, Christchurch for Respondent
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