Graham v The Queen - [2015] NZCA 568

IN THE COURT OF APPEAL OF NEW ZEALAND

CA298/2015
[2015] NZCA 568

BETWEEN	KURT SVEN GRAHAM Appellant
AND	THE QUEEN Respondent

Hearing:	2 November 2015
Court:	Stevens, Fogarty and Mallon JJ
Counsel:	D L Stevens QC for Appellant M H Cooke for Respondent
Judgment:	24 November 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Fogarty J)

Introduction

Mr Graham was convicted following a trial by jury in the Blenheim District Court on 20 counts of making an intimate visual recording, contrary to s 216H of the Crimes Act 1961. The offending was said to have occurred over the period 4 December 2006 to 1 March 2010. It involved Mr Graham making a visual recording of himself and his then partner, without her consent, engaged in sexual activity. He was convicted and sentenced to nine months’ home detention and 250 hours’ community work and ordered to make reparation of $5,000.
Mr Graham appeals against conviction on each count. The evidence to support the convictions was found on ten computer discs which were seized from a vehicle owned by the appellant, following a search pursuant to a search warrant issued under s 198 of the Summary Proceedings Act 1957. The ten discs contained the recordings of the sexual activity. Pre-trial Mr Graham challenged the validity of the search warrant.[1] This appeal is on the basis that the District Court decision upholding the lawfulness of the search was wrong.
[1]R v Graham DC Blenheim CRI-2012-006-339, 24 February 2014 [District Court decision].
The challenge to the search relies on s 30(5) of the Evidence Act 2006:
30 Improperly obtained evidence
(5)For the purposes of this section, evidence is improperly obtained if it is obtained—
(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
The basis for the warrant application by the police was information obtained from a former girlfriend of Mr Graham (the informant) who had stayed at the appellant’s home from time to time. She had discovered photos and films of sexual activity by the appellant with other women.
Between late 2010 and early 2012, the informant both deliberately and inadvertently accessed Mr Graham’s electronically stored property, including his cellphone, computer, CD and DVD collections, locating sexually explicit photographs of him and other women, including the complainant in these proceedings. She got in touch with the complainant, shared some of these images with her and together they went to the police.
The application for a search warrant was based on the reasonable belief that images in the form of intimate visual recordings (as defined in s 216G(1)(a) of the Crimes Act) would be found at Mr Graham’s address. The affidavit detailed discoveries by…

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 Graham v The Queen

Details

AGLC: Graham v The Queen [2015] NZCA 568
Case: [2015] NZCA 568
Decision Date: 24 November 2015 at 3.00 pm

CaseChat Overview and Summary

The case of Graham v The Queen involves a dispute over the admissibility of evidence obtained through an unlawful search conducted by police at the appellant's residence. The search was based on information provided by a former girlfriend of the appellant, who had accessed his electronically stored property, including his cellphone, computer, and DVD collections. The informant shared some of these images with the complainant, who subsequently reported the matter to the police. The primary legal issue before the court was whether the evidence obtained during the search was admissible under s 30(5) of the Evidence Act 2006, which prohibits the use of improperly obtained evidence. Specifically, the court had to determine whether the evidence was obtained fairly, or if it was obtained in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies.

The court, in delivering its judgment, found that the informant had breached the appellant's privacy by accessing his electronically stored property without his consent. The informant admitted that she had "spied" on the appellant and had violated his privacy by accessing his personal items. The court further held that the informant's actions were a breach of the appellant's rights under section 21 of the New Zealand Bill of Rights Act 1990, which guarantees the right to be secure against unreasonable search and seizure. As such, the court found that the evidence obtained during the search was improperly obtained and inadmissible under s 30(5) of the Evidence Act 2006. The court further found that the evidence was obtained unfairly, as the informant had breached the appellant's privacy without his consent.

As a result of the court's decision, the evidence obtained during the unlawful search was excluded from the trial. The court's decision was based on the finding that the informant's actions were a breach of the appellant's rights under the New Zealand Bill of Rights Act 1990, and that the evidence obtained as a result of these actions was improperly obtained and inadmissible. The court's decision underscores the importance of protecting individuals' privacy and rights, and the need for law enforcement to obtain evidence in a lawful and fair manner. The final orders of the court were that the evidence obtained during the unlawful search was inadmissible and could not be used against the appellant in the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The challenge to the search relies on s 30(5) of the Evidence Act 2006:30 Improperly obtained evidence(5)For the purposes of this section, evidence is improperly obtained if it is obtained—(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or(c) unfairly. The basis for the warrant application by the police was information obtained from a former girlfriend of Mr Graham (the informant) who had stayed at the appellant’s home from time to time. She had discovered photos and films of sexual activity by the appellant with other women. Between late 2010 and early 2012, the informant both deliberately and inadvertently accessed Mr Graham’s electronically stored property, including his cellphone, computer, CD and DVD collections, locating sexually explicit photographs of him and other women, including the complainant in these proceedings. She got in touch with the complainant, shared some of these images with her and together they went to the police. The application for a search warrant was based on the reasonable belief that images in the form of intimate visual recordings (as defined in s 216G(1)(a) of the Crimes Act) would be found at Mr Graham’s address. The affidavit detailed discoveries by the informant of such material at his home. Paragraph [8] of the affidavit states:[The informant] stated that due to her suspicions, she began to look around his house. There is no suggestion in the affidavit that Mr Graham approved of her conduct, looking around the house to find these photos and visual recordings. Prior to trial there was a Crown application under s 344A of the Crimes Act to determine the admissibility of the search and seizure of the ten computer discs and two sets of digital screen photographs recovered under the search warrant.[2][2]There was also in issue the admissibility of the appellant’s written and electronically recorded statements to Detective Soper, but these are not matters taken on appeal. This application was allowed by Judge B Davidson in the Blenheim District Court.[3] The case was fully argued, the evidence at the pre-trial hearing taking four days with written submissions totalling 62 pages and oral submissions lasting several hours. The Judge delivered full reasons. The Judge found that the informant was conscious that Mr Graham valued his independence and privacy. He would emphasise that she was not to go through his private things like his cellphone, his computer, his drawers, books or DVD collections. She was not to arrive at his house unannounced.[4] The Judge found the informant accepted “she essentially began to “spy” on him”.[5][3]District Court decision, above n 1.[4]At [19].[5]At [20]. The informant also accepted that throughout their intimate relationship they had largely had separate addresses, separate cars, separate belongings, separate personal items like cellphones, computers and the like.[6] She accepted that she should have respected his privacy and that her various intrusions were with some subsequent regret.[7][6]At [29].[7]At [30].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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