Mackenzie v The Queen - [2013] NZSC 143

IN THE SUPREME COURT OF NEW ZEALAND

SC 112/2013
[2013] NZSC 143

BETWEEN	JOHN LESTER MACKENZIE Applicant
AND	THE QUEEN Respondent

SC 116/2013
BETWEEN	MICHELLE HOETE Applicant
AND	THE QUEEN Respondent

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	M E Goodwin for applicant MacKenzie M L Wotherspoon for applicant Hoete B F Windley for respondent
Judgment:	10 December 2013

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

____________________________________________________________________

REASONS

Mr MacKenzie and Ms Hoete seek leave to appeal to this Court against a decision of the Court of Appeal which held that evidence from a camera memory card, while unlawfully obtained, was admissible under s 30 of the Evidence Act 2006.[1]

Background

[1]Hoete v R [2013] NZCA 432 (White, Venning, and Courtney JJ).

Mr MacKenzie and Ms Hoete face charges relating to serious drug offending. They, together with a co-accused, Ms Bladon,[2] challenged the admissibility of evidence obtained by the police in a warrantless search of Mr MacKenzie’s car and, following his arrest, a search of Mr MacKenzie himself.
[2]Ms Bladon abandoned her application for leave to appeal to this Court.
Judge Wiltens determined that the searches had been lawfully conducted and that the evidence was admissible.[3] He further stated that, even if the search had been unlawful, he would have admitted the evidence under s 30 of the Evidence Act 2006.
[3]R v MacKenzie DC Manukau CRI-2012-057-542, 8 April 2013 (Judge Wiltens). Reasons for the decision were given on 7 May 2013.
The crucial evidence for the purposes of the leave application to this Court was derived from the police search of a camera memory card located in Mr MacKenzie’s shirt pocket. The photographs on the camera memory card were accessed by a police officer some days after Mr MacKenzie’s arrest, without the authority of a search warrant.
The Court of Appeal considered that Mr MacKenzie had reasonable expectations of privacy with respect to the memory card and that there was no evidential basis to suggest that that, at the time of seizing the card, the police had reason to suspect it held evidence relevant to the charges for which Mr MacKenzie had been arrested or to any other criminal offending.[4] In the context of alleged drug offending, the Court considered a camera memory card is distinguishable from a cell phone which is a well-known tool of a drug dealer’s trade and therefore one that may contain relevant evidence of such offending.[5]
[4]At [24]–[26].
[5]At [32].
The Court therefore held that the seizure and examination of the memory card was unlawful and the evidence located on the memory card improperly obtained.[6] However, after undertaking the s 30 balancing process, the Court concluded that Judge Wiltens was correct to rule that the evidence was admissible in this case.[7] The appeals were accordingly dismissed.

Grounds of leave applications

[6]At [26] and [34].

[7]At [45].

Mr MacKenzie and Ms Hoete seek leave to appeal against the Court of Appeal’s decision on the grounds that the…

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 Mackenzie v The Queen

Details

AGLC: Mackenzie v The Queen [2013] NZSC 143
Case: [2013] NZSC 143
Decision Date: 10 December 2013

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to consider an appeal from two defendants, John Lester Mackenzie and Michelle Hoete, against the Court of Appeal’s decision to admit evidence obtained from a camera memory card, which was unlawfully seized. The defendants were facing serious drug charges and contested the admissibility of evidence obtained during warrantless searches of Mackenzie’s car and person, as well as a subsequent search of Hoete’s property. The key issue before the Supreme Court was whether the defendants should be granted leave to appeal against the Court of Appeal’s ruling that, despite the unlawful acquisition of evidence from the camera memory card, it was admissible under section 30 of the Evidence Act 2006.

The Supreme Court examined the arguments made by Mackenzie and Hoete, focusing on the extent of privacy expectations related to images on the memory card and the nature of the police’s improper actions in examining the card. The Court considered whether the Court of Appeal had given insufficient weight to these factors during the s 30 balancing exercise. The Court noted that the balancing exercise had been conducted in accordance with established principles, but acknowledged that the weight given to certain factors was a matter of principle. The Supreme Court found that while the issues raised could potentially be of general and public importance, they could be addressed in a post-conviction appeal if the defendants were convicted. The Court determined that there were no exceptional circumstances that warranted the Supreme Court hearing the appeal before trial.

The Supreme Court concluded that the applications for leave to appeal should be dismissed. The reasoning was that the issues raised could be adequately addressed post-conviction and there were no special reasons to depart from this general rule. As a result, the Court upheld the Court of Appeal’s decision to admit the evidence from the camera memory card, despite its unlawful acquisition.

Orders