R v A
[2019] NZHC 293
•28 February 2019
ORDER UNDER SS 204(1), 205(1) AND 205(2) OF THE CRIMINAL PROCEDURE ACT 2011 SUPPRESSING ALL DETAILS OF THIS COURT MARTIAL APPEAL, INCLUDING THE NAME OF THE ACCUSED.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-882
[2019] NZHC 293
UNDER the Court Martial Appeals Act 1953 BETWEEN
THE QUEEN
Appellant
AND
A
Respondent
Hearing: 20 February 2019 Counsel:
L M Ferris and N T O’Brien for Appellant M Mason and L Tucker for Respondent
Judgment:
28 February 2019
JUDGMENT OF THE FULL COURT
Introduction
[1] A, a member of the Royal New Zealand Navy, is facing seven charges against the Armed Forces Discipline Act 1971 (the AFDA) in relation to offering to supply a Class B controlled drug. These charges rely exclusively on evidence obtained from a cellphone seized during a search of G, a fellow member of the Navy, in relation to possession of cannabis and a bong.
R v A [2019] NZHC 293 [28 February 2019]
[2] At a pre-trial hearing on 5 November 2018, A successfully challenged the admissibility of this evidence gathered from G’s cellphone, Judge Harvey ruling the evidence inadmissible.1
Background
[3] On the morning of 17 August 2017, at about 8.37 am, two members of the Military Police, including Warrant Officer Master at Arms (WOMAA) Mathers, identified what appeared to be a bong in G’s car which was parked within Devonport Naval Base. Upon questioning under caution, G confirmed that a bong and cannabis were in the car and that they belonged to him.
[4] When Leading Military Policeman (LMP) Coates arrived at the scene, WOMAA Mathers left for the Maritime Warfare Training Centre. At about 9.07 am, he spoke with Lieutenant Commander (LTCDR) Damien Gibbs, Commanding Officer (CO) of HMNZS Wellington (G’s CO), informing him of his observation of G’s car and that G had confirmed that the items located inside the car belonged to him, that the item observed by WOMAA Mathers was, in fact, a bong and that there was cannabis in the car.
[5] Permission having been obtained from LTCDR Gibbs, G’s person, vehicle and cabin were searched. A bong, container with plant-like material believed to be cannabis, knife, grinder and empty box for synthetic urine were located in the car and seized. A urinalysis test was also undertaken, returning a “not negative” result. At some point during these searches, G’s cellphone came into the possession of the Military Police. It was not clear, on the evidence before the Court, exactly how this occurred but it may be that G had the cellphone on his person.
[6] Section 95 of the AFDA confers on a CO powers of search and seizure of property, providing relevantly:
95 Search in connection with suspected offence
(1)If a commanding officer has reasonable grounds to suspect that a person subject to this Act has in his possession any property which
1 R v Archer [2018] CMNZ.
has been unlawfully obtained or any article or thing which is or may be evidence relating to the commission of an offence (whether against this Act or otherwise), the commanding officer may—
(a)detain and search that person; or
(b)search any premises within the limits of his command occupied or used by that person; or
(c)take possession of any property or any article or thing previously referred to in this subsection, in which event the property, article, or thing shall, subject to this section, be disposed of in accordance with section 99.
(2)The powers conferred on a commanding officer by subsection (1) may be exercised by him personally or by any person authorised or ordered by him in that behalf.
…
[7] LMP Coates duly sought permission from LTCDR Gibbs to search the cellphone via the following email sent that afternoon at 2.38 pm:
Good Afternoon Sir,
Just emailing you regarding the ANR and, give [sic] you more information regarding the seizure and search of [G] and his phone.
I have good reason to believe [G] has been using his Mobile phone to contact his friends regarding the purchasing of drugs and drug paraphernalia.
We have secured his personal cell phone and we are seeking permission to have the phone exploited in order to obtain evidence pertaining to offences committed against the misuse of drugs act.
We have evidence that proves that he obtains cannabis from colleagues and in our experience it is common place [sic] for drug users to use their cell phones to communicate purchases. There may also be intelligence that could assist in the identification of other offenders.
Cell phones also have the capability of storing images some of which may depict the use of illegal substances.
Cannabis is a class C controlled drug listed under the misuse of drugs act.
I’m requesting your permission to send this phone to our electronic crime lab so that we can extract the data contained with in [sic] [G’s] cell phone.
We are looking for evidence relating to offences under the misuse of drugs act. I will follow this up with official paperwork.
Regards
LMP, A.J. COATES
[8]LTCDR Gibbs approved the request, sending the following email at 3.21 pm:
Afternoon,
Approved, can you please advise the process and when it will be returned so I can keep him informed.
Regards CO WGN
[9] LMP Coates replied at 4.48pm, explaining the process and what was happening as follows:
Good Evening Sir,
What normally happens is you will receive a minute asking for permission in writing to search the phone.
The phone will go down to our electronic crime lab, the phone will be examined, this could take a few weeks most likely longer depending on the work load [sic] down in Trentham.
Then it will come back up with a report and then phone will be returned to him.
Just received your email Sir,
At the moment I have taken a statement from [G] and I’m currently working on the file now. I would say due to the phone examination it would prolong the investigation for a few weeks.
I’m trying my best to get the file completed but cannot give an exact time to completion.
Unless I do everything on this side and then pass the file onto your ship once everything is complete for the summary trial (this could speed up the process of reporting).
Hopefully this has helped you. Regards
LMP Coates
[10]LTCDR Gibbs answered at 5.06 pm as follows:
Yes cheers mate, I guess from what I know is
Seen “bong” in the car
Searched and confirmed bong – was there anything else Urinalysis test conducted – positive THC?
Phone seized for ECL All approved by me.
It is just to clarify what you believed to have found, why you think that others might be involved and that the initial test was positive for THC.
That is all I need to sitrep to MCC2 to inform him of the quick outline then we let the investigation run.
Damian
[11]In response, LMP Coates sent the following email at 5.24 pm:
Good evening Sir,
Yeah found a bong a grinder and marijuana, I also found a knife and synthetic urine (Masking agent for the urinalysis).
I am unsure in regards to navy personnel if they could be involved just things from what he was saying regarding the urinalysis testing and using the fake urine (swapping pee etc.) he would not give me names and denied service personnel being involved and that he didn’t know of anyone else.
I’m not totally convinced it is just his civilian mates that have been doing drugs but that is my assumption based on what has been said. He has not mentioned any service personnel the fake urine was found in his sock draw [sic] on board ship.
The initial urinalysis test got a [not negative] result which means that it has detected something (THC) although this cannot be confirmed as of yet until it has been tested in the labs.
Regards Allen
[12] The evidence derived from the search of G’s cellphone gave rise to a Military Police operation into drug offending within the New Zealand Defence Force (NZDF). At this point in time, A appears to be the only individual facing charges; the investigation into G is ongoing. These charges are based solely on evidence obtained from G’s cellphone. It is this evidence that was the subject of the pre-trial hearing.
2 “sitrep” is shorthand for situation report; and “MCC” stands for Maritime Component Commander.
[13] In his decision dated 5 November 2018 and amended 13 November 2018, the Judge determined that LTCDR Gibbs had insufficient information to form a reasonable ground to suspect that G had committed any offence other than possession of cannabis and possession of utensils. Accordingly, the view was reached that the search of the cellphone was both unlawful and unreasonable.3
[14] Having therefore found that the evidence was improperly obtained, the Judge then considered whether excluding the evidence would be proportionate to the impropriety.4 It was found that permitting the evidence to remain would condone a seriously flawed process of obtaining consent for the search which the Judge was not prepared to do and so the evidence that resulted from that search was held to be inadmissible.5
Issues
[15]This appeal raises the following two issues:
(a)Was the search of G’s cellphone lawfully permitted by s 95 of the AFDA?
(b)If it was not permitted, should the evidence discovered be admitted pursuant to s 30 of the Evidence Act?
Was the search lawful pursuant to s 95 of the AFDA?
Court Martial decision
[16] The Judge found some of the comments made by LMP Coates in requesting the search of G’s cell phone troubling, in particular these two comments:6
I have good reason to believe [G] has been using his Mobile phone to contact his friends regarding the purchasing of drugs and drug paraphernalia.
3 At [43].
4 Evidence Act 2006, s 30.
5 Above n 1, at [75].
6 Above n 1, at [10]-[12]. It was conceded by the Crown before us that both of the statements that had troubled the Judge were false and that LMP Coates had no basis for making these claims.
We have evidence that proves that he obtains cannabis from colleagues and in our experience it is common place [sic] for drug users to use their cell phones to communicate purchases. There may also be intelligence that could assist in the identification of other offenders.
[17] He concluded that LMP Coates wanted to search the cellphone to gather information relating to offending beyond that of G:
[28] I am satisfied that in this case Coates wanted to seize this opportunity to further a wider investigation into the use and distribution of drugs. If indeed Coates had evidence that [G] had obtained cannabis from colleagues, that evidence should have been spelt out, as should the assertion that there were good reasons to believe that [G] had been using his cellphone for illicit purposes.
[18] His Honour was even more troubled by the lack of further inquiry by LTCDR Gibbs, saying that as LMP Coates had neglected to spell out what the foundation for this belief was and what evidence he had, it was “incumbent on [LTCDR Gibbs] to make further enquiries”.7
[19] As to whether G had committed any other offence, Judge Harvey determined that there were insufficient grounds for LTCDR Gibbs to grant permission to search the phone.8 He said:
[43] I am not satisfied that based on what he was told by the MP, the CO had sufficient to form reasonable grounds to suspect. The CO was confronted by evidence that [G] had committed two offences under the Misuse of Drugs Act but there was simply nothing else to enable the CO to have reasonable grounds to suspect that [G] or indeed anyone else had committed any other offence. Accordingly I have reached the view that the search was both unlawful and unreasonable.
Discussion
[20] At issue is the proper interpretation of s 95 of the AFDA. We accept, as counsel for the Crown reminded us, that it is important to interpret s 95 in the context of the military environment. In essence, the issue is whether LTCDR Gibbs, at the time of authorising the search of G’s cellphone, had “reasonable grounds to suspect” that G had in his possession property which might be evidence relating to the commission of an offence. Without these reasonable grounds, any search of G’s cellphone would be
7 At [12] and [35]-[36].
8 At [39].
unlawful and the evidence improperly obtained. In McCartin v R,9 the Court Martial Appeal Court, referring to the Court of Appeal decision of Police v Anderson, accepted that “reasonable grounds to suspect” means a reasonable ground of suspicion upon which a reasonable person may act.10
[21] Section 95 is one of a number of sections which appear in the AFDA, the statutory purpose of which is to provide for the discipline of, and the administration of justice, within the Armed Forces of New Zealand. As counsel for the Crown has submitted, discipline and the incidents of command are fundamental to the proper operation of the Armed Forces. There is an overriding obligation on the part of all members of the Armed Forces to obey lawful orders.
[22] A superior officer is entitled to give orders to a subordinate rank. These orders must be obeyed. When viewed in that context, s 95 is not an empowering section but rather is a limitation on the rights of command, in this case on the rights of a CO to order a search of the possessions or person of someone of a subordinate rank. The s 95 limitations on command relevant here are that a service member may not be searched except, and only where the CO has reasonable grounds to suspect that the person has in his or her possession property which is, or may be, evidence relating to the commission of an offence.
[23] In order to determine whether this particular search was lawful, we need to identify the precise point in time which the CO formed the view that reasonable grounds to suspect existed.
[24] There is some dispute as to when exactly it could be said that LTCDR Gibbs authorised the search. When the search was authorised is of relevance as there are some questions as to the extent of LTCDR Gibbs’ knowledge throughout the process and how this would have impacted on whether he had reasonable grounds on which to authorise the search. The Crown, summarising the events of 17 August 2017 in submissions, says that LMP Coates requested authorisation of the search, LTCDR Gibbs then recapped the basic facts, questioned the procedure and approved the
9 McCartin v R [2016] NZHC 1807.
10 McCartin v R, above n 9 at [32]; Police v Anderson [1972] NZLR 233 at 242.
request. Counsel for A, Ms Mason, submits that they are mistaken in suggesting that the email trail between LTCDR Gibbs and LMP Coates was an ongoing conversation ending in an approval. Rather, the request was made by email at 2.38 pm and then approved by return email at 3.21 pm.
[25] It is clear that LTCDR Gibbs gave his approval in the email he sent at 3.21 pm in which he said, “Approved, can you please advise the process and when it will be returned so I can keep him informed.” While he later sought clarification of matters upon which he should have been more clearly advised before he saw fit to authorise the search, this does not change the fact that he had already given his approval for the search. It is his state of knowledge at this point that is therefore relevant.
[26] Ms Mason submits that there was no evidence found during the initial searches of G’s person, cabin and vehicle to support a suspicion of anything but personal use and no reason to suspect drug dealing or any commerciality.
[27] Brigadier Ferris submitted that the mere fact that G was found with cannabis, a bong and synthetic urine gave reasonable cause to suspect that his cellphone would be likely to contain evidence of other offending. We are prepared to accept that a reasonable inference could be drawn that possession of a bong and synthetic urine raises the possibility that G’s use of cannabis was not confined to an isolated occasion. It therefore could have been inferred that G had committed other offences against the Misuse of Drugs Act 1975 in addition to the possession on 17 August 2017. In particular, that he had been procuring cannabis for some time previously.
[28] On this basis, the search of the cellphone might reasonably have provided evidence of the number of occasions upon which G had communicated with third parties for the purpose of procuring illicit drugs. Had the CO given those factors as a reason for authorising the search of the cellphone, they would have been sufficient and furtherance of the duty of CO to investigate other offending. This is important because as this Court stated in McCartin:11
11 Above n 9, at [49].
… soldiers are part of a uniformed and disciplined force trained and equipped to use lethal violence. The use of drugs cannot be tolerated in such an environment.
[29] The difficulty for the Crown however, is that the information provided to the CO by the MP was contained in the email sent to the CO at 2:38 pm on the afternoon of 17 August.12 The MP informed the CO that he had good reason to suspect that G had been using his mobile phone to contact friends regarding the purchasing of drugs and drug paraphernalia and in particular that he, the MP, had evidence that proved G obtained cannabis from colleagues. He appears to have intended “colleagues” to refer to others in the Navy. It is not contested by the Crown that this information provided to the CO had no evidential basis and was false.
[30] The email that gave LMP Coates permission to undertake the search of G’s cellphone was sent by LTCDR Gibbs at 3:21 pm. It is therefore this email that determines whether the CO had reasonable cause to suspect not the later email of 5:06 pm.
[31] We are hampered in undertaking our analysis of the email of 3:21 pm by two factors: firstly, its brevity; and secondly, the fact that LTCDR Gibbs did not appear or give evidence at the hearing below.
[32] We are obliged to infer that the statements in the email from LMP Coates of 2:38 pm which were false, were the operative grounds for LTCDR Gibbs concluding that reasonable grounds to suspect existed. Had LTCDR Gibbs given evidence that the basis for his reasonable grounds to suspect was the evidence relating to the bong and synthetic urine, with the implication that he therefore reasonably suspected G of having procured cannabis on multiple occasions, this may have been sufficient.
[33] However, as it seems much more likely that LTCDR Gibbs was actually influenced by the unfounded claims in the email of 2:38 pm, we find that no reasonable grounds to suspect existed, and that the authority given for the search was therefore unlawful.
12 This email is set out [7] of this judgment.
[34] Where a CO has his or her rights of command limited as they are by s 95, it is incumbent on the CO to provide evidence as to the grounds upon which he or she acted in authorising the search. It is not enough for the prosecution to simply point to other evidence which might have justified the giving of the order as if that evidence had actually been taken into account by the CO.
[35] The CO must demonstrate that he or she decided on the basis of available evidence that the authority given by s 95 should be exercised. Once that evidence is provided to the Court, it is for the Court to decide if such grounds did in fact exist and were a reasonable basis for the search.13 In this case, the grounds upon which it is inferred the CO relied were not, when viewed objectively, reasonably available to him to issue the order for search.
[36] In case we are wrong on this point, we will also address the argument developed by Brigadier Ferris relying on the decision in McCartin. It was submitted that the search of G compares favourably to the search in that case. In McCartin, the appellant was accused of dealing in class B controlled substances, information having been provided by a single, anonymous informant. While the Court found that better information about the informant could have been garnered from the Military Police by the CO, there was sufficient additional information given to bolster the credibility of that information, though only be a fine margin.14
[37] The Crown submits that, in McCartin, the only evidence linking the accused to an offence was the anonymous informant and, therefore, more detail was required in order that sufficient credence could be given to the information. In contrast, G had been found in possession of cannabis and had made admissions that the cannabis was his. It is submitted that these facts alone gave adequate information upon which LTCDR Gibbs could reasonably act. The Crown submits that the unsubstantiated statements in LMP Coates’ email to LTCDR Gibbs were ultimately superfluous to the establishment of a reasonable suspicion as required by s 95, relying on the following passage from McCartin where it was noted:15
13 Police v Anderson [1971] NZLR 233, 244, North P [11] lines 15-20.
14 Above n 9, at [33]-[36].
15 Above n 9, at [34].
[I]t is insufficient to identify areas of information which could have been better provided unless they demonstrate that the information upon which the Commanding Officer relied was inadequate for meeting the statutory test.
[38] Ms Mason submitted that McCartin is easily distinguished on the facts, there having been a clear allegation of drug dealing. In that case, the search was undertaken after the military police had received very detailed information of drug dealing offences from the anonymous informant, those details being capable of independent verification.16 However, the Court Martial Appeal Court was clear that it was only by a fine margin that there were reasonable grounds for the authorisation. Ms Mason submits that, applying the facts here to the test as applied by the Court in McCartin, the information falls well short.
[39] Ms Mason submits that a more analogous case is that of McLean v R in which the appellant was pulled over by police on suspicion of driving while disqualified.17 That suspicion proving correct, McLean was arrested and rubbed down on the side of the road. A cannabis “tinnie” was found and thus a search of the car was undertaken. His phone was removed for safekeeping and in the search a number of items that turned out to be items stolen in a burglary that day were located. McLean was taken to the station and interviewed. His phone was looked at by the police at the station without a warrant and what was on the screen used to obtain a production order. As a consequence, he was charged with representative charges of supplying and offering to supply methamphetamine. The Court held that the only offence for which there were reasonable grounds to suspect was the burglary on the day of the arrest.
[40] Ms Mason submits that, applying McLean v R, the only offences that LTDCR Gibbs could have reasonable grounds to suspect G of were procurement, consuming, possession of cannabis and possession of utensils. The Military Police had no reason to believe that text messages would assist in the investigation of these offences. We accept this submission.
[41] We have concluded that the information upon which LTCDR Gibbs relied was inadequate. The request was approved on the basis that the phone was to be exploited
16 At [16].
17 McLean v R [2015] NZCA 101.
in order to obtain evidence pertaining to offences committed against the Misuse of Drugs Act, LMP Coates having indicated that he had good reason to believe G had been using his cellphone to contact friends regarding the purchase of drugs and that he had evidence proving G obtained cannabis from colleagues. In his request, LMP Coates had not detailed why he had good reason for his belief, nor did he say what evidence he had. Nevertheless, LTCDR Gibbs approved the request. That he later emailed seeking clarification as to why LMP Coates thought others might be involved does not counteract the fact that he had already given the approval based on the information provided by LMP Coates.
[42] Particularly when LMP Coates then went on to contradict his earlier assertion that they had evidence of G obtaining cannabis from colleagues, saying that he was unsure as to the involvement of Navy personnel and that G denied any service personnel being involved, this should have caused LTCDR Gibbs to suspend the authority to search the cellphone. At the time of seeking permission, LTCDR Gibbs only had reason to suspect G of possessing cannabis and possessing utensils. He had sufficient evidence to prove this charge, rendering searching his cellphone unnecessary. We agree with the Judge that the only reason for this search was to engage in a fishing expedition. The search was unlawful, and the evidence derived from it improperly obtained.
[43] One final point we deal with regards to the authorisation is that, as Ms Mason notes, no guidance was given as to what period of time the data should have been extracted for, with a text from some eight months prior to the search having been considered by the Crown to be relevant against A. Even had the search been lawful, if it had been authorised to establish the charge of procurement, there was no need for the warrant period to have extended for anywhere near that length of time.18
Should the evidence be admitted pursuant to s 30 of the Evidence Act 2006?
[44]Section 30 of the Evidence Act 2006 provides:
30 Improperly obtained evidence
18 See McLean v R, above n 15 at [43]-[48].
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2)The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c)the nature and quality of the improperly obtained evidence:
(d)the seriousness of the offence with which the defendant is charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:
(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(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.
…
Court Martial decision
[45] The Judge first considered the importance of the right breached and the seriousness of the intrusion, noting that, while service personnel have a greater liability to be searched, that does not extend to an automatic right to search a cellphone, and they are still entitled to the protection against unlawful searches, s 95 being there for a purpose.19
[46] As to the nature of the impropriety, while the Judge determined that the search was not done in bad faith, he found that LMP Coates should have known that he was obliged to give sufficient information to LTCDR Gibbs to enable him to properly form reasonable grounds to suspect.20 In turn, LTCDR Gibbs had been careless in granting permission based on the first email without further enquiry.21
[47] While the Judge accepted that the quality of the evidence is high and the offences with which the accused are charge are serious, the allegations faced by G at the time the search was authorised were that he was using cannabis and had possession of a utensil.22 There was no suggestion that G was involved in dealing a Class B drug, yet the application pursuant to s 95 was to see whether he had been dealing in drugs.23
The Judge concluded:
19 Above n 1 at [57]-[59].
20 At [65].
21 At [66].
22 At [68].
23 At [69].
[75] When I stand back and look at the overall justice of this case, I am more than satisfied that the balancing test comes down very firmly in favour of exclusion of this evidence. The process of obtaining the requisite consent pursuant to s 95 was so flawed that to permit the evidence to remain would essentially condone what was a serious failure. I am not prepared to do that and accordingly the evidence obtained as a result of the search of [G’s] cellphone is inadmissible.
Alleged errors in applying balancing test
[49] The Crown submits that the Court Martial, in applying the balancing test, erred in its assessment of the nature of the breach, the seriousness of the impropriety and the seriousness of the offences with which the accused is charged. Additionally, it is submitted that the Court should have given weight to the centrality of the evidence to the prosecution case and could have accounted for the impact of its admissibility with respect to the wider investigation into drug use within the NZDF.
New evidence on appeal
[50] As to whether the Court should consider the impact of this appeal on a greater investigation and on other personnel (including G), and the ability for the NZDF to pursue charges against others, Ms Mason submits that the Crown should not be permitted to introduce new evidence on appeal. This is due to the Crown having indicated at the pre-trial conference on 18 December 2018 that they intended to introduce new evidence, only to file a memorandum the following day stating that they were not proceeding with the application for leave to adduce further evidence. Ms Mason notes that this ground was not relied upon at the pre-trial hearing nor was evidence led to support its existence and there has been no disclosure of any of the other evidence that they suggest exists. Ms Mason submits that it is against the rules of natural justice for the Crown to invite the Court to consider the impact of the appeal on others who have not been defined, without disclosing the evidence they rely on and without making an application to lead new evidence, noting that the “other personnel” who the Crown suggests are potentially to be affected by this appeal have not been given an opportunity to be heard.
[51] We accept Ms Mason’s submissions on this point and, therefore, any reference to the impact of the appeal upon any greater investigation or third parties will, accordingly, be set aside.
Seriousness of the offence
[52] Dealing first with the seriousness of the offence, the Crown submits that the Court Martial erred in analysing this factor by focusing on the offences that G was suspected to have committed, rather than those of the accused, A, the Judge stating:24
However, the difference between McCartin on the one hand and this case on the other is that the allegations that were being faced by McCartin and the reason that the search was authorised pursuant to s 95 was evidence that he had been dealing in a Class B drug. In this case there was no such evidence. The only evidence here being that he was using cannabis and had possession of a utensil.
[53] The Crown submits that the focus should instead have been on the seriousness of the charges with which the respondent is charged. Accordingly, the analysis of the seriousness of dealing in Class B controlled substances in the military from McCartin is eminently relevant to the present case, A, like McCartin, being accused of dealing in Class B substances.
[54] The Crown also submits that the Judge erred in stating that the offending in McCartin was more serious than the offending in the present case because of the quantities involved and the significant period of offending. McCartin was charged with nine offences occurring over a period of eight months, the most serious of which was one charge of offering to supply Class B controlled drugs, being two pills of MDMA. He was also charged with dealing in Class C controlled substances (cannabis) and non-approved psychoactive substances (10 tabs of NBomE). A, on the other hand, faces seven charges of offering to supply Class B controlled drugs (MDMA) over a period of four months. The alleged quantities totalled five instances of “one gram”, one instance of two “caps” and one instance of one “cap”. The Crown submits that the alleged offending in the present case is therefore of a comparable magnitude to that in McCartin, if not more serious, given that A faces seven charges of offering to supply Class B drugs.
[55] Further, the Crown emphasises the point made in McCartin, and endorsed by the Judge, that drug offending in the military is a matter that may be regarded as more serious than the same offending may be in the civilian context. The Crown also brings
24 At [68].
to the Court’s attention the decision of R v Jack, in which the Court Martial Appeal Court held that:25
In the context of the armed forces the rights and freedoms contained in the NZBORA will be subject to the reasonable limits which can be demonstrably justified in relation to the efficient and disciplined operation of the armed forces. Accordingly, the circumstances in which a search might be held to be unreasonable in the civilian context may not necessarily be held to be unreasonable in the context of service in the armed forces.
[56] Accordingly, the Crown submits that the seriousness of the offences with which A is charged weighs heavily in favour of the evidence being admitted. It is further submitted that the seriousness and potential harm of drug offending in a military context carries such weight that the authorisation to search was, as the Court stated in R v Jack, demonstrably justified in relation to the efficient and disciplined operation of the Armed Forces.
[57] Ms Mason submits that the seriousness of the offending does not outweigh the impropriety. She concedes that Class B drug offending is serious but argues that the comparison with McCartin was inappropriate given the length and magnitude of the offending in that case. She also notes that applying McLean v R, which involved representative charges of supplying and offering to supply methamphetamine with a corresponding maximum penalty of life imprisonment, would support the seriousness of the breach outweighing the seriousness of the allegations.
Seriousness of the breach
[58] The Crown accepts that a breach of privacy with respect to an individual’s mobile device is a serious breach of its kind. Given the observations of the Supreme Court in Dotcom v Attorney General26 that is an appropriate concession. However, the Crown emphasises the point that the cellphone in question was not A’s and his privacy interest in the cellphone was limited to the interactions to which he was a party and not to the multitude of media and communications facilities that render searches of cellphones to be so serious. Accordingly, it is submitted that the nature of the
25 R v Jack [1999] 3 NZLR 331 at 339.
26 Dotcom v Attorney General [2014] NZSC 199 at [21] and [87]; Mclean v R, above n 15 at [25]- [27].
privacy breach with respect to A is actually rather limited in comparison to the owner of the phone.
[59] Ms Mason submits that, while the Crown makes the point that it was not A’s phone and therefore not his privacy, it was his personal conversations that were part of the phone interception of G’s phone and A’s phone was removed from him and searched because of the search of G’s phone. He was subject to property and body searches. Nothing was found. She submits that, the Crown having chosen to charge A before G, they should not be entitled to claim a benefit from that decision. Had G been a co-defendant, then that submission would not be available to the Crown.
[60] We accept that even though the phone searched was G’s not A’s, because the contents of the phone included messages from A, he had important privacy rights in the information on the phone.
Importance of the right breached and seriousness of the intrusion
[61] Ms Mason submits that the right to be secure against unreasonable search and seizure is an important one, particularly when considering mobile devices. The Crown does not address this particular aspect of the s 30(3) considerations which suggests that it is conceded the Court Martial was right to consider the breach to be a serious one.
Nature and seriousness of any impropriety
[62] The Crown submits that it was an overstatement on the part of the Court to call the investigation of G’s phone a fishing expedition which would suggest that the Military Police were looking to uncover results beyond their stated intent. The Crown submits LMP Coates’ statements to LTCDR Gibbs conveyed exactly what the Military Police expected to find in conducting the search, namely:
(a)evidence of where G had procured the cannabis and associated paraphernalia from; and
(b)evidence of the involvement of other people in those transactions.
[63] The Crown submits that this does not demonstrate any kind of fishing expedition but rather reflects an expectation of retrieving evidence that might reasonably be expected to exist and upon which further inquiries might be carried out.
[64] Ms Mason counters that argument by stating that the Crown has conceded entirely that the Military Police were wanting to find out where G had procured the cannabis from and were wanting to establish who else was involved. She says this is the very essence of what a “fishing expedition” involves. The intention was to retrieve evidence to carry out further enquiries.
[65] We accept Ms Mason’s submissions on this point. In searching G’s cellphone, the Military Police were not seeking evidence to investigate G’s potential offence of procurement. The MP was seeking evidence of drug dealing by others. We conclude that the Judge was correct to characterise this search as a fishing investigation.
[66] The Crown further submits that the Court Martial found that the unsubstantiated claims by LMP Coates were reckless because he should have known that he was obliged to give sufficient information to enable LTCDR Gibbs to properly form reasonable grounds to suspect. It is submitted that the primary focus of this inquiry should be on LTCDR Gibbs who, as CO, has the statutory function of approving searches under s 95. It is submitted that members of the Military Police, unlike the New Zealand Police, have no formalised role in the process of applying for the authority to search and therefore their submissions to a CO should not be judged by the same standards that would be applied to a police officer, for example, making an application under the Search and Surveillance Act 2012.
[67] In response to the Court Martial’s suggestion that LTCDR was careless in that he did not enquire further into the unsubstantiated claim made by LMP Coates, the Crown submits that it was not necessary for him to enquire any further as LMP Coates’ statements were superfluous to what was required for LTCDR Gibbs to meet the standard of “reasonable grounds to suspect”. It was sufficient that G was in possession of cannabis.
[68] In the alternative, the Crown submits that if the information was not adequate then, as in McCartin, it would be by a fine margin that the decision was improper. The evidence otherwise available to LTCDR Gibbs made it entirely possible, if not giving him reasonable grounds to suspect, that G had used his cellphone in the process of procuring the material of which he was found in possession.
[69] Ms Mason submits that, whilst there may be some difference between the standard of military police and civilian police, this cannot justify bad policing in any environment where the breach of someone’s privacy is envisaged. This is particularly so when the consequences from a conviction at Court Martial for this type of offending is likely to result in a period of approximately two years’ imprisonment, with no chance of parole as the Parole Act does not apply. A comparable civilian sentence on the same facts would likely be a sentence of home detention. A low level of competence on the part of the Military Police cannot be justified in these circumstances. If the Military Police can be excused for being reckless then it is submitted that the CO has a greater duty to check out the reasonableness of the grounds presented to him or her.
[70] We note that following the clear guidance given in McCartin,27 it is difficult for the Crown to argue that those exercising powers under s 95 are not well aware of the standards they are required to meet.
Additional consideration: centrality of the evidence
[71] While s 30(3) of the Evidence Act lists some eight matters the Court may have regard to in determining whether the exclusion of the evidence is proportionate to the impropriety, these are stated to be “among any other matters”, meaning this list is not intended to be exhaustive.
[72] The Crown submits there may be some precedent for the Court to consider the centrality of the evidence to the prosecution case, noting that prior to the passing of the Evidence Act, the Court of Appeal in R v Shaheed held that the centrality of the
27 Above n 9 at [36]-[37]; see also S v R [2014] NZHC 1345 at [80]-[91], and Bishop & Mapson v R
[2016] NZHC 2548 at [116]-[125].
improperly obtained evidence to the prosecution’s case was a relevant factor in determining whether it should be excluded.28 However, Shaheed listed numerous other factors, all of which came to be reflected in s 30(3) of the Evidence Act, whereas the centrality of the evidence to the prosecution’s case was omitted.
[73] This matter was considered by the Supreme Court in Hamed v R, with McGrath J stating:29
The only Shaheed factor not specifically mentioned in [s 30] (having been removed by the Select Committee) is whether the disputed evidence is central to the prosecution case. The reason given by the Select Committee for that omission was “we find it difficult to envisage a circumstance where it would be relevant, given the seriousness test in para (d)”. As s 30(3) is expressed permissively, however, this incident in the legal history does not preclude consideration of this factor where it is relevant in the balancing exercise.
[74]In that same decision, Blanchard J stated that:30
[I]t is simply unrealistic not to take account of the importance of the evidence in the case when assessing whether exclusion will be proportionate to the impropriety and the impact one way or another on the effectiveness and the credibility of the justice system...
[75]However, Tipping J expressed a different view:31
I must acknowledge some discomfort with the proposition that the more important the evidence is to the Crown’s case, the stronger is the case for admitting it. As we shall see Parliament for good reason eschewed the centrality of the evidence to the Crown’s case as a factor to be taken into account.
[76]In discussing the different approaches in Hamed, the Court of Appeal in
T (CA438/2015) v R concluded:32
We prefer not to express a firm view on this issue. However in the present case it could be said to be artificial to assess whether exclusion is a proportionate remedy without considering the consequences that will flow from exclusion. It seems unrealistic to consider the nature and quality of the evidence (permitted under s 30(3)(c)) without also assessing its relative importance to the Crown case.
28 R v Shaheed [2002] 2 NZLR 377 (CA) at [26].
29 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [260].
30 At [201].
31 At [236].
32 T (CA438/2015) v R [2016] NZCA 148 at [71].
[77] The Crown accordingly submits that the centrality of the excluded evidence to this case is a factor that the Court may take into consideration and, if considered, would weigh in favour of the inclusion of the evidence.
[78] It is our view that the importance of the evidence to the prosecution case is a factor that can be taken into consideration. The evidence appears to be central to the Crown’s case and is therefore a factor which would weigh in favour of its inclusion, albeit to perhaps a lesser extent than the factors explicitly listed in s 30(3).
Discussion
[79] We focus here on the factors that the Crown raises in its submissions as errors made by the Court Martial in applying the balancing test under s 30.
[80] It is our view that the Judge, when considering the seriousness of the offence, did err in focussing on the allegations faced by G. The focus should rather have been on the seriousness of the allegations faced by A. Offering to supply Class B drugs are serious charges. The seriousness of these charges, particularly given their nature within the military context, weigh in favour of the evidence being admissible under s 30, as does the centrality of the evidence to the prosecution’s case.
[81] However, as the Crown has accepted, a breach of privacy with respect to a mobile device is also serious. While A’s privacy interest in the cellphone that was the subject of the search was arguably limited only to those communications to which he was a party, he undoubtedly had a privacy interest which was breached. Searching G’s cellphone when there were no reasonable grounds to suspect there might be evidence on it relating to the commission of an offence (other than what he had already admitted to) was a serious breach of his right to privacy. This is an important right, as is the right to be secure against unreasonable search or seizure.33 LTCDR Gibbs’ decision to authorise the search of G’s cellphone, on the basis of the information provided to him, was seriously flawed, particularly given our finding that the Court Martial were correct to characterise the search as being essentially a fishing expedition.
33 New Zealand Bill of Rights Act 1990, s 21.
[82] We note that in terms of s 30(3)(g) there was no apprehended physical danger and in terms of s 30(3)(h) there was no particular urgency.
[83] Although we have found that the seriousness of the charges and the centrality of the evidence to the prosecution’s case weigh in favour of the evidence being admissible, this is not sufficient, albeit by a fine margin, to tip the scales. The exclusion of the evidence is, in our view, proportionate to the impropriety.
Conclusion
[84] The procedure followed for obtaining the cellphone evidence was both unlawful and unreasonable, and therefore improperly obtained. Excluding the evidence in this case would not be disproportionate to the impropriety.
Result
[85]For the reasons given above, the appeal is dismissed.
Churchman J Judge Billington QC Judge McGregor
Solicitors:
Office of the Director of Military Prosecutions, Wellington for Appellant Mason & Mortimer Lawyers, Pukekohe for Respondent
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