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R v Alsford

R v Alsford

Case [2017] NZSC 42 29 March 2017

Criminal Liability

Sentencing

Limitation Periods

Admissibility of Evidence

Res Judicata

Issue Estoppel

Criminal Law

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE SUPREME COURT OF NEW ZEALAND

SC 12/2016

[2017] NZSC 42

BETWEEN
THE QUEEN

Appellant

AND

GREGORY JOHN ALSFORD

Respondent

PRIVACY COMMISSIONER

Intervener

Hearing: 16 June 2016

Court:

Elias CJ, William Young, Glazebrook, Arnold and OʼRegan JJ

Counsel:

M J Lillico and P D Marshall for Appellant

J H M Eaton QC and F E Geiringer for Respondent
J C Edwards (Privacy Commissioner) with J M Hayward

Judgment:

29 March 2017

JUDGMENT OF THE COURT

AThe appeal is allowed. The evidence obtained from the searches conducted on 19 December 2012 is admissible at trial.

BOrder prohibiting publication of the judgment or any part of the proceedings (including the result) in the news media or on the internet or other publicly available database until final disposition of the trial. Publication in a law report or law digest permitted.

R v GREGORY JOHN ALSFORD [2017] NZSC 42 [29 March 2017]

REASONS

William Young, Glazebrook, Arnold and O’Regan JJ [1]

Elias CJ [103]

WILLIAM YOUNG, GLAZEBROOK, ARNOLD AND O’REGAN JJ
(Given by Arnold J)

Table of Contents

Para No.

The appeal [1]

Background [5]

Power consumption information [14]

Were the police required to seek the power consumption data by

way of a production order?
[18]

Was there compliance with the Privacy Act? [30]

Use of power consumption information in applications [47]

Conclusion [73]

2010 search [75]

Conclusion [100]

Decision [102]

The appeal

[1] Like Marwood v Commissioner of Police, this appeal raises questions concerning the use of improperly obtained evidence in contexts other than the criminal proceeding in the course of which the evidence was acquired.¹ We gave a results judgment on 26 October 2016 allowing the appeal.² These are our reasons.

[2] The information at issue was obtained as a result of an unlawful search and was ruled inadmissible in an earlier criminal proceeding following the balancing process required by s 30 of the Evidence Act 2006.³ Consequently, that earlier prosecution of the respondent, Gregory Alsford, based on the information could not proceed. The police used the same information several years later when applying for a production order in respect of Mr Alsford’s mobile phone data in the context of further possible offending. Having obtained apparently incriminating texts, the

1      Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260.
2      R v Alsford [2016] NZSC 140.
3      Police v Alsford DC Christchurch, CRI-2010-009-6053, 17 September 2010 [Alsford admissibility judgment (DC)].

police then obtained search warrants in respect of several properties owned by Mr Alsford. The search warrant applications simply mentioned that Mr Alsford had been charged previously, without any detail. Information obtained as a result of the production order and the search warrants led to Mr Alsford facing the current drug…

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 R v Alsford

Details

AGLC: R v Alsford [2017] NZSC 42
Case: [2017] NZSC 42
Decision Date: 29 March 2017

CaseChat Overview and Summary

This appeal concerns the use of information obtained by the police from electricity suppliers in respect of two properties. The information was used by the police in support of an application for a production order under the Search and Surveillance Act 2012 and subsequently in support of search warrant applications. The electricity information was also referred to in the production order application. The information was ruled inadmissible in an earlier criminal proceeding against the respondent, Gregory Alsford, following the balancing process required by s 30 of the Evidence Act 2006. The appeal concerns the effect of the police using the information that had earlier been ruled inadmissible in this way. The other issue in the appeal concerns the use by the police of power consumption data provided by electricity supply companies. The data, which was “personal information” in terms of s 2 of the Privacy Act 1993, was provided voluntarily in response to requests from the police. This raises the question of the relationship between the information privacy principles found in s 6 of the Privacy Act and the prohibition on unreasonable search and seizure in s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). The Court of Appeal upheld the decision of the District Court to exclude the evidence. The Court allowed the appeal. Elias CJ concluded that the information obtained from the electricity companies did not constitute an unreasonable search in terms of s 21 of the NZBORA because the respondent did not have a reasonable expectation of privacy in the power consumption information. The appeal was allowed and the evidence obtained from the searches conducted on 19 December 2012 was admitted at trial.

Orders