R v Middeldorp - [2015] NZHC 1137

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-085-10823

CRI-2013-085-10822 [2015] NZHC 1137

THE QUEEN

v

JOHANNES HENDRIK MIDDELDORP NOELENE KAY BANTON

Hearing: 18 February 2015 - 1 April 2015

Counsel:

G J Burston, P W Gardyne and M J Ferrier for the Crown
J Bioletti for Mr Middeldorp
B Hunt and A Courtney for Ms Banton

Judgment:

7 May 2015

Reasons :

26 May 2015

JUDGMENT OF MALLON J (Challenge to covert search)

Table of Contents

Introduction ....................................................................................................................................... [1] The voir dire evidence ....................................................................................................................... [4] Unreasonable search? ..................................................................................................................... [28] October search ................................................................................................................................. [36] Any other downstream contamination? ........................................................................................ [46]
Conclusion........................................................................................................................................ [53]

R v MIDDELDORP and BANTON [2015] NZHC 1137 [7 May 2015]

Introduction

[1] Following a judge alone trial before me, Noelene Banton and Johannes Middeldorp were convicted on charges of dishonestly reproducing documents with intent to cause loss. In my judgment (reasons for verdicts)1 I referred to a challenge that had been made to a covert search conducted at their home on 22 August 2012.2

[2] Counsel for Ms Banton contended that:

(a) the covert search conducted at Mr Middeldorp and Ms Banton’s home on 22 August 2012 was unlawful and the evidence seized as a result was inadmissible in the trial;

(b) the illegality of the covert search tainted the subsequent 24 October

2012 search with the result that the evidence seized during the

October search was also inadmissible; and

(c) the illegality of the covert search also contaminated other evidence at the trial because it was used directly and indirectly in the trial.

[3] In my judgment I noted that the Crown had not relied on evidence obtained from the 22 August 2012 search at the trial and that I had not relied on evidence from that search in my reasons for my verdicts. I said that I was satisfied that, even if there were concerns about the 22 August 2012 search, it did not taint the 24 October
2012 search so as to render evidence obtained from that search inadmissible. I also said that I was satisfied that the evidence obtained from that search was not directly or indirectly used at the trial to the prejudice of either defendant. This judgment sets out my reasons for those conclusions.

The voir dire evidence

[4] In light of the challenge I heard extensive evidence about the circumstances in which the covert search came to be carried out, the manner in which it was carried

1 R v Middeldorp [2015] NZHC 951.
2 At [10].

out, and what happened to the information obtained from that search.3 This evidence was relevant to whether the covert search was an unreasonable search4 and whether, on a balancing exercise, it would be admissible in that event.5

[5] A joint investigation was commenced by the Serious Fraud Office (SFO), the Organised and Financial Crime Agency of New Zealand (OFCANZ)6 and the Commerce Commission into a scam advertising operation. The investigation targeted several individuals, including Ms Banton and Mr Middeldorp. As part…

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 Middeldorp

Details

AGLC: R v Middeldorp [2015] NZHC 1137
Case: [2015] NZHC 1137
Decision Date: 7 May 2015

CaseChat Overview and Summary

Noelene Banton and Johannes Middeldorp were convicted of dishonestly reproducing documents with intent to cause loss. Banton challenged the admissibility of evidence obtained from a covert search of their home on 22 August 2012, arguing that it was unlawful and tainted subsequent searches and other evidence at trial. The court heard extensive evidence about the circumstances of the covert search, including the decision to carry it out without informing the occupants, the manner in which it was conducted, and what happened to the information obtained. The court found that while there were some concerns about the covert search, it did not render the downstream evidence inadmissible or otherwise contaminate the evidence at trial. The evidence obtained from the subsequent 24 October 2012 search was not tainted by the earlier search, as it would have been obtained regardless of the August search. Additionally, the court found that the information gathered during the covert search was not used directly or indirectly in the trial to the prejudice of either defendant. The Crown elected not to adduce certain parts of the police video interview of Banton, and the court found that this was not unfair to her. The court also noted that there were no concerns about the cloning process used during the covert search, as it was non-invasive and not likely to damage any information on the computer. Overall, the court concluded that even if there were concerns about the covert search, it did not render the downstream evidence inadmissible or otherwise contaminate the evidence at trial.

Orders