R v R
[2015] NZHC 713
•15 April 2015
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REMAINS IN PLACE.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-044-2080 [2015] NZHC 713
THE QUEEN
v
R
Hearing: 16 & 17 March 2015 Appearances:
Mr Raftery & Mr Walker for Crown (applicant)
Mr Wilkinson-Smith & Mr Brosnahan for defendant
(respondent)Judgment:
15 April 2015
JUDGMENT OF WINKELMANN J [on admissibility of GPS data evidence]
This judgment was delivered by me on 15 April 2015 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
R v R [2015] NZHC 713 [15 April 2015]
Introduction
[1] The defendant is charged with murder and sexual violation. The Crown’s case is that on the evening of 24 May 2014 the defendant abducted Mrs Blesilda Gotingco from Salisbury Road, Birkdale, took her against her will to his home, sexually violated her and subjected her to physical violence which resulted in her death. The Crown says that the next morning the defendant took Mrs Gotingco’s body to Eskdale cemetery in Birkdale and left it in scrub.
[2] At the time of the alleged offending conditions imposed upon the defendant following his release from prison were still in force. These conditions included that he be subject to electronic monitoring. During the course of their investigation into the abduction of Mrs Gotingco the Police obtained global positioning data from the Department of Corrections (Corrections) which had been collected and stored as a consequence of that monitoring. The data obtained recorded the defendant’s movements on the day of the abduction, the next day and the day of his arrest.
[3] The Crown now seeks an order under s 101 of the Criminal Procedure Act
2011 declaring that the following evidence is admissible at the defendant’s trial:
(a) Evidence of the defendant’s movements recorded by Corrections using global positioning system equipment (the GPS data), in particular for the 14 hour period between 5.00 pm on 24 May 2014 and 7.00 am on 25 May 2014 and;
(b) Evidence obtained subsequent to the GPS data for 24 and 25 May
2014 being released to the Police.
[4] The defendant objects to the admissibility of this evidence on the following grounds:
(a) The Parole Board (the Board) unlawfully imposed the special condition of release which subjected the defendant to electronic monitoring. The condition was unlawfully imposed because at the hearing to consider the imposition of conditions the Board failed to
observe the requirements of natural justice as reflected in s 27 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). The defendant says there are two aspects to this. First, the Board did not adjourn the hearing to enable the defendant’s lawyer to be present. Secondly, the Board did not articulate in its decision why any of the 13 special conditions imposed were required under the statutory framework which regulated the Board’s powers or why those conditions should be imposed for the full six months.
(b)The GPS data was unlawfully obtained by the Police. The Police did not obtain a search warrant. Corrections had no authority to release the data to the Police. The situation did not fall within the information privacy principles enunciated in the Privacy Act 1993 (the privacy principles) which permit disclosure of personal information collected by agencies or within the terms of a memorandum of understanding between Police and Corrections.
[5] The defendant says that the consequence of any of these matters is that the GPS data was improperly obtained evidence for the purposes of s 30 of the Evidence Act 2006 and I should exercise my discretion to exclude it.
Summary of findings
[6] I have considered each of the defendant’s complaints about the way the evidence was obtained. In summary, my view is that the Board breached the principles of natural justice by failing to give adequate reasons for its decision. However, I do not consider that the failure to adjourn the hearing so that the defendant’s lawyer could be present breached his right to the observance of the principles of natural justice. I also do not consider that the Police acted unlawfully in obtaining the GPS data in the way that they did. In light of my conclusion that the Board breached the principles of natural justice, it is necessary to undertake the balancing exercise under s 30 of the Bill of Rights. Having done so I have concluded that the exclusion of the evidence would not be proportionate to the
impropriety in this case and therefore that the evidence is admissible. My reasons for these conclusions follow.
First issue: did the Board breach the requirements of s 27(1) of the New Zealand Bill of Rights Act by failing to ensure the defendant had legal representation?
[7] The relevant facts are as follows. On 4 October 2006 the defendant was sentenced to a total effective sentence of 8 years’ imprisonment for a number of offences including abduction for sex of a girl under the age of 12, and indecent assault of a girl under 12. He was denied parole during the course of his sentence, and so served the whole of his sentence. He was released from prison in December
2013.
[8] The defendant was scheduled to attend a hearing in front of the Board on
25 October 2013. The purpose of the hearing was consideration of what, if any, special conditions should be imposed upon the defendant following his release from prison.
[9] In advance of the hearing the defendant was provided with a copy of a Parole Assessment Report, in which the report writer recommended the imposition of 13 conditions. These included the imposition of an approved address, a residential curfew, restrictions on his ability to go to public places where children were likely to be, electronic monitoring to monitor compliance with these conditions, and alcohol and drug treatment.
[10] The defendant had not organised legal representation for the Board hearing. He had however organised legal representation for an upcoming hearing in the High Court at which an application by Corrections for extended supervision orders would be determined.
[11] The defendant gave evidence at this pre-trial hearing. He said that he raised with his lawyer whether he could represent him at his Parole Board hearing. His lawyer told him that the grant of legal aid did not extend to the Parole Board hearing, but he would attend if he could.
[12] The defendant attended the hearing on 25 October 2013 by audio visual link from Auckland regional prison. His lawyer did not attend.
[13] The defendant argues that where conditions as restrictive and intrusive as a night time curfew and 24 hour GPS monitoring are being considered, proper process and natural justice require that the prisoner be legally represented, or at least afforded the opportunity to seek legal representation. He argues that the hearing should have been adjourned to facilitate this.
Relevant principles
[14] Section 27(1) of the Bill of Rights provides:
Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
[15] The common law requirements of natural justice are context specific – a “flexible concept which aims to achieve across an infinite spectrum of situations both the actuality and the perception that things have been done justly and fairly”.1
They will vary depending upon the nature of the proceeding, the gravity of the matters at issue, and can be shaped by express statutory provision as to the procedure to be followed. In determining whether natural justice has been complied with, the courts look at the matter in the round to determine whether the process was fair.2
[16] Relevant to the defendant’s challenge is s 49(3) of the Parole Act which provides that an offender may, with leave of the Board, be represented by counsel. The provisions in the Parole Act which bear upon process do not on their face purport to be a code and therefore do not exclude the common law requirements of natural justice except to the extent that the requirements of the common law are
inconsistent with the provisions of the Act. They are therefore to be construed as
1 Director of Civil Aviation v Paterson (No 3) HC Wellington CIV-2005-485-606, 23 June 2005 at [98]; see also Canterbury Pipe Lines Ltd v Christchurch Drainage Board [1979] 2 NZLR 347 (CA) at 357.
2 Dandelion Investments Ltd v Commissioner of Inland Revenue [2003] 1 NZLR 600 (CA) at [59].
stipulating the applicant’s minimum rights, not the full extent of them. As Joseph
says:3
Statutory protections are minima not maxima, and the courts will supplement the procedures by reference to common law standards of fairness. For supplementation, it must be shown that the statutory procedures are insufficient to do justice and that common law procedural protections would not frustrate the statutory purpose.
[17] The Court of Appeal dealt with the question of legal representation before a Parole Board in Drew v Attorney-General.4 The Court considered that the principles of fairness identified in the English case R v Secretary of State for the Home Office, Ex Parte Tarrant apply in New Zealand when the individual is not entitled to legal representation as of right.5 The Court said:6
[70] It is well established in England that where the disciplinary regime does not deal expressly with the question of legal representation – as must now be taken to be the case with the Act and regulations – the Tribunal has a discretion in the matter. An inmate is not entitled as of right to legal representation but the Tribunal must exercise its discretion consistently with the principles of natural justice, or, as was said in Tarrant at p 273, “fairly and properly”. As Lord Denning MR said in Maynard v Osmond at p 252;
“. . . even if he should not be entitled as of right, I should have thought that as a general rule the tribunal should have a discretion in the matter. . . . They are the masters of their own procedure: and, unless clearly forbidden, should have a discretion to permit it.”
[18] In Tarrant, the Queen’s Bench Divisional Court identified a number of considerations which a Board should take into account in exercising that discretion.7
Considerations relevant to this case identified were:8
(1) The seriousness of the charge and of the potential penalty. (2) Whether any points of law are likely to arise.
(3) The capacity of the particular prisoner to present his or her own case.
3 Phillip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at [25.2.3].
4 Drew v Attorney-General [2002] 1 NZLR 58 (CA).
5 R v Secretary of State for the Home Office, Ex Parte Tarrant [1985] QB 251 (QB).
6 Drew v Attorney-General, above n 4.
7 That case concerned whether prisoners charged with grave or especially grave offences against prison discipline should have been entitled to counsel before a Board of visitors.
8 R v Secretary of State for the Home Office, Ex Parte Tarrant, above n 5, at 285-286.
(4) Any procedural difficulties that are likely to be encountered.
(5) The need for reasonable speed in making the adjudication.
Analysis
[19] The starting point in consideration of the defendant’s argument that the rules of natural justice were not complied with is that the defendant did not seek leave to be represented at the hearing, nor did he seek an adjournment to allow counsel to attend. When the Board asked him if he had talked through the proposed conditions with his lawyer the defendant said:
Um yeah we haven’t really had too many discussions, I mean, he’s, I’ve only just uh just got him through legal aid, um he come to see me on Monday where he pretty much just talked about what was going to happen with this extended supervision order, so um. He was he was supposed to be here today, um yeah I don’t know what happened there but um we haven’t really had the chance to go over any of the conditions too much, I, he he he’s aware of them but that’s pretty much it yeah.
The member of the Parole Board then asked:
So he’s [the lawyer] aware of them, but you, you haven’t been able to talk to
him and get any advice?
The defendant replied:
Nah not really. But um I’m willing, you know, it’s no secret that I’ve maintained my innocence and um my plan when I get out is to apply for an appeal to the courts, but um in the meantime like I understand that these conditions have to be imposed on me, and I am 100% committed to sticking to them cos I don’t want to come back to jail for, for any reason at all so whatever conditions are imposed on me I’ll stick I’ll stick to it, um but just, in in in the future I I will be applying for an appeal.
[20] There may be hearings that are of such significance for the defendant or of such complexity that a defendant’s indication that an absent lawyer was meant to be there would be sufficient for the Board of its own volition to raise the possibility of an adjournment. However this was not such a hearing.
[21] Applying the principles identified in Tarrant, although the issues for consideration were serious they were not of the most serious. The defendant was at the end of his term of imprisonment and so was to be released. The issues for
consideration by the Board were the conditions upon which that would occur, most of which the defendant said he was content with.
[22] I also take into account that the hearing was very straightforward. It did not involve difficult legal concepts or procedure. Counsel for the defendant did not suggest any argument a lawyer could have made that was not advanced by the defendant at the hearing. There is no indication that the defendant was in anyway prejudiced by his lack of legal representation.
[23] It is clear from the transcript of the hearing that the defendant was a person well able to articulate the basis for his concerns. He did so in relation to two of the conditions, the requirement for drug and alcohol treatment, and the condition relating to electronic monitoring. He was successful in persuading the Board to amend conditions requiring drug and alcohol treatment. As to the electronic monitoring condition, he was able to explain the reasons for his objection and to take part in a discussion about it. There were no witnesses to deal with, and no legal points to be argued.
[24] For these reasons I am satisfied that the Board’s failure to adjourn to enable
legal representation did not amount to a breach of natural justice.
Second issue: did the Tribunal err in failing to give adequate reasons for its decision?
The decision
[25] The decision of the Board appears to have been delivered at the end of the hearing. It is not clear from the evidence whether it was delivered in the presence of the defendant or not. The decision is very brief, and it is fair to say records little in the way of reasons. It records that the defendant continues to maintain that he has been wrongly convicted of the offences for which he was sentenced to imprisonment, and that his final release date is shown as 15 December 2013. It narrates that the defendant had been through the conditions and “apart from indicating that he was uncomfortable about the idea of the GPS monitoring system
and having to undergo a drug and alcohol programme, he was in general agreement with the conditions”.
[26] The Board notes the need for an amendment to the requirement for drug and alcohol monitoring and likewise an amendment to the condition in connection with the use of alcohol and prescription medication. The Board lists the 13 special conditions, “imposed as recommended”, saying that these will be for six months beyond the defendant’s statutory release date.
Statutory Framework
[27] Section 15(2) of the Parole Act deals with the situations in which special conditions may be imposed. It provides:
(2) A special condition must not be imposed unless it is designed to—
(a) reduce the risk of reoffending by the offender; or
(b) facilitate or promote the rehabilitation and reintegration of the offender; or
(c) provide for the reasonable concerns of victims of the offender; or
(d) comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under section 1071AC, to impose an intensive monitoring condition.
[28] Section 7 of the Parole Act provides the following by way of guiding
principles for the Board’s decision:
Guiding principles
(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.
(2) Other principles that must guide the Board's decisions are—
(a) that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions … that are more onerous, or last longer, than is consistent with the safety of the community; and
(b) that offenders must [, subject to any of sections 13 to 13AE-
13 to 13AE,] be provided with information about decisions that concern them, and be advised how they may participate
in decision-making that directly concerns them; and
(c) that decisions must be made on the basis of all the relevant information that is available to the Board at the time; and
(d) that the rights of victims [(as defined in section 4 of the Victims' Rights Act 2002] are upheld, and [submissions by victims (as so defined)] and any restorative justice outcomes are given due weight.
[29] In this case the Board was statutorily obliged to provide reasons for the imposition of the conditions. Section 116(3) provides:
A decision of the Board on the detention or release of an offender, or on his or her release conditions, must be in writing and include reasons for the decision.
[30] Where there is a statutory duty to give reasons the question then becomes how extensive the reasons need to be. That question is not addressed in the Parole Act. Rather the adequacy of reasons given is to be judged against the nature of the decision.9
[31] In Singh v Chief Executive, Department of Labour, the Court of Appeal listed the following non-exhaustive rationales for requiring reasons:10
(1) Thediscipline on the decision maker itself: it is commonplace that preliminary views can be changed when the process of thinking through the reasons and writing them down is undertaken.
(2) Assurance to those affected that their evidence and arguments have been assessed in accordance with the law, a matter relating to the next two points.
(3)Assistance to those affected in deciding whether to challenge the decision, for instance by appeal, review or other complaint
9 Ronberg v Chief Executive, Department of Labour [1995] NZAR 509 (HC) at 520-521; R v Awatere [1982] 1 NZLR 644 (CA) at 649; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [81].
10 Singh v Chief Executive, Department of Labour [1999] NZAR 258 (CA) at 262-263.
mechanism – since the statement of reasons may satisfy them that they have no real prospect of a successful challenge.
(4)If a review is mounted, assistance to the parties, counsel and deciders engaged in the review.
(5)The establishment, where appropriate, of a body of precedent or at least of guidance, governing or affecting the exercise of a particular power.
(6) Assurance to the wider public of the legitimacy, openness and accessibility of the exercise of the power – an aspect of accountability.
[32] The defendant challenges the decision on the basis that the Board failed to give reasons for its decision. The defendant identifies the following procedural improprieties:
(a) Neither the transcript of the hearing nor the Board’s decision provide a foundation for the special conditions, and those special conditions are therefore arbitrarily imposed.
(b) The Board failed to consider mandatory considerations stipulated in s
15(2) of the Parole Act and also failed to consider the guiding principles in the Parole Act.
(c) These failures included the failure to consider s 7(2)(a), which bears upon the duration of the conditions. The only discussion of the six month period is recorded in the transcript of its discussions with the defendant during the hearing. There a member of the board says of the six months “ … a fair amount of that six months could be taken up getting established and finding out what sort of employment opportunities there are”.
(d)In the transcript the Board raises irrelevant considerations in support of GPS monitoring, such as that GPS monitoring was done for the defendant’s benefit in defending allegations.
[33] The Crown concedes that reasons were required but submits that brief reasons, such as those provided here, can be adequate. It says that in this case the reasons for the imposition of the conditions were apparent because they are set out in the Parole Assessment Report, which it is clear the Board accepted. It would have been apparent to the defendant from the report, and from other material available to the defendant from earlier hearings, and from his discussion with the Board, why the conditions were imposed.
[34] Finally the Crown says that if the defendant had an issue with the lack of reasons (or indeed with the lack of representation) he could have sought a review under s 67 of the Parole Act. Those grounds for review include an error of law or action without jurisdiction by the Board, which would encompass the points now raised. The defendant’s response to this is that he did not receive a copy of the decision until after he was released from prison, by which time the period for review had elapsed.
Analysis
[35] The Board was statutorily obliged to give reasons for its decision. This is no more of an obligation than common law would impose upon it because of the nature of the power it was exercising, and the effect of the conditions it was imposing. These had the effect of significantly constraining the defendant’s freedom of movement, and were to apply after the defendant’s statutory release date, that is to say, after he had served his sentence. The reasons had to make clear why the Board considered the conditions were necessary to achieve any of the s 15 purposes, and why they were necessary for that duration.
[36] Although the defendant indicated that he had “no problem” with most of the conditions, the Board could hardly have regarded that as evidence of consent to the
conditions, such as to justify the absence of reasons. The Crown did not attempt to argue this.
[37] Here it cannot fairly be said that the Board gave adequate reasons for its decision. The written decision does no more than narrate a little of what occurred at the hearing, the reason why it was amending two of the conditions proposed in the report, and then list the conditions imposed.
[38] There is some superficial attraction in the Crown’s submission that the Board’s apparent adoption of the contents of the report can make up the deficiency in the reasons. However consideration of the report and the reasons immediately reveals difficulties with that analysis. The residence and curfew conditions are recommended without consideration of whether those conditions serve any of the s
15(2) purposes. In the listing of conditions the report does describe the electronic monitoring condition as ensuring compliance with the residential conditions and these words are picked up in the decision. But that does not cure the absence of reasons provided for the residential curfew or the other limitations upon the defendant’s movements. Also significant is the absence of any apparent consideration of the appropriate time frame for the conditions.
[39] Counsel for the defendant also argued that the Board took into account an irrelevant consideration. This argument is based on discussion during the hearing to the effect that electronic monitoring would assist the defendant by eliminating him as a suspect should suspicion fall upon him in future. Because of the absence of reasons it is difficult to form a view as to whether relevant or irrelevant considerations were taken into account. Without reasons it can be difficult to determine what considerations a decision maker has considered, and therefore
difficult to determine whether the right considerations have been addressed.11
[40] I accept the Crown’s argument that adequate reasons can be brief. For example the Board’s reasons did not need to recite the s 15 considerations or the guiding principles. However they needed to provide an outline at least of why the Board considered conditions of that nature, and that duration were necessary to
achieve any of the s 15(2) principles. A brief outline of the risks identified to which the conditions responded is clearly a bare minimum. If that were done then the reasons for many if not all of the conditions may, as the Crown submitted, have spoken for themselves.
[41] I am satisfied that in failing to provide adequate reasons the Board breached the principles of natural justice. This was an error of law. But what follows from this finding?
[42] The conclusion that there was some defect in the reasoning process does not automatically lead to the conclusion that the imposition of the conditions was void. A defect in the process adopted by the Board does not result in absolute invalidity. It is only when the decision is challenged that a court of competent jurisdiction can set
aside the imposition. In Murray v Whakatane District Council, Elias J held that:12
It is settled law that every unlawful administrative act, except perhaps in extreme cases of clear usurpation of power, is operative until set aside by a Court.
[43] That conclusion applies here. While the lack of adequate reasons and reference to the mandatory relevant considerations in the Parole Act potentially rendered the decision vulnerable to judicial review, they did not invalidate the imposition of the conditions from the time they were imposed. Furthermore, the discretionary nature of relief in judicial review means that even if a decision is vulnerable to judicial review for those reasons, it will not necessarily be set aside. In this case there are considerations that at the discretion phase of a judicial review proceeding would weigh heavily in favour of declining to set the decision aside, the principal one being that there were good grounds to impose the conditions, whether or not the Board articulated those reasons.
[44] This proceeding is not a judicial review, or an appeal against the Parole Board’s imposition of conditions. It is an application in relation to the admissibility of evidence. The defence submits that the special conditions were imposed unlawfully because they were imposed in breach of the requirements of natural
justice provided in s 27 of the Bill of Rights. As a result of this the GPS data should never have been collected, and s 30 of the Evidence Act 2006 applies. Section 30 provides in material part:
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if-
(a) the defendant…against whom the evidence is offered raises, on the basis of an evidential foundation the issue of whether the evidence was improperly obtained…
(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:
…
[45] The defendant says that this evidence was obtained in consequence of a breach of s 27 of the Bill of Rights. The issue of whether evidence was obtained “in consequence of a breach” was discussed by the Court of Appeal in R v Williams and described as a “slightly attenuated but for test”.13 In this case it cannot be said that there was no causal connection between the breach of s 27 of the Bill of Rights and the collection of the evidence. Although it might be argued that the defect in the
decision was one of form only in the sense that the impositions of conditions was well justified, the error still occurred in the process by which those conditions were imposed.
[46] Therefore tempting though it is, at this point, to undertake the sort of exercise that would be conducted at the discretion phase of an application for judicial review, I will address relevant discretionary factors in accordance with the balancing exercise set out at s 30 (3) of the Evidence Act, which I come to later in this judgment. I consider this approach is consistent with the practice of treating inevitability of discovery as relevant to the balancing test rather than going to
causation in unreasonable search cases.14
13 R v Williams [2007] NZCA 52 at [98] and [100].
14 See R v Williams at [128].
Third issue: did the Police act unlawfully in obtaining the GPS data?
[47] The defendant says that this was not publicly available information, and, absent a search warrant the Police had no power to request it and Corrections no right or obligation to provide it. Without that data the Police had no other information connecting the defendant to the case. The defendant says that the situation did not fall within any of the situations set out in the privacy principles which would have allowed information sharing, and the memorandum of understanding between the Police and Corrections did not apply.
[48] At the pre-trial hearing Police and Probation personnel gave evidence as to the circumstances around the release of the GPS data to the Police. The defendant also gave evidence. The relevant facts emerging from that evidence are as follows.
[49] Detective Constable Chris Cooper (Mr Cooper) was a member of a CIB squad responsible for monitoring the defendant as a high risk offender. In early 2014 he came into contact with the defendant twice. First, Mr Cooper was involved in the arrest of the defendant for breach of the curfew condition attaching to his parole. Then in March 2014, there was an incident within a few hundred metres of the defendant’s home which involved a suspicious approach to a child. Mr Cooper contacted Mr King, a service manager from Corrections responsible for the Prison Release Team, to make enquires as to whether the defendant was in the area at the time of the incident. Mr King was able to tell Mr Cooper that the defendant was not in the area at the time after checking GPS data in connection with his whereabouts. Mr Cooper’s evidence was that he later visited the defendant to advise him that he had been checked as a suspect for the suspicious approach to the child but was discounted because of his GPS bracelet.
[50] On 26 May 2014 Mr Cooper was working as part of a team investigating the disappearance of Mrs Gotingco two days earlier. His evidence was that at about 3.25 pm he thought of the defendant as a potential suspect. He knew he lived near the location from which Mrs Gotingco had disappeared, and knew he had previously been convicted of offences involving abduction and indecent assault of a child. Having told his supervisor of his suspicions, he then called Mr King for the purpose
of checking whether the defendant could be involved in the abduction. He said he was concerned for Mrs Gotingco’s safety and also thought that if the defendant was involved, he had an obligation to protect the public from him.
[51] Mr Cooper told Mr King he was investigating the disappearance and wanted to know if the defendant was involved. Mr King’s evidence was that he was aware from media reports that Mrs Gotingco was missing and that she had disappeared from near where the defendant lived. However he did not believe the defendant had anything to do with her disappearance because of the different characteristics of the victims. Nevertheless he acceded to Mr Cooper’s request.
[52] He checked the information he had access to and called Mr Cooper back to give him the detail of nine locations the defendant had been at between 4.54 pm and
8.11 pm on the day of Mrs Gotingco’s disappearance. Based on this information he told Mr Cooper that he could not exclude the defendant from involvement and that he would seek more detailed information from the GPS monitoring team in Wellington. The information available to Mr King as part of the Auckland team provided only snapshots of GPS information. For the full data, it was necessary to contact the GPS monitoring team in Wellington.
[53] When Mr King made that check he was told by the duty officer in Wellington that he could see that the defendant was on the street where Mrs Gotingco had gone missing, at about the time that she had disappeared.
[54] Mr King said that he was concerned that this information suggested that the defendant might have been involved in Mrs Gotingco’s disappearance. He believed that her life could be in danger and that any delays could have tragic consequences. He therefore asked the duty officer for the information about the defendant’s movements as soon as possible.
[55] He then contacted his district manager and informed her that the Police believed the defendant might be responsible for the disappearance of Mrs Gotingco. She authorised him to provide any and all support to the Police and to keep her
updated about the information. The Wellington team then emailed him the tracking data which he immediately forwarded to Mr Cooper, believing that time was critical.
[56] Just before 6.00 pm Mr Cooper and the GPS monitoring supervisor, Mr Hopkirk, spoke directly. Mr Hopkirk confirmed that the defendant had been on the road from which Mrs Gotingco went missing numerous times on the evening of
24 May, including at about the time of her disappearance. The GPS monitoring operations centre then emailed further information to Mr Cooper direct, including maps of where the defendant had been on 24 May and the day after Mrs Gotingco went missing, 25 May.
[57] From the maps Mr Cooper identified that the defendant had spent a considerable time in the Eskdale Cemetery on the morning of 25 May, very shortly after his curfew had finished at 6.00 am. He told his supervisor that he had identified the Eskdale Cemetery as the place the defendant went to as soon as his curfew finished the morning after Mrs Gotingco’s disappearance.
[58] A group of Police including Mr Cooper then immediately went to the cemetery to search for Mrs Gotingco.15 The search and rescue members were not initially able to locate anything at the cemetery. Mr Cooper then made further contact with the GPS operations centre asking for the GPS coordinates for the defendant’s last location in the cemetery, and the point furthest into the bush. He placed his phone on speaker phone, and the GPS location given by the operations
centre was recorded by the search team. Using that GPS location the search team
then located Mrs Gotingco’s body.
[59] Following the discovery of Mrs Gotingco’s body Mr Cooper called the GPS monitoring operations centre, who told him them that the defendant was at his home. Mr Cooper returned to base and this time called the night shift service manager for the probation service centre which monitors the GPS ankle bracelets. The manager
gave Mr Cooper detail of the various places where the defendant was at on the day
15 During that search Mr Cooper called the GPS monitoring operations centre and asked if they could email a copy of the defendant’s movements in cemetery and surrounding the bush along with a satellite photo overlay. However because his phone would not open the attachment, he did not see the email until he returned to base.
of Mrs Gotingco’s disappearance. I understand this information was then used in obtaining a search warrant for the defendant’s home. The Police arrested the defendant in the early hours of the next morning.
Analysis
[60] The defendant says that in obtaining and using the GPS data the Police breached his right to be secure against unreasonable search and seizure. He also says that the evidence was obtained unfairly because it was obtained in breach of the privacy principles.
[61] There is a preliminary issue as to whether the request by the Police for the
GPS data was a search.
[62] What amounts to a search for the purposes of s 21 of the Bill of Rights was considered by the Supreme Court in Hamed v R.16 Blanchard J approved of the statement of the Supreme Court of Canada in R v Wise that:17
If the Police activity invades a reasonable expectation of privacy, then the activity is a search.
[63] The Crown concedes that the GPS data collected by Corrections is “personal information” “held by an agency” as those terms are used in the Privacy Act. Just what are reasonable expectations of privacy in connection with personal information can be determined by reference to the Privacy Act. I take the approach that if that Act allows for sharing of the information in a particular circumstance, and that circumstance applies, the sharing of the information will not amount to a search. It follows, on the particular facts of this case, that the questions of whether there has been an unreasonable search and whether the evidence has been obtained unfairly by
breach of the privacy principles will be determined by reference to the same matters.
16 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.
17 At [163] citing R v Wise [1992] 1 SCR 527 at 533.
[64] In the Crown’s submission the release of the GPS evidence from Corrections to Police was governed by principle 11, “Limits on disclosure of personal information”. Principle 11 provides in material part:
Principle 11 Limits on disclosure of personal information
An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds,—
(a) That the disclosure of the information is one of the purposes in connection with which the information was obtained or is directly related to the purposes in connection with which the information was obtained; or
…..
(e) That non-compliance is necessary—
(i) To avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or
(ii) For the enforcement of a law imposing a pecuniary penalty; or
(iii) For the protection of the public revenue; or
(iv) For the conduct of proceedings before any court or [tribunal] (being proceedings that have been commenced or are reasonably in contemplation); or
(f) That the disclosure of the information is necessary to prevent or lessen a [serious threat (as defined in section 2(1)) to—
(i) Public health or public safety; or
(ii) The life or health of the individual concerned or another individual; or
…..
Was the release of the information to the Police authorised under the Privacy Act because it was one of the purposes for which it was collected?
[65] The Crown submits the disclosure of the GPS data was one of the purposes in connection with which the information was obtained or was directly related to those purposes, relying upon the provisions of s 15A of the Parole Act 2002. Section 15A in material part provides:
(1) The purpose of an electronic monitoring condition [[imposed under section 15(3)(f)]] is to deter the offender from breaching conditions that relate to his or her whereabouts, and to monitor compliance with those conditions.
(2) For the purposes of the Privacy Act 1993, information about an offender that is obtained through electronic monitoring may be used both for the purposes referred to in subsection (1) and for the following purposes:—
(a) to verify compliance with any release conditions …
or conditions of an extended supervision order:
(b) to detect non-compliance with any conditions and the commission of offences:
(c) to provide evidence of non-compliance with conditions and the commission of offences.
(d) to verify that the offender has not tampered or otherwise interfered with the ability of the electronic monitoring equipment to operate effectively and accurately.
(3) To avoid doubt, an offender who is subject to an electronic monitoring condition may be required to have equipment attached to his or her body.
(4) The annual report of the Department of Corrections must include the following information about the use of electronic monitoring in the year reported on:
(a) the number of offenders who were at any time subject to an electronic monitoring condition:
(b) the average number of offenders who were subject to an electronic monitoring condition and the average duration of the condition:
(c) the percentage of offenders who, while subject to an electronic monitoring condition attaching to an extended supervision order, were—
(i) convicted for a breach of the condition; or
(ii) convicted of any other offence.]]
(d) a description of processes and systems relating to electronic monitoring that were in place during the year reported on.]
[66] The Crown submits that the phrase “commission of offences” in s 15A(2)(b) and (c) clearly contemplates a broader category of offences than the offence of breaching release conditions. The defendant argues that that section is to be read as
only permitting use by Corrections to enable the detection and prosecution of breach of conditions offences. Section 71 of the Parole Act provides that an offender commits an offence who, without reasonable excuse, breaches any standard release conditions or any special conditions imposed by the Board. Since Corrections would normally be responsible for such a prosecution, this does not authorise the passing of that information to the Police, and certainly does not on the defendant’s argument, authorise the passing of the information to the Police for the detection and prosecution of other offences.
[67] I accept the Crown’s submission that the phrase “commission of offences” in s 15A(2) encompasses a broader category of offences than the offence of breaching release condition. There is nothing in the wording of s 15A(2) which connects the phrase “commission of offences” directly to compliance with release conditions. If that was the intention the addition of the words “for breach of a condition” would have been a simple matter. I note that that approach to drafting is used in s 15A(4).
[68] This interpretation gains support from the guiding principles for the Board. Section 7 of the Parole Act provides that:
When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.
[69] It is also supported by the purposes for which special conditions may be imposed. As previously noted, s 15 provides that a special condition must not be imposed unless it is designed to reduce the risk of reoffending by the offender, facilitate or promote the rehabilitation and reintegration of the offender, or provide for the reasonable concerns of the victim of the offender.
[70] Given this interpretation of s 15A, allowing Police access to the data was one of the purposes for which the information was collected. The Police are the body principally responsible for the detection and prosecution of offences. In this case they were investigating the suspected commission of a serious offence and required the information.
Was the release of the information to the Police otherwise authorised under the
Privacy Act?
[71] The Crown argues in the alternative that the release of information was permitted by privacy principle 11 (e) or (f).
[72] I consider that privacy principle 11(f) can be discounted immediately. It requires a “serious threat” to public health or safety, or the life or health of an individual. Serious threat is defined in s 2(1) as:
Serious threat, for the purposes of principle 10(d) or 11(f), means a threat that an agency reasonably believes to be a serious threat having regard to all of the following:
(a) the likelihood of the threat being realised; and
(b) the severity of the consequences if the threat is realised; and
(c) the time at which the threat may be realised.
[73] In this case, it cannot be said that when the initial inquiry was made of Mr King there was sufficient evidence available to either Mr Cooper or Mr King to reach the necessary threshold that the release of the initial information was “necessary” to prevent or lessen a serious threat. It is apparent that when he initiated these enquires Mr Cooper was acting upon suspicion. He conceded that he had no more to go on than the fact that the defendant was regarded as a high risk offender who had previously been involved in an abduction for sexual purposes. For his part, Mr King was doubtful that the defendant would have been involved. It is a fair characterisation to say that the initial data which linked the defendant to the offending was accessed by Mr King and passed to Mr Cooper based on no more than a suspicion.
[74] The threshold for principle 11(e)(i) is however different. For the purposes of this principle all that is required is that non-compliance was necessary to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences. In this case the possibility of the defendant’s involvement in the abduction of Mrs Gotingco was a legitimate line of enquiry. The defendant lived nearby the scene of the abduction, and had previously been convicted of abduction for sexual purposes.
Even if the profile of the victim and suspected victim were very different, this was a line of inquiry that the Police would responsibly have to pursue.
[75] It is also relevant that at the time of the enquiry, there was a reasonable apprehension that locating the offender might prevent further offending against Mrs Gotingco, although as events transpired, that was sadly not the case. There was therefore urgency in this case. Although a warrant could have been obtained, that would have taken several hours.
[76] During the course of argument there was also reference to a memorandum of understanding which exists between the Corrections Department and Police for the exchange of information. Counsel for the defendant made the point that the information was not provided in accordance with the procedure set out in that memorandum of understanding. I do not consider that that memorandum applied in this situation. Appendix 1 to schedule 9 of the memorandum of understanding which deals with the sharing of intelligence is entitled “designated intelligence sharing channels”. As the first guiding principle it states:
It should be recognised at the outset that information required to support an active criminal investigation will normally be requested by the investigating officer, and the processes detailed in this schedule and appendices is not designed or intended to replace this work. Instead the processes outlined in these documents serve to formalise the routine sharing of intelligence to support the intelligence, problem identification or targeting processes.
To ensure that the intelligence exchange environment is controlled and monitored to prevent the unauthorised use and disclosure of product, the formal intelligence exchange between the Dept of Corrections and New Zealand Police should take place through the intelligence functions organic to each agency.
[77] I therefore consider that the disclosure could also be justified under principle
11(e)(i). The disclosure of the information was necessary for the detection, investigation and prevention of an offence. The situation may have been different if the Police were not dealing with such an urgent situation. I expressly leave open the possibility that in some cases it may be unreasonable for the Police to rely on this exception to obtain private information. In some circumstances it may be that proceeding to obtain the information in this way without a warrant is not necessary
to avoid prejudice to the maintenance of the law. Those may be circumstances where there is not the same degree of urgency in obtaining the information.18
[78] I am therefore satisfied that the disclosure was permitted under principle
11(a) and (e). There was no breach of the relevant privacy principles and therefore no search and no unfairness in obtaining the information.
Section 30 of the Evidence Act 2006
[79] The defendant has succeeded in establishing that the GPS data was improperly obtained, in the sense only that the Board erred when imposing the electronic monitoring condition, by failing to give adequate reasons for its decision and it was by reason of that decision that the data was collected by Corrections. I have found that other grounds of objection have no merit.
[80] Having made that finding s 30(2) requires that I “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 but also takes proper account of the need for an effective and credible system of justice”. Section
30(3) sets out matters I may have regard to, amongst others, in undertaking that balancing exercise as follows:
(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 which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
18 See by way of analogy R v Williams, above n 13.
(h) whether there was any urgency in obtaining the improperly obtained evidence.
[81] The first consideration is one of the most important in this case. Here, although the Board failed to give reasons for the imposition of the conditions, there was an overwhelming case for those conditions and that they should last for the six months. This conclusion was apparent from the material available to the Board in the Parole Assessment Report. The defendant had been convicted of serious offending against children, a vulnerable category of potential victims. He continued to deny that offending and had not attended any of the rehabilitative programmes recommended.
[82] The writer of the Parole Assessment Report also notes that at an earlier hearing the Board had recommended that Corrections consider applying for an extended supervision order. Accordingly a psychological assessment was obtained, and the psychologist recommended that an application be made to the High Court for an extended supervision order and that the assessment report should also be available for the Parole Board hearing.
[83] A copy of the psychologist’s report was not produced to me, so I do not know the detail of its content. It is however a matter of record and was discussed at the hearing before me that an application for an extended supervision order was made, was heard in the High Court after the October hearing, and the application was granted.
[84] There were therefore clearly good, and it could properly be said, compelling grounds for the imposition of each of the conditions having regard to the relevant statutory considerations, and guiding principles. The defendant cannot claim to have been prejudiced by the absence of reasons. Any fresh consideration of the conditions on review would inevitably have resulted in the imposition of curfew and freedom of movement conditions, and the imposition of electronic monitoring.
[85] I also take into account that there was no bad faith in the Board’s error. It seems quite likely that the Board viewed this decision as one that stood to be read in the context of the broader processes surrounding the defendant and alongside its
other decisions. Unfortunately it made no reference to any of that other material in its decision, and the Crown did not produce any of that other material, or those other decisions at this hearing.19
[86] The evidence obtained is inherently reliable, and in this case is critical evidence linking the defendant’s movements to where Mrs Gotingco disappeared, and also to where her body was found. The Crown proposes to rely upon this evidence in prosecuting the most serious of charges, murder.
[87] Taking these various matters into account, I am satisfied that the balance falls heavily in favour of admission of the evidence.
Result
[88] The Crown’s application for admission of the evidence is granted.
Suppression
[89] I record the existence of orders suppressing the defendant’s name and any identifying particulars. Given the subject matter of this judgment, which entails detailed consideration of evidence to be admitted at a forthcoming trial, I consider it is also necessary to order that there be no publication of the content of this judgment or detail of any part of the proceeding including the result until final disposition of the trial subject only to permitted publication in a law digest or law journal. This
order is necessary to preserve the defendant’s right to a fair trial.
19 Although I cannot exclude the possibility that the reasons in this case would have been adequate if this decision were placed in the context of the Board’s other decisions affecting the defendant, I cannot proceed on that basis in the absence of that other material.
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