R v R - [2015] NZHC 713

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.

NOTE: PREVIOUS ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011
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…

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 R

Details

AGLC: R v R [2015] NZHC 713
Case: [2015] NZHC 713
Decision Date: 15 April 2015

CaseChat Overview and Summary

This case concerns the admissibility of GPS data evidence collected by the Department of Corrections in relation to the defendant's movements. The defendant is charged with murder and sexual violation. The Crown seeks an order under s 101 of the Criminal Procedure Act 2011 declaring that the GPS data is admissible at the defendant's trial. The defendant objects on the basis that the special conditions which required him to be electronically monitored were unlawfully imposed and that the GPS data was unlawfully obtained by the Police. The Court found that the Parole Board breached the principles of natural justice by failing to give adequate reasons for its decision to impose the special conditions. However, the Court found that the Police did not act unlawfully in obtaining the GPS data. The Court concluded that the exclusion of the GPS data would not be proportionate to the impropriety and that the evidence is therefore admissible. The Court ordered 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.

Orders