Tapara v The Queen - [2020] NZHC 3380

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND

I TE KŌTI WHAKAWĀ KAIMAHI O TE OPE KĀTUA O AOTEAROA

CIV-2020-485-725 [2020] NZHC 3380

BETWEEN
LANCE CORPORAL KASEY TAPARA

Appellant

AND

THE QUEEN

Respondent

Hearing: 14 December 2020

Court:
Counsel:

Churchman J Doogue J

Judge D McGregor

D W Pawson for Appellant

Colonel C M Ruane and Flight Lieutenant N D White for Respondent

Judgment:

17 December 2020

JUDGMENT OF THE FULL COURT

Introduction

[1] This case is an appeal by Lance Corporal Tapara (the appellant) from a pre- trial ruling of Chief Judge Riordan in the Court Martial of New Zealand.1 The appeal is brought under s 7(5)(g) of the Court Martial Appeals Act 1953, and consists of the following grounds:

(a)first, that the Judge erred in finding that evidence derived from the search and seizure of the appellant’s cell phone was lawful under s 95

1 R v Tapara [2020] (unreported), Court Martial of New Zealand, 17 November 2020.

Tapara v R (Court Martial Appeal Court) [2020] NZHC 3380 [17 December 2020]

of the Armed Forces Discipline Act 1971 (the Act) and was therefore admissible;

(b)second, that the Judge erred in finding that evidence derived from a Military Police interview with the appellant was admissible, when the appellant was “conditioned” pre-interview;

(c)third, that the Judge also erred in finding that evidence derived in that Military Police interview was admissible when the interviewers breached the appellant’s right to consult and instruct a lawyer without delay and without charge (and to be informed of that right) under s 23(1)(b) of the New Zealand Bill of Rights Act 1993 (NZBORA); and

(d)fourth, that the Judge erred in declining to exercise his discretion to stay the proceedings after he found that there was an undue delay in bringing the charges before the Court.2

[2]The Crown (the respondent) oppose all the grounds of appeal.

The real issue

[3] The only seriously arguable ground of appeal is the one alleging that the search of the appellant’s phone was unlawful because there was no time limit placed on the dates of the search period. If the search of the appellant’s phone could genuinely be described as a “fishing expedition” designed to try and gather material about offending relating to offences that the prosecution otherwise had no basis for reasonably believing had occurred, then it is likely to have been in breach of the appellant’s privacy rights and inadmissible subject to an evaluation under s 30 of the Evidence Act.

2 New Zealand Bill of Rights Act, s 25(b).

Background

Factual background

[4] The appellant faces 15 charges under the Act as a result of allegedly committing civil offences contrary to s 74(1) of the Act, specifically the procurement, use and supply of the Class B drug MDMA, in breach of the Misuse of Drugs Act 1975. Section 74(1) provides:

Every person subject to this Act commits an offence against this section who, whether in New Zealand or elsewhere, does or omits any act which would,…

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 Tapara v The Queen

Details

AGLC: Tapara v The Queen [2020] NZHC 3380
Case: [2020] NZHC 3380
Decision Date: 17 December 2020

CaseChat Overview and Summary

Lance Corporal Kasey Tapara (the appellant) appealed a pre-trial ruling of Chief Judge Riordan in the Court Martial of New Zealand. The appeal was brought under s 7(5)(g) of the Court Martial Appeals Act 1953, and consisted of four grounds: (a) that the Judge erred in finding that evidence derived from the search and seizure of the appellant’s cell phone was lawful under s 95 of the Armed Forces Discipline Act 1971 (the Act) and was therefore admissible; (b) that the Judge erred in finding that evidence derived from a Military Police interview with the appellant was admissible, when the appellant was “conditioned” pre-interview; (c) that the Judge erred in finding that evidence derived in that Military Police interview was admissible when the interviewers breached the appellant’s right to consult and instruct a lawyer without delay and without charge under s 23(1)(b) of the New Zealand Bill of Rights Act 1993 (NZBORA); and (d) that the Judge erred in declining to exercise his discretion to stay the proceedings after he found that there was an undue delay in bringing the charges before the Court. The Crown opposed all the grounds of appeal. The only seriously arguable ground of appeal was the one alleging that the search of the appellant’s phone was unlawful because there was no time limit placed on the dates of the search period. The Court found that the Judge was correct that the cases of R v A and Robinson were distinguishable and that, although no particular time limit was specified for the search of the appellant’s cell phone, on the facts of this case, that did not result in unlawfulness. Even if the lack of a time limit resulted in unlawfulness, s 30 of the Evidence Act should be applied so as to allow admission of the evidence obtained from the cell phone search. The Court concluded that the discretion in s 30 of the Evidence Act should apply to permit the evidence derived from the cell phone to be admitted. Any breach was not deliberate or reckless, the information was significant and there was no evidence relevant to the charges pre-dated the date upon which it would have been reasonable to search back to on the phone. The Court found that the conclusions reached by Judge Riordan were reasonably available to him on the evidence that was presented. The appeal was dismissed.

Orders