Tapara v The Queen
[2020] NZHC 3380
•17 December 2020
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, if done or omitted in New Zealand, be an offence against any Act other than this Act (in this section referred to as a civil offence).
[5] The offending is alleged to have occurred from 2 January 2018 to 27 July 2018. On 30 July 2018, the appellant’s commanding officer considered an application from the Military Police to conduct a search and seizure of the appellant’s possessions under Operation Waikato, an investigation into the procurement, supply and use of drugs amongst service personnel. On 31 July 2018, while at a sports event at Ohakea Airbase, the appellant was searched, and her cell phone was seized under s 95 of the Act.
[6] Upon examination of the phone, the accused was found to have been in communication with a number of service members and civilians regarding the use and supply of MDMA on the following occasions:
(a)on 2 January 2018, at the Bay Dreams music festival in Tauranga, the appellant allegedly used and procured MDMA;
(b)in February 2018, the appellant allegedly offered to supply MDMA to service members on two separate occasions;
(c)in March 2018, the appellant used and supplied MDMA once, in Palmerston North;
(d)in April 2018, the appellant used and supplied MDMA at the Homegrown music festival in Wellington, and then procured more MDMA a week later;
(e)in June 2018, the appellant procured MDMA before the Mardi Gras festival in Ohakune, and then used MDMA during that festival, and then used it again six days later; and
(f)in July 2018, the appellant used and supplied MDMA on four separate occasions.
[7] Three months after her phone was seized, the appellant was interviewed by the Military Police. Judge Riordan at [44] of his decision makes the following observations about the interview, which is relevant to two of the grounds of appeal:
There is no doubt that the Military Police investigators advised the Accused of the right to consult and instruct a lawyer without delay and without charge as required by s 23 (1)(b) of the New Zealand Bill of Rights Act 1990. This is accepted by the Accused and can be heard in the tape of the interview. It is also clear that the Accused is told that she has the right to silence, and that any statement she makes will be recorded and may be given in evidence. She is asked to read an entry in the Military Police notebook relating to these rights and she is invited to sign it - which she does.
[8] During the interview, the appellant admitted procuring, using and supplying MDMA, starting over the New Year period from 2017 to 2018.
[9] Over a year after the interview, the appellant was formally charged, and on 5 October 2020, a sitting notice was issued by the Court Martial. Judge Riordan noted that in his decision that the evidence relating to the appellant’s case was “more-or-less complete” by September 2019.
Court Martial decision
[10] After setting out the relevant authorities concerning the threshold for an abuse of process, Judge Riordan considered whether the Crown’s conduct (specifically, the delay in bringing the charges) amounted to an undue delay in breach of s 25(b) of the
NZBORA.3 The Judge held in the affirmative, ruling that the delay in the case was unreasonable, and therefore “undue”.4 Considering the facts the Judge held that a delay of this length was not acceptable “in a system which lists expedition as one of the vital factors which justifies its existence”.5 As noted by the Judge:
To have the sword of Damocles hanging over the head of a young soldier for such an extended period is highly undesirable.
[11] The Judge considered that this delay was not attributable to the appellant, but potentially worsened by the heavy workload of the Police and Defence Legal Service. Nevertheless, referring to Police v Viliamu, the Judge noted that pressure on resources or workload did not remove the significance of fundamental human rights, and that it was the obligation of the state to provide the resources as needed.6
[12] However, the Judge declined to stay the proceedings on this ground. He observed that despite how “extraordinary and unsatisfactory” the delay may be, it was not bad enough to qualify as egregious, and was not a product of prosecutorial misconduct.7 Nor did it seem to have a particularly significant effect on the appellant’s ability to defend herself against the allegations. As a result, it was indicated that a more appropriate remedy would be, if the prosecution succeeded, a generous reduction to the sentence imposed to “recognise the fact that to have a matter such as this hanging over the head of an accused is, itself, a form of punishment”.8
[13] Mr Pawson, counsel for the appellant, accepted that the primary remedy for delay is an adjustment to any sentence to reflect the actual consequences of that delay.
[14] The Judge then turned to consider the “conditioning” of the appellant. The appellant’s submission under this ground was that the confidentiality and security of the operation against her was breached, which caused gossip and rumours about her drug use, which was so overwhelming that, when questioned by the Military Police,
3 Section 25(b) provides that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be tried without undue delay.
4 At [16].
5 At [14].
6 At [15]. See Police v Viliamu [2016] NZDC 3434.
7 At [17].
8 At [18].
she felt that there was no point in denying the allegations. Having heard from five witnesses, the Judge declined to issue a stay of proceedings under this ground, noting:9
After hearing all of that testimony, and the testimony of WO 2 Lister and the Accused, I was not convinced, even to the standard of the balance of probabilities, that anything at all prejudicial to the Accused had actually occurred here. I think that the most likely situation is that rumour was rife throughout the unit and that people made assumptions as to its source. That is little to be wondered at. This talk may have been thought to have originated with the MPs themselves, but that is not proven. The major subject for that “rumour-mill”, however, seems to relate to the identities of the informants, not the drug-users. I was not convinced that there was a campaign, deliberate or incidental, to “poison the well” against the Accused or to condition her to accept guilt.
[15] The Judge considered that it was also unlikely that the appellant herself, despite her stress at the time of investigation, would surrender herself to the inevitability of being found guilty. Furthermore, the allegations did not reach the threshold of the type of abuse of power by the Crown to justify a stay of proceedings.10
[16] The appellant’s two grounds concerning the admissibility of evidence were then considered. Firstly, the appellant submitted that the search and seizure of her phone was improperly obtained because there were no reasonable grounds for her commanding officer to suspect that she (as a person subject to the Act) had in her possession property which was or may be evidence relating to the commission of an offence (the threshold under s 95(1) of the Act) and that the authority to search had already passed its “temporal limit”. The Judge disagreed. Applying McCartin v R, the Judge noted that the test of reasonable grounds to suspect is not a high one; the evidence only needed to indicate that the proposition in question was “inherently likely”.11 The Judge held that there was sufficient evidence in the current case to establish suspicion in the mind of any reasonable commanding officer.
[17] The Judge found that this case was distinguishable from other cases that had suggested that authorities to search should not be “open-ended” as to time, such as R v Robinson, where hundreds of text messages from many months earlier were taken as evidence for imprecise allegations as to the accused’s drug use. Here, the suspicion
9 At [26].
10 At [29].
11 At [39].
related to specific events (including two of the concerts in concerts in April and June of 2018), which were well within the limitation period for misuse of a Class B drug. This informed the Judge’s conclusion that the absence of a temporal limit in this case did not make search authority unreasonable:12
It is always going to be an exercise of fact and degree and what is reasonable in one context may not be so in another. In my view, the fact that the alleged conduct is identified by reference to a specific offence obviates the suggestion that this was just a “fishing expedition”. The search over a similar period, but without reference to a specific event, may not seem at all reasonable. It is my view, therefore, that the AFDA s 95 authority was based on information capable of supporting reasonable grounds to suspect that the Accused was involved in the purchase and use of class B drugs. I do not believe that the absence of a temporal limit, in these circumstances, is capable of converting a reasonable search authority into an unreasonable one.
[18] Having found that the search authority was justified, the Judge did not consider the balancing test under s 30 of the Evidence Act 2006, but noted that in his view, ruling the material as inadmissible would be disproportionate to the impropriety.
[19] Secondly, the Judge considered the appellant’s submission that the Military Police investigators breached the appellant’s rights under s 23(1)(b) of the NZBORA, because the appellant did not comprehend the Bill of Rights statement (for example, advising the appellant of her right to legal advice and right to silence) made by those investigators. The Judge dismissed this argument, noting that it was apparent from the transcript that the statutory requirements of the NZBORA were satisfied, and that the appellant had been adequately advised of her rights. While the appellant had taken a single pill of Clonazepam immediately prior to the interview,13 and was distressed by the fact that she was being questioned about serious offences, the transcript indicated that she appeared to properly comprehend what was going on.
[20] Again, because of this finding, the Judge did not engage in a detailed s 30 balancing test analysis, but noted:14
12 At [41].
13 The Judge noted evidence given by a medical practitioner who had prescribed the drug, who noted that the drug was intended to diminish the anxiety experienced by the appellant, but a possible side effect could be confusion or memory loss.
14 At [51].
Suffice it to say that although the rights in question are very important ones (in fact, fundamental) none of the other factors set out in that test would weigh so heavily as to make exclusion of the evidence a proportionate response.
[21] After refusing to dismiss the proceeding, the Judge ultimately declined the appellant’s applications, and ordered that the trial proceed.
Position of the parties
The appellant
[22]Mr Pawson, counsel for the appellant, focused on six different issues.
[23] First, he argued that Judge Riordan inconsistently applied the concept of “temporal limits” when considering the search and seizure of the appellant’s cell phone: despite there being clear dates as to the appellant’s alleged offending from which a temporal limit for the search could be based, no temporal limit was set. Counsel characterised the search of the appellant’s phone for dates any more than a few days prior to 7 March 2018 as a “fishing expedition”. He submitted that this case was in fact analogous to R v Robinson (which the Judge distinguished), and in that case, the Court found that the search was unlawful and unreasonable due to the lack of temporal limits on the s 95 search authority.
[24] R v Robinson is a recent decision of Judge Riordan, also connected to Operation Waikato. In that case, the accused faced 17 charges relating to the procurement, use and supply of a Class B drug (LSD). The primary evidence relied on by the Crown for prosecuting these charges was a series of text messages extracted from two cell phones belonging to the accused, that were seized and searched under s 95 of the Act. Over 78,000 lines of text were searched over a period going back to at least January 2017.
[25] Judge Riordan found that the text message evidence had been improperly obtained. The principal grounds for suspecting that the accused was a supplier of LSD was a text between another military service member and a third party who supplied that service member with the accused’s cell phone. When that service member did in fact contact the accused, he denied selling LSD and stated “I just blaze ery now then.
I don’t sell budz. G”. The Judge considered that this material advanced in support of reasonable grounds for suspicion was “the most slender justification for an AFDA s 95 search that I can remember seeing”, and that the application was based on unstable foundations. Despite this, the Judge noted that it could be reasonably inferred that a person who talks of cannabis use in one e-mail is likely to have made similarly incriminating statements about cannabis use in others.
[26] The Judge then turned to the issue of “temporal limits” and found that there was “fundamental imprecision” in issuing a search authority on the basis of a statement which says: “I just blaze ery now then”. In concluding that the temporal limits of the search had stretched too far, the Judge made the following observations:
[60] I would think that a search for a result for a few weeks only would be a reasonable response. I cannot say that a search exceeding that period would necessarily be improper per se. I think it very undesirable, however, for an authorisation to be issued with no time limit at all.
…
[62] I very much dislike the expression “fishing expedition” (despite the fact that it has been used in our highest courts) because it can disguise the true nature of what is going on in the minds of the people conducting the search. But in essence, in this case, the Military Police seem to have gone searching for evidence of one offence which, even on their own analysis, was not inherently likely; and in respect of another offence which could have been investigated in a much less intrusive way. I think the “hunt was on” for serious offending which was not apparent on the known facts – that is indeed the essence of what is commonly called a “fishing expedition”.
[27] Second, the appellant asserted that the Judge erred by overlooking crucial evidence on the lack of temporal limits. Specifically, counsel submitted that there was evidence that the Military Police had searched well before the relevant period to which the s 95 authority related – counsel noted a reference made by one of the Military Police investigators that the appellant had been “tracking really well until Christmas”.
[28] Third, that the Judge erred by overlooking key points of evidence concerning the appellant’s “conditioning” before her interview with the Military Police investigators, specifically relating to Military Police inappropriately discussing the operation concerning the appellant with another member of the Military Police, allegedly stating that he would warn the other non-commissioned officer if she became a suspect, and about destroying evidence on their cell phones.
[29] Fourth, that the Judge erred in not granting a stay after finding that there was undue delay, given the prejudice suffered by the appellant as a result of that delay, namely through the media coverage of the operation, leaking of operational information, and that the appellant was one of the remaining few to be tried.
[30] Fifth, that the judge erred in not taking into account all factors in deciding if the Bill of Rights advice and caution stated by the Military Police investigators were “brought home”. The Judge did not properly consider the evidence of the Military Police investigator who read the rights in a perfunctory manner. Counsel described this approach as follows:
The CM did not properly consider the evidence of Sgt McKenna of the military police under cross examination. He was in charge of the interview and he accepted that the rights were read in a monotone quick sort of way [this is submitted as ‘perfunctory’]. He also accepted that they just said “there is a list on the wall” and not a “list of lawyers” or explain it, nor did he actually get an audio response to the question “okay?” after reading the rights before moving on to the questions. He did say “I believe she physically responded [yes]”. Then when asked if he actually saw her do that he said yes (developing on from “I believe” to then being certain she nodded).
[31] Counsel’s position was that this was not enough to satisfy that the rights given were not just “perfunctory and lip service”. Furthermore, because this was a military environment involving rank, counsel submitted that the bar for advising the appellant of her rights should be set higher, particularly if the New Zealand Defence Force elect to use their own legal aid system – counsel did not oppose the application of the New Zealand Defence Force Legal Aid, but stressed that it should be administered more carefully than in a civil context because of rank and compliance culture.
[32] Finally, counsel submitted that due to the errors set out in the above five grounds, the Judge did not then proceed to the balancing test. Applying the balancing test and s 30 considerations, counsel submitted that the exclusion of the evidence derived from the Military Police interview and the search and seizure of the appellant’s phone was proportionate to the impropriety. Counsel, noting the observations of the Court of Appeal in McLean v R, stressed the importance of securing against unreasonable search and seizure of cell phones as particularly private devices. While counsel acknowledged the nature and quality of the obtained evidence and that the alleged offending was relatively serious, it was submitted that the lack of operation
integrity and temporal limits on the search authority augmented the nature of the impropriety, justifying the inadmissibility of the evidence.
The respondent
[33] Colonel Ruane, counsel for the respondent, submitted that the charges faced by the appellant could not be described as minor or trivial, pointing out that the charges of offering to supply a Class B drug carry a maximum penalty of 14 years’ imprisonment as to the charges of supplying a Class B drug.
[34] He noted that the investigation of the appellant’s activities was initiated as a result of information received from informants. That information was detailed in that it provided specific dates, times and places where drugs were alleged to have been consumed and potentially credible. There was both direct evidence from a fellow solider as to what had been observed and heard and told to her by the appellant as well as some hearsay material.
[35] Counsel pointed to the different facts in R v Robinson and the fact that R v Robinson involved the interrogation of a cell phone with reference to the “possibility” of commission of an offence of supplying a Class A drug. He submitted that, by way of distinction, the officer authorising the search of the cell phone had reasonable grounds to suspect the commission of the type of offences with which the appellant was ultimately charged.
[36] Specifically, in relation to the absence of the temporal limits on the cell phone search, counsel explained that this search was authorised prior to the availability of the decision of the Court Martial Appeal Court in R v A.15 Counsel accepted that the decision in R v A must be regarded as having stated the existing law correctly so that the obligations referred to in it were deemed to have existed as at the time of this search, but relied on this point by way of explanation, and to indicate that it was not a situation of the points made by this Court in R v A being wilfully disregarded. He also confirmed that following the decision in R v A, practices in similar cases have been amended so as to impose a temporal limit on the data searched in cell phones.
15 R v A [2019] CMAC, 28 February 2019.
[37] In relation to the “conditioning” ground, counsel submitted that the Judge at first instance had the opportunity of hearing the various witnesses and analysing their credibility. He referred in particular to the Judge’s findings in respect of Ms Tapara’s character. He emphasised that, from the time Ms Tapara’s phone was seized, she would have known what was on the phone and what an examination of it was likely to reveal.
[38] Counsel also noted that the appellant’s contention that various Military Police had released information about the investigation, either deliberately or recklessly, in order to “condition” suspects was not borne out by the evidence tendered at the pre- trial hearing.
[39] In relation to the arguments about the adverse effects of media coverage, counsel submitted that the members of the Court Martial, properly directed, would be able to put aside any media reports that they may have said, and that there was no evidence supporting the claim that the appellant would not receive a fair trial as a result of adverse prime media publicity.
[40] In relation to the appellant’s claim that the appellant had not been given a proper opportunity to consider whether she wanted to speak to a lawyer and that questioning had commenced immediately after such advice being given, counsel pointed to the fact that the audio transcript (which had apparently been made available well before the pre-trial hearing) confirmed that there had been a gap of some 28 to 30 seconds between the provision of that advice and the commencement of the questioning.
[41] Counsel also made submissions that if the Court got to the stage of undertaking a balancing test under s 30 of the Evidence Act, notwithstanding the importance of a breach of privacy, because any breach had not been deliberate, reckless or done in bad faith, the discretion to admit disputed evidence should be exercised.
[42] Counsel submitted that ultimately the overall test was whether having regard to all the facts as raised by the appellant, it could be said that there was sufficient prejudice so that she would be unable to receive a fair trial.
Leave to appeal and approach on appeal
[43] This appeal has been brought under s 7(5)(g) of the Court Martial Appeals Act. Section 7 applies to a ruling given by a Judge of the Court Martial on a question of law or procedure that arises during proceedings in that Court.16 Under s 7(2), the accused may, with the leave of the Court obtained in accordance with s 8, appeal to that Court against a ruling to which s 7 applies. On appeal, this Court (if it grants leave) may confirm, vary, set the ruling aside, or make any ruling that could have been made in the first place if the Court considers it appropriate.17 Under s 7(5)(g), a question of law includes any question arising in respect of the admissibility of evidence.
[44] Section 8 dictates that if a person wishes to obtain the leave of the Court under s 7, they must, within 10 days after the ruling is given, give notice of the application for leave to appeal in any manner that may be directed by rules of the Court.18
[45] In this case, Judge Riordan’s ruling was given on 25 November 2020. The appellant filed a notice of application for leave to appeal under r 6(2) of the Court Martial Appeal Court Rules 2008 on 29 November 2020. This notice appears to have been filed with the correct form, and within the 10-day time limit. Consequently, we grant leave to appeal.
Relevant law and analysis
The military context and Evidence Act framework
[46]The Court Martial Appeal Court in McCartin v R observed:19
First, we set the context. Military law and civil law overlap but are nevertheless distinct. While it is true that a soldier has not abandoned his or her rights as a citizen, they are subject to a regime of discipline that can modify access to those rights…
…
16 Court Martial Appeals Act 1953, s 7(1).
17 Court Martial Appeals Act 1953, ss 7(3) and 7(4).
18 Court Martial Appeals Act 1953, s 8(1)(a).
19 McCartin v R [2016] NZHC 1807 at [24]-[25].
The procedures and principles that protect the rights of a civilian against intrusion by the State do not necessarily apply to a soldier who is on duty and on Defence land. For example, none of the formal procedures set out in the Search and Surveillance Act 2012 apply to the appellant's Commanding Officer when he had to decide whether to authorise a search under s 95 of the Armed Forces Discipline Act 1971.
[47] Section 30 of the Evidence Act 2006 governs the admissibility of improperly obtained evidence:20
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2)The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, 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 and takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(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:
20 Evidence Act 2006, s 30.
(f)whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:
(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(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; or
(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c)unfairly.
[48] Section 30(2) requires this Court to apply a two-step test in considering the admissibility of s 11 evidence in this case. Firstly, the Court must find on the balance of probabilities, whether or not the evidence was improperly obtained.21 Secondly, if the Court finds that the evidence has been improperly obtained, then it must determine whether the exclusion of the evidence is proportionate to the impropriety through a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.22
[49] Section 30(5)(c) defines improperly obtained evidence as evidence that has been obtained unfairly.23 In R v Chetty, a majority of the Supreme Court held that there “must almost always be” a causative link between the unfairness and the impugned evidence.24
[50] In R v Alsford, the Supreme Court considered whether evidence was improperly or unfairly obtained through a potential breach of the Privacy Act 1993.
21 Section 30(2)(a).
22 Section 30(2)(b).
23 Section 30(5)(c).
24 R v Chetty [2016] NZSC 68 at [47].
While acknowledging that the privacy principles espoused in the Act may be relevant to the assessment whether evidence has been obtained unfairly in terms of s 30(5)(c) or the balancing test under s 30(2), it observed that even where the information at issue is personally sensitive and the breach of the privacy principles is serious, those circumstances may be of little independent significance to the s 30 analysis.25 However, it ought to be noted that the Court was specifically referring to the privacy principles in the Privacy Act 1993, as opposed to the right to privacy as a whole.
[51] With regard to the second part of the balancing test under s 30(2), a Court may have regard to the matters set out in s 30(3) when determining whether or not the exclusion of the evidence is proportionate to the impropriety.
[52] In Makaea v R, the Court of Appeal held that in the context of s 30(3)(a), the length of a production order in relation to the cell phone number of the appellant was disproportionate to the evidence the order was based on.26 The Court found that a seven day period was appropriate, and that evidence obtained outside that seven-day period was improperly obtained.27 The Court held that the breach of the appellant’s privacy rights was moderate to serious, and amounted to an intrusion of the appellant’s reasonable expectation of privacy.28 However, the Court ruled that as the respondent had obtained the evidence within the seven day period, it could be admitted.
[53] In W (CA597/2016) v R, the Court of Appeal provided useful observations in relation to the appropriate approach to the evaluation of privacy interests for the purposes of the s 30(2)(b) balancing test:29
…the correct approach to the s 30 proportionality assessment, concerning a breach of privacy interests, involves an evaluation of a number of factors. It is necessary to identify the strength of the privacy interest (which is not dependent on the type of activity conducted by the defendant) and to assess and balance the public interest factors as to whether the information should be admitted or excluded.
25 R v Alsford [2017] NZSC 40 at [39]-[40].
26 Makaea v R [2018] NZCA 284.
27 At [39]-[40].
28 At [45].
29 W (CA597/2016) v R [2017] NZCA 522 at [39].
[54] With regard to s 30(3)(b), Whata J usefully defined the term “bad faith” in R v Miles:30
First, bad faith in this context denotes an intentional or deliberate disregard of the rights of affected persons or the duties of the police to the judicial officer. There are various decisions suggesting that something more than deliberate behaviour is needed. But I simply proceed on the basis that intentional breach of rights or deliberate dereliction of duty to a judicial officer is an act of bad faith. An assessment of whether there has been intentional disregard of rights and duties has an objective and subjective component, and is assessed from the totality of the circumstances.
[55] In SPF v R, the Court of Appeal, discussing the seriousness of the impropriety, held that it would be inconsistent with the text of s 30, as well as the approach of the Supreme Court in Hamed v R, to allow for the seriousness of the impropriety to be the sole determinative factor under s 30(2).31 Instead, s 30(2) required a balancing exercise, which gives appropriate weight to the impropriety as well as taking into account the need for an effective and credible justice system.32
[56] With regard to s 30(3)(c), Blanchard J in Hamed v R observed that if improperly obtained evidence is reliable and provides probative evidence of guilt, this favours its admissibility.33 In that case, the Supreme Court expressed opposing views on how much weight should be placed on the importance of the evidence for the prosecution under s 30(3). While Blanchard J accepted that it was a relevant factor and that it would be “simply unrealistic” to ignore this point,34 Tipping J expressed discomfort with the notion that “the more important the evidence is to the Crown’s case, the stronger the case is for admitting it”, and that instead, the nature and quality of the evidence is limited “to the character of the evidence itself” and is not concerned with the centrality of the evidence to the Crown case.35
[57] With regard to s 30(3)(d), the Court of Appeal in Underwood v R made a number of observations to assist in defining a serious offence:36
30 R v Miles [2012] NZHC 1820 at [24].
31 SPF v R [2016] NZCA 606 at [39].
32 At [39].
33 Hamed v R [2011] NZSC 101 at [201].
34 At [201].
35 At [236]-[237]. See also Matthew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA30.5].
36 Underwood v R [2016] NZCA 312 at [49].
(a)Seriousness should be treated, like other s 30(3) criteria, as an evaluative consideration.
(b)The penalty need not be used to gauge seriousness, although judges may sometimes find it appropriate.
(c)The assessment of seriousness requires a long-term perspective of the administration of justice, in which trials generally should be conducted on their merits but systemic integrity is paramount; that being so, seriousness cannot take primacy over other considerations.
(d)Seriousness does not justify admission where the breach of rights causes an unfair trial.
(e)A grave breach of an important right may justify exclusion although the evidence would not result in an unfair trial.
(f)The balancing exercise calls for explanation about the s 30(3) criteria which apply to the case at hand. Where seriousness of the offence counts it should be mentioned, and an explanation is needed where seriousness depends on the facts and may tip the balance.
First ground of appeal: was the search and seizure of the appellant’s cell phone lawful?
[58] As discussed above, the appellant’s phone was seized on 31 July 2018 (and later searched) pursuant to a search authority under s 95 of the Act. The relevant provisions of that section dictate:
(1)If a commanding officer has reasonable grounds to suspect that a person subject to this Act has in his possession any property which has been unlawfully obtained or any article or thing which is or may be evidence relating to the commission of an offence (whether against this Act or otherwise), the commanding officer may—
(a)detain and search that person; or
(b)search any premises within the limits of his command occupied or used by that person; or
(c)take possession of any property or any article or thing previously referred to in this subsection, in which event the property, article, or thing shall, subject to this section, be disposed of in accordance with section 99.
(2)The powers conferred on a commanding officer by subsection (1) may be exercised by him personally or by any person authorised or ordered by him in that behalf.
[59] Noting that section, there are therefore two issues under this ground that need to be considered. The first is whether the appellant’s commanding officer had reasonable grounds to suspect that the appellant had in her possession property which was or may be evidence relating to the commission of an offence. This was discussed in McCartin v R, where the Court Martial Appeal Court considered that “reasonable grounds to suspect was not a high threshold.37 The Court expressed its agreement with the dicta of R v Sanders, where it was suggested that:38
…suspicion probably goes beyond mere recognition that something is possible to the point that, while final judgment must be suspended pending proof, the proposition in question is regarded as inherently likely.
[60] Ultimately, the Court considered that “a reasonable ground of suspicion upon which a reasonable person may act” was a “good workable approach to the issue”.39
[61] The Court Martial Appeal Court in R v A made the following useful observation about the application of s “reasonable grounds to suspect” under s 95:40
Section 95 is one of a number of sections which appear in the AFDA, the statutory purpose of which is to provide for the discipline of, and the administration of justice, within the Armed Forces of New Zealand. As counsel for the Crown has submitted, discipline and the incidents of command are fundamental to the proper operation of the Armed Forces. There is an overriding obligation on the part of all members of the Armed Forces to obey lawful orders.
A superior officer is entitled to give orders to a subordinate rank. These orders must be obeyed. When viewed in that context, s 95 is not an empowering section but rather is a limitation on the rights of command, in this case on the rights of a CO to order a search of the possessions or person of someone of a subordinate rank. The s 95 limitations on command relevant here are that a service member may not be searched except, and only where the CO has reasonable grounds to suspect that the person has in his or her possession
37 At [26].
38 At [30]. See R v Sanders [1994] 3 NZLR 450 (CA) at 461.
39 At [32] citing Police v Anderson [1972] NZLR 233 at 242.
40 R v A [2019] NZHC 293 at [21]-[22].
property which is, or may be, evidence relating to the commission of an offence.
[62] That case also provides an example of a failure to reach the threshold, with the Court characterising the commanding officer’s actions as a “fishing expedition”:41
We have concluded that the information upon which LTCDR Gibbs relied was inadequate. The request was approved on the basis that the phone was to be exploited in order to obtain evidence pertaining to offences committed against the Misuse of Drugs Act, LMP Coates having indicated that he had good reason to believe G had been using his cellphone to contact friends regarding the purchase of drugs and that he had evidence proving G obtained cannabis from colleagues. In his request, LMP Coates had not detailed why he had good reason for his belief, nor did he say what evidence he had. Nevertheless, LTCDR Gibbs approved the request. That he later emailed seeking clarification as to why LMP Coates thought others might be involved does not counteract the fact that he had already given the approval based on the information provided by LMP Coates.
Particularly when LMP Coates then went on to contradict his earlier assertion that they had evidence of G obtaining cannabis from colleagues, saying that he was unsure as to the involvement of Navy personnel and that G denied any service personnel being involved, this should have caused LTCDR Gibbs to suspend the authority to search the cellphone. At the time of seeking permission, LTCDR Gibbs only had reason to suspect G of possessing cannabis and possessing utensils. He had sufficient evidence to prove this charge, rendering searching his cellphone unnecessary. We agree with the Judge that the only reason for this search was to engage in a fishing expedition. The search was unlawful, and the evidence derived from it improperly obtained.
[63] What can be derived from the documents at hand (specifically the bundle of documents and the transcript of the hearing), is that there appeared to be suspicion of the appellant’s activity arising from Operation Waikato, which led the Military Police to investigate the appellant. The Military Police became suspicious of the appellant’s activities relating to a number of events in 2018 in particular, including the Bay Dreams concert in January 2018, the Homegrown concert in Wellington in March 2018, and the Mardi Gras festival in Ohakune in June 2018. The appellant’s phone was seized and searched a month later, in July 2018.
[64] On this basis, we do not consider that the Judge erred in concluding that the appellant’s commanding officer had reasonable grounds to suspect that the appellant had in her possession property which was or may be evidence relating to the
41 At [41]-[42].
commission of an offence. As discussed above, the standard does not have a high threshold; and given the suspicion was derived from a specific Military Police operation and related to specific events, it was reasonable in the circumstances. We consider that this can be distinguished from the case of Robinson, where the grounds to suspect were far more loosely based on suspicion arising from relatively ambiguous messages, including exchanges that did not include the accused. Unlike Robinson, this is not a case where the Military Police went on a “fishing expedition”.
[65] The second issue concerns the “temporal limits” to the search of the appellant’s phone. As acknowledged by the Judge, the Courts have stressed that an authority to search should not be without limits, or be open-ended, as to the time period of that search.
[66] This was acknowledged in McLean v R, where the appellant was pulled over by police on suspicion of driving while disqualified.42 Because he was in fact doing so, the appellant was arrested and went through a “rub down” search. During this search, a cannabis “tinnie” was found in one of his pockets, causing the police to also search his car. In the car search, the police found a number of items that turned out to be items stolen in a burglary that day. The appellant was taken to the station, with his phone being placed in a locker for safekeeping, and was interviewed. Before the interview, his phone was looked at by the police at the station without a warrant. Text messages found by the police at that point caused them to make a 15-day production order, which led them to find further evidence and as a consequence, he was charged with representative charges of supplying and offering to supply methamphetamine. The Court ruled that the production order for 15 days was well outside the range of a reasonable period, as the only offence for which there were reasonable grounds to suspect was the burglary on the day of the arrest:43
At the time he applied for the production order, the only offence that Senior Constable van Selm had reasonable grounds to suspect either Mr McLean or Ms Lovini of being involved in was the burglary committed on the day he was arrested. There is force in Mr Bean’s submission that the only evidence a production order could hope to produce in relation to that offending is the text messages Senior Constable van Selm saw that day. However, we accept that (as Mr Bean acknowledged) an order for a little longer than one day (but not
42 McLean v R [2015] NZCA 101.
43 At [47].
more than four days) would have been reasonable. The order for 15 days was, however, well outside the range of a reasonable period.
[67] McLean was specifically referred to in R v A by the Court Martial Appeal Court. In that case, the Court was explicitly critical of the unclear limit on the search of the appellant’s cell phone:44
One final point we deal with regards to the authorisation is that, as Ms Mason notes, no guidance was given as to what period of time the data should have been extracted for, with a text from some eight months prior to the search having been considered by the Crown to be relevant against A. Even had the search been lawful, if it had been authorised to establish the charge of procurement, there was no need for the warrant period to have extended for anywhere near that length of time.
[68] The Supreme Court in Dotcom v Attorney-General has stressed that cell phones hold “special privacy concerns”:45
…searches of computers (including smart phones) raise special privacy concerns, because of the nature and extent of information that they hold, and which searchers must examine, if a search is to be effective. This may include information that users believe has been deleted from their files or information which they may be unaware was ever created. The potential for invasion of privacy in searches of computers is high, particularly with searches of computers located in private homes, because information of a personal nature may be stored on them even if they are also used for business purposes. These are interests of the kind that s 21 of the Bill of Rights Act was intended to protect from unreasonable intrusion.
Accordingly, for a search of any computer to be reasonable, a mutual assistance warrant must give specific authorisation for the computer to be searched in order to identify and seize the data that it is believed is evidence of commission of an offence…
[69] In Makaea v R, discussed above, the Court noted that because a production order to a cell phone number will obtain all of the user’s communications, this involves an intrusion into the reasonable expectation of privacy enjoyed by the user and all persons communicating with him or her. Therefore, the nature of the affected privacy interest, including the number of potentially affected persons, demands care as to whether the period of the surveillance is justified.46
44 R v A, above n 40, at [43].
45 Dotcom v Attorney-General [2014] NZSC 199 at [191]-[192].
46 Makaea v R, above n 26, at [39].
[70] In our view, Robinson can be distinguished in the current circumstances. We consider that Judge Riordan was correct that in that case, it was the imprecision of the allegation in concert with the lack of a temporal limit, which gave rise to concern, particularly given the large number of messages that were taken as evidence. Conversely here, the suspicion is related to specific events in 2018.
[71] Counsel for the appellant’s submission is that the search period was effectively open-ended, and included texts occurring well before the period of offending. Counsel referred to the interview of the appellant with the Military Police investigators, who stated “…looking back to the data that was pulled of your device, it seemed like you were tracking really well until Christmas…”. There is no evidence before us which identified exactly what date the Military Police had gone back to in searching the appellant’s phone. Neither was there any evidence that material found on the cell phone prior to Christmas 2017 formed the basis of, or was relevant, in any way to the offences with which the appellant was charged.
[72] For the reasons discussed above, we have reached the same conclusion in relation to the interrogation of the cell phone that Judge Riordan did, namely that the cases of R v A and Robinson are 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.
[73] However, in case we are wrong on that point, we will consider whether, 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.
[74] Section 30 of the Evidence Act requires the Court to undertake a balancing test under s 30(2)(b), to see whether exclusion would be proportionate to the impropriety to deem the evidence inadmissible. We set out the considerations relevant under s 30(3).
[75] In terms of s 30(3)(a), the right to privacy is clearly a significant one, as illustrated in the cases above. This is perhaps augmented with personal cell phones, as discussed in Dotcom. In R v A, the Court also stressed that a breach of privacy with
respect to a mobile device was serious.47 The seriousness of the intrusion mainly depends on the extent of the search period; if it was truly “open-ended” and included a search of texts and evidence from well before the offending, this could be characterised as a serious intrusion. However, the observations of the Court in Jack v R, although being a relatively old case, have some influence on the seriousness of the intrusion. That case related to the lawfulness of a search of the appellant’s cabin under s 95, which led to six cannabis-related charges.48 The Court considered the interface of the NZBORA and military law:49
In the context of the armed forces the rights and freedoms contained in NZBORA will be subject to the reasonable limits which can be demonstrably justified in relation to the efficient and disciplined operation of the armed forces. Accordingly, the circumstances in which a search might be held to be unreasonable in the civilian context may not necessarily be held to be unreasonable in the context of service in the armed forces. Each case and incident will, necessarily, be dependent upon its own facts, but it would not usually be appropriate to uplift similar fact cases reported in the civilian Courts and seek to apply those to service circumstances, for the purpose of assessing reasonableness.
[76] While the Court Martial have in fact applied civilian court cases in the military context (for example the Courts in R v A and Judge Riordan in the current case both acknowledged the relevance of McLean), this indicates a higher standard of unreasonableness for a search in the military context compared to the civil context. Although breaches of the right to privacy still ought to be seen as serious, and as noted by Judge Riordan in Robinson: “it is important not to over-state the loss of rights implicit in a military environment”, this may still be a relevant factor in the assessment of s 30(3)(a).
[77] In terms of s 30(3)(b), again, if the search period was truly “open-ended”, this could amount to a “intentional or deliberate disregard of the rights of affected persons or the duties of the police to the judicial officer” and therefore a search carried out in bad faith as defined by Whata J in Miles. Given that this search authorised prior to this Court’s decision in R v A, we do not see that it could be described as an intentional, deliberate or even reckless disregard of rights. It was not done in bad faith.
47 At [81].
48 Jack v R [1999] 3 NZLR 331 (1999) 5 HRNZ 301 at 306.
49 At 311.
[78] Regarding s 30(3)(c), the nature and quality of the cell phone evidence appears to be significant to the case and is highly relevant to the appellant’s alleged offending. A search that looked for material from around Christmas 2017 would clearly have been reasonable.
[79] In R v A, the Court found that charges of offering to supply Class B drugs are serious, and that the seriousness of these charges, particularly given their nature within the military context, weighed in favour of the evidence being admissible under s 30. Similarly, in McCartin v R, when considering the issue of how serious drug offending was in the military context, the Court observed:50
The charges against the appellant are serious. Much more serious than if he were a civilian. Soldiers are part of a uniformed and disciplined force trained and equipped to use lethal violence. The use of drugs cannot be tolerated in such an environment. Military law, upon conviction, would treat the appellant more severely than if he were a civilian.
[80] In terms of s 30(3)(e), it is unlikely that any other investigatory techniques could have been used, particularly as it has already been reiterated that the cell phone evidence is relatively critical to the prosecution’s case.
[81] Overall, we conclude that this is a case where 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 is 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 other arguments
[82] In relation to the argument that the appellant had been “conditioned” by actions taken by the prosecution so that she had no option but to make an admission, we find that the conclusions reached by Judge Riordan were reasonably available to him on the evidence that was presented.
50 McCartin v R, above n 19, at [49].
[83] As Mr Pawson acknowledged, there was no evidence that the Military Police had deliberately adopted a strategy of “leaking” material with the objective of affecting the appellant’s state of mind, nor that her admissions were induced by such conduct. There is a far more plausible explanation for her admission which is that the appellant was aware of what was on her cell phone and of the strength of the case against her and thought that making the admissions would be the appropriate thing to do.
[84] The fact that there were rumours flying about following the commencement of the investigation is unsurprising, particularly given the setting of a large military camp. However, as noted, there is no evidence that the rumours were the result of a deliberate release of information by the Military Police. Indeed, the rumours mainly seem to focus on the identity of informants rather than suspects. Rumours about who informants were would not have had any particular adverse effect on the appellant.
[85] We do not see anything inappropriate in the transfer of the appellant within 5 Movement Company to the Operations cell of Company HQ during the course of the investigation of this matter. This transfer was not punitive, did not disadvantage the appellant, and was amply justified on health and safety grounds.
[86] We also note that the Judge made a number of findings for credibility. Effectively, counsel for the appellant invited us to assess credibility differently. Where there is some evidence to support a credibility finding, because the first instance Judge has had the advantage of observing and assessing the witnesses, it would be rare for an appellate Court to take a different view of the credibility of a witness and we see no basis for doing so in this case.
[87] The claimed defects in the interview process were not supported by the evidence from the transcript. Again, there are credibility findings made by the Judge that are relevant to those grounds of appeal which we conclude were reasonably available to him.
[88] In relation to the ground relying on the effect of the appellant having been prescribed and taking the drug Clonazepam prior to the interview, there is no evidential support for the argument that this actually had an adverse effect causing confusion or memory loss. As the Judge noted, Dr Fountain, the medical practitioner who had prescribed the drug, was called to give evidence, and his evidence was that the drug was prescribed for the purpose of “clearing the accused’s head”. It was intended to diminish her anxiety and not expected to diminish her ability to know what was going on.
[89] The Judge also reviewed the transcript and came to a factual finding that he could see no evidence of a person who, as a result of consumption of this type of anti- anxiety pill, did not know what was being said to her. He concluded that the precision with which she was able to recite names, places and dates removed any doubt that she was bewildered by what was going on. Those findings were available to the Judge.
[90] A ground developed by Mr Pawson during his oral argument was that, because there was no provision analogous to s 147 of the Crimes Act given the military setting, that he was obliged to pursue the sorts of arguments advanced in this case. The matters raised by Mr Pawson would not have justified a discharge under s 147 had this matter been before the Civil Court. But in any event, the absence of corresponding provision in the military context, cannot justify this Court taking a different approach to the approach taken by the Civil Courts to similar issues.
Outcome
[91]For these reasons, the appeal is dismissed.
Churchman J Doogue J Judge McGregor
Solicitors:
Pawson Law Ltd, Te Puke
Director of Military Prosecutions, Wellington
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