Legal Research
Cases
Tararo v R

Tararo v R

Case [2010] NZSC 157 17 December 2010

Type to search within this case.

For a Court ready (fee required) version please follow this link

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 PROCEEDING.
PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE SUPREME COURT OF NEW ZEALAND

SC 73/2010
[2010] NZSC 157

TREMAINE MANAIA TARARO

THE QUEEN

Hearing: 2 December 2010

Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

Counsel: B J Hunt and J S McHerron for Appellant
J C Pike and M H Cooke for Crown

Judgment: 17 December 2010

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

Para No

Elias CJ [1]
Blanchard, Tipping, McGrath and William Young JJ [5]

ELIAS CJ

The appeal concerns the admissibility of covert video-recording undertaken by an undercover police officer when purchasing cannabis at a residential property. The appellant maintains, contrary to the ruling of the District Court[1] confirmed on appeal to the Court of Appeal,[2] that the evidence was inadmissible. The sole ground relied on was that the evidence was “improperly obtained” within the meaning of s 30(5) of the Evidence Act 2006 because obtained “in consequence of a breach of [a] ... rule of law”. The “rule of law” claimed to have been breached was the civil law of trespass. It was accepted that, in cases where there is no signage prohibiting entry and access is not barred, there is an implied licence imposed by law for common convenience, by which anyone may enter property to approach a dwelling to speak to its occupants. Within such licence, someone entering the property is not a trespasser. It was argued however that covert surveillance is not within the implied licence, making the entry a trespass. I agree with the conclusion reached by other members of the Court that the appeal must be dismissed.
[1] R v Tararo DC Wellington CRI-2008-091-3656, 21 September 2009.
[2] Tararo v R [2010] NZCA 287, (2010) 24 CRNZ 888.
Although the argument proceeded on the assumption that evidence obtained by a trespasser is “improperly obtained” within the meaning of s 30(5), I should not be taken to agree with that assumption. In a case in which the point arises, I would want to consider it with the benefit of full argument.
I agree with Tipping J that the undercover police officer who made the purchase was not a trespasser. I do not consider that the limited licence implied by law for the purpose of the tort of trespass is lost if the person entering keeps within the narrow scope of the physical entry permitted to him by the common law. Nor do I consider that the licence is lost because the person using it makes some record of the entry. So I agree that the person approaching the house is not a trespasser in cases where there is no negation of the licence, express or implied, by the occupier. No…

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 Tararo v R

Details

AGLC: Tararo v R [2010] NZSC 157
Case: [2010] NZSC 157
Decision Date: 17 December 2010

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an appeal by Tremaine Manaia Tararo against the Crown, concerning the admissibility of covert video-recording by an undercover police officer during the purchase of cannabis from a residential property. The sole ground of appeal was the contention that the evidence was "improperly obtained" under section 30(5) of the Evidence Act 2006, as it was obtained "in consequence of a breach of [a]... rule of law." The rule of law claimed to have been breached was the civil law of trespass. The Court held that the undercover police officer was not a trespasser as the entry was within the implied licence granted by law for the purpose of reasonable enquiry, and taking a photographic record of the transaction was reasonable to support the evidence given by the officer. The Court concluded that the evidence was not improperly obtained and was admissible at the appellant's trial. The appeal was dismissed.

Legal issues in this case primarily revolved around the admissibility of evidence obtained through covert video-recording by an undercover police officer during a purchase of cannabis from a residential property. The court had to determine whether the evidence was "improperly obtained" under section 30(5) of the Evidence Act 2006, as it was obtained "in consequence of a breach of [a]... rule of law." The rule of law claimed to have been breached was the civil law of trespass. The court also needed to consider if the taking of photographs during the exercise of the implied licence constituted a trespass.

The Court held that the undercover police officer was not a trespasser as the entry was within the implied licence granted by law for the purpose of reasonable enquiry. The Court formulated the licence as allowing members of the public, including police officers, to approach private premises to make enquiry of an occupier for any reasonable purpose. In the course of doing so, they may take photographs if it is reasonable to accomplish that purpose. The Court held that making a photographic record of what the police officer does or sees while exercising the licence will ordinarily be reasonable to enable the police officer to support the evidence which they can give of what was done and seen while on the premises. The Court concluded that the evidence was not improperly obtained and was admissible at the appellant's trial.

Orders