The Queen v McGaughey - [2007] NZCA 411

IN THE COURT OF APPEAL OF NEW ZEALAND
CA269/07
[2007] NZCA 411
THE QUEEN
v
DESMOND OWEN REID MCGAUGHEY
Hearing:27 August 2007

Court:Robertson, Wild and Fogarty JJ
Counsel:R M Lithgow QC and M R Lander for Appellant

D R La Hood for Crown

Judgment:17 September 2007 at 4 pm

JUDGMENT OF THE COURT

Leave to appeal is granted, but the appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
[1]       This is an application for leave to appeal a pre-trial ruling on the admissibility of the contents of text messages in a drug supply case.
[2]       The police had obtained a warrant in relation both to Mr McGaughey’s home and to Telecom. The warrant was not executed at Mr McGaughey’s home, but the police obtained the messages from Telecom’s records of text messages the appellant had sent and received. Those messages are the basis for what is now a single charge of supply of five grams of the Class A controlled drug methamphetamine.
[3]       Venning J found that, although the evidence in support of the warrant may have provided a basis for suspecting drug dealing, the judicial officer could not have had reasonable grounds for believing that, at the time the warrant was applied for, there was ongoing offending: HC HAM CRI 2006-019-002189 14 May 2007.
[4]       Having held that the warrant had been unlawfully and unreasonably obtained, Venning J ruled the resulting evidence admissible, as its exclusion would be an unbalanced and disproportionate response to the breach. He applied the test enunciated in R v Shaheed [2002] 2 NZLR 377 (CA) and refined in R v Williams (2007) 23 CRNZ 1 (CA).
[5]       Section 30 of the Evidence Act 2006 now governs admissibility. Mr Lithgow argued that the evidence should be ruled inadmissible as:
(a)       the warrant was bereft of justification;
(b)the Judge should have found that the police action constituted gross carelessness;
(c)the Judge had understated the community’s expectation of privacy in respect of texting; and
(d)circumstances have now changed in that there was only one charge against Mr McGaughey.

Background circumstances
[6] The application for the warrant was prepared by a senior and experienced detective. Although the Judge found that the detective had been careless both in his inclusion in the application of irrelevant information, and in drafting the application, he held:
[39] … I would not, however, characterise the degree of carelessness in relation to the application for the 30 September warrant as gross carelessness.

[7] The Judge concluded:
[47] In summary, in this case I categorise the illegality of the police action as moderately serious to serious arising as it does out of carelessness and an apparent misunderstanding of what was properly required to support the application. The nature of the privacy interest is, however, limited in the circumstances. The seriousness of the breach is diminished by the fact the warrant was not executed directly against the accused personally or at his home but rather was executed against historical records maintained…

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 The Queen v McGaughey

Details

AGLC: The Queen v McGaughey [2007] NZCA 411
Case: [2007] NZCA 411
Decision Date: 17 September 2007

CaseChat Overview and Summary

Desmond Owen Reid McGaughey appealed against a decision of Venning J that evidence obtained via a warrant was admissible, despite the warrant being unlawfully and unreasonably obtained. The police had obtained a warrant in relation to McGaughey’s home and Telecom, and subsequently obtained text messages from Telecom’s records. Those messages formed the basis of a charge of supplying methamphetamine. The Crown Law Office represented the Crown. Venning J had found the warrant was unlawfully and unreasonably obtained, but ruled the evidence admissible as its exclusion would be an unbalanced and disproportionate response to the breach. The Court of Appeal held that the nature or degree of impropriety was addressed in s 30(3)(b) of the Evidence Act 2006. The absence of facts supporting belief would go to whether there was police misconduct or gross recklessness. The Court of Appeal found that the Judge’s judgment distinguishing carelessness from gross carelessness, and finding only the former, was a considered one. Although a different view was open, the decision was a discretionary one, and the view the Judge took was one open to him. The Court of Appeal also held that the Judge may have understated, to a degree, the general expectation of privacy in text communication, but that the relevance of the fact there was now only one charge against McGaughey was that the remaining offence was still serious, as it involved supplying methamphetamine. The Court of Appeal held that it agreed that the illegality was moderately serious to serious, but that ruling the evidence admissible meant there would not have been any significant response to the breach, beyond the finding of carelessness (less euphemistically put, of incompetence). The appeal was dismissed.
Leave to appeal is granted but the appeal is dismissed.

Orders