The Queen v Pearce - [2008] NZCA 503

IN THE COURT OF APPEAL OF NEW ZEALAND
CA492/2008
[2008] NZCA 503
THE QUEEN
v
ROWAN JOHN PEARCE
Hearing:24 November 2008

Court:Robertson, Hugh Williams and Harrison JJ
Counsel:S J Zindel for Applicant

T Epati for Crown

Judgment:27 November 2008 at 3.30 pm

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS REFUSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       This is an application for leave to appeal against a decision of Judge Zohrab delivered in the District Court at Nelson on 7 August 2008 in which he rejected a challenge to the admissibility of evidence obtained under a search warrant: CRI 2007-042-9002994.
[2]       The applicant faces eleven charges laid under the Films, Videos and Publications Classification Act 1993 (“the Act”) - ten of being in possession of objectionable material (computer images) and one of making an objectionable publication (a compact disc).
Factual circumstances
[3]       In December 2005, Mr Pearce took his personal computer for repairs. During the course of carrying out his requirements, a technician employed by Visual Group, who was doing the necessary work, noticed filenames which indicated potentially objectionable material. The technician advised his supervisor who viewed the files. As it was 23 December, it was decided to copy the hard disk drive and return the personal computer to Mr Pearce. This was done.
[4]       In January 2006, the Branch Manager of Visual Group made a report to the Department of Internal Affairs about what had been seen on Mr Pearce’s computer.
[5]       The Department obtained a search warrant under s 109 of the Act to search the applicant’s address. The authorities found material which was seized pursuant to the warrant and on the basis of that the charges against Mr Pearce were laid.
The challenge
[6]       The applicant contended that the actions of Visual Group and its employees in reporting to the Department of Internal Affairs what they had discovered in the course of carrying out repairs were in breach of Mr Pearce’s right to privacy and/or implied terms of confidentiality.
[7]       On the basis of the evidence, Judge Zohrab found that the employees did not set out deliberately to look through the applicant’s computer to see whether it contained objectionable material. He accepted that it was pure chance that one of the employees observed file names which led him to believe there was potentially objectionable material on the computer.
[8]       The Judge found that in those circumstances it was entirely appropriate for the employee to refer the matter to his supervisor and for the supervisor to contact the Department of Internal Affairs. The Judge concluded:
[47]     In my view, no person in the position of the accused could have a reasonable expectation of confidentiality with respect to any potentially objectionable material contained in their personal computer when having it repaired. In my view, that is the position irrespective of whether or not the objectionable material was in the recycle bin or in an open directory.

[9] Mr Pearce made a…

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 Pearce

Details

AGLC: The Queen v Pearce [2008] NZCA 503
Case: [2008] NZCA 503
Decision Date: 27 November 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Pearce dealt with an application for leave to appeal against a decision made by Judge Zohrab in the District Court at Nelson. The applicant, Rowan John Pearce, faced eleven charges under the Films, Videos and Publications Classification Act 1993, including possession of objectionable material and making an objectionable publication. The central issue in the case was whether the evidence obtained from Pearce’s computer during repairs should be admissible, given that the technician had reported the potentially objectionable material to authorities.

The Court of Appeal considered whether the actions of Visual Group and its employees in reporting the discovered material to the Department of Internal Affairs breached Pearce's right to privacy or implied terms of confidentiality. The Court found that the employees did not deliberately search for objectionable material, and their actions were a chance discovery. Judge Zohrab concluded that Pearce could not have a reasonable expectation of confidentiality concerning potentially objectionable material on his computer while it was being repaired. The Court upheld this finding, stating that the employees' actions were appropriate and that there was no breach of privacy or confidentiality. The Court also noted that any breach of privacy under the Privacy Act does not create an independent cause of action under criminal law. The appeal application was ultimately refused as there was no novel point of law, and the arguments presented were not sufficiently arguable.

Orders