The Queen v Pearce
[2008] NZCA 503
•27 November 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA492/2008
[2008] NZCA 503THE 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 complaint to the Privacy Commissioner. It was not upheld as it was found that Privacy Principle 11(e)(i), s 6 of the Privacy Act 1993, applied: Visual Group believed on reasonable grounds that non-compliance with Mr Pearce’s privacy was necessary “to avoid prejudice to the maintenance of law … including the prevention, detection, investigation, prosecution and punishment of offences”.
The proposed appeal
[10] Mr Zindel, on behalf of Mr Pearce, now seeks leave to appeal on the basis that:
(a) the proposed appeal point is novel;
(b)the outcome will be determinative; and
(c)the proposed grounds are arguable.
[11] It is common ground that the outcome of any appeal will be determinative of the case.
[12] We are not satisfied that there is a novel point involved. The fact that a computer is involved is not a reason to distinguish the case from others where potentially incriminating material is accidentally seen.
[13] The Judge found that, as a matter of fact, the evidence was obtained neither unfairly nor as a consequence of a breach of any enactment or rule of law. Consequently, s 30 of the Evidence Act 2006 has no application.
[14] The question is whether there is any sensibly arguable matter which requires consideration by the Court of Appeal.
[15] Notwithstanding the Judge’s findings of fact (and Mr Zindel does not indicate they are challenged), counsel argues that the applicant had a reasonable expectation of privacy and confidentiality of his personal property while it was in the custody of Visual Group. In addition, and somewhat faintly, he mentions a breach of s 21 of the New Zealand Bill of Rights Act 1990 (“NZBORA”).
[16] Under our law, breaches of privacy are dealt with under the Privacy Act. They do not create an independent cause of action under the criminal law.
[17] The factual position as found by the Judge was:
[50] Here what has happened is that the accused was wanting his computer fixed and he was foolish enough to leave objectionable material on it. It defies common sense to suggest that having identified that there was potentially objectionable material on the computer that Visual Group and its employees could do nothing about it by way of informing the Department.
[18] That approach is consistent with the view of this Court in R v Cox (2004) 21 CRNZ 1, which was confirmed in R v McGaughey [2007] NZCA 411.
[19] The argument that there was some breach of an implied contractual term of confidentiality and/or a reasonable expectation of privacy has no evidential base. Any argument rooted in contract (or equity) is unsustainable.
[20] Nevertheless the District Court Judge considered the position which would have applied had there been, in terms of s 30 of the Evidence Act, a breach of a rule of law, and said:
[51] Even if I were to find that Visual Group or its employees had somehow breached the accused’s privacy and/or implied terms of confidentiality by notifying the Department when they noticed file names that appeared to be objectionable, and having viewed the potentially objectionable material, I am quite satisfied that after going through the balancing exercise required by the Act that the evidence obtained as a result of the execution of a search warrant should not be excluded.
[52] This was a chance discovery of objectionable material and any incursion upon the rights of the accused was minimal. This type of offending is difficult to detect and at the end of the day there is an overwhelming public interest to ensure that those who are prepared to possess and make objectionable material are brought to account. The young people portrayed in the material possessed by the accused are only being abused because there are people like the accused who are prepared to access this material and make it.
[21] Mr Zindel has not identified any reviewable error of law or principle made by the Judge in concluding that he would have exercised his statutory discretion to admit the evidence if it was improperly obtained. The District Court applied well-established principles to the undisputed facts of the case.
[22] The suggestion that there was a breach of s 21 of the NZBORA is unsustainable. Under s 3, the NZBORA applies only to acts done by an arm of government, or a body carrying out a public function, power or duty. Visual Group was an entirely private commercial organisation, and the acts of its employees are not within the purview of the NZBORA. Some vague reference to a Department of Internal Affairs circular (which witnesses from Visual Group did not remember or know about) is no foundation for such an assertion.
Result
[23] There is nothing in this case to meet the criteria enunciated by this Court in R v Leonard [2008] 2 NZLR 218 which would justify further consideration.
[24] The application for leave to appeal is refused.
Solicitors:
Zindels, Nelson, for Applicant
Crown Law Office, Wellington