The Queen v Rock - [2008] NZCA 81

IN THE COURT OF APPEAL OF NEW ZEALAND
CA497/07
[2008] NZCA 81
THE QUEEN
v
RUSSELL ROCK
Hearing:20 February 2008

Court:Robertson, Randerson and Ronald Young JJ
Counsel:A J Haskett for Appellant

M D Downs for Respondent

Judgment:11 April 2008 at 10 am

JUDGMENT OF THE COURT

Leave to appeal is granted and the appeal is allowed. The evidence obtained as a result of the execution of the search is inadmissible.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        On 11 September 2007, Judge Sharp in the District Court heard and determined a pre-trial challenge (pursuant to s 344A of the Crimes Act) to the admissibility of evidence obtained as a result of the execution of a search warrant at the appellant’s address. The Judge concluded that the search warrant was properly obtained and the evidence found as a result from his computer and CD‑ROMs was admissible.
[2]        The appellant now faces trial on 16 counts of importing objectionable material contrary to s 209(1)(c) of the Customs and Excise Act 1996.
[3]        This appeal is based on the claim that the Judge wrongly rejected the appellant’s claims that:
(a)the information in the search warrant application was not reliable;
(b)the applicant omitted to include relevant information in the application; and
(c)there was an inexcusable and unexplained delay between Customs obtaining the relevant information and the application for the warrant.

[4]        These failures, separately or together, the appellant says, should have satisfied the Judge that the search was unlawful and that the evidence was therefore improperly obtained and inadmissible.
[5]        The search warrant here was applied for and obtained pursuant to s 167 of the Customs and Excise Act. The test, as with the Summary Proceedings Act 1957, is that there is in the relevant premises;
167     Search warrants
(1). . .
(a)any thing that there are reasonable grounds to believe may be evidence of—
(i)the commission of an offence against this Act or regulations made under this Act; or
(ii)the unlawful exportation or importation of goods; or

(b)any thing that there are reasonable grounds to believe is intended to be used for the purpose of—
(i)committing an offence against this Act or regulations made under this Act; or

(ii) unlawfully exporting or importing goods; or

(c) any thing that is liable to seizure under this Act.

Background
[6] In 2003 the United States Bureau of Immigration and Customs (“the Bureau”) began investigating child pornography sites. Part of that investigation involved obtaining access to businesses used as clearing houses for those who wished to access child pornography internet sites using credit cards. The clearing houses provided a method by which those wishing to access such sites could do so without revealing their name, address or credit card details. Customers wishing to subscribe to a chosen site sent their credit card details to the clearing house along with an operating email address to which their membership account details were sent. When a subscription transaction was verified, a customer received an…

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 Rock

Details

AGLC: The Queen v Rock [2008] NZCA 81
Case: [2008] NZCA 81
Decision Date: 11 April 2008

CaseChat Overview and Summary

The appeal in The Queen v Rock was heard by the Court of Appeal of New Zealand, with the judgment given by Ronald Young J. The appellant, Russell Rock, is contesting the admissibility of evidence obtained from a search warrant executed at his address. The evidence is sought to be used in his trial on charges of importing objectionable material under the Customs and Excise Act 1996. The appellant argued that the evidence was improperly obtained due to the lack of reliable information in the search warrant application, the omission of relevant information, and the unexplained delay between receiving information and applying for the warrant. The District Court had rejected these claims, finding the warrant was properly obtained and the evidence admissible.

The Court of Appeal considered the reliability of the information provided in the search warrant application, focusing on the source of the information and whether the issuing officer was properly informed. The Court found that the application did not sufficiently establish the reliability of the information, as the source of the information and the method by which it was obtained were not adequately disclosed. The Court also found that the omission of relevant information about the credit card transactions was a serious deficiency, amounting to misleading information. The Court emphasised the importance of full and candid disclosure in search warrant applications, especially given their ex parte nature.

Furthermore, the Court examined the delay in applying for the search warrant, noting that while a six-month delay existed, the nature of the information (related to stored data on computers) meant it was less likely to become outdated. The Court concluded that the evidence obtained from the search warrant was improperly obtained due to the deficiencies in the application and the misleading information provided. The Court found that the balance of factors under section 30(3) of the Evidence Act favoured the exclusion of the evidence, given the seriousness of the intrusion into the appellant's privacy and the need for an effective and credible justice system.

The Court of Appeal allowed the appeal, granting leave and setting aside the decision of the District Court. The evidence obtained as a result of the execution of the search warrant was deemed inadmissible.

Orders