The Queen v McGaughey [2007] NZCA 411 (17 September 2007)

Last Updated: 25 September 2007

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 by Telecom. The offending is serious and the evidence is important to a number of counts in the indictment. In my judgment the exclusion of the evidence obtained from Telecom in those circumstances could be seen as an unbalanced and disproportionate response to the circumstances of the breach. I rule that the evidence obtained from execution of the 30 September warrant against Telecom is admissible.

The statutory framework

[8] Section 30 of the Evidence Act, as relevant to this case, provides:

30 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

(a) the defendant ... against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and ...

...

(2) The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence:

(d) the seriousness of the offence with which the defendant is charged:

...

(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5) For the purposes of this section, evidence is improperly obtained if it is obtained—

(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

...

The relevance of the degree of impropriety

[9] Mr Lithgow argued that, when judging whether the evidence should be ruled inadmissible, the Court should have given weight to the fact that the detective had no factual basis for believing there was ongoing offending. We agree. The nature or degree of impropriety is addressed in s 30(3)(b). Consistent with the common law jurisprudence in Shaheed and Williams, Parliament refers particularly to whether the impropriety was deliberate, reckless, or done in bad faith. An absence of facts supporting belief will go to whether there was police misconduct or gross recklessness. This point is best addressed when examining Mr Lithgow’s proposition that Venning J should have found the police conduct constituted gross carelessness. We turn to that.

Whether the police conduct constituted gross carelessness

[10] Mr Lithgow challenged the Judge’s refusal to find that the detective had been grossly careless. Gross negligence amounts to police misconduct: see Williams at [120]. Under cross-examination, it was not put to the detective that he had been careless, let alone that he had been grossly careless or had misconducted himself. Notwithstanding that, the Judge was plainly alive to the distinction because he said:

[39] As the Court of Appeal noted in R v Williams (supra) where the search is unlawful, the assessment of seriousness involves an assessment of how deficient the warrant application was. In the present case there was insufficient evidence to support the warrant. Detective Cathcart did not have further information which would have justified the application. The present case is worse than one where the police may have had further information but simply failed to include it in the application. However, I am not able to accept that the application can be said to be misleading. In my judgment the actions of Detective Cathcart in the present case amount to carelessness in drafting and a lack of judgment as to the relevance of some of the information he obtained regarding the vehicles seen at the property. I would not, however, categorise the degree of carelessness in relation to the application for the 30 September warrant as gross carelessness.

[11] Venning J had earlier summarised the informant’s observations, the detective’s enquiries, the vehicle information and the further police surveillance. Essentially, there was good reason to believe that “P” was being sold from the address early in 2004. The issue was whether there was reason to believe it was being sold in early September 2004. The high point of the information the detective had was that the informant neighbour had continued to observe visitors coming to the front door of Mr McGaughey’s home. In some cases these people had their wallets out and the informant saw cash being handed over. But there was a lack of detail as to when that had happened and no evidence of anything being handed to visitors. Although the Judge considered these facts may well have raised suspicion, that was not enough.
[12] Mr Lithgow submitted that the Judge erred in declining to hold that the police had been grossly careless in applying for a warrant on these seriously deficient grounds.
[13] We do not accept this. The Judge made a careful analysis of the evidence, and of the conduct of the detective. His judgment distinguishing carelessness from gross carelessness, and finding only the former, was a considered one. Although a different view was open, Mr Lithgow conceded the decision was a discretionary one, and the view the Judge took was one open to him.

Whether the Judge understated the community’s expectation of privacy in respect of texting

[14] Mr Lithgow submitted that text communications should be treated like private correspondence. He relied on the passage in Williams which placed private correspondence found in a home as within the inner sanctum of privacy:

[113] ... There will be some gradation [of the nature of the privacy interests] even within a residential property, however. The public areas will invoke a lesser expectation of privacy than the private areas of the house ... Inaccessible areas such as drawers and cupboards (particularly ones where one would expect to find private correspondence or intimate clothing) would count as private areas. ...

[15] Mr Lithgow urged that there was no merit in making the point that the communication had passed to a recipient and that a copy was being held by Telecom in its computer. In relying on R v Cox (2004) 21 CRNZ 1 (CA), he contended the Judge had misdirected himself on the law. He had erred in asking whether people engaged in illegal activity can have a reasonable expectation of privacy, rather than framing the question in broad and neutral terms: should those in our current society who text have a reasonable expectation of privacy? See Williams at [64] citing La Forest J in R v Wong [1990] 3 SCR 36 at 50.
[16] Cox was not a Shaheed case. In Cox at [38] this Court assumed that the supply of information by a telephone company as a result of a search and seizure engaged s 21 of the New Zealand Bill of Rights Act 1990. The relevance of Cox is that it informs the degree of reasonable expectation of privacy in respect of text communications. In Cox at [33] this Court considered that the storage of text messages by telephone operators had some equivalence to the storage of data by banks. That comparison acknowledges that people who send text messages know that they may be read by others.
[17] We accept that the Judge may have understated, to a degree, the general expectation of privacy in text communication. Normally there would be no expectation that the text stored on the telephone company’s computers will be read. There is always a risk that the text will be sent to the wrong person but that is the same risk inherent in posting a letter. On the other hand, the expectation of text message privacy should not be elevated to the same level as a private face to face conversation. People do, as a matter of course, apply some safeguards to written correspondence, where the topic is sensitive, given the opportunities for perusal by third parties at the time or later.

The relevance of the fact there is now only one charge against Mr McGaughey

[18] Mr Lithgow emphasised that there was now only one charge, not the four as when the matter was considered by Venning J. The Crown accepted the sentencing starting point for this offending would be two to four years. While we acknowledge this change, the remaining offence is still serious, as it involves supplying methamphetamine.

Section 30(2)(b): Whether exclusion is proportionate to the impropriety

[19] Mr Lithgow argued that the police should not be given the comfort of knowing that evidence obtained from warrants lacking a proper foundation could nonetheless be admissible: that it was important in the long run for the Courts to insist that search warrant evidence is lawfully obtained.
[20] While both propositions are true, they are only part of the purpose of s 30. Under Shaheed the aim of the balancing exercise was to assess whether the remedy of exclusion of evidence was proportionate to the breach (see Williams at [251]). Under s 30 the Judge is given a similar task. We use the word “similar” because we think it is important not to displace Parliament’s words in s 30(2)(b):

...

(b) If the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

[21] If the Judge determines that exclusion is proportionate to the impropriety, then the Judge must exclude that evidence: s 30(4).
[22] As was said in Williams at [251], strict rules cannot be laid down guiding the Judge’s determination. Subject to the discretionary constraint we referred to in [13], an appellate Court is checking the Judge’s balancing process. Venning J outlines his process in [47] of his judgment set out in [7] above. In assessing that, we bear in mind:

(a) we have found the nature of the privacy interest to be a little more significant than did the Judge;

(b) the evidence is now relevant to only one count, rather than to a number; and

(c) the Crown has acknowledged that, upon conviction, the sentencing starting point would be two to four years’ imprisonment.

[23] We agree that the illegality is moderately serious to serious. There is support in what this Court said in Williams for Mr Lithgow’s submission that the Court should not tolerate woefully inadequate warrants:

[208] Despite the continued exhortations of this Court, woefully inadequate applications (such as those at issue in this case) continue to be drafted and warrants continue to be issued on the basis of inadequate applications. ...

[24] A counterpoint is that the evidence in question is not, for example, a confessional statement obtained by the police by an abuse of process. Further, when judging whether the exclusion of the evidence is proportionate to the impropriety, the Judge must take account of the consequence of the exclusion of the evidence. It is crucial to the case.
[25] Part of the problem in striking the correct balance here is that ruling the evidence admissible means there will not have been any significant response to the breach, beyond the finding of carelessness (less euphemistically put, of incompetence).
[26] However, s 30 does not mean that incompetence triggers exclusion of improperly obtained evidence. Section 30(3)(b) directs attention to impropriety that is deliberate, reckless, or done in bad faith.
[27] We are not persuaded that the three changes to the factors Venning J balanced, nor the differently formulated grounds in s 30, justify disturbing his judgment that the exclusion of the evidence would not be a proportionate response to the breach.

Result

[28] Leave to appeal is granted but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington