Graham v R [2015] NZCA 568 (24 November 2015)

Last Updated: 8 December 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA298/2015 [2015] NZCA 568
BETWEEN	KURT SVEN GRAHAM Appellant
AND	THE QUEEN Respondent

Hearing:	2 November 2015
Court:	Stevens, Fogarty and Mallon JJ
Counsel:	D L Stevens QC for Appellant M H Cooke for Respondent
Judgment:	24 November 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1] Mr Graham was convicted following a trial by jury in the Blenheim District Court on 20 counts of making an intimate visual recording, contrary to s 216H of the Crimes Act 1961. The offending was said to have occurred over the period 4 December 2006 to 1 March 2010. It involved Mr Graham making a visual recording of himself and his then partner, without her consent, engaged in sexual activity. He was convicted and sentenced to nine months’ home detention and 250 hours’ community work and ordered to make reparation of $5,000.
[2] Mr Graham appeals against conviction on each count. The evidence to support the convictions was found on ten computer discs which were seized from a vehicle owned by the appellant, following a search pursuant to a search warrant issued under s 198 of the Summary Proceedings Act 1957. The ten discs contained the recordings of the sexual activity. Pre-trial Mr Graham challenged the validity of the search warrant.^[1] This appeal is on the basis that the District Court decision upholding the lawfulness of the search was wrong.
[3] The challenge to the search relies on s 30(5) of the Evidence Act 2006:

30 Improperly obtained evidence

(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

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.

[4] The basis for the warrant application by the police was information obtained from a former girlfriend of Mr Graham (the informant) who had stayed at the appellant’s home from time to time. She had discovered photos and films of sexual activity by the appellant with other women.
[5] Between late 2010 and early 2012, the informant both deliberately and inadvertently accessed Mr Graham’s electronically stored property, including his cellphone, computer, CD and DVD collections, locating sexually explicit photographs of him and other women, including the complainant in these proceedings. She got in touch with the complainant, shared some of these images with her and together they went to the police.
[6] The application for a search warrant was based on the reasonable belief that images in the form of intimate visual recordings (as defined in s 216G(1)(a) of the Crimes Act) would be found at Mr Graham’s address. The affidavit detailed discoveries by the informant of such material at his home. Paragraph [8] of the affidavit states:

[The informant] stated that due to her suspicions, she began to look around his house.

There is no suggestion in the affidavit that Mr Graham approved of her conduct, looking around the house to find these photos and visual recordings.

The District Court decision

[7] Prior to trial there was a Crown application under s 344A of the Crimes Act to determine the admissibility of the search and seizure of the ten computer discs and two sets of digital screen photographs recovered under the search warrant.^[2]
[8] This application was allowed by Judge B Davidson in the Blenheim District Court.^[3] The case was fully argued, the evidence at the pre-trial hearing taking four days with written submissions totalling 62 pages and oral submissions lasting several hours. The Judge delivered full reasons. The Judge found that the informant was conscious that Mr Graham valued his independence and privacy. He would emphasise that she was not to go through his private things like his cellphone, his computer, his drawers, books or DVD collections. She was not to arrive at his house unannounced.^[4] The Judge found the informant accepted “she essentially began to “spy” on him”.^[5]
[9] The informant also accepted that throughout their intimate relationship they had largely had separate addresses, separate cars, separate belongings, separate personal items like cellphones, computers and the like.^[6] She accepted that she should have respected his privacy and that her various intrusions were with some subsequent regret.^[7]
[10] The Judge then introduced the argument challenging the admission of the evidence:

[41] [Mr] Stevens QC did not suggest that there was insufficient material placed before the warrant issuer for the requisite reasonable grounds to believe to be made out. Rather he submitted that the detective omitted to place the full story of how [the informant] obtained the information before the warrant issuer; and if she had no warrant would have issued. He also submitted there is no basis set out in the warrant for it to extend to the accused’s vehicle.

[11] The same points are taken on appeal. The formal grounds of appeal are that Judge Davidson erred in admitting evidence obtained from the search of a motor vehicle on private land, pursuant to a search warrant, in circumstances where:

• (a) the application for the search warrant failed to disclose all relevant information, which if it had would have resulted in the search warrant not being granted; and
• (b) the search warrant purported to authorise the search of a vehicle, but the application for search warrant did not establish reasonable grounds to believe that evidence would be found in a vehicle. This is because the relevant material was found in Mr Graham’s vehicle parked outside the house on the property and there was no reference in the search warrant to provision for the search of a motor vehicle on the land.

Failure to include relevant facts in the application for a search warrant

[12] In R v McColl, this Court said:^[8]

[20] It follows in our view that the applicant should lay before the judicial officer all facts which could reasonably be regarded as relevant to the judicial officer’s task. An applicant should not present the judicial officer with a selective or edited version of the facts. There is an obligation on the applicant to be candid and to present the full picture to the judicial officer, not just the conclusion which the judicial officer is asked to draw, supported by so much of the factual background as the applicant chooses to disclose. It is for the judicial officer, on an assessment of all the relevant facts fairly presented, to decide whether the necessary conclusions can be drawn, and thus whether a warrant should issue. Clearly as Cooke P and Casey J emphasised, the consequences of any deficiency will be a matter of degree and judgment in the light of the purpose and terms of s 204. Such matters may also arise under s 21 of the New Zealand Bill of Rights Act 1990 ... .

[13] In Tranz Rail Ltd v Wellington District Court, this Court said:^[9]

[21] An application for a search warrant in whatever context is almost always made on an ex parte basis – that is, without notice to the party whose premises are to be the subject of the proposed search. For this reason the judicial officer to whom the application is made is entitled to expect that the applicant will make full and candid disclosure of all facts and circumstances relevant to the question whether the warrant should be issued. A failure to make such disclosure runs the risk that any warrant obtained will be held to be invalid.

[14] The application to the District Court made it clear that the informant had been searching Mr Graham’s personal items at his home, giving particular examples in the application. Those included an instance of the informant reading texts on Mr Graham’s phone the content of which indicated a sexual relationship between Mr Graham and the sender of the text, the informant then calling the sender of the texts and terminating the call once the woman answered the phone. It also included reference to the informant finding images of a woman on his cell phone and the informant then sending them from his phone to her phone. Although the application does not record contemporaneous demands by Mr Graham to the informant to respect his privacy, it would be obvious to the judicial officer receiving the application that the informant’s conduct was without Mr Graham’s permission.
[15] For these reasons, we think that the application for the search warrant satisfied the obligation of an applicant to make full and candid disclosure of all the facts and circumstances that could reasonably be regarded as relevant to the judicial officer’s task.

Application based on improperly obtained evidence

Approach of the District Court

[16] In relation to the tort of breach of privacy, Judge Davidson identified the instances alleged to give rise to the informant’s tortious action, namely: the two situations during which the informant reviewed the appellant’s photos on his phone and camera. Judge Davidson found that there could be no suggestion of improper and/or unlawful activity by the informant on either of these occasions. This is because the police officer explains in her affidavit that the informant had told her as to the first occasion:

In November 2010 I noticed photographs he had printed off of him and [his then partner].

Then one morning Kurt [Graham] and I were going through his camera and as I scrolled through up came a picture of [his then partner] in the middle of a sexual act. It seemed to me it was a photo of a TV screen because I could see “mute” on the screen.

Kurt grabbed the camera off me and said that they were photos from ages ago. He told me never to tell anybody because [his former partner] is a very private person.

[17] It was disputed in the hearing before the District Court that they were both looking through the photographs. But the Judge rejected the evidence of Mr Graham, who stated the couple were not looking through photographs together, as implausible.^[10]
[18] The second occasion was when the informant was looking for some photographs of local snowfall she had taken that she wanted to use as a teaching resource. The undisputed evidence is that the informant was looking for these photos whilst scrolling through the defendant’s photographs that she discovered the other photographs. The Judge concluded he could not see how any actionable tort could arise in those instances.^[11]
[19] The Judge then established the only potentially tortious intrusion could be said to have occurred in respect of the informant’s finding and watching mini CDs on a video camera belonging to the appellant, and later checking the appellant’s phone, finding photos and sending them to herself from his phone. As to those occasions, the Judge noted:^[12]

More than that I am not confident that an actionable tort of breach of privacy arose. I fail to see how [the informant’s] actions could be regarded as highly offensive to a reasonable person. After all her actions were really the common enough actions of a suspicious partner, the kind of activities that occur regularly in an understandable context.

[20] As to the tort of trespass to goods, the Judge did not separately address the challenge on that basis. It appears it was dismissed broadly, alongside the Judge’s rejection of any kind of tortious liability.

Appellant’s submissions

[21] In this Court Mr Stevens QC argued, as he had in the District Court, that the conduct of the informant constituted two civil wrongs:

• (a) breach of the tort of privacy; and
• (b) trespass to goods.

[22] As to the breach of the tort of privacy, Mr Stevens referred to the judgment of Whata J in the High Court in C v Holland.^[13] In that case, a woman was unwittingly filmed by a hidden camera by her flatmate whilst she was in the shower. Whata J reviewed the existing law and assessed the adequacy of civil remedies in the context. He acknowledged a longstanding protection of privacy in various legislative and common law forms, and determined the common law established a cause of action based on the concept of intrusion into seclusion.^[14]
[23] Whata J identified four ingredients to the tort:^[15]

• (a) intentional and unauthorised intrusion;
• (b) into seclusion (namely intimate personal activity, space or affairs);
• (c) involving an infringement of a reasonable expectation of privacy;
• (d) constituting an action highly offensive to a reasonable person.

[24] In respect of trespass to goods, Mr Stevens cited no authority. We record the key elements of the tort comprise the wrongful interference of a direct and physical kind by the defendant with the plaintiff’s possession of goods.^[16]

Our analysis

[25] Mr Stevens did not develop his submissions before us on the particular elements of intrusion into seclusion. Rather, he submitted more broadly there was a breach of privacy in general terms, thereby rendering the search warrant unlawful and all subsequent evidence inadmissible. We do not accept a breach of any interest in privacy should necessarily be couched in the general terms advanced by Mr Stevens. Nor do we accept that the consequences are necessarily as Mr Stevens contends.
[26] Assuming a breach of a civil wrong is relevant to the validity of a search warrant,^[17] (and assuming Whata J was correct to recognise in the New Zealand context the existence of the tort of intrusion into seclusion and its constituent ingredients) we do not accept the appellant can establish a civil wrong of this kind of intrusion into seclusion on the part of the informant. Even if the breach of tort alleged were framed more widely as a generic form of breach of privacy, relying on the same elements as submitted by Mr Stevens at [23] above, we do not consider the ingredients are ma[18] out here:¹⁸

• (a) As Judge Davidson held, the first two occasions of alleged breach were such that no tortious liability could be grounded upon them, as in both the appellant could not demonstrate unauthorised and intentional intrusion: the first time occurring with his consent; the second occurring in unintended circumstances.
• (b) Any intrusion in the circumstances in this case would be marginal, at best. It is debateable whether it is an intrusion to review mini CDs owned by the appellant, when he had asked her to look for and retrieve other digital storage devices (memory sticks), when she was authorised to be present in his house and to search amongst his belongings.
• (c) Seclusion as a concept, defined by Whata J with reference to the US jurisprudence, refers to private or intimate affairs or matters. It connotes an invasion of physical privacy, impinging on one’s personal autonomy. Whether and to what extent this may extend to stored information or digital data is controversial. Even so, the Judge’s findings as to the level of privacy and intimacy attaching to the appellant’s phone and personal data does not make clear the informant’s behaviour intruded into any “seclusion” in a relevant sense.^[19]

[27] We see no good reason to depart from Judge Davidson’s reasoning as to the expectations of privacy prevailing in the relationship between the appellant and informant. The Judge noted the appellant’s stringent expectations emanated more from his perception than reality, and his actual conduct was inconsistent with those alleged expectations. We accept those findings and we do not consider it can be said the informant’s behaviour infringed a reasonable expectation of privacy in the context of their relationship and the objective expectations manifested by their respective behaviour.
[28] In any event, even if we are wrong in the above analysis, the intrusion could not be said to be highly offensive to a reasonable person. Therefore in this case we are not satisfied either the tort of intrusion into seclusion or the tort of breach of privacy could be made out. We accept and uphold the Judge’s findings to that effect.^[20]
[29] In respect of trespass to goods, an alleged breach of that tort was not fully developed in argument. We merely observe that given the circumstances of the instant case, the appellant would need to advance a claim on the basis that the informant’s fleeting access to his phone and reviewing of his video camera had interfered with his possessory rights in those goods.^[21] We are far from satisfied that could be established.^[22]

Effect of any proven tort

[30] We now consider the position entirely separately from whether any tort has been made out. Judge Davidson considered that, even had the two claims of tortious liability been made out and the resulting material or information not been included in the search warrant application, he was satisfied the application would still have met the requisite standard required to obtain a search warrant.^[23] We agree with that conclusion.
[31] We do not consider evidence obtained in circumstances that give rise to a cause of action in tort would necessarily taint the search warrant in the manner suggested by Mr Stevens. This Court in Saggers v R doubted that a search warrant obtained on the basis of evidence earlier ruled improperly obtained for the purposes of s 30 would be invalid.^[24] The Court noted that a ruling under s 30 for the purposes of a criminal trial is not determinative of the use of the evidence for other purposes, and questioned whether s 30 applies to a search warrant application regime.^[25] By analogy, we doubt evidence obtained pursuant to a civil wrong would necessarily render a subsequent search warrant, obtained on the basis of that information, unlawful.^[26]
[32] Finally, were we to have held the evidence obtained pursuant to the search warrant was improperly obtained pursuant to a tort, we are satisfied that it would have been disproportionate to exclude the evidence under s 30 of the Evidence Act.
[33] This ground of appeal is not made out.

Application of the search warrant to the vehicle

[34] The application for the search warrant was sought in respect of “any building, carriage, box, vehicle, receptacle, premises or place situated at [the stated address]”.
[35] Paragraphs [32] and [33] of the search warrant application were expressly restricted by the applicant to the defendant’s “address” and “house”. There was no reference to any vehicle of the defendant’s.^[27] The District Court Judge relied on evidence from the Crown that it was a mistake in the application not to expressly refer to a vehicle. We have reservations in relying on that proposition because the grounds for issuing the warrant must be made out in the application seeking it.
[36] Rather, in our view, it is sufficient that the application clearly stated: “I therefore wish to search [Mr Graham’s] address.” The application did not expressly say it was confined to the applicant’s house. The reference to “address” would encompass a vehicle found immediately outside the house and on the property, as the appellant’s vehicle was. The affidavit provided the grounds for the warrant to be granted in respect of the address, including a vehicle at the address, given that the informant had found images on Mr Graham’s cell phone.
[37] This ground of appeal is not made out.

Result

[38] All grounds of appeal have failed. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Graham DC Blenheim CRI-2012-006-339, 24 February 2014 [District Court decision].

^[2] There was also in issue the admissibility of the appellant’s written and electronically recorded statements to Detective Soper, but these are not matters taken on appeal.

^[3] District Court decision, above n 1.

^[4] At [19].

^[5] At [20].

^[6] At [29].

^[7] At [30].

^[8] R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136 (CA).

^[9] Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780 (CA).

^[10] R v Graham, above n 2, at [22].

^[11] At [85].

^[12] At [89].

^[13] C v Holland [2012] NZHC 2155. There, Whata J held New Zealand law recognised a cause of action of intrusion into seclusion. This was discussed under the aegis of protection and respect for the interests of privacy. Specifically, he referred to the civil action for privacy discussed by this Court in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA), in relation to the publication of private facts, noting it was inadequate in providing a legal remedy. The tort of intrusion into seclusion has not yet been considered by this Court.

^[14] Following review of the US and Commonwealth jurisprudence on this issue: at [11]–[20] and [49]–[64] in respect of the Commonwealth position.

^[15] At [94].

^[16] Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers Ltd, Wellington, 2013) at [12.2.01].

^[17] A point to which we return to below at [31].

^[18] We conduct this analysis, but we do not intend our comments to be seen either as support or detraction from the decision in C v Holland, above n 13. That decision deserves careful review in an appropriate case.

^[19] The interrelationship between the subjective and objective elements in assessing these elements may also be controversial. We observe that, in the context of an intimate personal relationship between two people, subjective considerations must be relevant in establishing the expectations of privacy and seclusion operating in that relationship. Those expectations may not necessarily be determined with reference to objective social standards at large, and should not be determined by a Court in a vacuum.

^[20] A further, collateral argument was advanced by Mr Stevens, that the informant has obtained the evidence in breach of art 17 of the ICCPR (International Covenant of Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976)). The Judge rejected this argument, concluding art 17 is not part of domestic law and cannot be elevated to the same status as s 21 of the New Zealand Bill of Rights Act 1990. It is unnecessary for us to engage with this submission. There is no independent cause of action recognised by domestic Courts of a breach of international obligations, outside of their incorporation into statute, or as an aid to statutory interpretation. Regardless we have determined no actionable breach of privacy, however understood, is made out on the facts.

^[21] A related claim that the interference is with the digital matter itself, is a further and very complicated issue: see, for similar issues in a different, criminal context Dixon v R [2015] NZSC 147.

^[22] See on the issue of whether use alone of goods without authority can amount to trespass Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204 at 214 and Calor Gas Ltd v Homebase Ltd [2007] EWHC 1173 (Ch).

^[23] Summary Proceedings Act 1957, s 198.

^[24] Saggers v R [2009] NZCA 164.

^[25] At [36]–[38]. That case related to an interception warrant under the Misuse of Drugs Amendment Act 1978, but the material question is relevant. Relatedly, see Dickson v R [2015] NZCA 286 on a similar issue.

^[26] Leaving aside the utility in requiring police to assess the civil or tortious liability of informants prior to relying on their statements.

^[27] At [104].