Police v Cotton [2017] NZDC 19134 (25 August 2017)

Last Updated: 19 February 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-090-001254

[2017] NZDC 19134

NEW ZEALAND POLICE Prosecutor

V

EDDY RAE COTTON Defendant

Hearing:	25 August 2017
Appearances:	N Porter for the Crown M Ryan for the Defendant
Judgment:	25 August 2017

ORAL JUDGMENT OF JUDGE A C ROBERTS

he charge notice filed details six charges against the defendant, Cotton. All of them date back to 4 March 2016, but the charges can roughly be divided to include, firstly, allegations of violent offending and, secondly, drug offending coupled with the unlawful possession of the firearm.

he Crown seeks an order that evidence obtained as a result of a subsequent search of Mr Cotton’s residential address be ruled admissible for trial purposes. I need not cover the allegations of violent offending; the drug charges are cultivation of cannabis and possession of cannabis for supply. The charge of the unlawful possession of the firearm arises too out of the consequences of the same search.

NEW ZEALAND POLICE v EDDY RAE COTTON [2017] NZDC 19134 [25 August 2017]

he allegations of violence occurred at the address of another in Kelston. Following arrest the defendant’s residential address was visited. Detective Constable Rush states in his evidential statement, for the purposes of assessment for, “a bail suitability check.” The same police officer notes on attendance at the property in question, one, a CCTV camera attached to the house on the driveway side. Two, the windows of the house and detached garage appeared, “to be blacked out.”

search warrant was sought and granted. A copy of the application is appended to the Crown’s submissions and is dated 4 March 2016. Included in the factual matters relied on are, firstly, details of significant money transactions and, secondly, information from the two utilities as I will refer to them; Contact Energy and Watercare indicating significant power and water consumption. This relates to an earlier time. This information was sought in September 2015. A cultivation process of some sophistication and extent was discovered once the property at [street name deleted] had been searched.

quote from the summary of facts:

Located in the basement space in the address was a custom built cannabis cultivation setup. The entire basement area, this had full rooms created with Gib board and doors and metal room framing. The area is accessible from the lounge of the residence by a trapdoor hidden under a chair. Three of the rooms were cannabis grow rooms each with professionally wired power and plumbing, lighting equipment, carbon filtration systems, timers, thermometers and fertiliser equipment. The basement also has drying rooms set up for the drying of harvested cannabis plant. Located at the entrance to the basement was a calendar indicating a cyclic grow operation. The grow rooms and corridors included installed lighting and ventilation and include power boxes with RCD switches.

At the time of writing a full inventory has not been carried out, however the following has been noted thus far:

ight mature cannabis plants growing under lights.

pproximately 20 kilograms of cannabis head both harvested and in packaging and a large amount of cannabis head drying.

Waitakere City recycling bin full to the top with cannabis plant material.

arge amounts of soil, pots, cannabis, specific fertiliser.

arge amount of electrical equipment including high quality transformers. It appears significant power theft by diversion is occurring, however the exact manner of this has not been obtained.

he challenge indicated by the defence has its focus on the obtaining of information both from Contact Energy and Watercare Services. Within the written material provided me, a focus was on the failure of the police to secure production orders pursuant to the Search and Surveillance Act 2012, the defence submitting essentially that the information was improperly obtained and thus tainting the admissibility of the evidence subsequently obtained by search. Both counsel have spoken to their written submissions. These I had read prior to the commencement of the hearing.

elative to this challenge is the recent Supreme Court decision in R v Alsford.1 Before detailing the impact and relevance of this decision I intend to deal with the individual requests made of the two utilities.

ne, Contact Energy. A copy of this request is annexed to the Crown’s submissions under tab 7. Within the request made, we have the recital,:

Are you able to assist with providing subscriber details and power readings for the address of [address deleted], Ranui, Auckland and any other addresses currently associated to the subscribers of this address? This request is made pursuant to principle 11(e)(1) and (4) of the Privacy Act 1993 in regards to the investigation of cannabis cultivation.

hus the offence is spelt out. A response was received indicating:

he defendant is the account holder.

he account was activated on 18 June 2015.

here was a spike in monthly readings, June, July and August 2015.

he privacy policy is not available but within the Alsford decision, the privacy policy there in use reads:

Contact Energy policy said that the company would keep your personal information secure and it will be held by us in our customer database in accordance with the Privacy Act 1993 and as set out in our energy supply agreement. When outlining the circumstances in which personal information

TTT

1 R v Alsford [2017] NZSC 42

would be disclosed, the policy referred to releasing personal information in various circumstances including, “If we were legally required to.”

person of average intelligence reading that would recognise there are circumstances when disclosure would be made.

s to Watercare, the request of this utility was detailed in the New Zealand Police Information Request Form. This reads:

Police request the Watercare statements from May 2015 to 11 September 2015 for the property situated at [address deleted], Ranui, Auckland. The police are investigating serious criminal offending. The information is required urgently to ensure evidence is not lost. The information requested from Watercare is required as it will show the quantity of water used by the address.

he offence here is not spelt out as it was in the Contact situation. The offending however is described as serious. That too drew a response. The email from Watercare sent to the enquiring officer indicates and records that invoices for the property as between May and September are appended, that there is an average of 413 litres of water per day in that period, that between 12 January 2015 and 11 May 2015, the property was using an average of 1109 litres per day which was significantly higher.

n neither instance is personal or intimate details of the defendant disclosed. The information was collected and collated from supplies made in a general business endeavour. That information was necessary to enable the two entities to calculate what was properly due from, in this instance, Mr Cotton, in relation to power and water.

f these requests should constitute, “a search,” then they both must be considered intrusions at the lowest possible level. The defence submission is that Mr Cotton had firstly an expectation of privacy in the information shared with the police voluntarily by Contact and Watercare. Secondly, his expectation was reasonable. Thirdly, that seeking the information amounting to a search and, fourthly, the search was unreasonable under s 21 New Zealand Bill of Rights Act 1990.

he Crown argument is that as with the case of Alsford, the defendant in the present case, Mr Cotton, could have had no reasonable expectation of privacy in his power and water data and therefore his rights pursuant to s 21 New Zealand Bill of Rights act have not been infringed.

n Alsford, the majority said that the key issue was whether the power consumption information was obtained as a result of an unreasonable search contrary to s 21 New Zealand Bill of Rights Act. Whether there was “a search” depended on whether the consumption data was information that Mr Alsford had a reasonable expectation of privacy in. If so it would have been obtained as a result of “a search” and the question under s 21 becomes whether the search was reasonable. This is the test for breach of s 21 suggested by Blanchard J in Hamed v R.2

he question of whether there is a reasonable expectation of privacy in personal information is both subjective and objective with the objective component asking whether the subjective expectation of privacy so held is one society recognises as reasonable. This question is contextual and requires a consideration of:

he nature of the information at issue.

he nature of the relationship between the party releasing the information and the party claiming confidentiality in the information.

he place where the information was obtained.

he manner in which it was obtained.

he Court in Alsford found that Mr Alsford did not have a reasonable expectation of privacy in the particular power consumption data at issue because:

he data did not reveal intimate details of Mr Alsford’s lifestyle and personal choices.

he information was gathered and held there by three commercial entities for business purposes.

he nature of the arrangements between the power companies and Mr Alsford.

TTT

2 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305, (2011) 25 CRNZ 326, (2011) 9 HRNZ 424

ith the case in hand, there has been some uncertainty with regard to the specifics of the contract between the defendant, Cotton, and Contact Energy. However, in my determination, that is not significant enough to outweigh the factors that the data did not reveal intimate details of Mr Cotton’s lifestyle and personal choices and the information was gathered and held by these two commercial entities for business purposes.

he defence contended that the wording of the contracts is crucial as the utility user from the wording may strongly believe their information will not be shared. The Crown however disagree and note paragraph 71 of the Supreme Court decision in Alsford, in particular the last sentence. I intend to read the whole paragraph:

The fact that two of the policies contemplated disclosure in accordance with the Privacy Act might suggest that Mr Alsford’s expectation of privacy in his customer data was not “reasonable”, at least in circumstances where there was compliance with the Privacy Act’s requirements – he ought to have been aware that the information could be released. On the other hand, the fact that one of the policies suggests that disclosure would only be made pursuant to a production order or similar process points in the opposite direction. When these points are considered against the background that caution must be exercised when assessing the impact of customer contracts in this context, the nature of the contractual arrangements does not advance matters much, if at all.

he police in Alsford were entitled to use the power information and any inferences that could be fairly drawn from it in the applications for the production order and later search warrant and therefore in my determination so should the police in the present case.

n summary, I find the information provided by the utilities was not secured as a consequence of search. The police are entitled to seek and secure information on a voluntary basis provided they do so lawfully. In each instance here, I determine the requests were lawful. It follows that the information was not secured by a search. The defendant did not have any reasonable expectation of privacy. The position of the defendant, Cotton, is in my assessment no different to the position of Mr Alsford. The evidence obtained as a consequence is admissible at trial.

A C Roberts District Court Judge
ITTWTTTTTTTTITIITAATTTTORTLLAAEIATTT