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Aranguiz v Police [2019] NZHC 1765 (25 July 2019)

Last Updated: 17 September 2019

JUDGMENT OF MANDER J

This judgment was delivered by me on 25 July 2019 at 2.30 pm.

Registrar/Deputy Registrar Date: .

ARANGUIZ v POLICE [2019] NZHC 1765 [25 July 2019]

[1] The appellant, Emilio Aranguiz, was found guilty by Judge Gilbert of a representative charge of intentionally making an intimate visual recording of another person, and a charge of intentional damage. Prior to reaching his verdicts, the Judge made rulings regarding the admissibility of evidence. Mr Aranguiz appeals his convictions on the basis that the Judge erred in not excluding this evidence which he maintains was obtained in breach of his right to be free from unreasonable search.¹ In the absence of that evidence, he maintains his convictions cannot be sustained.

Background

[2] Between 28 December 2017 and 12 January 2018, Mr Aranguiz would periodically visit the Westfield Riccarton shopping mall. On these occasions he would park his vehicle in the car park and then proceed to a male bathroom inside the mall. Staff had viewed CCTV footage to identify Mr Aranguiz as the person who would visit the men’s toilet during this period. Their interest in Mr Aranguiz arose because small holes had been made in the wall of a toilet cubicle situated next to the urinals. The holes allowed a person sitting on the toilet to view a person using the urinal. These holes had been repaired a number of times only for them to reappear. It was believed that Mr Aranguiz was responsible for the repeated damage to the cubicle.

[3] On 12 January, the retail manager at the mall observed a vehicle in the car park which he believed was linked to Mr Aranguiz. As a result, he went to the bathroom in question. He noticed the repaired holes were intact. The manager left the toilets but returned some minutes later. On his second visit he noticed the toilet cubicle closest to the urinal was occupied and that one of the holes had reappeared. He called the police. Two officers attended. By the time the police arrived the cubicle had been occupied for some 50 minutes. One of the officers, Constable Arthur was briefed by the manager regarding his suspicions that the person occupying the cubicle was the same person who had been visiting the toilets over the previous two weeks and damaging the stall.

[4] Constable Arthur went to the adjacent cubicle and levered himself up by placing a foot on the toilet. He looked over the partition to view the occupant of the

¹ Bill of Rights Act 1990, s 21.

next stall. There, he observed Mr Aranguiz sitting on the toilet with his pants down, holding his mobile phone. The constable then got down, knocked on the door of the occupied cubicle, and announced that he was “coming in”. The door to the cubicle was unlocked by the officer using a multitool, and Mr Aranguiz arrested for intentionally causing damage to the cubicle. After taking Mr Aranguiz out of the toilet stall, Constable Arthur inspected one of the holes and determined that the person sitting inside the cubicle could easily film people as they used the urinals situated on the other side of the partition.

[5] The officers attempted to ascertain the identity of the person they had arrested. Mr Aranguiz was asked for his name. Constable Arthur’s evidence was that while he understood the name that had been supplied, he had difficulty determining how it was spelt. There was some confusion because the name could not be found in the police computer system. The constable asked Mr Aranguiz if he had a driver’s licence, in order that he could obtain the correct spelling. In making that inquiry the officer touched Mr Aranguiz’s front jeans pocket with the back of his hand. When the officer did this he felt something hard and looked down to see the end of a screwdriver sticking out from the top of the pocket. The screwdriver was seized.

[6] Mr Aranguiz was taken to the officer’s patrol car, where he was given his Bill of Rights advice before being transported back to the police station. Because of the circumstances of Mr Aranguiz’s arrest, Constable Arthur’s focus turned to Mr Aranguiz mobile phone. He told Mr Aranguiz that he wished to search his phone under the Search and Surveillance Act 2012, and that he was required to provide him with the password because he believed there was evidence on the phone. He told Mr Aranguiz that if he did not do so he may be committing another offence.

[7] The phone was unlocked by Mr Aranguiz applying his thumbprint. The officer, having gained access to the phone’s content, located a file in the photo section labelled “Spy Toilet”, and briefly viewed a number of images. This led him to conclude that intimate visual recordings had been taken by Mr Aranguiz while in the toilet cubicle. A search warrant was obtained, and a forensic examination of the phone revealed some hundred recordings, either in the form of photographs or movies, of people who had been unwittingly recorded using the urinals.

Admissibility issues

[8] Three admissibility issues were identified for determination. Constable Arthur’s viewing of Mr Aranguiz from the neighbouring cubicle was challenged as an unreasonable search conducted in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). Similarly, the touching of Mr Aranguiz’s pocket, which alerted Constable Arthur to the presence of the screwdriver, and the inspection of the mobile phone were also alleged to constitute unreasonable searches. It was argued that, as a result, the observations made by the officer of Mr Aranguiz in the cubicle, the appellant’s possession of the screwdriver, and the intimate visual recordings located on his cell phone, should all be excluded as evidence at Mr Aranguiz’s trial.²

District Court decision

[9] Judge Gilbert held that Constable Arthur’s viewing of Mr Aranguiz from the neighbouring cubicle, if it constituted a search at all, was reasonable. The Judge considered there was a strong inference that the occupant had damaged the cubicle and that there was no realistic option open to the police at the time, other than to check who was inside the cubicle. Judge Gilbert rejected a suggestion that police could have looked underneath the cubicle as a less intrusive means of determining whether the stall was occupied.

[10] Judge Gilbert concluded that the officer had adopted an “appropriate course and made a sensible policing decision” in proceeding in the way he did, and that his actions did not constitute an unreasonable search. In reaching that view, Judge Gilbert considered that any reasonable expectation of privacy had been extinguished as a result of the length of time that Mr Aranguiz had occupied the cubicle. Such a period had been sufficient to undertake his “lawful business in a toilet”, and there was reasonable cause to suspect the appellant was committing an offence.

[11] Judge Gilbert did not consider that the constable’s action of tapping Mr Aranguiz’s pocket amounted to a search, let alone an unreasonable search.

2. The seized screwdriver was never produced at trial as an exhibit. The prosecution relied only upon Constable Arthur’s observation of the tool on Mr Aranguiz’s person and his seizure of that item.

Furthermore, the Judge considered that the screwdriver would inevitably have been found as a result of any routine search pursuant to arrest before being placed in the patrol vehicle and that the item had effectively been in plain view.

[12] In relation to the officer’s inspection of the cell phone at the police station, Judge Gilbert found that the officer had no lawful power to search the phone because Mr Aranguiz had at that stage only been arrested for wilful damage. However, while the search was unreasonable, after carrying out the balancing exercise required by s 30 of the Evidence Act 2006, the Judge concluded that exclusion of the evidence located on the cell phone would constitute a disproportionate response to the breach.

The appeal

The appellant’s argument

[13] Ms Wham for the appellant submitted that Judge Gilbert had erred in permitting the evidence to be admitted at Mr Aranguiz’s trial. She submitted that the appellant enjoyed a reasonable expectation of privacy at the time he was occupying the toilet cubicle, and repeated the submission made before the District Court that another less intrusive option available to the officer would have been to have crouched down to see whether the cubicle was occupied.

[14] In relation to the touching of Mr Aranguiz’s pocket, it was submitted that the constable’s actions did constitute a search and that because of a person’s right to be free from unwanted bodily interference from an enforcement officer, that search was unreasonable. In relation to the search of the phone, Ms Wham emphasised that the right to privacy attaching to the content of a cell phone is high. She submitted that all of the evidence should have been excluded.

The respondent’s response

[15] Ms Courteney for the respondent submitted that given the circumstances known to Constable Arthur at that time, including how long Mr Aranguiz had been in the cubicle, the occupant of the cubicle could no longer have any reasonable expectation of privacy.
[16] In relation to the finding of the screwdriver, counsel submitted that the Judge was correct to conclude that the officer’s actions did not amount to a search and that the screwdriver was in plain view. Turning to the images located on the appellant’s phone, Ms Courteney submitted that the Judge had correctly assessed the various factors required to be taken into account in deciding that the exclusion of the evidence would have been a disproportionate response.

Search of toilet cubicle

[17] Whether in any given set of circumstances a search has occurred will be determined by whether the person the subject of the actions said to constitute a search has a reasonable expectation of privacy.³ In Hamed, Blanchard J held that an expectation of privacy will not be reasonable unless the person subjectively held such an expectation at the time and that the person’s expectation is one that society would be prepared to expect is reasonable in the circumstances.⁴

[18] In the present case Mr Aranguiz had no property interest in the toilet cubicle he was occupying. He likely had a licence to occupy it, in the same way any member of the public frequenting the mall was entitled to use the toilet facility. However, it is open to question whether Mr Aranguiz had exceeded that licence when regard is had to the information known to the mall management, which led them to suspect the improper use he was putting the toilet to and the damage he was causing to the cubicle. Based on that information and the circumstances that had unfolded on 12 January, the mall’s employee, Mr Mills, after having imparted that knowledge to the attending constables, gave the officers permission to conduct a search of its premises, including the toilet cubicle.

[19] The search was therefore not unlawful, but that does not mean it was not unreasonable. A search need not be trespassory to be unreasonable.⁵ The fact that a

3. Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [163], per Blanchard J; see Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, Lexis Nexis, Wellington, 2015) at 936, citing Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729, where, at [22], the Court of Appeal held that although there was no “clear majority” emerging from Hamed, it considered that the test with majority support, at least in respect of non-trespassory surveillance, was that proposed by Blanchard J.

⁴ At [163].

⁵ Hamed v R, above n 3, at [164], per Blanchard J.

search occurs on private property with the consent of the owner or the person in lawful occupation does not exclude the possibility that a third party utilising a discrete part of the premises may nonetheless have a reasonable expectation of privacy which an enforcement officer or other agent of the state should respect.

[20] There does not appear to have been any previous New Zealand cases dealing with expectations of privacy in relation to the occupation of a toilet cubicle in a public bathroom. The issue has been the subject of consideration in Canada. In R v Wegner, Duncan J of the Ontario Court of Justice observed that Canadian case law has “almost uniformly recognised the existence of [a reasonable expectation of privacy] with respect to stalls or cubicles within a public washroom”.⁶ A distinction is made between the minimal reasonable expectation of privacy in the open area of a public washroom as opposed to the cubicles within such a bathroom.⁷ That view was considered to be consistent with American jurisprudence which recognises a reasonable expectation of privacy in temporarily private places such as washroom cubicles.⁸ As a general proposition, such conclusions are neither surprising nor likely to be considered uncontroversial.

[21] In the present case the issues distil to whether Mr Aranguiz subjectively had an expectation of privacy and whether such an expectation should on the circumstances be considered reasonable. Care is required that an ex post facto analysis is not applied in determining whether there was a reasonable expectation of privacy. The fact that Mr Aranguiz was found to be engaged in criminal activity, or that the prior suspicions of him were confirmed, cannot validate or render the search reasonable. The Court’s focus is on the justification for the search in the first place and its prior authorisation, rather than its subsequent validation.⁹ A deficiency in a search cannot be justified because of the evidential product acquired.¹⁰

⁶ R v Wegner (2016) ONCJ 228, 130 WCB (2d) 42 at [8].

⁷ R v Le Beau (1988) 41 CCC (3d) 163.

8. At [8]; Wayne LaFave Search and Seizure: a Treatise on the Fourth Amendment (5th ed, West Publishing, Minnesota, 2012).
9. Hamed v R, above n 3, at [44] per Elias CJ, citing Hunter v Southam Inc [1984] 2 SCR 145 at 160, per Dickson J in R v Wong [1990] 3 SCR 36 at 50 per La Forest J.

¹⁰ R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [112].

[22] The reasonable expectation of privacy deriving from a person’s occupation of a toilet cubicle is obvious. As Duncan J commented in Wegner, “[t]here can be few places where, at least subjectively, an expectation of privacy is higher – and intrusion by the state more offensive – than in a toilet cubicle”.¹¹ In the present case, when Constable Arthur appeared over the top of the cubicle, Mr Aranguiz was sitting on the toilet with his pants down. That an occupant of a locked toilet cubicle may be partially unclothed is a foreseeable state of affairs. When coupled with the bodily function associated with the use of a toilet cubicle, the preservation of a person’s dignity, which is an important value that underpins the right preserved by s 21 NZBORA, is clearly engaged.¹²

[23] Having recognised the expectation of privacy which arises from the use of a toilet cubicle in a public bathroom, the question arises as to the reasonable limits of that expectation, particularly when regard is had to the purpose for which the facility is provided by the mall proprietors, namely for the convenience of customers frequenting the mall. In the present case, Mr Aranguiz’s length of occupation of the toilet cubicle (some 50 minutes) was considered by Judge Gilbert to have eclipsed the occupant’s expectation of privacy. I agree it is a relevant factor, particularly when regard is had to the linkage between the expectation of privacy in such a place and the limited legitimate use for which the facility was being provided by the owner or lawful occupier of the property. However, while that is a relevant consideration, it is secondary to the necessary preliminary step of making inquiries of the occupant before infringing that person’s privacy by making a visual observation of the person inside the cubicle.

[24] In the present case it would have been reasonable, before peering over the top of the cubicle, for an inquiry to have been made of the occupant, either by knocking on the door or by making some verbal contact. If no response was elicited, arguably against the background of the length of the person’s occupation of the cubicle, any reasonable expectation of privacy would likely have been extinguished. Perhaps, as suggested by Ms Wham, a further step could have been to view the cubicle from under the door to check someone was inside, although, in the circumstances of the present

¹¹ R v Wegner, above n 6, at [7].

¹² Hamed v R, above n 3, at [161] per Blanchard J.

case, it seems obvious that it was occupied. In either situation it would seem the next legitimate step at that point could have been to look over the top of the cubicle.

[25] Based on the information known to the constable at the time, there did not appear to be any urgency. None was suggested, and a reasonable course would have been to knock on the door of the cubicle and for the constable to have announced himself as a police officer. Absent such a step being taken, I am left to conclude that Mr Aranguiz still had a reasonable expectation of privacy notwithstanding the length of time he had occupied the cubicle. Before peering over the top of the cubicle, Constable Arthur should have attempted a less intrusive way of communicating with the occupant.

[26] I do not discount the need in some situations to immediately undertake a view without warning in order to avoid the potential destruction of evidence. However, it has not been suggested that this was the position in the present case. It was not suggested that either the screwdriver or Mr Aranguiz’s cell phone were in jeopardy of being lost as a result of taking the preliminary step of knocking on the door or initiating verbal communication.

[27] I am therefore brought to the conclusion that Constable Arthur’s viewing of Mr Aranguiz from over the cubicle partition did constitute a search, and that, in the absence of taking preliminary steps to communicate with him in some way, the officer’s actions in immediately peering over the top of the cubicle was unreasonable. Objectively, a person is still entitled to have an expectation of privacy when occupying a toilet cubicle in a public bathroom notwithstanding the lengthy elapse of time, as in the present case. It follows that there was a breach of s 21 NZBORA.

The balancing exercise

[28] In approaching the balancing exercise under s 30 of the Evidence Act, an initial question arises as to the identification of the evidence that was improperly obtained as a result of the breach of s 21 NZBORA. Clearly, Constable Arthur’s evidence as to what he observed in the toilet cubicle would not have been obtained other than by undertaking the search, but I doubt it can realistically be suggested that the screwdriver
that was seized from Mr Aranguiz, or his phone would not have been viewed or acquired but for the search of the cubicle.

[29] Because of the information provided to the police by the mall manager about the stall’s occupant, the fact the cubicle’s partition had been recently damaged with the overwhelming inference being by the current occupant, and the inevitability of that person being taken into police custody notwithstanding the prior viewing of the occupant by Constable Arthur, I doubt either the screwdriver or the contents of the phone could be said to have been obtained as a consequence of the breach. In respect of those items of evidence, the fact that such a search had taken place was inconsequential.

[30] However, even if proceeding on the basis that there is some causal link between Constable Arthur’s observations of Mr Aranguiz in the cubicle and the subsequent observation and seizure of the screwdriver and the viewing of the content of the phone, I do not consider the exclusion of any of those items of evidence constitutes a proportionate response to the impropriety which the breach represents. When undertaking that balancing analysis, appropriate weight is required to be given to the impropriety, but also to the need for an effective and credible justice system.¹³

[31] Turning to the factors listed in s 30(3) of the Evidence Act, the right affirmed by s 21 NZBORA is clearly an important one. In the present case the intrusion involved an observation of a person in a locked toilet cubicle who was partially unclothed. The search amounted to a glance over the top of a partition to check the presence of a person suspected of having recently damaged the cubicle itself, and of having a nefarious reason for having remained there for such an extended period. While the privacy value would ordinarily be considered high, when regard is had to the recent damage that had been done to the mall’s property by the person currently occupying the cubicle and the length of time of his occupation, which itself is suggestive of it being used for a purpose other than for which the facility was being provided to the public, Mr Aranguiz’s expectation of privacy had significantly diminished and, correspondingly, the seriousness of the intrusion.

¹³ Evidence Act, s 30(2)(b).

[32] It is not suggested that Constable Arthur acted in bad faith. When regard is had to the preliminary options available to him in the circumstances, his actions are most accurately categorised as reckless or precipitous. The evidence obtained was reliable and highly probative, which favours its admissibility.¹⁴ The evidence is also central to the prosecution case.¹⁵ The offence of intentionally making an intimate visual recording carries a maximum penalty of three years and constitutes at least moderately serious offending.¹⁶ The representative charge faced by Mr Aranguiz involved an allegation of him making in excess of 100 intimate recordings of images of unsuspecting members of the public using the urinals. This weighs in favour of the evidence being admitted. As already canvassed, there were other techniques open to the officer, because he could have verbally communicated with the occupant. There was no known physical danger to the police or others, nor urgency in the situation.

[33] Notwithstanding my finding that the search was unreasonable, I consider that in the circumstances the balancing process, by some margin, favours admission of the evidence. The evidence obtained is highly relevant and probative and not realistically open to challenge. The offending is serious in that it has resulted in many unwitting victims having their own privacy violated. Importantly, police at the time were acting on the well-founded concerns of the mall’s proprietors that the occupier of the cubicle had recently damaged its property and was abusing the facility it had provided for its customers. Exclusion of the evidence would therefore be a disproportionate response to the impropriety in the particular circumstances of this breach.

The seizure of the screwdriver

[34] Judge Gilbert found that Constable Arthur’s tapping of Mr Aranguiz’s pocket, which alerted him to his possession of a screwdriver that was sticking out from his pocket and was in plain sight, did not constitute a search. I agree.

[35] I do not consider the request by Constable Arthur for Mr Aranguiz’s driver’s licence and the touching of his pocket constituted a search. In the officer’s formal written statement, he refers to touching the appellant’s jeans pocket “looking for a

¹⁴ Hamed v R, above n 3, at [201] per Blanchard J.

¹⁵ R v Williams, above n 10, at [141].

¹⁶ Crimes Act 1961, s 216H.

wallet”. But I consider the description of what occurred between the constable and Mr Aranguiz at that point, as it was described in the officer’s oral evidence, is consistent with the Judge’s conclusion that the gesture was to facilitate the appellant’s understanding of whether he had any identification on him and was not an attempt to physically search his person in an endeavour to establish whether he was in possession of a driver’s licence or had a wallet.

[36] At the time Constable Arthur tapped the appellant’s pocket he was endeavouring to obtain accurate information as to the spelling of Mr Aranguiz’s name. In furtherance of that objective, the officer was trying to convey to him that it would be helpful to provide a driver’s licence or some form of identification in order that correct details could be obtained because Mr Aranguiz could not be located on the police computer system. Constable Arthur was not intending to conduct a search for a wallet, rather his action was, as Judge Gilbert found, an “indicative gesture” in an attempt to make himself understood and to assist communication by indicating that a wallet may hold some identification.

[37] The officer used the back of his hand to touch the front of Mr Aranguiz’s pants pocket. It did not constitute an assault but was simply a benign physical gesture of the type that may occur between people as part of a process of communication. For example, touching a person on the arm to attract their attention. It did not exceed the ordinary permissible boundaries of implicit consensual contact. Unsurprisingly, there was no evidence from Mr Aranguiz of any complaint regarding such physical contact either at the time or at trial.

[38] In any event, even if the physical contact did constitute a search, it is unreasonable to suppose that Mr Aranguiz’s possession of the screwdriver would have gone undetected by the police throughout the period of his arrest. He was placed in a patrol car and transported back to the police station. There he was held for some period. It was inevitable that in those circumstances he would have been the subject of a rubdown search to ensure he was not carrying anything that could be used to cause harm or risked the officers’ safety.¹⁷ If not before being placed in the police vehicle,

¹⁷ Search and Surveillance Act 2012, s 85(1).

at least at the police station, this security precaution would have been taken as a matter of course.

[39] A further consideration in assessing the reasonableness of the constable’s actions is that the officer clearly had reasonable grounds to believe that Mr Aranguiz was in possession of some instrument that had been used to make the hole in the cubicle wall. The screwdriver obviously constituted evidential material which the officer was entitled to seize from Mr Aranguiz, who had been arrested for intentional damage.¹⁸ Furthermore, while the presence of the screwdriver was drawn to the officer’s attention as a result of the physical contact, the tool was indisputably in plain sight, sticking out from Mr Aranguiz’s pocket.¹⁹ The constable therefore had several avenues available to him to lawfully seize the screwdriver. When those powers are coupled with the circumstances of the seizure which occurred during a confusing interchange as a result of language difficulties, if there was a breach it was only of a minor or technical nature.

[40] As was recognised by Blanchard J in Hamed, such circumstances can properly lead to the conclusion that, while the officer’s action may amount to an unlawful search, it would not constitute an unreasonable one.²⁰ Accordingly, if there was some illegality attaching to Constable Arthur’s gesture in patting the appellant’s pocket, I do not consider that conduct gives rise to an unreasonable search. These considerations equally lead to the conclusion that the exclusion of this highly probative piece of evidence relating to the charge of intentional damage, seized from the suspect at a time proximate to the making of the damage, would be an entirely disproportionate outcome.

Search of Mr Aranguiz’s cell phone

[41] Judge Gilbert found that Constable Arthur’s inspection of Mr Aranguiz’s phone at the conclusion of his police interview constituted an unreasonable search. He had only at that point been arrested on the charge of wilful damage. The Judge took the view that a search of the phone due to the officer’s belief that its owner had been

¹⁸ Search and Surveillance Act 2012, s 88(2)(c).

¹⁹ Search and Surveillance Act 2012, s 123.

²⁰ Hamed v R, above n 3, at [174] per Blanchard J.

using the cell phone to make recordings of people using the urinals was not authorised by s 88(2)(c) of the Search and Surveillance Act because such a search was not for “evidential material relating to the offence in respect of which the arrest [was] made”.

[42] I have reservations as to whether that conclusion is entirely correct. The damage caused by Mr Aranguiz to the cubicle wall took the form of making holes in the partition which thereby provided a view of the adjacent urinals. The constable’s evidence was that when he turned his attention to the cell phone at the police station he was aware both of that circumstance and that Mr Aranguiz had his cell phone with him while in the cubicle. Images on the appellant’s cell phone of people using the urinal could clearly be linked to the making of the holes in the cubicle wall and was another means of connecting Mr Aranguiz with the damage caused to the partition. Having made that observation, I intend to deal with this part of the appeal on the basis it was argued before me, and in the same way Judge Gilbert approached the issue. Namely, whether the evidence obtained from the cell phone was properly admitted pursuant to s 30 of the Evidence Act.

[43] Before addressing the relevant factors as they relate to this case, I note that the Court of Appeal dealt with a similar situation in W v R.²¹ In that case, the appellant faced eight charges of making an intimate visual recording by taking covert recordings of women employed by him when they were using the toilet both at his home and at his work address. Evidence was discovered on an SD card that had been searched by the police without a warrant. A USB stick was also subsequently seized pursuant to a warrant, but one that had been issued on the basis of the material found on the SD card.

[44] After confirming earlier observations of that Court, that privacy interests in an electronic device are not lessened when images located on a suspect’s device appear to disclose the unlawful invasion of someone else’s privacy or some other unlawful activity, the Court of Appeal observed that a slightly higher privacy interest may attach to an electronic device that is secured by a PIN number.²² The Court also affirmed that it made no difference to a citizen’s privacy interests in a place or object if the

²¹ W v R [2017] NZCA 522.

²² At [29]-[30](a) and [34], citing R v Williams, above n 10.

search in fact revealed unlawful activity, and that to find otherwise would be to encourage retrospective justification of what would otherwise be an unlawful search.
As noted earlier in this judgment, the end will not justify the means.²³

[45] The Court of Appeal held that the evidence in that case was admissible because its exclusion would represent a disproportionate response to the impropriety. In relation to the specific factors to be considered under s 30(3), the Court found that the offending was serious.²⁴ The appellant’s conduct was considered to involve a breach of trust because he employed the women who were the subject of the intimate recordings and had welcomed them into his home and workplace. While that is to be contrasted with Mr Aranguiz’s recording of strangers using a public bathroom in a mall, I consider that difference to be of minimal importance. The expectation of privacy is the same. Mr Aranguiz was responsible for in excess of a hundred recordings of a great many victims. Other factors in W that are largely mirrored in the circumstances of the present case include that the evidence in dispute in that case was of central importance to the prosecution, there was an absence of bad faith on behalf of the police, and there was no urgency to secure the evidence.

[46] Turning to the specifics of Mr Aranguiz’s case, it must be acknowledged that the privacy right attaching to the content of a person’s cell phone is an important one.²⁵ It follows that the privacy interest infringed represents a serious intrusion which I accept is not diluted by the limited ambit of the constable’s examination of the cell phone. Against that is the omission by the officer to arrest and charge Mr Aranguiz with making intimate visual recordings despite there being ample evidence to do so. That would have triggered a legitimate power to have at least seized the cell phone before obtaining a search warrant. The officer’s conduct is best described as reckless, although it is aggravated by Constable Arthur having misled Mr Aranguiz that a failure to facilitate access to the phone could result in him facing a further criminal charge.

[47] The evidence obtained is reliable and of the highest probative value. As already mentioned, I consider the offending to be of the same order and relative

²³ At [38].

²⁴ At [50].

²⁵ Moon v R [2017] NZCA 56 at [41](a).

seriousness as that which the Court of Appeal dealt with in W, which weighs against exclusion. There was an alternative investigatory technique available by way of the use of a search warrant, which was ultimately obtained by the police. Patently, there was no apprehended physical danger nor urgency.

[48] Considering all these factors together, including when carrying out the balancing process, the requirement to take proper account of the need for an effective and credible system of justice, I consider Judge Gilbert was correct to conclude that, in the circumstances, the exclusion of the evidence located on the phone would constitute a disproportionate response to the impropriety.

Result

[49] Having determined that the evidence was rightly admitted, it follows that Mr Aranguiz’s appeal against his convictions on the representative charge of making an intimate visual recording and of the discrete charge of intentionally damaging the cubicle is dismissed.

Solicitors:

Michael Starling Barrister, Christchurch Raymond Donnelly & Co, Christchurch