ARANGUIZ v POLICE [2019] NZHC 1765

ARANGUIZ v POLICE [2019] NZHC 1765 [25 July 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-23[2019] NZHC 1765BETWEEN EMILIO NICHOLAS EXEQUIELARANEDA ARANGUIZAppellantAND NEW ZEALAND POLICERespondentHearing: 16 May 2019Appearances: N Wham for AppellantK Courteney for RespondentJudgment: 25 July 2019JUDGMENT OF MANDER JThis judgment was delivered by me on 25 July 2019 at 2.30 pm.Registrar/Deputy RegistrarDate: .[1] The appellant, Emilio Aranguiz, was found guilty by Judge Gilbert of arepresentative charge of intentionally making an intimate visual recording of anotherperson, and a charge of intentional damage. Prior to reaching his verdicts, the Judgemade rulings regarding the admissibility of evidence. Mr Aranguiz appeals hisconvictions on the basis that the Judge erred in not excluding this evidence which hemaintains was obtained in breach of his right to be free from unreasonable search.1 Inthe absence of that evidence, he maintains his convictions cannot be sustained.Background[2] Between 28 December 2017 and 12 January 2018, Mr Aranguiz wouldperiodically visit the Westfield Riccarton shopping mall. On these occasions he wouldpark 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 wouldvisit the men's toilet during this period. Their interest in Mr Aranguiz arose becausesmall 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. Theseholes had been repaired a number of times only for them to reappear. It was believedthat 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 parkwhich he believed was linked to Mr Aranguiz. As a result, he went to the bathroomin question. He noticed the repaired holes were intact. The manager left the toiletsbut returned some minutes later. On his second visit he noticed the toilet cubicleclosest to the urinal was occupied and that one of the holes had reappeared. He calledthe police. Two officers attended. By the time the police arrived the cubicle had beenoccupied for some 50 minutes. One of the officers, Constable Arthur was briefed bythe manager regarding his suspicions that the person occupying the cubicle was thesame person who had been visiting the toilets over the previous two weeks anddamaging the stall.[4] Constable Arthur went to the adjacent cubicle and levered himself up byplacing a foot on the toilet. He looked over the partition to view the occupant of the1 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 theoccupied cubicle, and announced that he was "coming in". The door to the cubiclewas unlocked by the officer using a multitool, and Mr Aranguiz arrested forintentionally causing damage to the cubicle. After taking Mr Aranguiz out of the toiletstall, Constable Arthur inspected one of the holes and determined that the personsitting inside the cubicle could easily film people as they used the urinals situated onthe 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 heunderstood the name that had been supplied, he had difficulty determining how it wasspelt. There was some confusion because the name could not be found in the policecomputer system. The constable asked Mr Aranguiz if he had a driver's licence, inorder that he could obtain the correct spelling. In making that inquiry the officertouched Mr Aranguiz's front jeans pocket with the back of his hand. When the officerdid this he felt something hard and looked down to see the end of a screwdriversticking 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 Billof Rights advice before being transported back to the police station. Because of thecircumstances of Mr Aranguiz's arrest, Constable Arthur's focus turned toMr Aranguiz mobile phone. He told Mr Aranguiz that he wished to search his phoneunder the Search and Surveillance Act 2012, and that he was required to provide himwith the password because he believed there was evidence on the phone. He toldMr 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. Theofficer, having gained access to the phone's content, located a file in the photo sectionlabelled "Spy Toilet", and briefly viewed a number of images. This led him toconclude that intimate visual recordings had been taken by Mr Aranguiz while in thetoilet cubicle. A search warrant was obtained, and a forensic examination of the phonerevealed some hundred recordings, either in the form of photographs or movies, ofpeople who had been unwittingly recorded using the urinals.Admissibility issues[8] Three admissibility issues were identified for determination. ConstableArthur's viewing of Mr Aranguiz from the neighbouring cubicle was challenged as anunreasonable search conducted in breach of s 21 of the New Zealand Bill of RightsAct 1990 (NZBORA). Similarly, the touching of Mr Aranguiz's pocket, which alertedConstable Arthur to the presence of the screwdriver, and the inspection of the mobilephone were also alleged to constitute unreasonable searches. It was argued that, as aresult, the observations made by the officer of Mr Aranguiz in the cubicle, theappellant's possession of the screwdriver, and the intimate visual recordings locatedon his cell phone, should all be excluded as evidence at Mr Aranguiz's trial.2District Court decision[9] Judge Gilbert held that Constable Arthur's viewing of Mr Aranguiz from theneighbouring cubicle, if it constituted a search at all, was reasonable. The Judgeconsidered there was a strong inference that the occupant had damaged the cubicle andthat there was no realistic option open to the police at the time, other than to checkwho was inside the cubicle. Judge Gilbert rejected a suggestion that police could havelooked underneath the cubicle as a less intrusive means of determining whether thestall was occupied.[10] Judge Gilbert concluded that the officer had adopted an "appropriate courseand made a sensible policing decision" in proceeding in the way he did, and that hisactions did not constitute an unreasonable search. In reaching that view, Judge Gilbertconsidered that any reasonable expectation of privacy had been extinguished as aresult of the length of time that Mr Aranguiz had occupied the cubicle. Such a periodhad been sufficient to undertake his "lawful business in a toilet", and there wasreasonable cause to suspect the appellant was committing an offence.[11] Judge Gilbert did not consider that the constable's action of tappingMr 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 onlyupon Constable Arthur's observation of the tool on Mr Aranguiz's person and his seizure of thatitem.Furthermore, the Judge considered that the screwdriver would inevitably have beenfound as a result of any routine search pursuant to arrest before being placed in thepatrol 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 becauseMr Aranguiz had at that stage only been arrested for wilful damage. However, whilethe search was unreasonable, after carrying out the balancing exercise required by s30 of the Evidence Act 2006, the Judge concluded that exclusion of the evidencelocated on the cell phone would constitute a disproportionate response to the breach.The appealThe appellant's argument[13] Ms Wham for the appellant submitted that Judge Gilbert had erred inpermitting the evidence to be admitted at Mr Aranguiz's trial. She submitted that theappellant enjoyed a reasonable expectation of privacy at the time he was occupyingthe toilet cubicle, and repeated the submission made before the District Court thatanother less intrusive option available to the officer would have been to have croucheddown to see whether the cubicle was occupied.[14] In relation to the touching of Mr Aranguiz's pocket, it was submitted that theconstable's actions did constitute a search and that because of a person's right to befree from unwanted bodily interference from an enforcement officer, that search wasunreasonable. In relation to the search of the phone, Ms Wham emphasised that theright to privacy attaching to the content of a cell phone is high. She submitted that allof the evidence should have been excluded.The respondent's response[15] Ms Courteney for the respondent submitted that given the circumstancesknown to Constable Arthur at that time, including how long Mr Aranguiz had been inthe cubicle, the occupant of the cubicle could no longer have any reasonableexpectation of privacy.[16] In relation to the finding of the screwdriver, counsel submitted that the Judgewas correct to conclude that the officer's actions did not amount to a search and thatthe screwdriver was in plain view. Turning to the images located on the appellant'sphone, Ms Courteney submitted that the Judge had correctly assessed the variousfactors required to be taken into account in deciding that the exclusion of the evidencewould have been a disproportionate response.Search of toilet cubicle[17] Whether in any given set of circumstances a search has occurred will bedetermined by whether the person the subject of the actions said to constitute a searchhas a reasonable expectation of privacy.3 In Hamed, Blanchard J held that anexpectation of privacy will not be reasonable unless the person subjectively held suchan expectation at the time and that the person's expectation is one that society wouldbe prepared to expect is reasonable in the circumstances.4[18] In the present case Mr Aranguiz had no property interest in the toilet cubiclehe was occupying. He likely had a licence to occupy it, in the same way any memberof the public frequenting the mall was entitled to use the toilet facility. However, it isopen to question whether Mr Aranguiz had exceeded that licence when regard is hadto the information known to the mall management, which led them to suspect theimproper 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, themall's employee, Mr Mills, after having imparted that knowledge to the attendingconstables, gave the officers permission to conduct a search of its premises, includingthe toilet cubicle.[19] The search was therefore not unlawful, but that does not mean it was notunreasonable. A search need not be trespassory to be unreasonable.5 The fact that a3 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [163], per Blanchard J; see Andrew Butlerand 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 lawfuloccupation does not exclude the possibility that a third party utilising a discrete partof the premises may nonetheless have a reasonable expectation of privacy which anenforcement officer or other agent of the state should respect.[20] There does not appear to have been any previous New Zealand cases dealingwith expectations of privacy in relation to the occupation of a toilet cubicle in a publicbathroom. 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 "almostuniformly recognised the existence of [a reasonable expectation of privacy] withrespect to stalls or cubicles within a public washroom".6 A distinction is made betweenthe minimal reasonable expectation of privacy in the open area of a public washroomas opposed to the cubicles within such a bathroom.7 That view was considered to beconsistent with American jurisprudence which recognises a reasonable expectation ofprivacy in temporarily private places such as washroom cubicles.8 As a generalproposition, such conclusions are neither surprising nor likely to be considereduncontroversial.[21] In the present case the issues distil to whether Mr Aranguiz subjectively hadan expectation of privacy and whether such an expectation should on thecircumstances be considered reasonable. Care is required that an ex post facto analysisis 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 theprior suspicions of him were confirmed, cannot validate or render the searchreasonable. The Court's focus is on the justification for the search in the first placeand its prior authorisation, rather than its subsequent validation.9 A deficiency in asearch cannot be justified because of the evidential product acquired.106 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, WestPublishing, 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 ofa toilet cubicle is obvious. As Duncan J commented in Wegner, "[t]here can be fewplaces where, at least subjectively, an expectation of privacy is higher – and intrusionby the state more offensive – than in a toilet cubicle".11 In the present case, whenConstable Arthur appeared over the top of the cubicle, Mr Aranguiz was sitting on thetoilet with his pants down. That an occupant of a locked toilet cubicle may be partiallyunclothed is a foreseeable state of affairs. When coupled with the bodily functionassociated with the use of a toilet cubicle, the preservation of a person's dignity, whichis an important value that underpins the right preserved by s 21 NZBORA, is clearlyengaged.12[23] Having recognised the expectation of privacy which arises from the use of atoilet cubicle in a public bathroom, the question arises as to the reasonable limits ofthat expectation, particularly when regard is had to the purpose for which the facilityis provided by the mall proprietors, namely for the convenience of customersfrequenting the mall. In the present case, Mr Aranguiz's length of occupation of thetoilet cubicle (some 50 minutes) was considered by Judge Gilbert to have eclipsed theoccupant's expectation of privacy. I agree it is a relevant factor, particularly whenregard is had to the linkage between the expectation of privacy in such a place and thelimited legitimate use for which the facility was being provided by the owner or lawfuloccupier of the property. However, while that is a relevant consideration, it issecondary to the necessary preliminary step of making inquiries of the occupant beforeinfringing that person's privacy by making a visual observation of the person insidethe cubicle.[24] In the present case it would have been reasonable, before peering over the topof the cubicle, for an inquiry to have been made of the occupant, either by knockingon the door or by making some verbal contact. If no response was elicited, arguablyagainst the background of the length of the person's occupation of the cubicle, anyreasonable expectation of privacy would likely have been extinguished. Perhaps, assuggested by Ms Wham, a further step could have been to view the cubicle from underthe door to check someone was inside, although, in the circumstances of the present11 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 nextlegitimate 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 notappear to be any urgency. None was suggested, and a reasonable course would havebeen to knock on the door of the cubicle and for the constable to have announcedhimself as a police officer. Absent such a step being taken, I am left to conclude thatMr Aranguiz still had a reasonable expectation of privacy notwithstanding the lengthof 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 withthe occupant.[26] I do not discount the need in some situations to immediately undertake a viewwithout warning in order to avoid the potential destruction of evidence. However, ithas not been suggested that this was the position in the present case. It was notsuggested that either the screwdriver or Mr Aranguiz's cell phone were in jeopardy ofbeing lost as a result of taking the preliminary step of knocking on the door or initiatingverbal communication.[27] I am therefore brought to the conclusion that Constable Arthur's viewing ofMr Aranguiz from over the cubicle partition did constitute a search, and that, in theabsence of taking preliminary steps to communicate with him in some way, theofficer'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 occupyinga toilet cubicle in a public bathroom notwithstanding the lengthy elapse of time, as inthe 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 initialquestion arises as to the identification of the evidence that was improperly obtained asa result of the breach of s 21 NZBORA. Clearly, Constable Arthur's evidence as towhat he observed in the toilet cubicle would not have been obtained other than byundertaking the search, but I doubt it can realistically be suggested that the screwdriverthat was seized from Mr Aranguiz, or his phone would not have been viewed oracquired but for the search of the cubicle.[29] Because of the information provided to the police by the mall manager aboutthe stall's occupant, the fact the cubicle's partition had been recently damaged withthe overwhelming inference being by the current occupant, and the inevitability of thatperson being taken into police custody notwithstanding the prior viewing of theoccupant by Constable Arthur, I doubt either the screwdriver or the contents of thephone could be said to have been obtained as a consequence of the breach. In respectof those items of evidence, the fact that such a search had taken place wasinconsequential.[30] However, even if proceeding on the basis that there is some causal link betweenConstable Arthur's observations of Mr Aranguiz in the cubicle and the subsequentobservation 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 aproportionate response to the impropriety which the breach represents. Whenundertaking that balancing analysis, appropriate weight is required to be given to theimpropriety, 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 affirmedby s 21 NZBORA is clearly an important one. In the present case the intrusioninvolved an observation of a person in a locked toilet cubicle who was partiallyunclothed. The search amounted to a glance over the top of a partition to check thepresence of a person suspected of having recently damaged the cubicle itself, and ofhaving 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 tothe recent damage that had been done to the mall's property by the person currentlyoccupying the cubicle and the length of time of his occupation, which itself issuggestive of it being used for a purpose other than for which the facility was beingprovided to the public, Mr Aranguiz's expectation of privacy had significantlydiminished 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 ishad to the preliminary options available to him in the circumstances, his actions aremost accurately categorised as reckless or precipitous. The evidence obtained wasreliable and highly probative, which favours its admissibility.14 The evidence is alsocentral to the prosecution case.15 The offence of intentionally making an intimatevisual recording carries a maximum penalty of three years and constitutes at leastmoderately serious offending.16 The representative charge faced by Mr Aranguizinvolved an allegation of him making in excess of 100 intimate recordings of imagesof unsuspecting members of the public using the urinals. This weighs in favour of theevidence being admitted. As already canvassed, there were other techniques open tothe officer, because he could have verbally communicated with the occupant. Therewas 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 thatin the circumstances the balancing process, by some margin, favours admission of theevidence. The evidence obtained is highly relevant and probative and not realisticallyopen to challenge. The offending is serious in that it has resulted in many unwittingvictims having their own privacy violated. Importantly, police at the time were actingon the well-founded concerns of the mall's proprietors that the occupier of the cubiclehad recently damaged its property and was abusing the facility it had provided for itscustomers. Exclusion of the evidence would therefore be a disproportionate responseto 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 hispocket 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'slicence and the touching of his pocket constituted a search. In the officer's formalwritten statement, he refers to touching the appellant's jeans pocket "looking for a14 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 andMr Aranguiz at that point, as it was described in the officer's oral evidence, isconsistent with the Judge's conclusion that the gesture was to facilitate the appellant'sunderstanding of whether he had any identification on him and was not an attempt tophysically search his person in an endeavour to establish whether he was in possessionof a driver's licence or had a wallet.[36] At the time Constable Arthur tapped the appellant's pocket he wasendeavouring 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 wouldbe helpful to provide a driver's licence or some form of identification in order thatcorrect details could be obtained because Mr Aranguiz could not be located on thepolice computer system. Constable Arthur was not intending to conduct a search fora wallet, rather his action was, as Judge Gilbert found, an "indicative gesture" in anattempt to make himself understood and to assist communication by indicating that awallet may hold some identification.[37] The officer used the back of his hand to touch the front of Mr Aranguiz's pantspocket. It did not constitute an assault but was simply a benign physical gesture of thetype that may occur between people as part of a process of communication. Forexample, touching a person on the arm to attract their attention. It did not exceed theordinary permissible boundaries of implicit consensual contact. Unsurprisingly, therewas no evidence from Mr Aranguiz of any complaint regarding such physical contacteither at the time or at trial.[38] In any event, even if the physical contact did constitute a search, it isunreasonable to suppose that Mr Aranguiz's possession of the screwdriver would havegone undetected by the police throughout the period of his arrest. He was placed in apatrol car and transported back to the police station. There he was held for someperiod. It was inevitable that in those circumstances he would have been the subjectof a rubdown search to ensure he was not carrying anything that could be used to causeharm 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 matterof course.[39] A further consideration in assessing the reasonableness of the constable'sactions is that the officer clearly had reasonable grounds to believe that Mr Aranguizwas in possession of some instrument that had been used to make the hole in thecubicle wall. The screwdriver obviously constituted evidential material which theofficer was entitled to seize from Mr Aranguiz, who had been arrested for intentionaldamage.18 Furthermore, while the presence of the screwdriver was drawn to theofficer's attention as a result of the physical contact, the tool was indisputably in plainsight, sticking out from Mr Aranguiz's pocket.19 The constable therefore had severalavenues available to him to lawfully seize the screwdriver. When those powers arecoupled with the circumstances of the seizure which occurred during a confusinginterchange as a result of language difficulties, if there was a breach it was only of aminor or technical nature.[40] As was recognised by Blanchard J in Hamed, such circumstances can properlylead to the conclusion that, while the officer's action may amount to an unlawfulsearch, it would not constitute an unreasonable one.20 Accordingly, if there was someillegality attaching to Constable Arthur's gesture in patting the appellant's pocket, I donot consider that conduct gives rise to an unreasonable search. These considerationsequally lead to the conclusion that the exclusion of this highly probative piece ofevidence relating to the charge of intentional damage, seized from the suspect at a timeproximate to the making of the damage, would be an entirely disproportionateoutcome.Search of Mr Aranguiz's cell phone[41] Judge Gilbert found that Constable Arthur's inspection of Mr Aranguiz'sphone at the conclusion of his police interview constituted an unreasonable search. Hehad only at that point been arrested on the charge of wilful damage. The Judge tookthe view that a search of the phone due to the officer's belief that its owner had been18 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 authorisedby 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. Thedamage caused by Mr Aranguiz to the cubicle wall took the form of making holes inthe partition which thereby provided a view of the adjacent urinals. The constable'sevidence was that when he turned his attention to the cell phone at the police stationhe was aware both of that circumstance and that Mr Aranguiz had his cell phone withhim while in the cubicle. Images on the appellant's cell phone of people using theurinal could clearly be linked to the making of the holes in the cubicle wall and wasanother 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 basisit 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 admittedpursuant to s 30 of the Evidence Act.[43] Before addressing the relevant factors as they relate to this case, I note that theCourt of Appeal dealt with a similar situation in W v R.21 In that case, the appellantfaced eight charges of making an intimate visual recording by taking covert recordingsof women employed by him when they were using the toilet both at his home and athis work address. Evidence was discovered on an SD card that had been searched bythe police without a warrant. A USB stick was also subsequently seized pursuant to awarrant, but one that had been issued on the basis of the material found on the SDcard.[44] After confirming earlier observations of that Court, that privacy interests in anelectronic device are not lessened when images located on a suspect's device appearto disclose the unlawful invasion of someone else's privacy or some other unlawfulactivity, the Court of Appeal observed that a slightly higher privacy interest may attachto an electronic device that is secured by a PIN number.22 The Court also affirmedthat it made no difference to a citizen's privacy interests in a place or object if the21 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 toencourage 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 becauseits exclusion would represent a disproportionate response to the impropriety. Inrelation to the specific factors to be considered under s 30(3), the Court found that theoffending was serious.24 The appellant's conduct was considered to involve a breachof trust because he employed the women who were the subject of the intimaterecordings and had welcomed them into his home and workplace. While that is to becontrasted with Mr Aranguiz's recording of strangers using a public bathroom in amall, I consider that difference to be of minimal importance. The expectation ofprivacy is the same. Mr Aranguiz was responsible for in excess of a hundredrecordings of a great many victims. Other factors in W that are largely mirrored in thecircumstances of the present case include that the evidence in dispute in that case wasof central importance to the prosecution, there was an absence of bad faith on behalfof 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 thatthe privacy right attaching to the content of a person's cell phone is an important one.25It follows that the privacy interest infringed represents a serious intrusion which Iaccept is not diluted by the limited ambit of the constable's examination of the cellphone. Against that is the omission by the officer to arrest and charge Mr Aranguizwith 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 phonebefore 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 failureto 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. Asalready mentioned, I consider the offending to be of the same order and relative23 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 againstexclusion. There was an alternative investigatory technique available by way of theuse of a search warrant, which was ultimately obtained by the police. Patently, therewas no apprehended physical danger nor urgency.[48] Considering all these factors together, including when carrying out thebalancing process, the requirement to take proper account of the need for an effectiveand 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 wouldconstitute a disproportionate response to the impropriety.Result[49] Having determined that the evidence was rightly admitted, it follows thatMr Aranguiz's appeal against his convictions on the representative charge of makingan intimate visual recording and of the discrete charge of intentionally damaging thecubicle is dismissed.Solicitors:Michael Starling Barrister, ChristchurchRaymond Donnelly & Co, Christchurch