TAMIEFUNA v R [2023] NZCA 163

TAMIEFUNA v R [2023] NZCA 163 [9 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA525/2021[2023] NZCA 163BETWEEN MAHIA TAMIEFUNAAppellantAND THE KINGRespondentHearing: 10 February 2022 (further submissions on 10 March)Court: Cooper, Brown and Goddard JJCounsel: S J Gray for AppellantC A Brook and A G Becroft for RespondentJudgment: 9 May 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The application to extend the time for bringing the sentence appeal isgranted.C The sentence appeal is allowed to the extent that the order made pursuant tos 86C(4)(a) of the Sentencing Act 2002 is set aside. The sentence of four yearsand 11 months' imprisonment remains in place.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoIntroduction [1]The offending [3]Subsequent events [5]The trial [16]The conviction appeal [23]Analysis [38]Unreasonable search and seizure [38]The Supreme Court's decision in Hamed v R [40]Was the taking and retention of Mr Tamiefuna's photographs a"search" of him for the purposes of s 21 of the Bill of Rights Act? [56]Was the search unreasonable? [59]Other considerations [76]Improperly obtained evidence [98]The sentence appeal [105]Discount for personal and cultural factors [109]Disproportionality [113]Result [122]Introduction[1] Following his trial at the High Court in Auckland the appellant,Mahia Tamiefuna, was convicted on one charge of aggravated robbery.1 Incircumstances that we explain below, the trial took place before Davison J, sittingwithout a jury.[2] Mr Tamiefuna was sentenced on 22 October 2021 to a term of imprisonmentof four years and 11 months, which he was ordered to serve without parole.2 He nowappeals against both his conviction and sentence.The offending[3] On the morning of 2 November 2019, a robbery occurred at a residentialproperty situated in Swanson in West Auckland. The Crown case was thatMr Tamiefuna and another person, Manawanui Te Pou, arrived at the property shortlyafter 6 am. They drove onto the property in a red Ford Falcon. A blue Ford Falconwith silver roof racks arrived at the same time and remained parked on the road outside1 R v Tamiefuna [2021] NZHC 1969 [High Court conviction judgment].2 R v Tamiefuna [2021] NZHC 2880 [High Court sentencing notes] at [52].the property. There was evidence that the occupants of the two vehicles were actingtogether: one of the men who had arrived in the red car retrieved an item of clothingfrom the blue car.[4] The Crown alleged that Mr Tamiefuna and Mr Te Pou gained access to thehouse through a kitchen window. After searching an unoccupied bedroom, theyentered a room where the complainant, Mr Lim, was sleeping. They woke him up,demanding that he hand over various items including the keys to his car. In the courseof these events Mr Lim was struck by one of the offenders with an open hand.Subsequent events[5] After leaving the house with Mr Lim's car keys, phone and digital camera thetwo drove away. Mr Te Pou drove the red Ford Falcon, and Mr Tamiefuna droveMr Lim's vehicle, a white Hyundai Santa Fe. The Crown was in a position to allegesome of the details of the offending, including the arrival of the red Ford Falcon andmovements of the two offenders on the driveway, because there was a high definitionCCTV camera in operation at the front of a neighbouring property. The Crownclaimed that Mr Te Pou was clearly identifiable in the footage obtained from the CCTVcamera. But the face of the man said to be Mr Tamiefuna was obscured by a cap thathe was wearing.3 The man was wearing a black cap with a white marking, black andwhite Asics shoes, beige pants with cuffs and grey gloves.[6] Some hours later Mr Te Pou was captured on CCTV at a petrol station. He hadarrived there in a black Honda Odyssey vehicle together with a man wearing asleeveless maroon vest, a black cap with white marking on it, a pair of black and whiteshoes, beige pants with cuffs and a single grey glove. The man could be seenassociating with the occupants of a blue Ford Falcon with silver roof racks.[7] The Crown alleged that the blue Ford Falcon was the same one that had beenat Mr Lim's house at the time of the robbery. The Crown also claimed that the man3 We note that subsequent to the hearing of this case, Mr Te Pou was discharged under s 147 of theCriminal Procedure Act 2011: see R v Te Pou [2022] NZHC 2731. The High Court found thatthere was insufficient evidence of Mr Te Pou's involvement in the robbery for the case againsthim to be proved beyond reasonable doubt: at [10]. The High Court noted that Mr Tamiefuna hadpleaded guilty to his part in the robbery. That was incorrect: Mr Tamiefuna pleaded not guilty.accompanying Mr Te Pou was his co-offender in the robbery. In the service stationfootage, the registration number of the blue Ford Falcon could be seen.[8] Subsequently, on 5 November 2019, Mr Tamiefuna was a passenger in a blueFord Falcon with the same registration number as the vehicle captured in the servicestation footage. At about 4.20 am, Detective Sergeant Bunting (DS Bunting)conducted a random stop of the vehicle to check compliance with the Land TransportAct 1998 and obtain details of the driver and registered owner of the vehicle.4 As aresult of enquiries then made, DS Bunting learnt that the driver of the car wasunlicensed and consequently impounded the car. When asked, Mr Tamiefuna andanother passenger gave their names and details to DS Bunting who then searched forthem in the Police National Intelligence Application (NIA). DS Bunting learnt as aconsequence that all three occupants of the vehicle had convictions for propertyoffending, and that Mr Tamiefuna had recently been released from prison on parole.[9] DS Bunting had observed some items of property in the car. There was awomen's handbag and jacket alongside four car batteries. The detective decided tocreate an "intelligence noting" in the NIA, recording the details of the three men andthe fact that they had been seen in the car together with those items of property.Mr Tamiefuna and the others had got out of the car and were gathering their belongingswhile they waited for a tow truck to arrive. At that point DS Bunting took photographsof the men with his mobile phone, as they stood on the side of the road. He also tookphotographs of some of the property they were taking from the car. Mr Tamiefunawas photographed wearing a dark cap with a light-coloured mark, maroon vest, beigetrousers and black and white Asics shoes. At least one such photograph ofMr Tamiefuna was attached to the intelligence noting created by DS Bunting.[10] A pair of black and white Asics trainers, matching the shoes seen in the CCTVfootage from the service station and the photographs taken by DS Bunting, wassubsequently seized in a search of a vehicle driven by Mr Tamiefuna on28 December 2019.4 Pursuant to s 114 of the Land Transport Act 1998.[11] The Crown claimed that given Mr Tamiefuna was in the same blue Ford Falconthree days after the robbery, and was wearing the same clothing as the man seen withMr Te Pou at the petrol station on the day of the robbery, the Court could be satisfiedbeyond reasonable doubt that Mr Tamiefuna had been Mr Te Pou's co-offender in theaggravated robbery of Mr Lim.[12] Mr Tamiefuna originally faced a joint jury trial with his co-defendantMr Te Pou. That trial was scheduled to commence in the High Court at Auckland on12 July 2021. A number of pre-trial issues were argued before Moore J, and were dealtwith in a judgment released on 15 February 2021.5 Among the matters he consideredwas an application by the Crown for an order that the photographs taken byDS Bunting were admissible at the trial.6 The Judge considered the photographshelped to pull together three "threads" of evidence that tended to prove that it wasMr Tamiefuna who was involved in the robbery of Mr Lim.7 The first thread was theCCTV footage available of what happened in the driveway at Mr Lim's address. Thesecond was the CCTV footage taken at the petrol station on the same day. The thirdwas the photographs taken by DS Bunting on 5 November 2019. Together, the threestrands of evidence supported the Crown's case that the man captured on the CCTVfootage at Mr Lim's property was Mr Tamiefuna.8[13] The defence challenged the admissibility of the third thread of evidence: thephotographs taken by DS Bunting. Ms Gray argued for Mr Tamiefuna that they hadbeen taken in the course of an unlawful and unreasonable search. They were thusimproperly obtained evidence and should not be admitted pursuant to s 30 of theEvidence Act 2006.9 Moore J rejected those contentions.10[14] Mr Tamiefuna then sought leave to appeal the pre-trial decision as to theadmissibility of the photographs. This Court declined that application.11 The Courtacknowledged that the argument that the taking of the photographs constituted5 R v Tamiefuna [2020] NZHC 163.6 At [109]–[136].7 At [112].8 At [112]–[115].9 At [116]–[117].10 At [125]–[136].11 Te Pou v R [2021] NZCA 263 at [87].unreasonable search or seizure was "novel, of general significance and arguable".12But, it considered that there was insufficient time to deal with the issue properly beforetrial and the issue might more appropriately be considered by the Permanent Court.13[15] Mr Tamiefuna subsequently successfully applied for severance of the onlycharge brought against him, aggravated robbery. He was granted leave to withdrawhis previous election of trial by jury, and for the charge to be determined by judgealone.14The trial[16] The trial took place before Davison J on the basis of admissions filed under s 9of the Evidence Act, and the evidence of DS Bunting. In giving his reasons for verdict,Davison J rejected the argument advanced by Mr Tamiefuna that the photographstaken by DS Bunting breached Mr Tamiefuna's right to be secure against unreasonablesearch and seizure, protected by s 21 of the New Zealand Bill of Rights Act 1990.15[17] The Judge found that the stopping of the blue Ford Falcon by the police was alawful exercise of the power in s 114(1) of the Land Transport Act. He considered thecircumstances in which the decision to stop the vehicle was made were in accordancewith the police functions described in s 9 of the Policing Act 2008, in particular lawenforcement and crime prevention.16 It was only when the police officer ascertainedthat the driver was unlicensed that he requested the passengers to provide their namesand personal details, including dates of birth. There was no evidence to suggest thatthe police had an ulterior purpose for stopping the car or that there had been any prior"targeting" of the occupants.17 These findings are not challenged on appeal.[18] The Judge then said:[45] The defendant was very clearly in a public place when standing on thefootpath beside a public road when the photographs of him were taken. Thefact that until shortly beforehand he had been a passenger in a private vehicle12 At [76].13 At [82]–[84].14 R v Tamiefuna HC Auckland CRI-2019-090-5558, 15 June 2021.15 High Court conviction judgment, above n 1, at [51].16 At [43].17 At [44].does not provide a basis for him having a reasonable expectation of privacyonce he had exited the vehicle and was standing on the roadside. Although heexited the vehicle as a result of the police impounding the vehicle, thenecessity for him to get out of the car was a consequence of him travelling ina vehicle which was being driven by someone who was prohibited fromdriving. The police did not order him out of the car in order to get him into apublic space where they could photograph him. As the sequence of events Ihave set out makes clear, the defendant was already out of the Ford Falconand at the roadside attending to the removal of property from the vehicle whenDS Bunting, having ascertained from an NIA database check that the threemen all had recent criminal convictions for property offending and otherserious offending and the defendant was subject to release conditionsfollowing a term of imprisonment, that he decided to make an intelligencenoting and take photographs of the defendant to accompany it.[19] The Judge also noted that there had been no element of concealment or secrecyin the way in which the photographs had been taken, commenting that DS Buntingwas standing at a distance of approximately two metres or less directly in front of thedefendant when he took the photographs; it was clear the defendant was well awarethat he was being photographed.18 The Judge rejected the submission thatMr Tamiefuna would have had a higher expectation of privacy because the event hadtaken place at night. He also found that in requesting and obtaining information fromMr Tamiefuna as to his name and date of birth and taking the photographs the policewere not engaged in a process of gathering evidence in relation to alleged offendingby Mr Tamiefuna.19 The fact that the information obtained by searching the vehicleand the photographs subsequently became relevant because they were relied on by theCrown at the trial did not mean that they were obtained as a result of a search.20For these reasons, the Judge was satisfied that there had been no unreasonable searchof Mr Tamiefuna in breach of s 21 of the Bill of Rights Act.21[20] The Judge observed that even if taking the photographs constituted a search,he did not consider it was unreasonable in the circumstances. Mr Tamiefuna had beenstanding in a place well-lit by street lighting, and was not engaged in any privateconversation or activity in respect of which he could have had a reasonable expectation18 At [46].19 At [47] and [50].20 At [50].21 At [51].of privacy. Any intrusion on his privacy was only minimal and there was nosuggestion that he objected to the photographs being taken at the time.22[21] Finally, the Judge recorded his view that even if the photographs had beenimproperly obtained, he would have concluded that they should be admitted in thebalancing process that would have been required under s 30(2)(b) of theEvidence Act.23[22] For these reasons, and others that need not be discussed, the Judge found thatthe photographs were admissible. The Judge then analysed the evidence.24 He wassatisfied beyond reasonable doubt that Mr Tamiefuna was the man shown in the CCTVfootage walking on Mr Lim's driveway at the time of the robbery shortly after 6 amon 2 November 2019. In making that finding, he was strongly influenced bydistinctive features of the clothing being worn by the person shown walking on thedriveway, its similarity to the clothing of the man pictured at the service station laterthat same day in the company of Mr Te Pou, and some of the clothing worn byMr Tamiefuna at the time of the photographs taken by DS Bunting on5 November 2019.25 In the circumstances, the Judge found Mr Tamiefuna guilty ofthe aggravated robbery.26The conviction appeal[23] The conviction appeal was advanced on the basis that the photographs onwhich the Crown relied should have been ruled inadmissible because they were theresult of a search carried out in breach of s 21 of the Bill of Rights Act. Ms Graysubmitted in addition that the Judge failed to turn his mind to the applicability of ss 32to 34 of the Policing Act. She submitted the Judge's conclusion that the evidence,even if properly obtained, would nevertheless have been admissible under s 30(2)(b)of the Evidence Act was also wrong. She argued that admission of the photographsmeant that there had been a miscarriage of justice within the meaning of s 232(4) ofthe Criminal Procedure Act 2011.22 At [52].23 At [53].24 At [57]–[62].25 At [64]–[68] and [71].26 At [73].[24] In developing the argument Ms Gray submitted that the Judge erred inconcluding that the taking of the photographs did not breach Mr Tamiefuna'sreasonable expectations of privacy. She submitted the fact that the photographs hadbeen taken in a public place was not determinative. Although presence in a publicplace would mean there was a lower expectation of privacy, that did not mean thatthere could be no expectation of privacy. The Judge should have regarded this as aneutral factor in determining whether a search had occurred, rather than one attractingsignificant weight.[25] In addition, Ms Gray argued it was significant that Mr Tamiefuna was onlystanding on the roadside as a result of being asked to leave the vehicle, rather than ofhis own volition. Moments earlier, he had been a passenger in a car and in that locationwould have had a legitimate expectation of privacy. Ms Gray contended thatexpectation "remained unchanged" when he was ordered to leave the vehicle.She submitted the police could not take his photograph in a public place and assert hehad no expectation of privacy where it was the actions of the police that caused himto leave the vehicle. This factor should have weighed more heavily with the Judge.[26] Ms Gray also submitted that the Judge had failed to appreciate the significanceof photographs as a "subset of biometric information". She argued that once in policepossession, photographs are in the same category as DNA and fingerprint evidence.She submitted there was a legitimate analogy between photographs, fingerprints andDNA samples, on the basis that all are able to be used by the police in the identificationof offenders. They are highly reliable in nature and more than capable of securing aconviction, as had occurred in this case. All three forms of evidence are akin to a"signature" of a person's identity, and part of a "biographical core of personalinformation", which s 21 of the Bill of Rights Act is designed to protect.27[27] A further strand of Ms Gray's argument was the claim that the Judge had paidno regard to the fact that the photographs were taken in a way which madeMr Tamiefuna the direct subject of the photographs, at close proximity. She submittedthis invaded his reasonable expectation of privacy. She noted that members of the27 Citing R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [63], referring to R v Plant [1993] 3SCR 281 at 293.public have a reasonable expectation they will not be approached by other individualswhen out in public and have their photographs taken at close proximity withoutpermission. Whilst doing this is not illegal, it is highly intrusive and contrary toaccepted social norms. She contended that Mr Tamiefuna's expectation of privacywould have been further heightened because the person taking the photographs was amember of the police and not an ordinary citizen. She referred to authorities in whichthe Supreme Court of Canada emphasised the "fundamental difference between aperson's reasonable expectation of privacy in his or her dealings with the State and thesame person's reasonable expectation of privacy in his or her dealings with ordinarycitizens".28[28] Ms Gray also complained that the Judge had failed to recognise thesignificance of the fact that Mr Tamiefuna was not suspected of having committed anyoffence at the time his photograph was taken. There was a reasonable expectation thatthe police would not take Mr Tamiefuna's photograph to store in the NIA incircumstances where they had no cause to do so. He had been targeted and treatedlike a potential criminal, in circumstances where the police had no reasonable causeto suspect that any offence had been or would be committed. The police conduct wastantamount to pre-emptive evidence gathering. In these circumstances, taking thephotographs was completely unjustified and amounted to the illegitimate targeting ofan innocent citizen. This constituted a breach of Mr Tamiefuna's "right to be letalone".29[29] Ms Gray was also critical of the Judge's reliance on the fact that Mr Tamiefunahad voluntarily provided his correct name when asked to do so by DS Bunting.The Judge considered Mr Tamiefuna must have done so knowing those details wouldbe checked.30 Ms Gray submitted the taking of the photographs was not a natural andinevitable consequence of the provision of his personal details and should not havebeen relied on in this way by the Judge.28 Citing Aubry v Éditions Vice-Versa inc [1998] 1 SCR 591 at [8], referring to R v Duarte [1990] 1SCR 30 at 43–45; and R v Wong [1990] 3 SCR 36 at 48–55.29 Citing Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [10] per Elias CJ, referring toOlmstead v United States 277 US 438 (1928) at 478; and Katz v United States 389 US 347 (1967)at 350.30 High Court conviction judgment, above n 1, at [46].[30] For the respondent, Ms Brook submitted there had been no breach of s 21 ofthe Bill of Rights Act as the police had acted lawfully and reasonably in taking thephotograph. She adopted that position after identifying two different conceptualapproaches taken in the jurisprudence to the use of photography and other forms ofrecording what a person says or does. The case law she cited considered the use ofaudio and video recordings, as well as simply writing down what is said or done. Onone view, making a record simply involves police officers capturing what they haveseen or heard themselves, in the most accurate way possible. On this approach, forwhich Ms Brook referred to Lopez v United States, s 21 would not be engaged by thetaking of a photograph in circumstances where the taker of the photograph canlawfully see the photograph's subject.31[31] Ms Brook pointed to the contrary view as being that because such a record ispermanent, and capable of being stored and disseminated in a way that cannot occurwith simple recall from memory, the making and retention of the record intrudes onprivacy interests to a greater degree than observation and recall. That approach hasbeen taken in Canada in application of art 8 of the Canadian Charter of Rights andFreedoms.32 It was settled in R v Duarte and confirmed in R v Wong.33 On thatapproach, by analogy, s 21 of the Bill of Rights Act would be engaged and the focuswould be on whether what was done was reasonable in the particular circumstances ofthe case.[32] Neither approach, Ms Brook submitted, means there is an inherent breach ofs 21 in the taking and retention of a photograph in circumstances where there is nobreach of any other regulatory requirements. Rather, the enquiry is simply whetherthe police's conduct was lawful and reasonable, and it was plainly so here.[33] This was so, because the vehicle had been lawfully stopped, the taking of thephotographs was lawful and had not required a warrant, and DS Bunting had simply31 See Lopez v United States 373 US 47 (1963), cited in R v A [1994] 1 NZLR 429 (CA) at 434. Butsee Katz v United States, above n 29, where the recording of conversations through use of aconcealed device located at a public telephone booth was held to involve a breach of privacy: at353.32 Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to theCanada Act 1982 (UK).33 R v Duarte, above n 28, at 46; and R v Wong, above n 28, at 48.created a reliable record of what he had seen. Further, the circumstances (in whichMr Tamiefuna had been travelling on a public road where a vehicle could be stoppedat any time and was not engaged in any activity of a private nature) could not give riseto a reasonable expectation of privacy.[34] If the Court were to conclude the evidence had been improperly obtained,Ms Brook argued the balancing exercise under s 30 of the Evidence Act would favouradmission of the evidence. Further, she submitted that even if the evidence had beenwrongly admitted there was no miscarriage of justice. Mr Tamiefuna was plainly theoffender and if the photographs had been excluded the Crown could simply have calledthe officer who took it to give oral evidence as to what he saw. She submittedMr Tamiefuna would have been in no position to challenge that evidence.[35] At the hearing, we asked for and have since received further submissions onwhether the police's conduct in the circumstances breached any of the informationprivacy principles set out in s 6 of the Privacy Act 1993 and what implications such abreach would have for the balancing exercise under s 30 of the Evidence Act. We notethat the Privacy Act 2020 was not yet in force at the time the photographs were takenand accordingly counsel's submissions were directed at the applicability of thePrivacy Act 1993.[36] Ms Gray submitted that the police conduct in this case breached informationprivacy principles 1 and 3. She argued, relying on Elias CJ's dissenting reasons inR v Alsford,34 that this breach constituted a "standalone ground" for treating theevidence as improperly obtained under s 30(5)(a) of the Evidence Act. Further, breachof the principles was relevant to whether the police conduct could be properlycharacterised as involving a breach of a reasonable expectation of privacy.[37] Although Ms Brook conceded they were engaged, she argued the informationprivacy principles were not breached. In terms of principle 1, DS Bunting had alegitimate basis for believing that his observations might become important for lawenforcement purposes, as proved to be the case. Although he could have simplywritten down a description of Mr Tamiefuna, such a record could have been challenged34 See R v Alsford, above n 27.on grounds of accuracy or reliability. Ms Brook submitted that principle 3 wasinapplicable because the police did not collect information from Mr Tamiefuna.Finally, Ms Brook argued, in reliance on the majority's decision in R v Alsford, thatany breach of the information privacy principles is unlikely to be an independentground for finding that evidence is improperly obtained under s 30 of theEvidence Act,35 though she accepted that such a breach can be considered indetermining whether there has been a breach of a reasonable expectation of privacy.AnalysisUnreasonable search and seizure[38] Section 21 of the Bill of Rights Act affirms that:Everyone has the right to be secure against unreasonable search and seizure,whether of the person, property, or correspondence or otherwise.[39] The issue presented by the present facts is whether the actions of the police intaking Mr Tamiefuna's photographs and retaining them amounted to an unreasonablesearch of him. In the analysis that follows, we first address the relevance of theSupreme Court's decision in Hamed v R.36 We then consider whether, in light of thatdecision, the taking of a photograph in a public place can constitute a search, andwhether the taking of the photographs in this case was a search of Mr Tamiefuna.We then assess whether the search was unreasonable. Finally, we note a number ofother considerations which support our conclusion that Mr Tamiefuna's s 21 right wasbreached.The Supreme Court's decision in Hamed v R[40] The issue presented must be approached in light of the judgments given by theSupreme Court in Hamed v R. In that case the police received information suggestingthe defendants were participating in a series of "quasi-military" training camps takingplace on forested lands owned by various trusts associated with Ngāi Tūhoe iwi.37The police applied for and were issued search warrants under s 198 of the35 Citing R v Alsford, above n 27, at [37]–[40].36 Hamed v R, above n 29.37 At [91].Summary Proceedings Act 1957. Despite the warrants not authorising them to do so,the police then installed cameras on private land not open to the public, on private landwhich was open to the public for recreational purposes, and in another case on privateland to record traffic passing on a public road.[41] On the basis of the evidence captured by using the surveillance cameras,charges were laid against 11 defendants under the Arms Act 1983 and theCrimes Act 1961. The defendants challenged the admissibility of the evidence in theHigh Court, which ruled the evidence was improperly obtained as it had not beenauthorised by the search warrants.38 Nevertheless, the High Court held the evidencewas admissible applying s 30 of the Evidence Act.39 On appeal, this Court held that,subject to one exception, the video evidence had been lawfully obtained.40 In the oneinstance where the Court found that police had trespassed when installing a camera,the Court held there was no breach of s 21 of the Bill of Rights Act and the evidenceshould be admitted under s 30 of the Evidence Act.41 The Court also indicated thateven if other evidence not been lawfully obtained, it would have been admissible unders 30.42[42] Leave was granted to appeal to the Supreme Court.43 As part of analysingwhether the evidence had been improperly obtained, Blanchard J concluded therewould be a search when information-gathering activity invades a person's reasonableexpectation of privacy. Blanchard J considered that assessing whether an activityintrudes on a person's reasonable expectation of privacy required consideration of twoelements: whether that person subjectively had an expectation of privacy at the timethe activity occurred, and whether that expectation was one that society was preparedto recognise as reasonable. Blanchard J reasoned that surveillance of a public placewould not generally be regarded as a search because it does not, objectively, involveany state intrusion on reasonable expectations of privacy.44 He noted that this positionmay not be the same if surveillance was technologically enhanced so as to capture38 See R v Bailey HC Auckland CRI-2007-085-7842, 7 October 2009.39 See R v Bailey HC Auckland CRI-2007-085-7842, 15 December 2009.40 See Hunt v R [2010] NZCA 528, [2011] 2 NZLR 499.41 At [75] and [89].42 At [90].43 Hamed v R [Leave] [2011] NZSC 27, [2011] 3 NZLR 725.44 Hamed v R, above n 29, at [163] and [167], citing R v Wise [1992] 1 SCR 527 at 533.beyond what can be seen by the naked eye.45 In Alsford, the Supreme Court consideredthat although it is not entirely clear, Blanchard J appeared to have majority support onthis test.46[43] Blanchard J went on to state that where a search is found to have taken place,the next question is whether the search was reasonable. The answer to that secondquestion would depend on the degree of intrusion into privacy, together with the natureof the place or object searched, and the reasons why the search took place.47[44] The majority also held that an unlawful search would generally amount to anunreasonable search, and that this applied to all cases except where the breach wasminor or technical or where the police had a reasonable but erroneous belief that theywere acting lawfully.48 On the facts, it appears that the Supreme Court unanimouslyheld that the appellants had a reasonable expectation of privacy in respect of thesurveillance and searches that had taken place on private land but,49 by a majority, heldthis expectation did not extend to the surveillance of traffic on the public road.50[45] There is no doubt, on the approach adopted by the majority in Hamed v R, thatthe taking of a photograph can constitute a search. Blanchard J observed that a searchcan be conducted personally by a law enforcement officer or by means of technology,and both might occur when, for example, a police officer enters a building and takesphotographs or makes a video recording.51 The Crown has not attempted to argue thecontrary.45 At [167]. Blanchard J gave the example of infra-red imaging.46 R v Alsford, above n 27, at [48], citing Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729 at[15]–[22].47 Hamed v R, above n 29, at [172].48 At [174] per Blanchard J, [226] per Tipping J, and [263], n 265 per McGrath J. Gault J did notexplicitly comment on this point, though he agreed with Blanchard J's reasons for determiningthat the appellants' rights under s 21 were breached: at [281].49 At [8] per Elias CJ, [171] and [176]–[178] per Blanchard J, [227] per Tipping J, [263] perMcGrath J and [281] per Gault J.50 At [171] and [178] per Blanchard J, [263] per McGrath J and [281] per Gault J.51 At [166].[46] In a passage in Hamed that is important for present purposes, Blanchard Jsaid:52[167] Video surveillance may constitute a search, depending upon the placewhich is the subject of the surveillance. If the surveillance is of a public place,it should generally not be regarded as a search (or a seizure, by capture of theimage) because, objectively, it will not involve any state intrusion into privacy.People in the community do not expect to be free from the observation ofothers, including law enforcement officers, in open public spaces such as aroadway or other community-owned land like a park, nor would any suchexpectation be objectively reasonable. [47] This passage, directed specifically to video surveillance, must apply equally tophotographs taken by police officers in a public place while carrying out their duties.However it can be seen from the language Blanchard J used that he was not intendingto be categorical, but was expressing a general proposition ("it should generally notbe regarded as a search") based on the absence of any state intrusion into privacy inopen public spaces. This seems to allow for the possibility that there might be caseswhere surveillance of a public place may give rise to a search, especially where it canbe shown that there was a reasonable expectation of privacy in the particularcircumstances that arose.[48] This was clearly contemplated by Elias CJ, whose approach differed from thatof Blanchard J. She held directly that, in principle, there is no reason why activity ina public place should, by virtue of that circumstance alone, be outside the protectionof s 21. It was consistent with the values in the Bill of Rights Act that people mighthave reasonable expectations to be "let alone by State agencies even in public spacesin their private conversations and conduct". And she recognised a "public interest inmaintaining a human right space for privacy in such settings".53[49] Tipping J took a different approach again. He appears to have contemplatedthat there would be a search where there was surveillance of a public place by the use52 Footnote omitted.53 At [12].of technology and where the police were "consciously looking for something orsomebody".54 He said:[222] I favour an approach which is liberal as to what constitutes a searchfor the purposes of s 21, with more of the work being done under the sectionby the unreasonableness criterion. On this basis surveillance in a public placemay well constitute a search but its reasonableness would be influenced by thepublic nature of the target area.[50] He considered that reasonable expectations of privacy were not relevant todeciding whether a search has taken place. He observed:[221] In contrast to the use of eyes and ears, modern technology has thecapacity to be more covert, intrusive and sustained. That feature gives rise toquestions of reasonableness rather than whether a search has taken place. [51] The question of reasonable expectations of privacy could then be examined ata subsequent stage of the enquiry when those expectations would be relevant todeciding whether the search was unreasonable. He said:[224] The line between there being no reasonable expectation of privacyinvolved and only a slight expectation may sometimes be a fine one. I see nomerit in bringing that sort of inquiry into the more objective issue of whethera search has taken place, as opposed to the more value-laden issue of whethera search was unreasonable. [52] McGrath and Gault JJ also delivered judgments in Hamed, mainly focusing onthe application of s 30 of the Evidence Act. However, McGrath J agreed withBlanchard J that the evidence from video camera surveillance had been improperlyobtained in terms of s 30(2)(a), requiring consideration of whether its exclusion wouldbe a proportionate response.55 And Gault J specifically agreed with Blanchard J'sconclusion that the appellants' rights under s 21 of the Bill of Rights Act had beenbreached.56[53] Despite the differences between the judgments delivered in Hamed, it ispossible to attempt a degree of reconciliation between the positions they espoused,once it is accepted that the majority did not rule out the possibility that there could bea search arising out of surveillance in a public place. That possibility leaves room for54 At [220].55 At [263].56 At [281].this Court to consider whether there was a breach of s 21 in the circumstances of thiscase, noting Elias CJ's clear statement that there could be a breach of s 21notwithstanding that what occurred took place in a public location, and Tipping J'sacceptance that there could be a search arising from surveillance in a public place.[54] As noted above, the context of the statements made in the different judgmentsdelivered in Hamed was an extensive police surveillance operation involving what wasapprehended to be serious criminal offending. Most of the surveillance took place onprivate land, but there was also surveillance of vehicle movements on a public road.We are concerned in this case with very different circumstances. Mr Tamiefuna wasa passenger in a car being driven on a public road. The vehicle was stopped and thenimpounded by the police when they learnt the driver was unlicensed. That caused theoccupants to leave the vehicle. DS Bunting had become suspicious about the men andthe contents of the car and those suspicions were reinforced by the enquiries he madeinto their offending history.[55] It was in these circumstances that he took the photographs, including that ofMr Tamiefuna. He captured Mr Tamiefuna's image for the purposes of identification.This was not a case of surveillance where the police were consciously looking forevidence of serious criminal offending. Rather, DS Bunting took advantage of theopportunity that had presented itself to take the photographs, apparently on the basisthat the information might be useful in the future. That is the context in which wehave to assess whether there was breach of Mr Tamiefuna's rights under s 21.Was the taking and retention of Mr Tamiefuna's photographs a "search" of him for thepurposes of s 21 of the Bill of Rights Act?[56] It may be readily accepted that persons in a public place can have a lowexpectation of privacy; they can expect to be observed. But we find it hard to acceptthat stepping into a public space means people are thereby submitting to the obtrusionon privacy necessarily involved in the taking of a photograph for identificationpurposes by police. It is both the use of the camera and the involvement of the policethat makes the difference. It creates a record of the subject's appearance and,depending on the framing, their location. We consider that many would find that anunreasonable intrusion, and that distinguishes this case from the reasoning applied bythe majority in Hamed.[57] We make those observations in relation to law enforcement photography inpublic, while acknowledging the observations of Tipping J in Hosking v Runting that"seizing the image of a person who is in a public place could hardly be regarded asunreasonable, unless there was some very unusual dimension in the case".57 Here itis necessary to bring to bear the fact that the photographer is a police officer, arepresentative of a state agency, who was deliberately capturing the image foridentification purposes. We consider there is a reasonable expectation that will notoccur in a public place without a good law enforcement reason.[58] In fact, we see a number of difficulties with the Judge's conclusion that therewas no search. The starting point is that there is no definition of "search" in either theBill of Rights Act or the Search and Surveillance Act 2012. So the definition of thatterm has effectively been left to the courts. In accordance with the majority judgmentin Hamed, the question of whether there was a search is to be addressed by askingwhether Mr Tamiefuna had a reasonable expectation of privacy in the circumstancesin which the photographs were taken. We are of the view he did. The photographswere taken at night, after he had been compelled by circumstances to leave the vehicle.We would not describe the situation as one in which Mr Tamiefuna could be taken tohave expected to be photographed. That implies there was a search, adopting theanalytical approach of the majority in Hamed.Was the search unreasonable?[59] Having concluded that the taking of the photographs constituted a search, wenow turn to whether the taking and retention of the photographs was in thecircumstances unreasonable. On the approach of Blanchard J in Hamed, that involvesenquiry into:5857 Hosking v Runting [2005] 1 NZLR 1 (CA) at [226]. Tipping J's scepticism about the notion thata photograph could amount to a search or seizure seems to be at odds with the approach ofBlanchard J in Hamed, as well as Tipping J's acceptance in that case (at [222]) that "surveillancein a public place may well constitute a search".58 Hamed v R, above n 29, at [172]. the nature of the place or object which was being searched, the degree ofintrusiveness into the privacy of the person or persons affected and the reasonwhy the search was occurring.As we have noted above,59 an unlawful search will generally amount to anunreasonable search.[60] It is helpful here to consider the idea that the police have a general power tophotograph persons in public places in the context of specific statutory powers thathave been conferred to take photographs. First, we mention the power to obtainidentifying particulars of persons in custody set out in s 32 of the Policing Act.[61] Section 32 provides as follows:32 Identifying particulars of person in custody(1) The purpose of this section is to enable the Police to obtaininformation that may be used now or in the future by the Police forany lawful purpose.(2) For the purpose of this section, a constable may take the identifyingparticulars of a person who is in the lawful custody of the Police ifthat person is detained for committing an offence and is—(a) at a Police station; or(b) at any other place being used for Police purposes.(3) A constable—(a) must take the person's identifying particulars in a manner thatis reasonable in the circumstances; and(b) may only use reasonable force that may be necessary to securethe person's identifying particulars.(4) A person who, after being cautioned, fails to comply with a directionof a constable exercising his or her powers under this section—(a) commits an offence; and(b) is liable on conviction to imprisonment for a term notexceeding 6 months, to a fine not exceeding $5,000, or toboth.(5) In this section and section 33,—59 Above at [44].identifying particulars means, in relation to a person, any or all ofthe following:(a) the person's biographical details (for example, theperson's name, address, and date of birth):(b) the person's photograph or visual image:(c) impressions of the person's fingerprints, palm-prints,or footprintsplace includes any land, building, premises, or vehicle.[62] A person's photograph or visual image is within the definition of "identifyingparticulars", set out in s 32(5)(b). The purpose of the provision is to enable the policeto obtain information to be used for a lawful purpose "now or in the future".Section 32(2) contains a specific power to take the identifying particulars of a persondetained for committing an offence. Its use is limited to circumstances where a personis in lawful custody. That of course may occur, and frequently does, in a public place.[63] This specific conferral of the power to take photographs, or any otheridentifying particulars, in circumstances delimited by the section, sits unhappilyalongside the notion that the police have a general right to take and retain photographsof members of the public. The same may be said of the equivalent conferral of powergiven by s 33 of the Policing Act to enable the police to detain a person who"a constable has good cause to suspect of committing an offence" whenintending to proceed against that person by way of summons.[64] Photographs taken under the authority of either of those provisions may beentered, recorded and stored (along with the other identifying particulars) on a policeinformation recording system under s 34(1) of the Act. However s 34(2) provides asfollows:(2) But photographs or visual images of a person, and impressions of aperson's fingerprints, palm-prints, or footprints, that are obtainedunder section 32 or 33 must be destroyed as soon as practicableafter—(a) a decision is made not to commence criminal prosecutionproceedings against the person in respect of the offence forwhich the particulars were taken; or(b) criminal prosecution proceedings that are commenced againstthe person in respect of the offence for which the particularswere taken are completed with an outcome (for example, anacquittal) that is not an outcome (specified in section 34A)that authorises continued storage.[65] It can be seen that a photograph taken under the authority conferred byss 32 or 33 must be destroyed as soon as practicable after a decision is made not toprosecute the person photographed, or the proceedings have been commenced andcompleted with an outcome (such as an acquittal) that does not authorise continuedstorage, as detailed in s 34A. Outcomes which enable continued storage under thelatter provision are those where the offending has been admitted and a programme ofdiversion completed, convictions have been entered, certain orders have been madeunder the Oranga Tamariki Act 1989 or there has been a discharge under s 106 of theSentencing Act 2002. In short, unless the offence for which the photograph has beentaken has been established, the photograph must be destroyed.[66] It is significant also that s 34(3) defines "criminal prosecution proceedings" forthe purposes of both ss 34 and 34A. The relevant proceedings as defined are "inrespect of the offence for which the particulars were taken". This continues what canbe said to be the theme of these provisions — namely, that the photographs areauthorised in respect of persons detained for committing an offence or who are to besummonsed in respect of an offence which the constable has "good cause to suspect"has been committed.[67] This careful statutory scheme is inconsistent with any suggestion that thepolice may photograph persons and retain their images without bringing any chargeand without any obligation to destroy the images. As we understand it, that is whathappened here. There is no evidence that any inquiry was carried out in relation to theitems observed by DS Bunting in the impounded car. No charge was brought inrelation to anything found in the car. And it is not suggested that Mr Tamiefuna wasdetained by the police. The powers to photograph in the Policing Act could not havebeen exercised against him.[68] It is instructive also to note the power, contained in s 16 of the Search andSurveillance Act, to conduct a warrantless search of a person in a public place wherethere are reasonable grounds to believe the person possesses evidential materialrelating to an offence punishable by imprisonment for a term of 14 years or more (oran offence against s 6B(1) of the Terrorism Suppression Act 2002). Clearly, that powercould not have been exercised in the circumstances of this case. But the restrictivenature of the circumstances in which that power may be exercised is another indicationthat police powers to photograph in a public place and retain the images are intendedto be closely confined.[69] Our conclusion that the police do not, in circumstances such as these, have ageneral power to photograph persons in the public realm and retain the imagessuggests that taking and retaining the photographs of Mr Tamiefuna was unreasonable.The police's conduct did not conform with the circumstances in which Parliament hasauthorised such conduct on the part of the police.[70] We acknowledge there is no suggestion that the police knew what they didlacked legal authorisation. So too, the facts that the photographs were taken in publicand without objection mean that the intrusion on privacy interests was, at least inrelative terms, modest. We have, however, reached the conclusion that the search wasunreasonable. The decisive point here concerns the factual setting — being one inwhich no attempt was made to show the photographs were taken or retained in thecontext of an ongoing police inquiry or for any other lawful purpose. Differentconsiderations would apply if there were such an inquiry, and subsequent prosecution.[71] On this issue, it will be recalled that the Judge specifically found that the policewere not at the time the photographs were taken engaged in a process of gatheringevidence in relation to alleged offending by Mr Tamiefuna; this was part of thereasoning that led him to conclude there had been no search.60 We cannot accept thatthe police have a free-ranging right to take and retain close-up photographs ofmembers of the public acting lawfully in public places, perhaps because they looksuspicious or different. We do not consider such a right would be accepted by societyas reasonable.[72] The only basis on which the existence of such a right might be asserted is thatthere was no specific statutory or common law prohibition against the actions carried60 High Court conviction judgment, above n 1, at [50]–[51].out by the police. Support for that reasoning might be derived from observations ofTipping J in Hamed,61 and a number of cases decided by this Court in which policeuse of cameras in the context of surveillance operations monitoring private propertiesfor varying lengths of time has been held to be lawful.62 One such case is Lorigan v R,where this Court said:63[29] the covert video surveillance (whether with enhanced-visionequipment or not) was lawful, because there was no statutory or common lawprohibition of such activity and it would not have been unlawful for a citizento do the same thing. The matter would, of course, have been different if thesurveillance had involved any element of trespass by the police, because thetrespass would have made the police actions unlawful. There was no trespassin the present case because the police had obtained the permission of theowner of the property on which the surveillance cameras were placed.[73] The idea that the police may do anything that a private citizen may do isconceptually linked to what has come to be referred to as the "third source" ofauthority for the actions of members of the executive.64 It is a doctrine espousedamongst others by Professor Bruce Harris, who has written extensively on the issue.65The third source doctrine has not been definitively embraced in New Zealand orthe United Kingdom.66 In Quake Outcasts v Minister for Canterbury EarthquakeRecovery, the Supreme Court expressly refrained from comment on the existence orthe extent of residual Crown powers, on the basis that the statute it was considering"cover[ed] the field".67 In a footnote, that Court expressed what was apparently awider reservation as to whether the third source of authority exists.6861 Hamed v R, above n 29, at [215]–[217].62 See for example Lorigan v R, above n 46; R v Fraser [1997] 2 NZLR 442 (CA); and R v Gardiner(1997) 15 CRNZ 131 (CA).63 Lorigan v R, above n 46.64 The third source of authority is said to exist in addition to the positive law authority for thegovernment to act, provided by statute and prerogative powers.65 See for example BV Harris "The 'Third Source' of Authority for Government Action" (1992) 108LQR 626; BV Harris "The 'Third Source' of Authority for Government Action Revisited" (2007)123 LQR 225; BV Harris "Government 'Third Source' Action and Common LawConstitutionalism (2010) 126 LQR 373; and BV Harris "A Call to Maintain and Evolve the ThirdSource of Authority for Government Action" (2017) 27 NZULR 853.66 The third source doctrine first rose to prominence in the United Kingdom when it was acceptedby Sir Robert Megarry V-C in the case of Malone v Metropolitan Police Commissioner [1979]Ch 344 (Ch) at 366–367. But see R (New London College Ltd) v Secretary of State for the HomeDepartment [2013] UKSC 51, [2013] 1 WLR 2358 at [28] in which a majority of theSupreme Court noted it was "open to question whether the analogy with a natural person is reallyapt in the case of public or governmental action, as opposed to purely managerial acts".67 Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR1 at [112].68 At [112], n 152.[74] This is not the case for a lengthy discussion of the third source doctrine. It issufficient for present purposes to treat both Lorigan and the other cases it discussed asillustrating that the police have authority to investigate crime and carry out actions thatare reasonably incidental to that purpose. Lorigan and the other cases which itreviewed are examples of police activity that was lawful because the actions wereincidental to ongoing and bona fide police investigations. In such cases the policeconduct would be lawful under the "reasonably incidental doctrine" discussed byProfessor Philip Joseph.69 But unlike Lorigan, this case comes to us with a findingthat there was no such investigation of Mr Tamiefuna underway when his photographswere taken: as the Judge found, the police were not engaged in a process of gatheringevidence in relation to alleged offending by him when his photographs were taken.70[75] The present context is not an appropriate one in which to adopt an expansiveview of the extent to which police may be able to rely on the third source doctrine. AsProfessor Joseph recognises, a specific power should be found where the governmentor a public authority imposes a liability or detriment on a citizen or interferes with acitizen's liberty or property.71Other considerations[76] We are fortified in our conclusion that Mr Tamiefuna's s 21 right was breachedby some other considerations. First, we note that a similar legislative regime limitingpolice powers is in force in Australia. There, the taking of photographs of persons bypolice officers is regulated by s 3ZJ of the Crimes Act 1914 (Cth). That provisionrelevantly states:3ZJ Taking fingerprints, recordings, samples of handwriting orphotographs(1) In this section and in sections 3ZK and 3ZL:"identification material", in relation to a person, means prints of theperson's hands, fingers, feet or toes, recordings of the person's voice,samples of the person's handwriting or photographs (including video69 See Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at 726–728.70 High Court conviction judgment, above n 1, at [50].71 Joseph, above n 69, at 724, citing Entick v Carrington (1765) 19 State Tr 1030, 95 ER 807 (KB).recordings) of the person, but does not include tape recordings madefor the purposes of section 23U or 23V.(2) A constable must not:(a) take identification material from a person who is in lawfulcustody in respect of an offence except in accordance with thissection; or(b) require any other person to submit to the taking ofidentification material, but nothing in this paragraph preventssuch a person consenting to the taking of identificationmaterial.(6) Subject to this section, a constable must not take identificationmaterial (other than hand prints, finger prints, foot prints or toe prints)from a suspect who:(b) has not been arrested and charged;unless a magistrate orders that the material be taken.(12) Despite this section, identification material may be taken from aperson who:(a) is at least 18; and(b) is capable of managing his or her affairs; and(c) is not a suspect;if the person consents in writing.[77] It seems clear that the photographing of Mr Tamiefuna in the circumstanceswould not have been authorised in Australia under this provision, unless thephotographs were taken with his consent. Here the Judge found there was nosuggestion that Mr Tamiefuna objected to the photographs being taken, but that ofcourse is not a finding that he consented. It may be noted also that the power to takethe photograph of a person who is not a suspect under the Australian legislation(Mr Tamiefuna never achieved that status in respect of the events giving rise to thetaking of the photographs) requires consent in writing. It would be surprising, wethink, if this country's laws were less protective than Australia's in this field.[78] Second, since this case was argued, the Privacy Commissioner | Te ManaMātāpono Matatapu and the Independent Police Conduct Authority | Mana WhanongaPirihimana Motuhake have released a joint report about police practices whenphotographing members of the public.72 The joint report emphasises that police needto comply with the information privacy principles in the Privacy Act 2020 incircumstances where photographs are taken outside the specific authority contained inother statutes.73[79] Given that we have not heard argument about the implications of the jointreport we do not discuss it in detail. Notwithstanding this, we note that, in the sectiondealing with traffic stops and checkpoints, the joint report recognises that theLand Transport Act does not provide general authorisation for police to takephotographs of members of the public while at a traffic stop, and Privacy Actinformation privacy principles should be applied, including the consideration ofwhether the photograph is necessary for the purpose of the stop. The report also notedthat intelligence gathering is not a lawful purpose for photograph-taking under theLand Transport Act.74[80] We consider that, contrary to the submissions of Ms Brook, the police'sconduct on the facts of this case did involve a breach of the information privacyprinciples. At least three principles appear to be relevant. First, it appears likely thatthe police's conduct involved a breach of information privacy principle 1. Thisprinciple provides that personal information shall not be collected by any agencyunless it is collected for a lawful purpose connected with a function or activity of thatagency. As we discuss below at [90], DS Bunting had suspicions about the propertyhe observed in the vehicle. There can be no doubt that the investigation of suchsuspicions constitutes a lawful purpose that the police are tasked with performing.However, as noted already, the Judge at first instance found that the police were notengaged in such an investigation at the time the photographs were taken.75 That72 Privacy Commissioner | Te Mana Mātapono Matatapu and Independent Police Conduct Authority| Mana Whanonga Pirihimana Motuhake Joint inquiry by the Independent Police ConductAuthority and the Privacy Commissioner into Police conduct when photographing members of thepublic (September 2022).73 At 7.74 At 80. This issue is relevant under information privacy principle 1(1): see Privacy Act 1993, s 6.75 High Court conviction judgment, above n 1, at [50].finding is not challenged on appeal. That must mean, in terms of information privacyprinciple 1, that the collection of Mr Tamiefuna's information through the taking ofhis photographs was not for a lawful purpose connected with policing.[81] Secondly, in terms of information privacy principle 3(1), no claim is made bythe Crown that DS Bunting took any steps to inform Mr Tamiefuna of the purpose forwhich his photograph was being taken, who would be able to view the photographs,whether he was authorised to take the photographs, the consequences of notconsenting to the taking of the photographs or Mr Tamiefuna's rights of access to thephotographs. Nor, in terms of principle 3(4), which sets out when an agency is notrequired to comply with 3(1), is it suggested that DS Bunting had reasonable groundsfor not complying with those steps.[82] Third, information privacy principle 9 requires that an agency holding personalinformation must not keep the information for longer than is required for the purposesfor which the information may lawfully be used. Here, as noted earlier, thephotographs were not taken for the purpose of an investigation, so the image shouldnot have been retained. This principle stands against the casual taking and retentionof photographs on the basis that, some day, they might be useful.[83] While it is clear from s 11(2) of the Privacy Act that (with an exception notrelevant here) breaches of any of the information privacy principles do not create rightsenforceable in a court of law, we think the principles must be relevant to the judgmentof a court considering what reasonable expectations of privacy ought to encompass inaccordance with modern societal expectations.76[84] Limits on the ability of police to photograph people engaged in lawful conductin a public place have been recognised in the United Kingdom, in the application ofart 8 of the Convention for the Protection of Human Rights and FundamentalFreedoms (the European Convention) which provides for the right to respect for a76 Compare what was said in by the majority in R v Alsford, above n 27, at [38]. We see no reasonwhy the information privacy principles should not be relevant to our appreciation of the issue ofreasonable expectation of privacy as well as the relevance acknowledged by the Supreme Courtin that case, namely to interpretation of the Search and Surveillance Act 2012 and s 30(2) and(5)(c) of the Evidence Act 2006.person's private and family life, home and correspondence.77 Notwithstanding thedifferent context, Ms Gray relied on Regina (Wood) v Commissioner of Police of theMetropolis and claimed that there was little material distinction between the facts ofthat case and the present.78[85] In Wood, the Metropolitan Police had anticipated that unlawful activity mighttake place at the annual general meeting (AGM) of a company connected to the armstrade. They deployed a number of intelligence-gathering teams around the hotel wherethe event was taking place to "gather intelligence, primarily by taking photographsand making notes which may be of subsequent evidential value should offences becommitted".79 Mr Wood attended the AGM. When he left, photographs were overtlytaken of him. Mr Wood's impression was that the "photographer was workingcontinuously for some time",80 although in the result there were only two clear front-on images of him.81 The police retained the photographs of Mr Wood subject to whatthey said were "strict controls", including that they would not be accessible for generalintelligence purposes.82 Mr Wood claimed that his right to privacy under art 8 of theEuropean Convention was breached by the taking and retention of the photos.[86] The Court unanimously found that the activities interfered with Mr Wood'sart 8 right.83 Although Laws LJ ultimately found himself in dissent (on the questionwhether the interference was a proportionate one), both Dyson LJ and Lord Collinsagreed with his analysis that there was a prima facie breach of art 8.[87] Drawing on European jurisprudence, Laws LJ identified personal autonomy asthe "central value protected by the right".84 He observed:[21] The notion of the personal autonomy of every individual marches withthe presumption of liberty enjoyed in a free polity: a presumption whichconsists in the principle that every interference with the freedom of the77 Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221(opened for signature 4 November 1950, entered into force 3 September 1953).78 Regina (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR123.79 At [66].80 At [2].81 At [3].82 At [2].83 At [46] per Laws LJ, [64] per Dyson LJ and [96] per Lord Collins.84 At [20].individual stands in need of objective justification. Applied to the myriadinstances recognised in the article 8 jurisprudence, this presumption meansthat, subject to the qualifications I shall shortly describe, an individual'spersonal autonomy makes him—should make him—master of all those factsabout his own identity, such as his name, health, sexuality, ethnicity, his ownimage, of which the cases speak; and also of the "zone of interaction" between himself and others. He is the presumed owner of these aspects of hisown self; his control of them can only be loosened, abrogated, if the stateshows an objective justification for doing so.[88] Turning to assess the case, Laws LJ held that art 8 was engaged in thecircumstances, even though it had been previously held that the "mere taking" of aphotograph in a public place was not of itself sufficient to engage art 8 and somethingmore was needed than the "snapping of the shutter".85 He said:[45] it is important to recognise that state action may confront andchallenge the individual as it were out of the blue. It may have no patent orobvious contextual explanation, and in that case it is not more apparentlyrational than arbitrary, nor more apparently justified than unjustified. In thiscase it consists in the taking and retaining of photographs, though it mightconsist in other acts. The Metropolitan Police, visibly and with no obviouscause, chose to take and keep photographs of an individual going about hislawful business in the streets of London. This action is a good deal more thanthe snapping of the shutter. The police are a state authority. And as I havesaid, the claimant could not and did not know why they were doing it and whatuse they might make of the pictures.[46] In these circumstances I would hold that article 8 is engaged. On theparticular facts the police action, unexplained at the time it happened andcarrying as it did the implication that the images would be kept and used, is asufficient intrusion by the state into the individual's own space, his integrity,as to amount to a prima facie violation of article 8(1). It attains a sufficientlevel of seriousness and in the circumstances the claimant enjoyed areasonable expectation that his privacy would not be thus invaded. [89] While Laws LJ went on to find that the limit on Mr Wood's right wasproportionate, both Dyson LJ and Lord Collins were not persuaded that was so. Eventhough the aims of the police (being the prevention and detection of crime) werelegitimate, they could not justify the retention of photographs after it had becomeabundantly clear within days of the AGM that no offences had been committed there,by the claimant or by anybody else. The suggestion that the police might be entitledto retain them just in case the claimant might commit an offence at a subsequentmeeting was not persuasive.8685 At [35].86 At [86]–[90] per Dyson LJ and [97] per Lord Collins.[90] Unlike Mr Wood, who had no previous convictions, as noted earlier, all theoccupants of the vehicle stopped by the police had convictions for property offendingand Mr Tamiefuna was on parole. DS Bunting discovered this shortly after he stoppedthe vehicle. Further, DS Bunting gave evidence that he found it suspicious that therewas a women's handbag and four car batteries inside the car.[91] But it is significant that there was no evidence that those suspicions were everinvestigated: any suspicion there might have been was plainly insufficient to promptany subsequent action. And, as already noted, the police were not engaged ininvestigating any alleged offending by Mr Tamiefuna at the time they took hisphotograph.87 Given that, the taking and retention of the photographs was an intrusionon Mr Tamiefuna's privacy that was inconsistent with his reasonable expectations, onthe approach outlined by Laws LJ in Wood. And on the approach of the majority inWood, that intrusion was not proportionate even if there was a (transient) lawenforcement purpose for the initial taking of the photographs.[92] Of relevance too are cases in which the European Court of Human Rights hasemphasised the importance of limiting the period for which electronic data aboutindividuals is retained. In Catt v United Kingdom, the Court accepted that althoughthe police may have been justified in collecting the relevant data about Mr Catt (whichlargely comprised written reports as to his presence at various protests, some of whichdescribed his appearance), there was no pressing need for its retention.88 It observed:89 in the absence of any rules setting a definitive maximum time limit on theretention of such data the applicant was entirely reliant on the diligentapplication of the highly flexible safeguards in the [code of practice on themanagement of police information] to ensure the proportionate retention ofhis data. Where the state chooses to put in place such a system, the necessityof the effective procedural safeguards becomes decisive Those safeguardsmust enable the deletion of any such data, once its continued retentionbecomes disproportionate.87 High Court conviction judgment, above n 1, at [50].88 Catt v United Kingdom ECHR 43514/15, 24 January 2019. The data was stored in a databasemaintained by the police which had no statutory foundation and was based on common law powersto obtain and store information said to be of likely assistance to the police in carrying out theirfunctions. It was however subject to the Data Protection Act 1998 (UK) and to administrativecodes of conduct issued under the Police Act 1996 (UK).89 At [119].[93] It is also appropriate to refer to Gaughran v United Kingdom,90 in which theapplicant, who had been convicted of a minor offence in Northern Ireland, complainedabout the taking and indefinite retention of his DNA profile, fingerprints andphotograph by the police. Relevantly, the European Court noted that it was "somewhatnovel" from the perspective of its case law to find that the retention and use ofphotographs taken on arrest by law enforcement authorities amounted to a prima facieviolation of an applicant's art 8 rights.91 However, it also referred to the need to "havedue regard to the specific context in which the information at issue has been recordedand retained, the nature of the records, the way in which these records are used andprocessed and the results that might be obtained".92 As such, it held:93In the present case, given that the applicant's custody photograph was takenon his arrest and will be held indefinitely on a local database for use by thepolice and that the police may also apply facial recognition and facialmapping techniques to the photograph, the Court has no doubt that the takingand retention of the applicant's photograph amounts to an interference withhis right to private life within the meaning of Article 8 § 1.[94] The Court went on to find that the rights limitation was unjustified. Retentionhad to be justified in light of its purpose, being to assist in the identification of futureoffenders. The Court rejected the Government's argument that the more data retained,the more crime prevented: "accepting such an argument in the context of a scheme ofindefinite retention would in practice be tantamount to justifying the storage ofinformation on the whole population and their deceased relatives, which would mostdefinitely be excessive and irrelevant".94 The Government's scheme of data retentionwas "indiscriminate": it resulted in the indefinite retention of the data of offenders,even in circumstances where their convictions were spent, "without reference to theseriousness of the offence or the need for indefinite retention and in the absence of anyreal possibility of review".95 That failed to strike the right balance between thecompeting public and private interests.9690 Gaughran v United Kingdom ECHR 45245/15, 13 February 2020.91 At [65].92 At [70].93 At [70].94 At [89].95 At [96].96 At [96].[95] It is interesting to note that ss 34 and 34A of the Policing Act provide the kindof definitive safeguard that the European Court found to be lacking in the Englishsystem that it reviewed in Catt. They require identifying particulars to be destroyed ifproceedings are not commenced or, having been commenced and concluded, theoffence has not been established. Indefinite retention of the kind criticised inGaughran is not contemplated by the New Zealand statute unless the offence for whichparticulars were taken results in proceedings which are completed with an outcomespecified in s 34A.[96] More importantly, however, the statutory regime does not authorise theretention of photographs taken in circumstances where the police have suspicions butdecide not to commence a prosecution in respect of the circumstances giving rise tothe taking of the photograph. While the present facts do not disclose a "decision" notto prosecute, that can be inferred.[97] For all these reasons we have concluded that the taking and retention of thephotographs was not lawful because it was not authorised by statute. It also breachedMr Tamiefuna's right to be secure against unreasonable search and seizure protectedunder s 21 of the Bill of Rights Act.Improperly obtained evidence[98] The retention of the images subsequently enabled the police to draw a matchwith the clothing worn by Mr Tamiefuna on the night of the robbery and afterwards atthe service station. They were therefore crucial evidence linking him to the aggravatedrobbery of Mr Lim. They were strongly influential in the Judge's reasoning findingMr Tamiefuna guilty.[99] Our conclusion that the evidence was obtained as a result of an unreasonablesearch and seizure means that it was improperly obtained for the purpose of s 30 ofthe Evidence Act. This follows from s 30(5)(a) of the Evidence Act, which providesthat evidence is improperly obtained if obtained in consequence of a breach of anyenactment or rule of law by a person to whom s 3 of the Bill of Rights Act applies.That requires us on appeal to consider whether the evidence should have beenexcluded under s 30(2)(b) of the Evidence Act, on the basis that exclusion would beproportionate to the impropriety. The proportionality assessment involves, unders 30(2)(b), giving "appropriate weight to the impropriety" while taking "properaccount of the need for an effective and credible system of justice". It is to be informedby the matters set out in s 30(3), namely:(a) the importance of any right breached by the impropriety andthe seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it wasdeliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d) the seriousness of the offence with which the defendant ischarged:(e) whether there were any other investigatory techniques notinvolving any breach of the rights that were known to beavailable but were not used:(f) whether there are alternative remedies to exclusion of theevidence that can adequately provide redress to the defendant:(g) whether the impropriety was necessary to avoid apprehendedphysical danger to the Police or others:(h) whether there was any urgency in obtaining the improperlyobtained evidence.[100] Of those considerations, paras (a)–(d) are most relevant. As to para (a), weconsider the right breached to be an important one. The random use of photographyby police justified by the fact that an image obtained might subsequently be useful isnot appropriate unless a particular crime is being investigated. Having said that, wewould not characterise the intrusion on Mr Tamiefuna's right as a very serious one; aswe have noted above, the facts that the photographs were taken in public and withoutobjection moderate the intrusion on privacy interests.97[101] Turning to para (b) we think it likely that DS Bunting would not have beenaware that he was breaching Mr Tamiefuna's rights, and we would not characterise theimpropriety involved as deliberate, reckless or done in bad faith. A different97 Above at [70].conclusion might in future be justified if police continue to take photographs ofpersons in circumstances not properly authorised by law.[102] In terms of para (c), the evidence was real and important and led toMr Tamiefuna's conviction for a serious offence (relevant under para (d)).The evidence was also clearly central to the Crown's case; reliance on photographywas far superior to memory with respect to what Mr Tamiefuna was wearing on thenight. We see little room for the application of paras (e)–(h) of s 30(3) in thecircumstances of this case.[103] The need for an effective and credible system of justice is not a considerationthat invariably favours the admission of improperly obtained evidence, but it clearlydoes so here given our conclusions about the seriousness of the intrusion and the natureof the impropriety.[104] For these reasons, we are satisfied that the evidence should not have beenexcluded. There is no doubt that if the evidence was admissible, Mr Tamiefuna wasproperly convicted, and the conviction appeal must be dismissed accordingly.The sentence appeal[105] Davison J sentenced Mr Tamiefuna to a term of imprisonment of four yearsand 11 months.98 In doing so he took a starting point of six years' imprisonment andapplied an uplift of 12 months to reflect Mr Tamiefuna's previous convictions.99He then applied discounts for personal mitigating factors (15 per cent), steps taken toreduce trial duration and save court resources (10 per cent), and remorse and prospectsof rehabilitation (five per cent). These discounts, totalling 30 per cent on the adjustedstarting point resulted in the sentence of four years and 11 months' imprisonment.100[106] Because Mr Tamiefuna was to be sentenced for a stage-2 offence under s 86Cof the Sentencing Act (part of what has become known as the "three strikes"98 High Court sentencing notes, above n 2, at [52].99 At [42] and [44].100 At [45]–[48].sentencing regime), the Judge felt obliged by s 86C(4)(a) to order that he serve thesentence without parole.101[107] The sentence appeal is advanced on the basis that the Judge gave an inadequatediscount for personal and cultural factors. Ms Gray submitted that a more appropriatediscount would have been in the region of 25 to 30 per cent, as opposed to the15 per cent allowed. The second ground of the sentence appeal focuses on the ordermade under s 86C(4), and is advanced on the basis discussed in this Court's judgmentin Matara v R.102[108] We note that the sentence appeal was out of time by nearly two months. TheCrown did not oppose extension of the time for appeal and we accordingly grant it.Discount for personal and cultural factors[109] Mr Tamiefuna did not cooperate so as to enable a pre-sentence report to beprovided, but the Judge had the benefit of a report prepared under s 27 of theSentencing Act for sentencing in the District Court for unrelated offending. Thisreport recorded that Mr Tamiefuna had been cared for by foster parents as a youngperson. An attempt to establish a relationship with his biological mother wasunsuccessful; he never knew his father. His foster father introduced Mr Tamiefuna tocannabis at the age of 13 and he became a regular consumer of alcohol from the ageof 16. He used methamphetamine when introduced to it by his ex-partner. His alcoholuse increased after his only brother died unexpectedly in 2013, and this wasexacerbated by the death of his foster father later the same year. At the age of 16Mr Tamiefuna joined the Crips gang, which became what the Judge described as asubstitute family. A life of crime seems to have followed in accordance with acommon pattern, with the result, as the Judge put it, that Mr Tamiefuna becameinstitutionalised in the prison system.103 Aged 28, he had an extensive list of previousconvictions, including three for aggravated robbery, and one for burglary.101 At [49].102 Matara v R [2021] NZCA 692.103 High Court sentencing notes, above n 2, at [45].[110] Ms Gray submitted that Mr Tamiefuna's mitigating personal circumstanceswere as significant as those in Solicitor-General v Heta where a discount of 30 per centhad been allowed.104 She contended that the discount of only 15 per cent was too lowand a discount within the range of 25–30 per cent should have been allowed.[111] Ms Becroft for the Crown acknowledged that Mr Tamiefuna has had anupbringing that is coloured by cultural alienation, family neglect and trauma, and drugand alcohol abuse. But she submitted that the discount given was within range.[112] For our part we do not accept that the array of factors to which Mr Tamiefunacould point were as serious as those discussed in Heta, and we do not consider that theJudge's approach can be said to be wrong. While other judges might have allowed agreater discount, we agree with Ms Becroft that the Judge's approach, subject to whatwe say below, did not result in a sentence that was excessive. We are not persuadedby this ground of appeal.Disproportionality[113] The second ground of the sentence appeal rests on the order made by the Judgethat Mr Tamiefuna serve the sentence of four years and 11 months' imprisonmentwithout parole, in accordance with s 86C(4) of the Sentencing Act. Here Ms Grayrelied principally on this Court's judgment in Matara v R in which the Court appliedan analysis to second strike offences similar to that carried out by the Supreme Courtin Fitzgerald v R in respect of third strike offences.105 The object is to ensure thatsentencing does not result in a sentence that is disproportionately severe in breach ofs 9 of the Bill of Rights Act.[114] Mr Fitzgerald was convicted of a low-level indecent assault, which would nothave attracted a term of imprisonment without aggravating circumstances relating tothe offender.106 However, because it was a third strike offence, the Judge felt obligedto impose the seven year maximum term of imprisonment in accordance with s 86D104 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.105 Matara v R, above n 102, applying Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.106 R v Fitzgerald [2018] NZHC 1015 at [21].of the Sentencing Act.107 The Supreme Court held that this was disproportionatelysevere in breach of s 9.108 The majority held that it was necessary and possible tointerpret s 86D(2) so that it did not require the imposition of sentences with thatconsequence.109[115] In Matara, this Court held that a similar approach was appropriate for secondstrike offending. The Court said:110[59] The reasoning of the Supreme Court in relation to third strikesentencing in Fitzgerald is equally applicable to second strike sentencing.There is no express provision in s 86C, or elsewhere in the three strikesregime, to require that Judges impose sentences inconsistent with s 9 ofNZBORA. The interpretive direction in s 6 of NZBORA, the principle oflegality, and the presumption of consistency with international obligations allapply with equal force in relation to s 86C(4). Very clear language would beneeded before reading s 86C as a direction by Parliament to the judicial branchthat it should impose sentences inconsistent with NZBORA, and withNew Zealand's international obligations. In the absence of such language,s 86C(4) should not be read as requiring the judicial branch to impose suchsentences.[116] This meant that s 86C(4) is to be read subject to an unexpressed qualificationthat an order should not be made under it if to do so would be inconsistent with s 9 ofthe Bill of Rights Act. This is a high threshold, that has been expressed as requiringtreatment "so excessive as to outrage contemporary standards of decency", or"treatment grossly disproportionate to the circumstances or such as to shock thenational conscience".111 In that case the consequence of the order was to requireMr Matara to serve a sentence of 10 years and two months' imprisonment withoutparole, when the sentencing Judge held that, but for s 86C(4), a non-parole period of40 per cent would have been imposed. The Court considered that the additional sixyears of non-eligibility for parole, not rationally connected to any of the relevantsentencing principles in the Sentencing Act, constituted a grossly disproportionateoutcome.112107 At [17].108 Fitzgerald v R, above n 105, at [79]–[81] per Winkelmann CJ, [167] per O'Regan and Arnold JJ,[239] per Glazebrook J and [283] per William Young J.109 At [139] per Winkelmann CJ, [219] per O'Regan and Arnold JJ and [250] per Glazebrook J.110 Matara v R, above n 102.111 At [72], citing Fitzgerald v R, above n 105, at [163]–[166] per O'Regan and Arnold JJ, referringto the approaches adopted by the Supreme Court in Taunoa v Attorney-General [2007] NZSC 70,[2008] 1 NZLR 429 at [91]–[92] per Elias CJ, [176] per Blanchard J and [288] per Tipping J.112 At [75].[117] In the present case, the Judge said that, were it not for the provisions of s 86Cof the Sentencing Act, he would not have imposed a minimum term ofimprisonment.113 That would have meant Mr Tamiefuna would have been eligible tobe considered for parole after serving the standard period of one third of the sentenceof imprisonment. This would have meant he was eligible for parole after serving alittle under 20 months. Instead, he is obliged to serve the full sentence of 59 months,an effective tripling of the time required to be spent in prison. In Matara the effect ofthe s 86C(4) order was to increase the length of time before parole eligibility by about150 per cent, and this was considered grossly disproportionate. Here the difference isjust shy of 200 per cent.[118] Ms Brook conceded that the result was severe, but argued it was notdisproportionately so. She highlighted the absence of mental health considerations inthis case such as those which were influential in Fitzgerald and Matara. She alsopointed to Mr Tamiefuna's first strike offence, also an aggravated robbery, as beingserious. Mr Tamiefuna was also not someone who had been "inadvertently captured"by the three strikes regime; he had many previous convictions, including for two otheraggravated robberies he committed before the enactment of the three strikes regime.[119] Since the Supreme Court's decision in Fitzgerald, this Court has on a numberof occasions considered appeals claiming that sentences imposed under the threestrikes regime breached s 9 of the Bill of Rights Act.114 We summarised the recentcase law of this Court in our decision in Allen v R.115 Of particular relevance here isthe decision in Crowley-Lewis v R.116 In that case, the appellant was sentenced tonine years' imprisonment without parole for a representative charge of rape.This Court quashed that sentence, together with the order that the appellant serve itwithout parole, and resentenced the appellant to eight years and six months'imprisonment with a minimum period of imprisonment of four years and three months.It found that requiring the appellant to serve the full term of imprisonment —113 High Court sentencing notes, above n 2, at [50].114 Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661; Mitai-Ngatai v R [2021] NZCA 695;Crowley-Lewis v R [2022] NZCA 235; Sheers v R [2022] NZCA 618; Love v R [2022] NZCA 614;and Allen v R [2022] NZCA 630.115 Allen v R, above n 114, at [21], [27] and [30].116 Crowley-Lewis v R, above n 114.involving a 100 per cent increase in the length of time before parole eligibility —would be disproportionate and would breach of s 9 of the Bill of Rights Act. Thedisproportionality which was of concern to this Court in that case was less than ispresent in respect of Mr Tamiefuna's sentence.[120] Aside from his drug and alcohol issues, we accept Mr Tamiefuna has not beendiagnosed with any mental health issues, which were an important consideration inFitzgerald and Matara. However, there was also no suggestion that the appellant inCrowley-Lewis had been diagnosed with any mental health issues. The absence ofsuch issues is not decisive to the s 9 inquiry. It is nevertheless the case thatMr Tamiefuna came from a disadvantaged background which contributed to hisoffending. His background demonstrates the importance of him being able to accessrehabilitative support, a consideration that the Judge emphasised in allowing afive per cent reduction to encourage him to continue to develop insights into andunderstanding of the reasons for his offending. Those insights had been reflected in aletter written to the Court at the time of sentencing. That sort of outcome would behampered by the maintenance of the non-parole order.[121] In sum, the disparity between the sentence resulting from the s 86C(4) order isso great that we are satisfied the sentence was disproportionately severe. We add thatthis conclusion implies no criticism of the Judge who sentenced Mr Tamiefuna priorto this Court's decision in Matara.Result[122] The appeal against conviction is dismissed.[123] The application to extend the time for bringing the sentence appeal is granted.[124] The sentence appeal is allowed to the extent that the order made pursuant tos 86C(4)(a) of the Sentencing Act is set aside. The sentence of four years and11 months' imprisonment remains in place.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent