R (CA201/2015) v R CA201/2015 [2015] NZCA 165

R (CA201/2015) v R CA201/2015 [2015] NZCA 165 [13 May 2015]NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS ANDIDENTIFYING PARTICULARS OF APPELLANT UNTIL FINALDISPOSITION OF THE TRIAL PURSUANT TO S 200 CRIMINALPROCEDURE ACT 2011 REMAINS IN PLACE.ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA201/2015[2015] NZCA 165BETWEEN R (CA201/2015)AppellantAND THE QUEENRespondentHearing: 22 April 2015Court: Wild, Clifford and Dobson JJCounsel: C B Wilkinson-Smith for AppellantJ C Pike QC for RespondentJudgment: 22 April 2015 at 4.20 pmReasons: 13 May 2015JUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] The appellant is charged with murder and sexual violation. This is an appeal from a pre-trial decision of Winkelmann J ruling admissible evidence comprisingglobal positioning system (GPS) data detailing the appellant's whereabouts at the time of the alleged offending, and other evidence which depended on the police having access to that GPS data.1[2] The appeal was heard as a matter of urgency as the trial was due to commence on Tuesday, 28 April 2015. At the conclusion of the hearing, this Court granted the application for leave to appeal but dismissed the appeal.2 We now give our reasons for doing so.Factual background[3] The appellant was released from prison in December 2013, having served the full term of an eight-year sentence for the abduction of, and serious sexual offending against, a girl under the age of 12. On 25 October 2013, the Parole Board (the Board) imposed 13 special release conditions on the appellant. One condition required electronic monitoring, in the form of a GPS device to be attached to his body. Those release conditions were to expire in June 2014, six months after his release date: s 18(2)(b) of the Parole Act 2002.3[4] On 24 May 2014 at approximately 7.40 pm, the victim in the alleged offending, Ms Gotingco, went missing after getting off a bus in Birkdale on the1 R v R [2015] NZHC 713.2 R (CA201/2015) v R [2015] NZCA 132.3 On 19 February 2014, the High Court granted an extended supervision order (ESO), the terms of which were to commence from the expiry of the special conditions on 15 June 2014. The existence of the ESO is not directly relevant to the issues in the appeal.North Shore of Auckland. Detective Constable Cooper, a police officer involved in the inquiries in relation to Ms Gotingco's abduction, was aware of the appellant'scriminal history and that he was living in the area. On 26 May 2014, in the course of inquiries, Detective Constable Cooper contacted Mr King, the Department ofCorrections (Corrections) officer whom he knew to be monitoring the appellant'scompliance with his release conditions, to ascertain the appellant's whereabouts atthe time of Ms Gotingco's disappearance. Detective Constable Cooper hadpreviously made a similar inquiry of Mr King in the course of investigating an unrelated complaint. On that occasion he had been able to exclude the appellant from his inquiries on the basis of the information Mr King provided. Detective Constable Cooper anticipated Mr King would, as before, access the GPS datarecords to reconstruct the appellant's location at the relevant time.[5] The GPS data confirmed the appellant had been in the area from which Ms Gotingco had disappeared. Further police requests for more detailed analysis of the GPS data revealed the appellant had visited a cemetery in the area early the following morning. The GPS data of the appellant's movements in the cemetery ledthe police to the location of Ms Gotingco's body. A warrant was obtained, and a search conducted of the appellant's house. A substantial amount of blood was found.The appellant was arrested and charged a short time later.[6] The Crown applied for an order under s 101 of the Criminal Procedure Act 2011 declaring relevant evidence admissible. The application related first to the GPS data from the 14-hour period between 5 pm on 24 May 2014 and 7 am on 25 May 2014, and secondly to evidence subsequently obtained when the appellant's housewas searched.[7] In the High Court, the appellant said the Board had breached his rights to natural justice, first by failing to ensure he had legal representation at the hearing, and secondly in failing to provide adequate reasons for its decision. He also argued the way in which the police obtained the GPS data constituted an unlawful search,and the evidence obtained when the house was searched was "fruit of the poisonoustree". We address each of these issues in turn.Should the Parole Board have ensured the appellant was legally represented?[8] In the High Court, the appellant argued the Board was obliged, as a matter of proper process and out of respect for the requirements of natural justice, to ensure he was legally represented at the hearing regarding his post-release conditions. He submitted s 27 of the New Zealand Bill of Rights Act 1990 (BORA) required the Board to observe the principles of natural justice, which extended to ensuring representation when conditions as restrictive or intrusive as those being considered by the Board might be imposed.[9] Applying Drew v Attorney-General, the Judge treated the hearing as an occasion on which the appellant was not entitled to legal representation as of right.4The Board had a discretion as to whether representation was appropriate in the particular circumstances. The Judge considered the issues to be determined in this case, although serious, were not of the most serious type. The prospect of conditions such as a curfew and GPS monitoring were raised in a report to the Board to which the appellant had access prior to the hearing. In that sense, the Judge found the hearing was very straightforward, with the appellant indicating he was content with most of the conditions that had been proposed. On a consideration of the transcriptof the hearing, the Judge was satisfied the appellant was a "person well able to articulate the basis for his concerns".5 Accordingly, the Judge found no breach ofnatural justice in the Board's failure to adjourn the hearing to enable the appellant tohave legal representation.[10] The appellant's written submissions on the appeal did not challenge this aspect of the Judge's reasoning in any detail.[11] On the basis of Drew, and of all the materials before the Judge we aresatisfied she was right to find that the Board's failure to adjourn to enable legalrepresentation for the appellant did not amount to a breach of natural justice.4 At [17]–[20]; Drew v Attorney-General [2002] 1 NZLR 58 (CA), citing R v Secretary of State for the Home Office, ex parte Tarrant [1985] QB 251.5 R v R, above n 1, at [23].Does the absence of reasons for the Parole Board decision constitute a breach of natural justice?[12] The Board's jurisdiction to impose special post-release conditions on a person who has served the full term of a long-term sentence of imprisonment is provided for in s 18(2)(b) of the Parole Act. Section 15(2) of that Act provides:A special condition must not be imposed unless it is designed to—(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of the offender; or(c) provide for the reasonable concerns of victims of the offender; or(d) comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under section 107IAC, to impose an intensive monitoring condition.[13] In such decision-making, the Board is subject to the guiding principles in s 7. The paramount consideration in every case is the safety of the community.6[14] The Board is obliged to provide reasons for the imposition of conditions: s 116(3). Its 25 October 2014 decision records some background matters and elaborates on the special conditions being imposed. No reasons are recorded. The only potentially relevant comment is:[The appellant] has been through the conditions with the Board and apart from indicating that he was uncomfortable about the idea of the GPS monitoring system and having to undergo a drug and alcohol programme, he was in general agreement with the conditions.[15] In the High Court, the Crown submitted the Judge should take Corrections'Parole Assessment Report to the Board, on which the special conditions were based, into account in considering whether adequate reasons were given. On the prospect of GPS monitoring, the report to the Board included (under the standard heading"Issues Related to Victim(s)"):CPS [Community Probation Services] recommends that the New Zealand Parole Board (NZPD) consider Global Positioning System (GPS). GPSprovides CPS the ability to monitor the offender's compliance with the6 Parole Act 2002, s 7(1).whereabouts condition(s). This will also help mitigate an offender's risk inthe community.[16] The Judge accepted that adequate reasons could be brief, but held they had to provide an outline of why the Board considered the conditions imposed, and their duration, were necessary. This had to include reference to the s 15(2) considerations. Her Honour found the Board had not provided such reasons.7 The report referred to the conditions to be imposed and the specific provisions authorising such conditions, but not the reasons for those conditions.[17] Before us, Mr Pike QC characterised the Judge's finding that the absence of reasons constituted a breach of natural justice as a "generous" one. Mr Pike did not dispute the requirement for reasons, but emphasised that what is adequate will always be context-specific. He argued there was no causative link between the absence of reasons and the use subsequently made of the data collected from the GPS device. Mr Pike suggested if the absence of reasons had caused no prejudice to the appellant, then it would be artificial to characterise that absence of reasons as a breach of the rules of natural justice that might qualify him for a remedy in subsequent unrelated criminal proceedings.[18] We agree with the Judge that the Board's lack of reasons is appropriately treated as a breach of natural justice. Given the statutory pre-conditions to the imposition of special post-release conditions, and the need to give reasons in writing, the Board need not provide extensive reasons, but it is required to do more than simply refer to those conditions or conclude they have been satisfied.[19] The lack of causative connection and the context for the Board's decision arematters relevant to assessing the consequences of the finding that the rules of natural justice have not been complied with. Those matters do not address that finding itself.7 At [38].Did provision of the GPS data to the police involve a "search"?[20] Winkelmann J heard evidence in the pre-trial hearing from police and probation personnel, and reviewed her findings on the circumstances in which the GPS data was released by Corrections to the police in some detail.8Mr Wilkinson-Smith did not dispute those factual findings. They can be summarised as follows: As part of Detective Constable Cooper's work on the police investigation into the disappearance of Ms Gotingco, he thought of the appellant as a potential suspect two days after her disappearance. Detective ConstableCooper's concern was for Ms Gotingco's safety but he also thought that ifthe appellant had been involved, he had an obligation to protect the public from him. When Detective Constable Cooper first contacted Mr King, Mr King did not consider the appellant as a likely suspect in the abduction because Ms Gotingco had different characteristics from the appellant's previousvictim. Despite that, Mr King sought details of the appellant'swhereabouts based on the information to which he had access. The nine locations that inquiry provided could not exclude the appellant from involvement. Mr King so advised Detective Constable Cooper, and sought more detailed information from the Wellington-based GPS monitoring team. That information placed the appellant on the street where Ms Gotingco had gone missing, at about the time she had disappeared. Mr King was concerned for Ms Gotingco's safety. He asked the GPS monitoring personnel for information about the appellant's movements as quickly as possible. He informed his district manager of the police'sbelief the appellant might have been responsible for Ms Gotingco'sdisappearance.8 R v R, above n 1, at [49]–[59]. The district manager authorised Mr King to provide any and all support to the police. Once the GPS monitoring team provided him with the tracking data, he immediately forwarded it to Detective Constable Cooper, in the belief that time was critical. Thereafter, Detective Constable Cooper dealt directly with the GPS monitoring team. Successively more detailed information was providedas to the time and location of the appellant's movements. Those detailswere critical in the police locating Ms Gotingco's body in the EskdaleCemetery, and were also relied on in obtaining the warrant to search theappellant's home.[21] In the High Court, the appellant argued the way that police obtained and used the GPS data breached his right under s 21 of BORA to be free from unreasonable search and seizure. That involved contentions that the requests by the police for GPS data, and the provision of the data by Corrections, constituted a search, and that such a search was unreasonable in that it was not authorised.[22] The Crown submitted s 15A of the Parole Act contemplated the retention of GPS data, and its use in circumstances such as the present. That section provides:15A Electronic monitoring(1) The purpose of an electronic monitoring condition imposed under section 15(3)(f) is to deter the offender from breaching conditions that relate to his or her whereabouts, and to monitor compliance with those conditions.(2) For the purposes of the Privacy Act 1993, information about an offender that is obtained through electronic monitoring may be used both for the purposes referred to in subsection (1) and for the following purposes:(a) to verify compliance with any release conditions or conditions of an extended supervision order:(b) to detect non-compliance with any conditions and the commission of offences:(c) to provide evidence of non-compliance with conditions and the commission of offences:(d) to verify that the offender has not tampered or otherwise interfered with the ability of the electronic monitoring equipment to operate effectively and accurately.(3) To avoid doubt, an offender who is subject to an electronic monitoring condition may be required to have equipment attached to his or her body.(4) The annual report of the Department of Corrections must include the following information about the use of electronic monitoring in the year reported on:(a) the number of offenders who were at any time subject to an electronic monitoring condition:(b) the average number of offenders who were subject to an electronic monitoring condition and the average duration of the condition:(c) the percentage of offenders who, while subject to an electronic monitoring condition attaching to an extended supervision order, were—(i) convicted for a breach of the condition; or(ii) convicted of any other offence:(d) a description of processes and systems relating to electronic monitoring that were in place during the year reported on.[23] Winkelmann J adopted Blanchard J's definition of "search" from theSupreme Court decision in Hamed v R:9If the Police activity invades a reasonable expectation of privacy, then the activity is a search.[24] She concluded the appellant could not have had a reasonable expectation of privacy in respect of the GPS data. Therefore the circumstances in which it was conveyed to the police did not constitute a search.[25] Mr Wilkinson-Smith's argument, repeated on appeal, was that s 15A(1) confined the purpose of electronic monitoring to monitoring compliance with conditions imposed on a released prisoner, and deterring an offender from breaching any conditions that related to his or her whereabouts. It followed, he said, that the references in subs 2(b) and (c) to detecting and providing evidence of the9 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [163], citing R v Wise [1992] 1 SCR 527 at 533.commission of offences were only to offences that constituted a breach of release conditions.[26] He submitted if that interpretation did not arise on the wording of the section, it was an alternative the Court should adopt in order to achieve a BORA-consistent interpretation of s 15A(2).[27] Addressing the fact the section treats as separate concepts "non-compliancewith conditions" and "the commission of offences", Mr Wilkinson-Smith submitted this was necessary to address the different consequences for parolees liable to recall on the one hand, and prisoners who were subject to release conditions after serving their full term. Non-compliance with conditions applies primarily to a parolee liable to recall. However, prisoners who have completed their sentences cannot be recalled for breach of post-release conditions, and can only be prosecuted for the offence of breaching their release conditions.[28] The Judge held that the references to "commission of offences" in s 15A(2) encompass any offences, not just those involved in a breach of release conditions. It followed that information about an offender obtained through electronic monitoring could be used for detecting the commission of any offences and providing evidence in relation to the commission of any offences.[29] We agree. As already noted, s 15(2) provides special conditions may only be imposed where they are designed to reduce the risk of re-offending, to facilitate or promote rehabilitation and re-integration (which itself involves addressing the risk of re-offending) or to provide for the reasonable concerns of victims. The proposition that a released person subject to such conditions has some expectation of privacy that means information generated by GPS monitoring may only be used to prevent and/or detect breaches of the special post-release conditions themselves, cannot, in our view, be maintained. Given that the purpose of electronic monitoring is to deter an offender from breaching conditions that relate to his or her whereabouts, and that those conditions are in turn more generally to protect the community and reduce the risk of re-offending, it follows that the overall purpose of an electronic monitoring condition is likewise. The references in s 15A(2) to detecting the commission ofoffences and providing evidence of the commission of offences are, therefore, necessarily references to offences generally, rather than merely offences constituting non-compliance with conditions.[30] Further, there is no basis for attributing to Parliament an intention to limit the scope of offences to those arising out of non-compliance with release conditions. If Parliament had intended to confine the categories of offences for which information gathered from a GPS device might be used, then Parliament would have made that constraint explicit in the terms of s 15(2)(b) and (c).[31] The terms of s 15A(4)(c) support our interpretation. That paragraph deals with released prisoners who are subject to electronic monitoring as a condition of an extended supervision order. It requires Corrections in its annual report to include data on the percentage of such offenders subject to electronic monitoring who areconvicted for either a breach of their release conditions or "any other offence". There is no tenable basis for interpreting the words "any other offence" to mean anything other than what they say.[32] Mr Wilkinson-Smith's argument that references to both non-compliance with release conditions and commission of offences were needed is undermined by the point that parolees liable to recall may still be charged with offences unrelated to their release conditions.10[33] It follows that a person subject to a post-release condition of GPS monitoring does not have a privacy expectation, for the purpose of the Hamed search analysis, in the data that monitoring generates in the context of the prevention or detection of offences. Subsections 15A(1) and (2) are explicit confirmation of that. Further, the Privacy Act 2003 recognises an exception to expectations of privacy in personalinformation where the information is shared "to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection,investigation, prosecution, and punishment of offences".1110 Parole Act 2002, ss 61(c) and 71.11 Privacy Act 2003, s 6 (Principle 11(e)(i)).[34] That being the law, the actions of police and Corrections did not constitute a search. Rather, they constituted a use of information for the very purpose for which it had been lawfully collected.[35] However, Winkelmann J suggested the police may not be justified in resorting to this means of obtaining information without a warrant in other circumstances where there is not the same degree of risk or urgency. Again, weagree with the Judge's analysis.Should the evidence be excluded under s 30?[36] In addressing the matters set out in s 30(3) of the Evidence Act 2006, the Judge made the following points:12 There was an overwhelming case for the imposition and duration of the conditions. This was supported by the fact an extended supervision order had subsequently been granted. The appellant could not claim to have been prejudiced by the absence of reasons, in that any fresh consideration would inevitably have resulted in imposition of the same conditions. There was no bad faith in the Board's error: the Judge found it quitelikely that the Board saw its decision as being made in the context of the broader processes surrounding the appellant, including the relevant report, and alongside its other decisions. The evidence obtained was inherently reliable. The evidence was critical in linking the appellant's movements to thelocation of Ms Gotingco's disappearance and the location where her bodywas found.12 At [81]–[86]. The evidence was to be adduced in prosecuting the most serious of charges.[37] The Judge found the balance fell heavily in favour of the admission of the evidence. We agree. To the extent it is not implicit in the factors cited by the Judge,we would add the lack of any causative link between the breach of the appellant'sentitlement to reasons and the prejudice to his defence of the charges he now faces.13As Mr Pike emphasised, any deficiency in the process by which the relevant condition came to be imposed cannot affect the validity or reliability of the evidence at issue. We also note the urgency in obtaining the GPS evidence in order to avoid danger to Ms Gotingco: s 30(3)(g)–(h). On a continuum of seriousness of impropriety in obtaining evidence, this is at the most benign end.Result[38] For all these reasons, we granted the application for leave to appeal, but dismissed the appeal.[39] For fair trial reasons, we make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent13 Compare R v Williams [2007] NZCA 52.