R (CA89/2018) v R [2019] NZCA 176

R (CA89/2018) v R [2019] NZCA 176 [23 May 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA89/2018[2019] NZCA 176BETWEEN R (CA89/2018)ApplicantAND THE QUEENRespondentCourt: Asher, Brewer and Thomas JJCounsel: S J Gray for ApplicantJ E L Carruthers for RespondentJudgment:(On the papers)23 May 2019 at 9 amJUDGMENT OF THE COURT(APPLICATION TO REOPEN JUDGMENT)A The application for leave to reopen the appeal is granted.B The reopened appeal will be heard by a fresh panel of this Court.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] The applicant has applied for leave to reopen his appeal against his convictionfor sexual offending against the complainant, his daughter, dismissed by us in our 2018judgment.1Background[2] The applicant was found guilty by a jury of indecently assaulting and sexuallyviolating his daughter, then aged 12, in September 2015. Integral to his daughter'sevidence were allegations the applicant had shown her videos on his cell phone froma pornographic website (Pornhub). The cell phone was seized by the police inFebruary 2016 and subject to various examinations.[3] The issues on appeal included the admissibility of the evidence the policeobtained from the cell phone, in particular whether the internet history, whichsupported the complainant's allegations, could have been created by a Google Chromesynchronisation event that occurred while the cell phone was in police custody.2[4] The evidence at trial was that, although the police had attempted on a numberof occasions to review the internet history on the cell phone, it was only in August2017, when the cell phone was being forensically examined by the police expert, thatan unexpected event occurred, resulting in synchronisation. On that day, the Crownexpert discovered additional data on the applicant's cell phone showing a search for"maturbation" on YouTube at 11.28 am and other searches on Pornhub at 11.16 pm,both on the day of the alleged offending.[5] The Crown case was that the evidence from the cell phone supported and wasconsistent with the complainant's evidence, acknowledging that the full internethistory was not available.[6] It now transpires that it is highly likely that an earlier synchronisation eventoccurred on 8 March 2017 when the cell phone was in police custody and a Detectivetried to use his personal hotspot to connect the cell phone to the internet (theundisclosed evidence). This was apparently known to the Crown expert prior to trial1 R (CA89/2018) v R [2018] NZCA 341.2 At [20].but the defence expert was unaware of it. It was also known to Crown counsel inadvance of the appeal but he did not appreciate the significance of it and did not informMs Gray who acted for the applicant. Crown counsel responsibly brought this to theattention of Ms Gray following the release of our 2018 judgment.[7] The experts have provided a joint memorandum addressing the significance ofthe undisclosed evidence, including relevantly:(a) It is highly likely the cell phone was connected to the internet on8 March 2017.(b) The cell phone was set to automatically synchronise. It was highlylikely the cell phone synchronised on 8 March 2017. The experts areunable to establish what, if any, data may have been altered.(c) The unexpected synchronisation on 17 August 2017 overwrotethe previous synchronisation date and time.[8] The experts appear to disagree on the significance of this. The Crown expertappears to remain of the view that the key word search in the YouTube application("maturbation") was created on the cell phone at 11.28 am on the day of the allegedoffending. The defence expert remains unsure if the search was created on the cellphone or another device in the synchronisation group. Both experts gave evidence tothat effect in the District Court, although of course they were not asked aboutthe impact of a synchronisation event and the Detective's use of the phone when it wasconnected to the internet on 8 March 2017.[9] The defence expert said, had he known of the internet connection inMarch 2017, he would have strongly recommended all digital evidence from the cellphone not be admitted on the basis it was so tainted as to be unsafe.Jurisdiction[10] The jurisdiction for this Court to reopen appeals is generally known asthe Smith jurisdiction, it having first been discussed in detail in R v Smith.3 In R vSmith, this Court explained its implied power to reopen judgments where a seriouserror of process requires the Court to act to prevent a miscarriage of justice.4[11] This Court will be careful not to undermine the principle of finality, meaningleave will not be granted where an alternative remedy is reasonably available.The jurisdiction is reserved for exceptional cases.5 As this Court explained in R vPalmer:6The principle of finality (which Smith upholds) would be eviscerated if anapplicant can re-open a case simply by relying on arguments (whether entirelynew or abandoned or rejected at a first appeal) which challenge the correctnessof the trial decision.[12] The Court must be satisfied:7(a) there was a fundamental error in procedure;(b) a substantial miscarriage of justice would result if the error is notcorrected; and(c) there is no alternative effective remedy available.[13] The undisclosed evidence was a material omission in the information availableto the applicant and this Court. We accept there was no deliberate omission and itarose as a result of a misunderstanding of the significance of the evidence at issue.The undisclosed evidence was of considerable relevance to the appeal.[14] In any event, the Crown accepts there has been a fundamental error inprocedure. We therefore turn to address the remaining considerations.3 R v Smith [2003] 3 NZLR 617, (2002) 20 CRNZ 124 (CA).4 At [36]–[38], see also McMaster v R [2016] NZCA 612.5 Wong v R [2011] NZCA 563 at [13].6 R v Palmer [2007] NZCA 350 at [10].7 At [8].Miscarriage of justiceAdmissibility of evidence[15] The appeal was essentially run on the basis that the evidence of data found onthe cell phone was inadmissible because the searches exceeded the warrant andthe evidence was factually unreliable. In our appeal judgment, we rejectedthe applicant's submission that police exceeded the authority of the warrant byeffectively searching other devices as a result of the synchronisation event because itcould not be established whether the relevant search history was obtained by thesynchronisation on 17 August 2017 or by an earlier synchronisation that occurred priorto the seizure of the phone. In those circumstances, we noted the difficulties of dealingwith this issue on appeal, in the absence of a pre-trial application challengingthe admissibility of the evidence.8[16] We also rejected the applicant's submission that the police had not dealt withthe cell phone in accordance with best practice and the evidence they obtained wastherefore unreliable, because there was no expert evidence as to best practice andthe admissibility of the evidence was not challenged either prior to trial or at the trialitself.9[17] We accept that the undisclosed evidence was relevant to both those issues, evenwithout evidence as to best practice. Ms Gray, in her submissions, refers to furtherinformation she has uncovered regarding guidelines issued by the New Zealand Policein respect of required practice when seizing electronic equipment. We do not need toconsider this evidence, which may be relevant at any reopened appeal. We can say,even without that evidence, that the fact the applicant's cell phone was connected tothe internet by a police officer when its evidential integrity should obviously have beenpreserved raises an immediate issue about whether appropriate procedures werefollowed, and therefore calls into question the reliability of evidence obtainedsubsequently from that cell phone.8 R (CA89/2018) v R, above n 1, at [29].9 At [42] and [52].[18] The admissibility of the evidence extracted from the cell phone was notchallenged pre-trial. In Ms Gray's submission, had counsel known police connectedthe cell phone with the internet on 8 March 2017, and potentially corruptedthe information on it, the defence would have given serious consideration tochallenging the admissibility of the search history evidence at trial.[19] We accept that submission for the purposes of this application. The fact ofthe connection to the internet on 8 March 2017 would have considerably strengthenedthe grounds of any such challenge. Without knowledge of that fact, the applicant wasunable to make a fully informed decision as to whether or not to challenge theadmissibility of the evidence of data taken from the cell phone. This may well providethe applicant with a justification for not pursuing the admissibility challenge pre-trial,meaning this Court could be more willing to engage in a substantive assessment ofadmissibility on appeal in relation to both the warrant issue and the reliability issue.But was there a substantial miscarriage of justice?[20] The Crown suggests that there is little chance the non-disclosure occasioned amiscarriage of justice because the evidence from the cell phone at trial in fact favouredthe applicant and he exploited that. In support of this submission, the Crown refers tothe fact the available cell phone data did not show the applicant's cell phone hadaccessed Pornhub at midday on the day of the alleged offending, as the complainantclaimed. This, together with the complainant's concession in cross-examination thatshe may in fact have conducted that search, favoured the defence. In the closingaddress to the jury, the Crown prosecutor said it was not the Crown case thatthe applicant was showing the complainant YouTube videos of masturbation atthe time of the alleged offending but the evidence was consistent with the applicant'sstate of mind, being preoccupied with sexual matters, searching for masturbationvideos and later showing her pornographic videos.[21] The defence closing stressed that the applicant's cell phone showed access toYouTube, not Pornhub, at the time in question and submitted that fatally underminedthe complainant's credibility. The defence also emphasised to the jury thatthe complainant could not rule out having undertaken the "maturbation" searchherself.[22] We accept that, given the evidence from the cell phone was admitted at trial,these factors assisted the defence case. As against that, however, the Crown positionwas that whether the applicant had accessed YouTube or Pornhub at the time of theoffending mattered not. The issue was that the evidence from the cell phone showedhe had indeed accessed a pornography site around the time the complainant alleged.[23] In our assessment, the evidence of the 11.28 am search for "maturbation" and11.16 pm access to the Pornhub site strongly corroborated the complainant's allegationthat the applicant showed her pornographic videos on his cell phone prior to instructingher to perform the same behaviour on him. The proximity in time of the "maturbation"search and the alleged offending is a fact the jury would have been unable to ignore,regardless of which internet site was accessed. In our assessment, the jury might wellhave attached little weight to the complainant's concession she herself might haveundertaken the search for "maturbation", coming as it did during cross-examinationof an 11-year-old girl.[24] The undisclosed evidence that the Detective had accessed the internet stronglysupports the applicant's submission that the data recovered from the applicant's cellphone was unreliable and therefore inadmissible. We accept that we would have givenserious consideration to this submission had it been put at the appeal hearing.Furthermore, the appeal would no doubt have been run differently, potentially withfurther expert evidence.[25] We have not overlooked the fact that data obtained from the applicant's cellphone showed he accessed Pornhub on an almost daily basis between 26 January and13 February 2016, some months after the alleged offending by which time he wasliving apart from the family. He admitted when he gave evidence that he had accessedPornhub around the general time period of the alleged offending. However, he deniedaccessing pornography on the day in question.[26] While we understand the Crown's submission to the effect that the evidencefrom the cell phone assisted the applicant, in our view it is improper to conclude therewas no risk of a miscarriage in the circumstances. The point is that both the applicantand this Court were deprived of material information for the purposes of the appeal(and indeed the applicant was deprived of this information at the trial stage). Whattactical decisions might have been made by the defence in possession of all the facts,we cannot say. The applicant has had no real opportunity to address the Court on thisissue and this should be done in a full appeal rather than in the context of an applicationfor leave to reopen the appeal.[27] The omission may have created a real risk that the outcome of the appeal wasaffected. Had we concluded that the evidence from the applicant's cell phone shouldnot have been admitted at trial, we accept for the purposes of this application thatwe may have considered there was an error which created a real risk the outcome ofthe trial was affected or resulted in an unfair trial. That is sufficient to show that thereis a real risk of a miscarriage of justice if leave to reopen the appeal is not granted.Alternative remedies[28] In the Crown's submission, there are two avenues the applicant could pursue.He could seek leave to appeal to the Supreme Court or make an application for theexercise of the prerogative of mercy under s 406 of the Crimes Act 1961.[29] We do not regard an application under s 406 would be an appropriate course inthe circumstances of the Crown being responsible (inadvertently) for a fundamentalerror in the appeal process. We doubt that s 406 was intended to be used for this typeof situation.[30] The Crown notes that the Court of Appeal in England and Wales has recentlydescribed cases involving issues of disclosure as paradigm cases for their CriminalCases Review Commission, not for reopening an appeal, and that the same approachcould be adopted here. We do not yet, however, have an equivalent to the CriminalCases Review Commission and therefore take this submission no further.10[31] Finally, in our view, this is not an appropriate case for leave to appeal to theSupreme Court. It does not involve any issue of public importance or principle. ThisCourt is particularly well placed to assess the significance of the undisclosed evidence,having already dealt with the first appeal. In our assessment, this Court isthe appropriate Court to consider an appeal on an intensely factual issue.Result[32] For the reasons given, the application for leave to reopen the appeal is granted.[33] The reopened appeal will be heard by a fresh panel of this Court.[34] We have not addressed the "fresh" evidence filed on behalf of the applicantfrom an additional expert and in relation to the guidelines issued by the New ZealandPolice in respect of required practice when seizing electronic equipment. That is amatter for the reopened appeal.[35] Any question of costs is reserved for the determination of the re-opened appeal.Solicitors:Crown Law, Wellington for Respondent10 The Criminal Cases Review Commission Bill 2018 (106-1) is currently at the select committeestage.