SONG v R [2016] NZCA 641

SONG v R [2016] NZCA 641 [22 December 2016]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.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA536/2016[2016] NZCA 641BETWEEN YONG GEUN SONGAppellantAND THE QUEENRespondentHearing: 17 November 2016Court: Winkelmann, Duffy and Whata JJCounsel: N Satjipanon and G H Vear for AppellantA J Ewing for RespondentJudgment: 22 December 2016 at 11.30 amJUDGMENT OF THE COURTA Leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publically available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] The appellant, Mr Song, faces trial on one charge of indecent assault and onecharge of making an intimate visual recording, both under the Crimes Act 1961.He applies for leave to appeal against a pre-trial decision of Judge Glubb rulingadmissible evidence obtained from a warrantless search of his cellphone.1[2] There was no dispute before us that if the search was lawful and reasonablethe police could then use any evidence found on the cellphone to prove any offencewhich such evidence might disclose.2Background[3] The offending alleged by the Crown relates to two separate incidents onSaturday 27 February 2016.[4] The first incident took place at around 3 am. The appellant and an associateapproached complainant A on a main street in Auckland. They spoke with her andinvited her to drink with them in their car. Once she had entered the car, Mr Songand his associate drove her to a beach where they supplied her with alcohol. Sheeventually lost consciousness. While she was unconscious, Mr Song and hisassociate removed her skirt and underwear. They took photographs of her nakedbuttocks and lower back, including photos in which the two men posed over herunconscious body. After that time the men took the complainant back to Mr Song'shome, where she was placed in a bed to sleep off the effects of the alcohol.[5] The second incident, which involves complainant B, took place at 11 pmsome 18 hours later. Mr Song and the same associate approached her on a mainstreet in Auckland and introduced themselves. They invited her to drink with themin their car. Once she had entered the car, Mr Song and his associate drove her1 R v Song [2016] NZDC 18944.2 In circumstances such as the present, s 123 of the Search and Surveillance Act 2012 authorisesan enforcement officer who is exercising a search power to seize any items that he or she findsin the course of the search.across the Harbour Bridge to a park on the North Shore. At the park they suppliedher with alcohol. She felt unwell and vomited. She asked to be taken home. On theway back to Auckland, Mr Song and his associate stopped the car at another park sothat the complainant could throw up. When she returned to the car, the two men sateither side of her on the rear seat and started touching her body. She tried to leavethe car. As she did so, Mr Song reached over and placed his hand under her t-shirt.He also began touching her vagina over her clothes. She yelled at him to stop andthen ran away. She flagged down a passing motorist who drove her to the AucklandCentral Police Station.[6] On 4 March 2016 Detective Sergeant (DS) Poland and Detective Constable(DC) Roberts went to Mr Song's home to speak with him. They were able toidentify Mr Song from a cellphone number that he had provided to another youngwoman whom he had treated in a similar fashion to complainant B. Mr Song waslocated at a neighbouring house and was advised why the police wanted to speakwith him. He was advised of his rights and confirmed that he understood them.He consented to a warrantless search of his vehicle and admitted that he might havetouched complainant B's vagina. Mr Song was subsequently arrested for theindecent assault and transported to the Auckland Central Police Station for interview.His cellphone was with him at this time and the arresting officers were aware of this.[7] Upon arrival, DS Poland searched Mr Song and took his personal effects.These effects included Mr Song's cellphone. Mr Song was advised of the reasonsfor the search. DS Poland directed DC Roberts to search the cellphone, which he didmanually.[8] Mr Song was then taken to an interview room where DS Poland conducted anevidential interview.[9] DC Roberts located a number of images of other females on Mr Song'scellphone, including the image of complainant A's naked body. He photographed thecellphone screen displaying the images for evidential purposes. The cellphone wasreturned to Mr Song at the conclusion of the police interview because at that time thepolice did not know if the images they had found were obtained by consent.Since they were releasing Mr Song without charge they had no power to impoundthe cellphone.[10] Subsequent enquiries revealed that complainant A did not consent to Mr Songphotographing her. This revelation led to the police obtaining a warrant to seize thecellphone, by which time the images of her and other persons had been deleted.Mr Song was later charged with making an intimate visual recording.District Court decision[11] The Judge first considered whether the search was authorised by s 88(2)(c) ofthe Search and Surveillance Act 2012 ("the Act"). He found that the cellphone hadbeen seized incidental to the arrest and that DS Poland had reasonable grounds tobelieve that the cellphone contained evidential material relating to the offence ofindecent assault in the form of photographs, contact details, text messages andlocation data.3 The investigation was in its early stages and any evidence located onthe cellphone might well prove essential if the matter eventually proceeded to trial.[12] The Judge then considered whether the search was lawful and reasonable,pursuant to s 21 of the New Zealand Bill of Rights Act 1990 ("BORA") and the Act.He found that there was nothing about the search which constituted unreasonableconduct.4 The Judge also considered that the police officers had complied with therelevant provisions of the Act.5 In particular, the officers had identified themselvesto Mr Song, had stated the name of the enactment under which the search was takingplace and the reasons for the search, and had produced evidence of identity.6 TheJudge acknowledged that Mr Song's phone and the photographs on it had not beenlisted on the inventory of items seized.7 However, he did not consider this to be abreach of the Act since the phone was returned to Mr Song at the conclusion of thepolice interview and the photographs themselves were not required to be disclosed inthe inventory.83 R v Song, above n 1, at [49] and [54].4 At [55].5 At [56].6 Search and Surveillance Act, s 125(1)(a)–(c).7 R v Song, above n 1, at [58].8 At [59] citing Search and Surveillance Act, ss 125(4) and s 3(1), definition of "things seized".Issues on appeal[13] The appeal raises the following issues:(a) whether the warrantless search of Mr Song's cellphone was lawful;and(b) whether the search was consistent with s 21 of the BORA.Leave to appeal[14] The Crown does not oppose leave to appeal being granted to Mr Song. Theissues raised by the appeal meet the criteria in R v Leonard for the granting of leave.9Accordingly, leave to appeal is granted.Authority to conduct a warrantless search[15] Section 88 of the Act relevantly provides:88 Warrantless search of arrested or detained person(1) A person to whom this subpart applies may, in the circumstances setout in subsection (2), carry out a search of a person.(2) The circumstances are that the person to whom this subpart applieshas reasonable grounds to believe that there is any thing on orcarried by a person who is arrested or detained under a statutorypower of detention that—(c) is evidential material relating to the offence in respect ofwhich the arrest is made or the person is detained.[16] Under s 3 of the Act "evidential material" is broadly defined.10Section 125(1)(l) of the Act authorises police officers exercising powers under s 88also to search any computer system or data-storage device such as a cellphone thatthey find on the person being searched.119 R v Leonard [2007] NZCA 452, (2007) 23 CRNZ 624 at [13].10 The definition in s 3 reads as "Evidential material, in relation to an offence or a suspectedoffence, means evidence of the offence, or any other item, tangible or intangible, of relevance tothe investigation of the offence".11 On appeal there was no challenge to the Judge's finding that the informational requirements ofs 125 were met: see R v Song, above n 1, at [56].125 Special rules about searching persons(1) If a person exercises a power to search a person, the personexercising the power—(l) may use any reasonable measures to access a computersystem or other data storage device, that the person beingsearched is carrying or that is in the person's physicalpossession or immediate control, if any intangible materialthat is the subject of the search may be in that computersystem or other device; [17] Accordingly, whether the search of Mr Song's cellphone was lawful or notturns on:(a) whether DS Poland had "reasonable grounds to believe" the searchwould produce "evidential material relating to the offence in respectof which the arrest [was] made", namely that of indecent assault; and(b) whether the cellphone qualifies as a computer system or data-storagedevice that was either being carried by or in the physical possessionof Mr Song at the time he was searched.[18] To answer the first question, the Crown must show that DS Poland had agenuine belief there was evidential material relevant to the offending againstcomplainant B on the cellphone and that reasonable grounds existed for the belief.12Grounds for believing a warrantless search of cellphone should be carried out[19] No contemporaneous record was made by either police officer of the reasonsfor their belief that a warrantless search of the cellphone would produce evidencerelevant to the subject offence.[20] DS Poland described the circumstances of the search as follows:Q. And what time did you arrive at the police station?A. I think that must have been around 11.44 or around 11.40.12 See R v Laugalis (1993) 10 CRNZ 350 (CA) at 354.Q. And what happened on your arrival?A. So on arrival at the Auckland Central Police Station [Mr Song] wastaken to level 5 for an interview; he was searched, possibly either inthe carpark or – more than likely in the carpark, so he wasn't able toget in the lifts and then prior to the interview we took his possessionsoff him; cellphone and other items pursuant to arrest.Q. Who conducted that search?A. That was conducted by myself.Q. And what did you expect to find when you were searching him?A. So we searched him for evidential material, namely a cellphonewhich could contain images of the complainant, location images,conversations between the defendant, the complainant and hisassociate and any other movements that they may have made.[21] DC Roberts testified that the cellphone was removed from Mr Song toexamine it for evidential material. In terms of the evidence he expected to find, hesaid:On a cell phone particularly a smart phone – smart phone devices record ahuge amount of information all of which would be evidential material for awide range of offences but specifically in this case a mobile phone wouldcontain a smart phone with a GPS, WiFi-enabled, may include location datashowing where that mobile phone had been. The mobile phone could alsohave contact details in it of people spoken to whether that's co-offenders,witnesses or victims and it could also contain images of the offending or ofthe events leading up to the offending. Particularly when you're dealingwith social events it's quite common for people to take photos for instancethat they may post later on social media, Snapchat, text messages. So there'sa wide range of information stored on people's phones.[22] Later, in answer to a question from Judge Glubb, DS Poland testified that:Through my experience with adult sexual assault, more often than notoffenders will record selfies or images of themselves and the victims or theywill communicate with the victims prior to sexual offending on them. So wethought that by looking at his cell phone we can confirm that he was with thecomplainant and if any images of the complainant were obtained they mayshow indecencies; also any correspondence with the co-offender after theincident, confirming her phone number in his phone and any relationship ordialogue prior to or post.[23] During cross-examination DS Poland explained that despite the admissionsMr Song had made, other evidence to support a conviction was sought in case thoseadmissions were later excluded. He also emphasised how urgent it was to search thecellphone while Mr Song was at the police station:Q. There was no urgency in searching that phone was there?A. Yes, yes there was. We had to – the cat was out of the bag so tospeak. He knew that we were interviewing him about the indecentassault and the sexual violation, so if there was location,photographs, metadata that we needed to obtain of that location,communication between himself and the complainants, photographsof the complainants. We needed to get that immediately.[13][24] Regarding the use of the cellphone contents at the evidential interview,DS Poland later said:A. the most appropriate tact [sic] was when I went into the interviewthe phone was seized, Detective Roberts extracted the informationthen produced a document I could use and now I could then questionthe defendant about the content of the phone without him having thephone in his possession.[25] Under cross-examination DS Poland also explained that the cellphone wasreturned to Mr Song after the search because no evidence relevant to proof of theoffending against complainant B was found on it and, as regards the photographs ofother females, the detectives were not sure whether those photographs were obtainedby consent. Further, that a search warrant was not obtained at that time because oncethe photographs had been taken from the cellphone there was no need for it.DS Poland specifically rejected the notion that he failed to seek a search warrantbecause he knew he could not obtain a warrant.Submissions[26] Counsel for Mr Song, Mr Satjipanon, submitted that the oral evidence ofDS Poland regarding his conduct and state of mind at the time of arresting Mr Songdemonstrated that the officer did not have a reasonable belief that the search wouldturn up relevant evidential material. In particular, Mr Satjipanon pointed to evidencethat the police officers did not immediately remove Mr Song's cellphone from hispossession upon arrest; that they did not question him about the cellphone or its13 DS Poland later acknowledged that the sexual violation related to another female and thatMr Song had not been arrested for that alleged offending.contents until after it had been taken from him; that neither DS Poland norDC Roberts created any contemporaneous record of the reasons for searchingMr Song's cellphone; and that DS Poland conceded on cross-examination that priorto the search he was not sure what would be on the phone and did not know what itsevidential value would be. Mr Satjipanon further submitted that there was aninsufficient basis for any reasonable belief that Mr Song's cellphone would containevidential material that was relevant to the offence of indecent assault againstcomplainant B specifically.[27] Mr Satjipanon also argued that the cellphone was not sufficiently linked toMr Song at the time it was searched. As we understand him, he submitted that thesearch was unlawful since the phone was no longer in Mr Song's possession by thetime the police determined to search it. He referred to the Court of Appeal decisionin McLean v R in support of this point.14[28] Crown counsel, Ms Ewing, submitted that DS Poland had reasonable groundsto believe that an examination of Mr Song's cellphone would yield informationrelevant to the investigation into his indecent assault on complainant B. Inparticular, she submitted that in modern times, it would be a rare case where adrunken night out involving young people could not be reconstructed, at least in part,from contemporaneous messages and photographs. Furthermore, a physicalexamination of the cellphone would produce superior evidence to that which couldbe obtained using a production order since the cellphone would yield location data,photographs and communications exchanged through messaging applications.Ms Ewing rejected any suggestion that Mr Song's confession that he was present andinvolved in the offending against complainant B constrained the police investigationin this respect.[29] Ms Ewing pointed to the police knowledge that another young woman hadcomplained about similar offending and that Mr Song had given her his cellphonenumber.15 In her submission, this suggested there may have been an exchange ofcellphone numbers between him and complainant B. Furthermore, the cellphone14 McLean v R [2015] NZCA 101.15 Mr Song admitted the cellphone number the other woman had was his.may have recorded communications between Mr Song and his co-offender, who wasstill at large.Was the search lawful?[30] We are satisfied there was a proper basis for the warrantless search ofMr Song's cellphone.[31] First, Mr Song was searched and his phone taken from him for furtherinvestigation at the time he arrived at the Auckland Central Police Station underarrest. This much is clear from DS Poland's testimony (see [20] above).Accordingly, there was a sufficient nexus between the search of Mr Song and thedirection given to DC Roberts to search Mr Song's cellphone to engage s 125 of theAct. Having been taken to a police station under arrest, a search was then carried outfor evidential material. The present facts can be distinguished from those inMcLean v R where the necessary nexus was absent.16[32] Secondly, there is a strong evidential basis for DS Poland and DC Robertseach having a genuine belief based on reasonable grounds that the cellphone wouldcontain evidential material of relevance to the investigation of the offending againstcomplainant B. The detectives had identified Mr Song as a suspect for the offendingagainst complainant B through him giving another young woman, whom he hadtreated similarly, his cellphone number. They had every reason, therefore, to believehe may have recorded contact details about complainant B on his cellphone, whichwould be proof of contact between them at the time of the offending. And asMr Song had admitted touching complainant B on the vagina, there was a reasonablebasis for them to believe this offending had occurred.[33] Thirdly, based upon their general experience of the information that is likelyto be found on an offender's cellphone, the detectives also believed that Mr Song's16 In McLean v R, above n 14, the appellant's cellphone had been removed from him along with hispersonal belongings and stored for safekeeping. A police officer later took the phone out of thelocker, where it had been stored with the defendant's other personal effects, and searched it,locating evidential material. The Court of Appeal held that the cellphone was not in thedefendant's possession at the time when the police officer decided to search it for evidentialmaterial and therefore s 88 of the Search and Surveillance Act could not apply.cellphone may have contained images of complainant B, location images,conversations between Mr Song and either complainant B or the co-offender, as wellas any other movements they may have made.[34] When taken together the above factors provide ample justification for thesearch of Mr Song's cellphone. The fact that the detectives did not find the expectedmaterial cannot undermine their genuine and reasonable belief in its presence. Wedo not accept Mr Satjipanon's submission that under cross-examination DS Polandconceded that, prior to the search, he was not sure of what would be found on thephone or what its evidential value might be. We have read DS Poland's evidenceand do not understand him to have made that concession. Indeed, we find the overalltenor of his evidence to the contrary.[35] Accordingly, the warrantless search of the cellphone was lawful.Was the search consistent with s 21 of the BORA?[36] Mr Satjipanon submitted that, even if the search was lawful, it was stillunreasonable. He relied upon a number of cases in which courts have held that alawful search was unreasonable on the basis that there was no immediate risk ofinterference with the evidence and, accordingly, there was no reason to conduct awarrantless search rather than waiting until a warrant could be obtained.Mr Satjipanon submitted that in this case, there was no reason why the search neededto be conducted immediately. Rather, he said, the police should have seizedMr Song's cellphone and waited until a warrant could be obtained to conduct thesearch.[37] Ms Ewing acknowledged that a lawful search may nevertheless beunreasonable. However, she submitted that in cases such as the present, where thesearch in question has been conducted pursuant to a statutory power, the legislativecontext should bear significant weight. Ms Ewing submitted that one of the statedpurposes of the Act was to update search powers to provide law enforcement officerswith the tools to search for and seize electronic material. Had Parliament intendedthat electronic devices found on a person ought only to be seized temporarilypending a warrant application, she submitted, it could easily have drafted legislationto that effect. Instead, it expressly extended the legitimate scope of a warrantlesssearch to include accessing intangible information on a device in the person'spossession.Discussion[38] It is a well-established principle that not all lawful searches are reasonable.17In some circumstances, such as when there is no pressing need to carry out a search,the lawful exercise of a warrantless search power may still be unreasonable in termsof s 21 of the BORA.18 While most of the cases in this area are concerned withwarrantless searches under the Misuse of Drugs Act 1975, we are persuaded thatthese principles have some application to the search of a digital device found on aperson at arrest.[39] Nevertheless, on the evidence in this case, there was a pressing need to searchthe device because there was a real risk that evidence on the cellphone would bedestroyed before a warrant could be obtained.[40] Mr Song was arrested and taken to the police station for interview, followingwhich he was released without charge. Once he was released, the detectives were, inthe circumstances of this case, obliged to return the cellphone to him. Generally, anenforcement officer is not entitled to seize personal possessions such as a cellphonefrom an arrested or detained person unless the individual is being taken into custody.We were not referred to any authority that suggests otherwise. It would have beenwrong for the detectives to hold Mr Song in custody solely to prevent him fromdeleting any evidence on the cellphone before they could get a warrant to search it.Had the detectives not conducted a warrantless search of the cellphone when theydid, they would have lost the opportunity to collect evidence from it.17 R v Laugalis, above n 12.18 See R v Jefferies [1994] 1 NZLR 290 (CA); R v Laugalis, above n 12; Dick v R [2011] NZCA230; and SF v R [2014] NZCA 313. See also Andrew Butler and Petra Butler The New ZealandBill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [18.25.31]: " it isimportant to distinguish between Parliament and/or the common law making available a powerto undertake searches and/or seizures without warrant at the general level, and the furtherquestion as to whether in any individual case resort to that power, as opposed to an applicationfor a warrant, was reasonable in all the circumstances" (original emphasis).Conclusion[41] The search of the cellphone falls squarely within the ambit of ss 88 and 125.The detectives had reasonable grounds to believe the cellphone they found onMr Song may have been carrying evidential material relating to the offence inrespect of which he was arrested and there was a real risk that any such evidencewould be destroyed before a warrant could be obtained. There is nothing thatsuggests the power to search him was exercised unlawfully or unreasonably.Accordingly, the Judge was right to rule the evidence gained from the search of thecellphone admissible against Mr Song at his trial.Result[42] Leave to appeal is granted but the appeal is dismissed. For fair trial reasonswe make an order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublically available database until final disposition of trial. Publication in law reportor law digest permitted.Solicitors:Public Defence Service, Auckland for AppellantCrown Law Office, Wellington for Respondent