By Yohanna D’Costa

I.                    Introduction

On 6 March and 7 March 2024, the Supreme Court heard the case of Mahia Tamiefuna v The King. The Office of the Privacy Commissioner was granted the right to provide submissions to the court. The court has not yet released its judgment. The case is about whether a photo taken by police was improperly obtained and whether it should still be admitted as evidence. This criminal appeal could have a far-reaching impact on the New Zealand public and our privacy interests.

 II.                  Background to Case

On the morning of 2 November 2019, a residential property in Swanson was robbed.[1] CCTV footage showed two male offenders. One man, Mr Te Pou, was identified via CCTV footage. However, the man the Crown alleged to be Mr Tamiefuna was not as clear. A cap obscured his face.[2]  Later that day, the same unidentified man (whom the Crown maintained as Mr Tamiefuna) was captured by CCTV at a petrol station. He wore the same clothes as in the CCTV footage from the robbery, but his face was still obscured.

On 5 November 2019, Mr Tamiefuna was a passenger in a car with the same registration number as the car in the petrol station footage. Detective Sergeant Bunting pulled over this vehicle for a routine check as is allowed pursuant to section 114 of our Land Transport Act. All three occupants provided their names and personal details when asked. When the driver was found to be driving on a suspended licence, the police impounded the car. As a result, the three men had to exit the car. Detective Sergeant Bunting then photographed the three men on his phone. Mr Tamiefuna was photographed wearing clothes similar to the unidentified man in the CCTV footage.[3] It is important to note that when Detective Sergeant Bunting took this photo, he did not suspect Mr Tamiefuna of any specific crime. He simply wanted to create an “intelligence noting” in the Police National Intelligence Application.[4]

After a judge-alone trial at the Auckland High Court, Mahia Tamiefuna was convicted on one charge of aggravated robbery.[5] On 22 October 2021, Mr Tamiefuna was sentenced to serve four years and eleven months without parole.[6]

 III.                What Laws are Involved?

A.      What is Section 30 of the Evidence Act?

Section 30 relates to evidence that a defendant is arguing was improperly obtained. A judge must first find, on the balance of probabilities, whether or not the evidence was improperly obtained.[7] Evidence is improperly obtained if it is obtained in breach of the Bill of Rights Act 1990, in consequence of an inadmissible statement, or unfairly. In this case, Mr Tamiefuna argues that the evidence was obtained in breach of section 21 (unreasonable search and seizure) of the New Zealand Bill of Rights Act 1990. If the judge finds that the evidence has been improperly obtained, they must then determine whether excluding the evidence is proportionate to the impropriety.[8]  This is done through a balancing process that “gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice”.[9] Subsection 3 has several factors that a judge can consider during this balancing process. 

B.      What Counts as an Unreasonable Search?

Pursuant to section 21 of the New Zealand Bill of Rights Act 1990, everyone has the right to be secure against unreasonable search and seizure. The issue here is whether police photographing a member of the public and then storing it on their database constitutes a search and, therefore, a breach of this right.

A “search” is not defined by the Search and Surveillance Act 2012. Instead, case law provides its meaning. The majority in Hamed v R held that police activity would constitute a search under section 21 of NZBORA if it invades a reasonable expectation of privacy.[10] This test has both subjective and objective elements. Firstly, did the individual complaining of the breach (Mr Tamiefuna in this case) subjectively hold an expectation of privacy? Secondly, is that expectation one that society is “prepared to recognise as reasonable?”[11] Mr Tamiefuna was in a public place with few expectations of privacy. However, Detective Sergeant Bunting is an agent of the state. He uploaded his photo to the Police National Intelligence Application. Do we, as a society, find it unreasonable for police to do this without any law enforcement purpose?

IV.               What Did the High Court Say?

The High Court concluded that the taking of the photographs did not constitute a “search” as there is no reasonable expectation of privacy in an open public space.[12] Even if the evidence was improperly obtained, the High Court was satisfied it should be admitted under section 30 of the Evidence Act.[13] That meant the photographs were lawfully obtained and admissible.

V.                 What Did the Court of Appeal say?

The Court of Appeal dismissed Mr Tamiefuna’s appeal against conviction but held that Mr Tamiefuna’s section 21 right had been breached.

1. Did Taking a Photograph of Mr Tamiefuna Amount to a Search?

The Court of Appeal used Hamed v R as an analogy and stated that the taking of a photograph can constitute a search.[14] The court went on to say that a person in a public place can have a “low expectation of privacy; they can expect to be observed”.[15] However, the court did not accept that this must mean that people consent to a privacy intrusion like being photographed by police.[16] For the Court of Appeal, the notable factors in this case were the use of the camera and the police.

The Court of Appeal concluded that the officer’s actions did breach Mr Tamiefuna’s right to be secure against unreasonable searches.[17] That meant the photographs were improperly obtained. However, the Court of Appeal considered that the balancing process favoured admitting the improperly obtained evidence.[18] The Supreme Court granted his application for leave to appeal on 28 July 2023.[19]

VI.               What Issues are On Appeal Before the Supreme Court?

The approved question is whether the Court of Appeal was correct in dismissing the appeal against conviction.[20] The Supreme Court has granted leave to appeal on two questions. Firstly, whether the Court of Appeal was correct in finding that the photographic evidence was improperly obtained for the purpose of section 30 of the Evidence Act. Secondly, whether the Court of Appeal was correct in admitting the evidence under s 30 of the Evidence Act. [21]

A. What did the Appellant (Mr Tamiefuna) Submit to the Supreme Court?

1.      The photo was improperly obtained

The appellant submitted that the Court of Appeal was correct in finding that the evidence was improperly obtained.[22] The photo amounted to a search as it invaded Mr Tamiefuna’s reasonable expectation of privacy. The search was unlawful and, therefore, breached Mr Tamiefuna’s right against unreasonable search and seizure under the NZBORA.

2.      The Court of Appeal should not have let the photo in under s 30 of the Evidence Act

The appellant argued that the Court of Appeal did not properly apply the section 30 balancing exercise. The appellant stated that insufficient weight was given to the importance of the right breached and the nature of the intrusion. The appellant argues that this case “provides an opportunity for this court to revisit the application of section 30”.[23] Specifically, when judges consider the need for an effective and credible system of justice they should exclude improperly obtained evidence.[24]

VII.              Significance of this Case

In a digital world, the rules on surveillance and privacy rights are evolving. New Zealand citizens and the police need clarity as to what constitutes acceptable practice. Have we now entered an age where the public is no longer entitled to privacy? Is it acceptable for police to photograph members of the public without any law enforcement purpose? The implications of this are concerning. It could lead to lawful police bias and profiling. This case could also recalibrate how our courts admit or exclude improperly obtained evidence. What does “an effective and credible system of justice” mean to us? Does it mean ensuring convictions for those we believe are guilty? Or does it mean ensuring that police conduct is checked and they comply with the law? The Supreme Court will soon provide some guidance.

[1] Tamiefuna v R [2023] NZCA 163 at [3].

[2] At [5].

[3] At [9].

[4] At [9].

[5] R v Tamiefuna [2021] NZHC 2880 at [1].

[6] R v Tamiefuna, above n 1, at [52].

[7] Evidence Act 2006, s 30(a).

[8] Section 30(b).

[9] Section 30(2)(b).

[10] Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [163].

[11] At [163] per Blanchard J.

[12] R v Tamiefuna & ORS [2020] NZHC 163 at [129].

[13] At [130].

[14] At [45].

[15] At [56].

[16] At [56].

[17] At [76].

[18] At [104].

[19] Tamiefuna v R [2023] NZSC 93.

[20] At  [1].

[21] At [2].

[22] Susan Gray Appellant Submissions in Support of Appeal Against Conviction (Augusta Chambers, SC 51/2023, February 2024).

[23] At [70].

[24] At [71].

 

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