The Queen v Johannes Hendrik Middeldorp Noelene Kay Banton

JurisdictionNew Zealand
CourtHigh Court
JudgeMallon J
Judgment Date26 May 2015
Neutral Citation[2015] NZHC 1137
Docket NumberCRI-2013-085-10823

[2015] NZHC 1137

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Court:

Mallon J

CRI-2013-085-10823

CRI-2013-085-10822

The Queen
and
Johannes Hendrik Middeldorp Noelene Kay Banton
counsel:

G J Burston, P W Gardyne and M J Ferrier for the Crown

J Bioletti for Mr Middeldorp

B Hunt and A Courtney for Ms Banton

Reasons for refusal of an application under s30 Evidence Act 2006 (Improperly obtained evidence) to exclude evidence that was said to be obtained in breach of s21 New Zealand Bill of Rights Act 1990 (NZBORA) (Unreasonable search and seizure) — police were investigating the defendants in respect of charges relating to dishonest use of documents — obtained warrant to search the defendants home for cannabis — at the same time executed a covert warrant to clone electronic data on computers — defendants were arrested on charges relating to the cannabis and while they were at the police station, the computers were cloned but his process was interrupted by their return later in the day — a subsequent warrant to search and clone was obtained two months later on termination of the investigation and information from that search was relied on at trial — whether the defendants had been misled as to the reason the police had been at the premises and did not have an proper opportunity to exercise their rights in respect of the search — whether there had been downstream contamination of the evidence obtained in the second search — whether the Crown had been entitled to edit out parts of a video interview relating to the first search or whether it had to adduce the interview in full.

The issues were: whether the defendants had been misled as to the reason the police had been at the premises and did not have an proper opportunity to exercise their rights in respect of the search; whether there had been downstream contamination of the evidence obtained in the second search; whether the Crown had been entitled to edit out parts of the video interview or whether it had to adduce it in full.

Held: The application for the covert warrant and the issue of the warrant appeared to have been approached in the same way as a covert warrant for drugs offending might have been. However the cloning of electronic records from computers in a private home raised special privacy concerns ( Dotcom v Attorney-General).

The application did not set out how the electronic records were to be obtained, whether anyone would have access to the information before M and B were informed of the warrant, nor what protections there would be for any privileged, private or irrelevant information. The Deputy Registrar did not discuss this with the applicant and she did not impose any conditions on the use to which the evidence might be put prior to M and B being informed of the covert search.

M and B were misled about the authority which had been granted to the police to be on their property. This was different from the situation where a search was undertaken of unoccupied premises. In that situation, if the occupiers returned during the search, the officers could produce the search warrant and the occupiers could take steps to protect their rights. In the present case s198 Summary Proceedings Act 1957 (Search warrants - duty to produce warrant if required to do so) was rendered somewhat meaningless. The covert search warrant would not need to be produced because M and B were misled into thinking that the police were only present pursuant to the authority of the cannabis warrant.

Furthermore, while it was intended to inform the defendants of the covert search when the investigation was completed, this was not made a condition of the warrant. In the meantime the information was accessed by the police and the SFO, albeit for limited purposes. M and B did not have the opportunity to exercise their rights in respect of that search, including seeking to ensure that there were protocols concerning private or legally privileged information, before that use was made of the evidence obtained from the search

It was not, however, necessary to reach a firm view on whether these matters meant that the search was unreasonable in breach of s21 NZBORA because of the conclusions reached about the effect of any such breach on the downstream evidence.

The electronic evidence relied on by the Crown at the trial was sourced from the clones obtained from the 24 October 2012 search. A breach of s21 NZBORA arising from the 22 August 2012 search might nevertheless taint that evidence if there was a real and substantial connection between the breach and the evidence relied upon.

Prior to the decision to obtain the covert search warrant, it was intended to undertake a search of the electronic records of M and B at termination of the investigation. The decision to carry out the covert warrant did not change that intention. Further, even if the information about the August search had not been included in the application for the October warrant, the search warrant would still have been granted on the basis the other information in it, including intercepted phone calls and other records, including links to their address. These matters set out a strong basis for the belief that M and B were engaged in fraudulent advertising and had committed the offence of dishonestly using a document. They also provided a strong basis for the belief that a search of their home would find evidential material in respect of that offence.

There was no real and substantial connection between any breach of s21 NZBORA in respect of the 22 August 2012 search and the evidence obtained from the 24 October 2012 search. The evidence obtained from the 24 October 2012 search was not tainted by the 22 August 2012 search. It was therefore not “improperly obtained”. As a result it was not necessary to conduct the balancing process that applied to improperly obtained evidence under s26 Evidence Act 2006.

There was no prejudice to B from the video interview. To the extent that information from the August search was put to B, the Crown did not seek to adduce that evidence. It was entitled to take that approach. The Crown was entitled to make decisions about the evidence it would adduce to prove the charges. The evidence it elected not to adduce was not exculpatory and so “editing” the interview was not unfair to B in that way.

Nor did prejudice arise because B answered a number of questions during her interview without knowing that the police had carried out the covert search. B knew she was under arrest for using a document and participating in a criminal group for “pro forma invoicing fraud” and she was aware of her rights. There was no requirement for the police to disclose all the evidence in their possession before a defendant decides whether to exercise their rights.

While there were concerns about the covert search, it did not render the downstream evidence that was adduced at trial inadmissible or otherwise contaminate the evidence at trial.

Application to exclude evidence refused.

JUDGMENT OF Mallon J

(Challenge to covert search)
Table of Contents

Introduction

[1]

The voir dire evidence

[4]

Unreasonable search?

[28]

October search

[36]

Any other downstream contamination?

[46]

Conclusion

[53]

Introduction
1

Following a judge alone trial before me, Noelene Banton and Johannes Middeldorp were convicted on charges of dishonestly reproducing documents with intent to cause loss. In my judgment (reasons for verdicts) 1 I referred to a challenge that had been made to a covert search conducted at their home on 22 August 2012 2

2

Counsel for Ms Banton contended that:

  • (a) the covert search conducted at Mr Middeldorp and Ms Banton's home on 22 August 2012 was unlawful and the evidence seized as a result was inadmissible in the trial;

  • (b) the illegality of the covert search tainted the subsequent 24 October 2012 search with the result that the evidence seized during the October search was also inadmissible; and

  • (c) the illegality of the covert search also contaminated other evidence at the trial because it was used directly and indirectly in the trial.

3

In my judgment I noted that the Crown had not relied on evidence obtained from the 22 August 2012 search at the trial and that I had not relied on evidence from that search in my reasons for my verdicts. I said that I was satisfied that, even if there were concerns about the 22 August 2012 search, it did not taint the 24 October 2012 search so as to render evidence obtained from that search inadmissible. I also said that I was satisfied that the evidence obtained from that search was not directly or indirectly used at the trial to the prejudice of either defendant. This judgment sets out my reasons for those conclusions.

The voir dire evidence
4

In light of the challenge I heard extensive evidence about the circumstances in which the covert search came to be carried out, the manner in which it was carried

out, and what happened to the information obtained from that search 3 This evidence was relevant to whether the covert search was an unreasonable search 4 and whether, on a balancing exercise, it would be admissible in that event. 5
5

A joint investigation was commenced by the Serious Fraud Office (SFO), the Organised and Financial Crime Agency of New Zealand (OFCANZ) 6 and the Commerce Commission into a scam advertising operation. The investigation targeted several individuals, including Ms Banton and Mr Middeldorp. As part of that investigation, telephone conversations were intercepted pursuant to surveillance warrants authorised by the High Court. The police understood from an intercepted telephone conversation between Mr Middeldorp and Mr Hendon (one of the other targets of the investigation) that Mr Middeldorp was growing cannabis at his home and that it was ready for harvesting. Based on that conversation the police...

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