Source: Privacy Commissioner
Have you ever wondered whether the information privacy principles in the Privacy Act 2020 are relevant to the right against unreasonable search and seizure? The Supreme Court answered that question with a yes in this criminal appeal.
The appellant, Mr Tamiefuna, was convicted of one charge of aggravated robbery. He challenged the inclusion of photographic evidence used by Police to obtain this conviction. Mr Tamiefuna appealed a Court of Appeal decision which determined the photographic evidence was improperly obtained but declined to find the evidence should have been excluded from his trial.
The Supreme Court found that the photographic evidence was both improperly obtained and should have been excluded from Mr Tamiefuna’s trial under s 30(4) of the Evidence Act 2006. A retrial was ordered.
Background
On 5 November 2019 Mr Tamiefuna was a passenger in a car which was the subject of a routine traffic stop. A police officer ran a National Intelligence Application (NIA) check for the occupants of the vehicle and discovered Mr Tamiefuna had previous convictions relating to property offending. The check revealed the driver of the car was unlicensed and the car was impounded. This required the occupants to exit the vehicle.
Mr Tamiefuna and his companions removed property from the car and stood on the footpath while waiting to be picked up. A police officer noticed there was a lot of property, including batteries and a woman’s purse and coat. This made them suspicious the property may have been stolen. At this point, the police officer took photographs of the property and the car’s occupants using their police issue smartphone. The photographs of Mr Tamiefuna show him standing on the footpath beside the car. He is looking towards the camera and is clearly aware that he was being photographed. Mr Tamiefuna’s face and clothing are captured in the images.
The police officer added these photographs and a note of his observations to the NIA. The information was collected and retained as the officer thought it might be useful in future. There was no specific purpose.
The photographs were critical evidence at Mr Tamiefuna’s trial, linking him to the aggravated robbery, as the clothing in the photographs matched a man captured in CCTV footage at the scene of the offending.
There is no statutory authority authorising the taking of these photographs, nor the retention of one of those photographs on the NIA.
Litigation history
Prior to his trial, Mr Tamiefuna challenged the admissibility of the evidence collected at the traffic stop. He argued it was improperly obtained and inadmissible under s 30 of the Evidence Act. The challenge was rejected in the High Court. The Court of Appeal declined leave to appeal that decision pre-trial.
Following the trial, Mr Tamiefuna appealed his conviction. The Court of Appeal decided that the taking of a person’s photograph in a public place by police without a current investigative or law enforcement purpose, breached their right to be free from unreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). However, the Court did not consider the evidence should have been excluded under s 30 of the Evidence Act, on the basis the impropriety was outweighed by the need for an effective and credible justice system. The appeal was dismissed.
The Privacy Commissioner’s role as an independent intervener in the proceeding
An intervener is a third party who is allowed to join litigation even though they are not a party to the proceedings. This process is called “intervening” and allows an expert or interested party to assist the court by making legal submissions on particular points – especially if the case is of general public importance.
The Privacy Commissioner was granted leave from the Court to intervene as an independent expert as the appeal would have broad consequences for the interaction between information privacy, NZBORA, and Police information gathering powers.
Grounds of appeal in the Supreme Court
(a) Whether the Court of Appeal was correct to find that the photographic evidence was improperly obtained for the purpose of s 30 of the Evidence Act; and
(b) Whether the Court of Appeal was correct in admitting the evidence under s 30 of the Evidence Act.
Majority decision (Winkelmann CJ, Ellen France and Williams JJ)
At common law, Police have a duty to prevent crime and to detect and bring offenders to justice. The police have powers to undertake these duties and the common law will supplement existing statutory provisions when necessary. As the collection and retention of the photographs on the NIA were not authorised by statute, police were exercising their common law powers.
The exercise of police common law powers is subject to statutory requirements and restrictions. Relevant in this case was s 21 of NZBORA, which provides that every person has the right to be secure against unreasonable search and seizure.
Was taking the photographs a search?
In determining whether Police taking photographs of a person in a public place after they were required to leave a car following a lawful traffic stop was a search, the majority considered four key factors; the nature of the place, the use to which the information was put, the manner of collection, and the nature of the information.
Significant weight was given to the fact that Mr Tamiefuna was only in a public place because he has been ejected from a vehicle. The manner of collection was not at the higher end of intrusiveness, however, the use to which the information was put increased the level of intrusiveness. They also noted there were very few controls over the retention and use of Mr Tamiefuna’s personal information. The majority considered the police power exercised was intrusive and very general.
In assessing the nature of the information, the majority relied on the joint report of the Privacy Commissioner (OPC) and the Independent Police Conduct Authority | Mana Whanonga Pirihimana Motuhake (IPCA), which was issued in 2022 following an inquiry into police conduct when photographing members of the public (the Joint Report).
The Joint Report highlighted that photographs of individuals are sensitive biometric personal information, stating they are “capable of being analysed using facial recognition technology and other digital techniques which makes it even more important that the information is being collected, used, retained and stored lawfully.” The majority added that the sensitivity of biometric information is recognised in the fact that statutory regimes are required to govern their use and collection.
Overall, the majority concluded the police officer’s actions amounted to a search as Mr Tamiefuna had a reasonable expectation of privacy that was intruded on.
Was the search reasonable?
The taking and retention of the photographs was not lawful. Police are subject to statutory controls when conducting searches and it was not appropriate to extend their common law power to authorise a warrantless search for generalised intelligence gathering in a way which is not appropriate, particularly where the relevant statutory framework imposes controls in relation to the very same activity (though in a different context).
The majority stated the information privacy principles (IPPs) (when this incident occured the Privacy Act 1993 was in effect. The Privacy Act 2020 sets out the current IPPs in section 22. For the purposes of this case, there are no material differences between these iterations of the IPPs) were relevant, though not decisive, in an analysis of s 21 of NZBORA and s 30 of the Evidence Act. In discussing the IPPs, the majority stated:
- Under IPP 1, an agency may only collect personal information as is necessary for a lawful purpose. This was breached as there was no lawful purpose for the collection of Mr Tamiefuna’s information.
- Under IPP 3, the collecting agency must take reasonable steps to inform the person concerned, among other things, about the collection, the purpose of the collection and its legal basis. This was not done in this case.
- Under IPP 9, personal information once collected must not be held for longer than is required for the purposes for which the information may lawfully be used. As there was no lawful purpose, the retention of the information was in breach of this principle.
The IPPs were useful in stating the expectations of a reasonable person. As Police failed to comply with the IPPs, the search was not reasonable (as it breached the Privacy Act) and the evidence was therefore improperly obtained.
As the search was illegal it was unreasonable under s 21 of NZBORA. This meant the photographic information was improperly obtained for the purposes of s 30 of the Evidence Act.
Was the court wrong to admit the evidence?
If evidence is found to have been improperly obtained, s 30(2) of the Evidence Act requires the Judge to “determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of 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.”
In this case, it was decided that excluding the evidence would not be disproportionate to the breach. There was a breach of an important right and an overextension of police powers (though the Court noted the police officers involved acted in good faith). The majority stated “an effective and credible system of justice in this case requires the exclusion of the evidence. Otherwise, on a longer-term basis, the justice system is brought into disrepute.”
As intervener, OPC submitted in the cases where evidence has been obtained in breach of s 21 of NZBORA or another human rights obligation, s 30 should be applied to provide an effective remedy for that breach. An effective remedy must both vindicate the right of the individual and avoid recurrence of the breach in other cases. This submission was accepted by the majority.
Outcome
The appeal was allowed. Mr Tamiefuna’s conviction was quashed and a retrial was ordered.
Minority decision (Glazebrook J)
Glazebrook J considered there was no search in this case, finding the concept of a “search” would be extended too far if it included filming or photography of what a person saw and heard, where there is no active looking for someone or something. Further, Glazebrook J found Mr Tamiefuna did not have a reasonable expectation of privacy. The photograph was taken on a public street, it was not covert, and people should be expected to be observed while in public. An individual interacting with another person (including the Police) can have no reasonable expectation that the other person will not make and store a full and accurate audio or video of the interaction, which can later be disclosed and used.
This minority decision also considered the collection and retention of the photographs was both reasonable and lawful. It was an appropriate use of Police investigative powers into offending.
Glazebrook J agreed with the reasoning in the Court of Appeal and would have admitted the photographs under s 30 of the Evidence Act. In reaching that conclusion the Court of Appeal said that while the right breached was important, the intrusion on this right was not very serious and the evidence obtained was central to the prosecution. In these circumstances, exclusion of the evidence would be disproportionate to the breach.
Minority decision (Kós J)
Kós J also considered there was no search, as the traffic stop and ejection of Mr Tamiefuna from the car was lawful and Mr Tamiefuna was in a public place. People on a public street lack a reasonable expectation of privacy from being photographed. Cell phones and CCTV make this a routine experience.
The essential feature of a search was described as an examination or investigation for the purposes of obtaining evidence, which intrudes upon a right to privacy. Kós J stated there was no right to privacy on a public street and no reasonable expectation of privacy, finding an ordinary photograph of a person present on the pavement of a public street should not engage s 21 of NZBORA.
In this case, the entry of Mr Tamiefuna’s photographs in the NIA was unlawful, as it was not permitted by either statute or common law. However, Kós J would not have excluded the evidence for the same reasons as Glazebrook J.
Kós J concluded by stating “What might have been seen as a grey area in 2019 was no longer so grey after [the Joint Report] was published. A different balance might be struck thereafter, in another case.”
Privacy implications
Key takeaways:
- The IPPs can be compelling in determining whether human rights have been breached.
- Despite the current cultural context (including available technology, such as cell phones and CCTV) being on a public street does not mean an individual has no expectation of privacy. Particularly where the state is exercising an intrusive power.
- At [33] the majority stated “there were features of the relevant events that mean the fact [Mr Tamiefuna]’s photograph was taken whilst he was on a public road is not a conclusive factor against the asserted reasonableness of his expectations of privacy. It remains important to preserve a sufficient zone of privacy for individuals. That in turn is a part of preserving the fundamentals of a liberal democracy.”
